Persons with an unsound mind are behind bars, when ‘sound mind’ persons move forward ‘justice system’

 
“I am not crazy, they say that I am crazy so that the police won’t conduct the case” said Prachakchai through bars again and again. He still does not understand that the word ‘crazy’ is not an insulting word. However, it may be the only reason for him to obtain his release. 
 
“I am not crazy. I went to see the doctor. The doctor said I am well.” “Thanet”, another prisoner said that after he was examined by a doctor in the prison, but did not receive any diagnosis from the doctor. 
 
“I really don’t remember anything. As I became conscious, I realized that people were standing every where”, Samak told us about the date where he committed an acting of defaming the King (lèse-majesté), which is the most sensitive issue of the era and is considered to be an act against national security according to Criminal Code Section 112. 
 
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Their true story, life and belief.
 
---“Tanet”---
 
On the 2nd of July 2558, before Dawn “Tanet” was arrested by soldiers in his own house at Phetchabun province, and was taken to Bangkok to be charged according to section 112. The accusation based upon the fact that he sent an email to a foreigner, which contain links that would lead to illegal contents. After he was charged, he was detained at Bangkok Remand Prison from that day onwards. 
 
“Tanet” is a made up name of a small-seized man, with the height of around 160cm. His has a skinny and long face. He is polite. Before he was arrested he was 45 years old. He sold agricultural product on the website MisterOtwo.com. He has never been involved in any political movement. However, he believes that he has a similar face as the Crown Prince, since when he was 18 years old, a food seller at the market called him “prince”. 
 
For the last period of 20-30 years “Tanet” believes that because of such face, he was often followed and bullied by an unknown person everywhere he goes. For instance, his shoes were stolen; people put stones on the road while he was riding his bicycle, or when he changed his domicile his neighbor will nuisance him, when he got on the bus the driver usually drive badly and he was also poisoned in his toothpaste, etc… 
 
“Tanet” is a Christian, and rely on fortune telling on the website. According to his elder sister, when “Tanet” travel he would attach a rubber chicken to a stick like a cross and put it in front of his bicycle with a piece of paper stating “The Prince for 20 years” and details of his life incidences in order to communicate with his God. 
 
“Tanet” sometimes hear voices in his head. These voices sometimes talk to him and tell him what to do, including committing a suicide. “Tanet” like to where ear plug so he would not have to listen to these voices. These voices interrupted him once in June 2553 and tell him to send the emails to “help the red shirt people”. He believed and did as what he was told, which lead to his arrest. 
 
According to the diagnostic from Galya Rajanagarindra Institute, “Tanet” has mental illness (F20.0 Paranoid Schizophrenia) and also shows sign of depression. At the present he was able to fight the case. 
 
“If there was no voices, he would not commit the act”, the report specified.
 
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328 112pycho
 
---Samak---
 
On the 8th of July 2557 many news reported about an arrest of an unsound mind person at Toeng district, Chiangrai province, because he was destroying the picture of his Majesty beside the road. Since the act was committed after the announcement that cases concerning section 112 shall be tried by the military court. Samak was detained under Chiangrai military court order.
 
According to Samak, in the evening of that day, he was riding his motorcycle from his home to the market to buy two-kitchen knives. After he bought the knives he put them into his bag. On his way back, he stopped to have a drink not far from his house. He drank quite a lot and around 8 pm he was walking back home. The next thing he remembers was that he was sitting on the ground beside the road. There were policemen, village headman, and reporters. He was holding a knife in his hand. The other knife and his motorcycle were not with him. 
 
“I really can’t remember, the only thing I can remember is that I was drinking, and as soon as I become conscious people were standing everywhere” Samak said. 
 
When he was asked on whether or not he destroyed the picture. He said he could not remember. When he was asked why he was still sitting here to be arrested. He said he does not want to go anywhere. 
 
Before being arrested, Samak was 49 years old, dark skinned, small but tough. He is a farmer and has his own land of 5 Rais. He lives alone and does not have any debt. Other than farming, he also does construction and garden work in Chiangmai. He has never had any interest in politics, and never engaged in political movement. After being arrested, Samak did not have enough money for his bail, as his land still belong to his mother, who died 10 years ago and still have not transfer the ownership to Samak. 
 
Samak’s medical record at Chiangrai Prachanucruck hospital stated that Samak’s type of mental illness is schizophrenia with a low level of IQ equal to 63. His neighbors are well aware of his condition, as having high temper occasionally and even went far as to burn his own motorcycle once.
 
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---Prachackchai---
 
On the 19th of February 2558, Prachakchai went to the Gouvernment house by bus to inform the guards that he will be filing a petition as usual. However, on that day it was the first time he was permitted to enter inside. The official gave him a piece of paper for him to write his complaint. As soon as he handed in the paper he was surronded by polices, and was taken into custody.
Prachakchai was ordered to be detained by the Bangkok Military Court, and was detained at Bangkok Remand Prison, until the 15th of May 2558, when the military prosecutor submitted a one and a half page complaint to the court asking to punish him under section 112, and forfeit the pen which was an object to commit the crime.  
 
Prachakchai’s sister said he does not socialize. He is unable to control himself occasionally. Once his family need to bring him to the hospital. However, because of the family financial status, and the denial of Prachakchai that he is carzy, he was unable to obtain a proper treatment. 
 
Before the arrest, Prachakchai was 41 years old, and work in an aluminium factory. His home town is Srisaket. He has dark skin, a skinny body, and has difficulty in forming his phrases while speaking. He also has cirrhosis because he has been drinking too much alkohol. His condition becomes worst when he is in a stressful situation, which may lead to his death if no proper care is provided. He has never engaged in politics. However, he has a strong interest in politics. 
 
“ Don’t you know that the current one hundred banknotes are fake?” Prachakchai told his visitors. 
 
“Try looking at it carefully, a one hundred banknote must have an elephant with King Naresuan on it, look at what the picture is now, but they compromise to use it.”
 
“In 1994, I was arrested once and told the director of the police station the same thing and he did not do anything to me”.
 
“I am not crazy, they say that I am crazy so that the police won’t conduct the case”.
 
“When I am free I would take a bus here (to the Government house) to file a petition. The security guards remember me. I have always been doing this, but nobody has ever done anything to me” Prachakchai told us about his experiences. He said that he has been conducting such act for more than 20 times already.
 
 
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How does the law govern a person of unsound mind?
 
Section 14 of the Thai Criminal Procedure Code stipulates that “if it can be inferred that the accused or the defendant is insane and therefore unfit to plead the inquirer or court, as applicable, shall order a medical official to hold a psychiatric evaluation of the person in question, and if the evaluation deem that the accused or the defendant is unfit to plead. The court is may sent such person to a hospital or to a care taker”. 
 
Therefore, the police or the court may send the accused in a criminal case to take a medical evaluation when there is doubt that the person sued has a mental problem. If after the evaluation, it is confirmed that the accused or the defendant is unfit to plead, the court is entitle to withhold the procedure of the case and sent such person to receive a proper cure.
 
As for Section 65 of the Thai Penal Code, it allows non-punishment or reduction of punishment for a person, who has committed a wrongful act because of his unsound mind. The wrong doer shall not be punished if he is not be awarded of right from wrong, or he is unable to control himself because of his unsound mind. Nevertheless, if the wrong doer has some awareness of right from wrong or can control himself to some extent, the court may reduce the punishment to any extent that is suitable.
 
In the case where the wrongful act is an act of section 112 of the Penal Code, which has the punishment of imprisonment of 3 to 15 years, if the defendant presents a symptom of mental sick, the court may reduce the punishment to any extent that is suitable, or pending imprisonment. However, during the intense political atmosphere after the coup of 2014, the protection of such person with mental illness is not easily exercised in practice.     
 
 
Under the sensitive political atmosphere, they found themselves trapped between the flaw of judicial system.
 
On the 1th of February 2015 after Prachakchai was arrested from submitting a paper at the house of parliament. He stayed at Dusit police station for only 20 minutes before being release without being charged. However, for a certain reason the official changed his mind and arrested him at the night of the same day during his way back to the factory. Prachakchai was brought to the Dusit police station once again and was accused of lèse majesté. 
 
Thai Lawyers for Human Rights (TLHR) was notified of Prachakchai’s story from other prisoners inside the prison and provided him assistance. However, it was not easy when his relatives never have a medical certificate concerning his mental condition. Thus the lawyers and the relatives submitted a document to the inquiry official to exercise section 14 of the Criminal Procedure Code, but the police declined because he deems that the accused is still capable of answering questions.
 
Later on the lawyers sent a document asking the prison where the defendant is held to send him to cure his mental illness. This request was declined due to the fact that the prison does not have the power according section 14. The lawyers then wait for the prosecutor to file a complaint to the military court and then ask the court to send Prachakchai to cure. Shortly after Prachakchai was detained in prison, he was moved to be imprisoned at correctional hospital because he was diagnosis with cirrhosis.
 
Prachakchai has his first mental examination in July 2015 after being imprisoned for 5 months, and until September 2015 the result of the examination has not come out yet. His relatives no longer has the will to bail him out because they do not have the means. 
“This is too long, This is too much” Prachakchai said to his lawyer. After imprisonment for a period of longer than 6 months, the military court still has not specified the date of procedural yet.   
 
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The case of “Tanet” has similar difficulty as Prachakchai because he does not have a medical certificate before he was arrested. At first, he did not accept that he has metal illness. In the end his relatives and the lawyers were able to convince him to see the nurse at the medical center in the prison. However, when he arrived at the center he did not inform the nurse of his symptom. 
 
“I am not crazy, I went to see the doctor. The doctor said I am well.”, “Tanet” said after the nurse did not sent him for a mental examination with a specialist.
 
“Tanet” seems to be luckier than Prachakchai, since the prison send him to examine his mental state after his relatives and the lawyers tried to summit the document in conjuction with the fact at his mental illness can be observed by prison officers. The procedure for sending and examining took a while and then The Galaya Rajanagarindra Institute certifies that Tanet is a patient after he has detained for 5 months.  
 
The lawyers tried to borrow money from a kind-heart person to bail him out, but the court refused for the reason that, “the act according to the accusation circulates of the untruth that effect the feeling of the people and aim to cause damage to the Institution that is most respected by the people. In addition the act concern national security. The circumstance of the case is severe, and the defendant may flee.” 
 
After receiving the medical certificate the court still refused the bail request for the reason that “if such illness reach a severe level where the prison cannot achieve the safety of the defendant’s life, he shall be sent to the doctor to cure him…” 
 
On the 8th of May 2015 the schedule for witness examination, doctor Duangta from the Galaya Rajanarindra Institue testified that the mental state of the defendant is not at the stage of insanity according article 14 of the Criminal Procedure Code. However, the defendant has mental illness according to the medical examination.  The defendant claims that he sent the link by forwarding it in the mail to help the people. He was not aware of the wrongful act. The defendant’s brother has the same illness. The illness of the defendant maybe cause by genetic. This illness cannot be cured, but the severity of the illness maybe reduces with proper care. 
 
The case of Tanet may have some hope, because all of his conditions have been presented to the court. The court then can reduce the defendant sentence according to section 56 of the Criminal Procedure Code.                      
 
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In Samak’s case, it would be easier to begin with because he has a doctor’s certification certifying that he has a mental problem. 
 
Even though he could not remember the incidence, in the legal proceeding, Samak admitted that he was the one who destroyed the Royal portrait. Since mental illness was raised as a denfense, the court cannot immediately punish the defendant. The decision must be made with regard to the facts. In the legal procedure of an ordinary cases, the court could use the “inspection process”, that is, to let the Department of Probation look into the behavioral history, the illness of the defendant and send the information to the court so the court can exercise its discretion on the severity of the punishment. Such process could take around 1-2 months and the court can render its decision. 
 
However, the military court does not have the inspection process. Therefore, in Samak's case, it was necessary to conduct full witness hearings. 
 
On 12 January and 10 February 2015, the witness examination days, the military prosecutor did not try to ask the witnesses in a prejudicial way to the defendant. He summoned the village chief and the assistant village chief to the court and both confirmed the defendant’s mental condition.          
 
In another perspective, the military court did not use the continuous legal proceeding appointment system. If any witness could not finish his testimony in one day or if the witness does not come to court, the schedule would be postponed for 1-2 months. After finish one testimony, the schedule of the next witness would also be the next 1-2 months, both of which prolonged the process. 
 
10 July 2015, after being imprisoned for 1 year, the prosecutor said that there were still seven witnesses left. Samak told his lawyer that he did not want to proceed in the legal proceeding anymore. He wanted to confess to the court to make it all end because the whole process takes too long and he was stressed while he was imprisoned.  
 
“If the court give you 5 years and reduce to 2 and a half year, would that be OK?” The lawyer asked.
Samak bended down his head and had a little smile but no answer.
 
Samak’s lawyer submitted a closing statement requesting the court to give a light sentence and suspend for an opportunity of the defendant to receive a treatment. Because Samak confessed, the fact about his mental condition was not officially presented to the court.
 
 
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Then the court determines their fate
 
6 August 2015, the Chiang Rai Military Court, rendered the decision of Samak case.  By destroying the Royal portrait with a kitchen knife, he was to be imprisoned for 10 years in accordance with section 112 and fined for 100 baht for carrying arms in public. Since the defendant confessed, the punishment was reduced by one-half; 5 years imprisonment and fined for 50 baht. The Court read the decision without mentioning anything about the defendant’s mental condition.
 
“It’s too long…” Samak said, facing down, accepting his fate.
 
25 June 2015, the Criminal Court rendered the decision of “Tanet”. By sending emails according to the whispering in his ears, he was to be imprisoned for 5 years in accordance with section 112,116, and the Computer-Related Crimes Act 2007. The punishment was reduced to 3 years and 4 months imprisonment due to the defendant giving benefitial statements.         
 
The court provided the reasoning that the defendant can give statements ordinarily and his condition is like a normal person. The defendant gave a detailed, step-by-step statement on the offense. The defendant can make transactions on the internet. Not convinced that at the time of committing the offense, the defendant does not know right from wrong or could not control himself, the defendant cannot raise his mental condition as a defense to exempt punishment.
 
“Thank you everyone, for the past period.  I want it to end. I don’t want to appeal anymore.” “Tanet” said to his lawyer hopelessly, after knowing the result of case.
 
As for Prachakchai’s case, the legal proceeding has not yet been scheduled. His fate still needs to be determined. 
 
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As far as the Freedom of Expression Documentation Center has recorded, within 5 years before the 2014 coup, at least 3 people with mental illness were arrested and prosecuted under section 112. After the coup, at least 53 people were arrested and charged with section 112, in which at least 5 people have mental illness, and many more say things “in circles” but their intelligence are complete.
 
Those who are interested in social and political issues even a little would already know that in the current political atmosphere, saying things about the beloved King of Thai people is the most sensitive issue. Section 112 is a law that comes with harsh punishments. Those who violate this law, if not with a firm belief, would have to have “craziness” accompanying them.  
 
“I do not understand. I confessed everything all along. Why, when I have a doctor’s certification on mental illness, the court give a more severe punishment”. The shout came from behind the bars. “Tanet” still does not understand the result of his case. He does not understand that the court does not believe the result of the medical examination on the certification.
 
Currently, Tanet’s case, according to the law, has exceeded the period for appeal. The decision was final. 
 
The atmosphere at the military court of Chiang Rai was relaxing. All day, Samak’s case was the only case. After leaving the courtroom, the correctional officer pointed his hand for Samak to walk into his cell. With rusty chains tied around his legs, a farmer with low IQ walked in slowly. He turned back, pushed the cell door, locking himself inside. Then he walked in, sitting alone peacefully in the corner of the cell. Almost four years is needed for him to come out and see the outside world again. 
 
Samak’s case was final. Legal proceedings in military courts have no right to appeal.  
 
 
 
See the case detial of "Tanet" at  http://freedom.ilaw.or.th/en/case/614
See the case detial of Samak at http://freedom.ilaw.or.th/en/case/584
See the case detial of Prachakchai at http://freedom.ilaw.or.th/en/case/666