Monday, May 23, 2016

Koh Tao Murder Case Appeal

Interpreter, mothers of accused, Thai lawyer
Koh Tao Murder Case Legal Defense Team and Accused’s Mothers Today Submit 200 Page Death Sentence Conviction Appeal to Koh Samui Court

For further enquiries on this press release, please contact:
1. K. Nakhon Chompuchat (Head Defense Team Lawyer nakhonct@gmail.com +66(0)818 473086)
2. Mr. Andy Hall (MWRN International Affairs Advisor andyjhall1979@gmail.com +66(0)846 119209)
3. Ko Sein Htay (MWRN President kzlinn.sein@gmail.com +95(0)9799654086)

Today at 9am a team of pro-bono lawyers working under the Lawyers Council of Thailand (LCT) to defend two Myanmar migrant workers sentenced to death following conviction on 24th December 2015 for the rape and murder of a female British tourist and the murder of a British male tourist on Koh Tao Island, Thailand in September 2014 submitted a 198 page appeal against this conviction and sentencing to Koh Samui Court. The lawyers were accompanied at this submission by May Thein and Phyu Shwe Nu, mothers of the two 22 year old Rakhine accused Zaw Lin and Wai Phyo, who travelled from Rakhine State in Myanmar to Thailand on Saturday to submit the appeal and then visit their sons on death row in high security Bang Kwang Prison in Nonthaburi, where the accused have been held since January.  

The appeal was worked on and finalized over 5 months as part of ongoing efforts by the team of LCT lawyers supported by Burmese, Australian and British translators, assistants and advisors to ensure a fair trial and adequate defense for the two accused. Case witness testimony ended on 11th October 2015 after 21 days of witness hearings involving 34 witnesses and thousands of pages of evidence. In its ruling sentencing Zaw Lin and Wai Phyo to death, the Koh Samui Court ruled last year that the prosecution had proved beyond all reasonable doubt and in using forensic evidence in accordance with international standards that Zaw Lin and Wai Phyo committed the crimes accused of. Today’s appeal disagrees with this ruling and requests Region 8 Appeals Court to reconsider and dismiss all charges against the accused. Once the Prosecution has responded to the defense appeal, Region 8 Appeal Court shall consider the case, likely within 2017, and send a judgement back to Koh Samui Court to deliver.

Hannah Witheridge (23) and David Miller (24) were murdered on 15th September 2014 on Koh Tao, a tourist island in the Gulf of Thailand. The murder investigation was widely criticised both domestically and internationally due to alleged mishandling of forensic evidence and alleged torture both of the two accused and migrant workers living on Koh Tao Island. The challenges faced to Thailand’s law enforcement and justice systems in this case also cast a serious shadow over the safety of tourism in Thailand.

On 2nd October 2014, Zaw Lin and Wai Phyo (Win Zaw Htun), 22 year old migrant workers from Rakhine state in Myanmar, were arrested for immigration offences. Additional charges were then laid against them during questioning for rape, murder and theft related to the killings of Hannah Witheridge and David Miller. The two accused signed confessions during interrogation and also publicly and during questioning re-enacted the crimes.

On 14th October 2014, at a first advance witness hearing in the case, both accused then retracted their confessions to LCT lawyers. Later on defense lawyers received information that the two accused alleged beatings and torture were used during their detention, prior to sending on for questioning by investigation officials, to elicit their confessions made involuntarily. The Migrant Worker Rights Network (MWRN) and rights groups called on the LCT to provide trained lawyers for the accused to ensure they could adequately defend themselves against all the charges so as to ensure a fair trial and also importantly to guard against a potential miscarriage of justice in such a highly publicised and tragic case.

A two month delay in prosecuting the accused resulted from extensive media and diplomatic attention towards the case in addition to calls for justice by the accused, their families and the wider public. This resulted in further questioning of the accused that confirmed that both maintained their complete innocence and insisted their confessions came about involuntary as a result of torture. Multiple criminal charges were then filed against Zaw Lin and Wai Phyo on 4th December 2014 by the Koh Samui prosecutor at Koh Samui Court. The judges heeded calls for adequate time to prepare a thorough defense for the accused and, after a number of preliminary evidence exchange hearings, the trial eventually commenced on 8th July 2015. Case witness testimony ended on 11th October 2015 after 21 days of witness hearings involving 34 witnesses and thousands of pages of evidence.

On 24th December 2015, Koh Samui Court, in a judgement already widely disseminated (unofficially translated by MWRN and available online at https://assets.documentcloud.org/documents/2706254/FINAL-KOH-TAO-JUDGEMENT-English.pdf), fully supported and accepted the arguments put forward by the prosecution and ruled to convict Zaw Lin and Wai Phyo of murder and rape whilst sentencing them both to death. Relying primarily on DNA and forensics evidence collected, analysed and reported by the Royal Thai Police, the Court ruled that the prosecution had proven its case against the two accused beyond all reasonable doubt and in accordance with international forensic standards. The court ruled the defendant’s arguments were unsupported.

The 198 page appeal submitted today to Koh Samui Court outlines in detail key planks of the defense team’s arguments, presented during testimony of its 13 witnesses in court, so as to outline to what extent the defense witnesses should be seen as credible and the ruling of Koh Samui Court overruled by Region 8 Appeals Court. The appeal also considers testimony of prosecution witnesses so as to allow the court to compare the reliability of this witness testimony alongside that of the defense witnesses.

Almost half of the appeal contests the key issues surrounding reliability of DNA evidence accepted by Koh Samui Court as proving beyond all reasonable doubt a certain match between the two accused and the crimes/crime scene ‘in accordance with international standards.’ The defense insists this evidence, including that allegedly taken from cigarette butts, sperm and saliva is wholly unreliable, inadmissible and should not have been considered by the Court in its ruling as it was not collected, tested, analysed or reported in accordance with internationally accepted forensic standards such as ISO 17025 and ILAC G19. The DNA evidence relied on contained many visible errors and raised suspicions of contamination, as accepted by the Court itself despite its ruling. A number of forensic tests not presented in Court except in the form of verbal hearsay evidence included cigarette butts. These tests were however relied on in the Court’s judgement to support the investigation reliability and a certain match between the accused and the deceased female’s body. The appeal insists all of this evidence should not have been considered as satisfying beyond reasonable doubt that the accused violently raped and murdered the female deceased or murdered the male deceased.

In addition, the appeal argues that Koh Samui Court erred in dismissing the defense team’s arguments that:
1.      The case questioning and charging of the accused prior to prosecution was unlawful. The accused questioning after arrest and the process of notifying them of the charges against them were incorrect. The accused were questioned as ‘witnesses’ but it turned out as a confession that stated they confessed to murder and rape. The accused were questioned without lawyers or trusted persons present. The accused were not read their rights as criminal suspects or explained the nature of offences they were charged with. Neither were the accused provided adequate translation and legal representation as required by law and as was reasonable in the circumstances. The accused’s DNA samples were taken from them involuntarily and are hence inadmissible as evidence in court.
2.      The accused’s original confessions cited by the prosecution in court came about involuntarily from torture or abuse, supported at trial by independent medical evidence, which made them fear for their lives and safety in the context of a case investigation when migrants reported systematic abuse on Koh Tao. These written confessions, even if they had been signed, should not have been considered by the Court. Other documents also written for the accused and which they involuntarily signed not even understanding what they were signing likewise should not have been considered by the court also. The videoed or staged re-enactments undertaken by the accused and submitted to the Court were likewise involuntary, staged under threat of violence and should not have been considered or should be inadmissible as evidence in court. 
3.      There was no link between the alleged murder weapon (a hoe) and the accused. DNA samples from the hoe didn’t match the accused DNA profiles but instead matched the DNA profiles of other individuals and hence could not support a murder conviction.
4.      Other surrounding or circumstantial evidence in this case apparently showing the guilt of the accused was unreliable and should have been inadmissible and not considered by the Court. All of this evidence was not collected, tested, analysed or reported in accordance with internationally accepted standards. This includes all evidence relied on by the Court as linking the accused to the alleged crimes such as theft of the male deceased’s mobile phone and sunglasses as well as a ‘running man’ caught on CCTV.
5.      The prosecution case was marked by an absence of significant evidence needed to prove the guilt of the accused for crimes they were charged with and supports the contention that the case against the accused could not be proved beyond reasonable doubt. This absent evidence included photographs of the crime scene, autopsy and DNA analysis processes, chain of custody documents for forensic evidence, certain forensic evidence documents as well as all detailed DNA analysis laboratory case notes. In addition, the clothes and the body surface of the female deceased expected to contain significant traces of DNA of the perpetrators were either not tested at all or tested but not included in the prosecution file or case evidence list. CCTV footage provided by the prosecution seemed to be incomplete and no fingerprint or footprint evidence was presented as part of the prosecution case.

The conclusion stated in the appeal is the opinion of the two accused calling for the Region 8 Appeals Court to issue a judgement dismissing all the charges against them.

Wednesday, May 11, 2016

Indonesia to extend death penalty to rapists

                                                                             

President Widodo of Indonesia again turns to the death penalty as a solution to crime. He ignores the now widespread acceptance that execution is ineffective, and is itself barbaric and inhumane. 
The government is set to impose the death penalty on rapists amid growing public outcry over a series of gang rapes that have shocked the nation. During a Cabinet meeting on Tuesday, the government agreed to impose heavier sanctions, including life imprisonment and the death penalty, on rapists as it considers childsex abuse an extraordinary crime.
If the regulation is passed, the country, which implements a tough drug law that has seen dozens of drug traffickers executed, will open the possibility of delivering more death sentences. The public’s demand for the death penalty has intensified following the rape and murder of a 14-year-old girl in Bengkulu last month, as well as gang rapes in Gorontalo and North Sulawesi.
President Joko “Jokowi” Widodo is set to decide whether the government should issue the new legal basis to deter child molesters during a meeting on Thursday. “[Sexual abuse is an extraordinary crime]. Therefore, extraordinary measures also need to be taken,” Jokowi told reporters after the Tuesday meeting.
The National Commission on Human Rights (Komnas HAM) and the National Commission on Violence Against Women (Komnas Perempuan) have criticized the planned introduction of the death penalty in rape cases.
Komnas Perempuan deputy chairwoman Budi Wahyuni said that executing people, no matter how cruel the crime committed, was barbaric.
Likewise, Komnas HAM chairman M. Imdadun Rahmat said that the death penalty was a human rights violation, regardless of the government’s good intention.
The government is focusing on imposing heavier punishments on adult rapists. As for underage rapists, such as in the Bengkulu case, Law and Human Rights Minister Yasonna H. Laoly said that such cases were lex specialis. “We have the 2012 law on children’s trials [which limit the punishment on minors to half that of adults],” he said.
The Jakarta Post, 11th May 2016

Tuesday, April 26, 2016

Four condemned to death in Vietnam, three of them women one of whom is Thai

                                                                                   
A court in Hanoi sentenced three Vietnamese and a Thai woman to death on Monday for drug trafficking.

Investigation found Nguyen Thi Thuy Trang, 53, from Ho Chi Minh City, learned about the illegal trade in late 2011 and started hiring several people to help her transport drugs across regional borders. 

Police in Hanoi, Quang Ninh Province and HCMC busted the ring in October 2012, seizing 24 kilograms of heroin and more than two kilograms of methamphetamine.

They arrested Trang and three of her smugglers Le Xuan Phu, Phan Thi Lien, and Pornpirom Upapong from Thailand, local media reported.

The members told police Trang was the mastermind and hired them to transport drugs across regional countries including China, Cambodia, Nigeria, Malaysia, Thailand and the Philippines.

Police said the gang also hired some Africans who used money to lure poor Vietnamese women, who had little knowledge about drug laws, into the illegal business. They are still looking for these suspects.
Thanh Niem News

Note: As reported in an earlier item; under a revision, which takes effect July 1, 2016, Vietnam has announced abolition of the death penalty for seven crimes: surrendering to the enemy, opposing order, destruction of projects of national security importance, robbery, drug possession, drug appropriation and the production and trade of fake food.

Wednesday, April 06, 2016

Death Penalty in year 2015

                                                                       
Death Penalty executions have increased by over 50 per cent worldwide in 2015, the highest level since 1989. In its annual report on the death penalty Amnesty International attests to at least 1634 executions carried out in 25 countries. 89 per cent of these executions took place in three countries: Iran (977), Pakistan (326) and in Saudi Arabia (158). Next comes the United States with 28 executions. While countries exercising the wrath of Allah are beyond comment, a French commentator remarks that the US appears to be a country without respect for the most elementary humanist values.

The figures quoted ignore China where such statistics are classified as state secrets. But there is no doubt that China executes thousands each year and surpasses every other country in practice of the death penalty

By contrast, last year, the Congo Republic, Fiji, Madagascar and Surinam abolished the death penalty bringing to 102 the number of abolitionist countries.
                                                                         

Saturday, March 26, 2016

Secrative and Meaningless Executions in Japan

Tokyo - Japan executed two death row prisoners on Friday, 25th March, the justice ministry said, dismissing calls from rights groups to end capital punishment.

Convicted murderers Yasutoshi Kamata and Junko Yoshida were executed by hanging, bringing the total number of people put to death since Prime Minister Shinzo Abe came to power in 2012 to 16.
Yoshida, 56, killed two men in the late 1990s as part of a plot to obtain insurance money, the justice ministry said. She is the fifth woman to be executed in more than 60 years.
Kamata, 75, was convicted of murdering four women between 1985 and 1994 -- and a nine-year-old girl who started screaming as he tried to sexually abuse her.

Justice Minister Mitsuhide Iwaki, who authorised the executions, said they had committed "extremely heinous" crimes that "took the precious lives of the victims for very selfish reasons".

1.       The death penalty is subject to a UN General Assembly vote in favour of a worldwide moratorium
2.       One of those executed is a woman; the execution of women is particularly repellant
3.       The other was 75 years old, exempt from execution even in countries that retain the death penalty
4.       Those condemned to death in Japan are held in solitary confinement for decades and then executed without advance notice.
5.       Two executions in Malaysia, two in Japan, …….

Friday, March 25, 2016

Secretive and Mandatory Executions in Malaysia

From the Guardian, 25th March, 2016
“The execution was done between 4:30 and 5:30 this morning,” lawyer Palaya Rengaiah told the Guardian. “They were hanged to death.
Rengaiah said the families received a letter two days before the execution, advising them to make a last visit to the men and funeral arrangements. He said the men were told on Thursday that they would be hanged on Friday.
Gunasegar Pitchaymuthu, 35, Ramesh Jayakumar, 34, and his brother Sasivarnam Jayakumar, 37, were sentenced to the gallows after they were found guilty by the high court of murdering a 25-year-old man in a playground in 2005. The trio claimed during court sessions that they were acting in self-defence after being attacked by a group that included the victim.
The Malaysian prison’s department said there were currently more than 1,000 inmates awaiting execution, although none had been killed since 2013.
Amnesty International has condemned what it called a “last-minute” execution of the men accused of murder, an offence that carries a mandatory death sentence.
In Malaysia, information on scheduled hangings are not made public before, or sometimes after, they are carried out. Several high-level officials have spoken against mandatory death sentences in Malaysia, a decades-old law that is also imposed on serious drug, treason and firearms offences.
Days after, government minister Nancy Shukri, said she hoped to amend the penal code to abolish the death sentence. “It is not easy to amend, but we are working on it. I hope to table it next year in March,” Shukri told reporters, adding that the punishment had done little to reduce the number of crimes committed. The motion has not been put to parliament.
Executions in one ASEAN country affect the attitude of the others. Ultimately, they will move together to retention or abolition. Against a de facto reduction of executions in the region, the savage executions in Malaysia are a setback for abolition in the whole region. A setback in one country is a setback for all. 
 

Saturday, March 05, 2016

The Matter of RE-ENACTMENT by Royal Thai Police

                                                                       
Bangkok Post reports a reenactment scenario


“KHON KAEN — A 42-year-old woman caught in Waeng Yai district for repeatedly stabbing and burying alive her newborn son confessed she had done it because she did not want him.


Suda Thongdee of Waeng Yai district was taken on Saturday for a crime re-enactment in a paddy field in Non Sawan village in the district, where her newborn child was found buried alive with multiple stab wounds.


She was escorted under tight security as angry people cursed and yelled at her.”


The news account published on the Bangkok Post website of 27th February reports an event which is standard practice in police investigation procedures of crime action, and Thai media compliance with the practice. The account illustrates succinctly the practice and its reporting. In the first sentence guilt is established. The second sentence presents to us visual proof of the veracity of the guilt. The final sentence reports on the acceptance of the sentence by an angry people. Why is this parody of the justice system allowed to continue?

Among the most basic rights of modern justice is “to be treated with humanity and with respect for the inherent dignity of the human person”[1] while in custody. Secondly, is the “right to be presumed innocent until proved guilty according to law”[2]. Finally is right to fair trial “by a competent, independent and impartial tribunal established by law”[3]

The practice of public reenactment is abhorrent to the rights outlined above, rights guaranteed by Thailand’s ratification of the International Convention cited. When challenged for its non-conformity to obligations imposed by a ratified International Convention, Thailand frequently responds that it is not obliged by requirements not yet codified in Thai law. This is a fallacious response as the obligations to make adaptations of Thai law to align it with treaty obligations is itself a binding obligation which cannot be postponed. Even in the interim the obligations have binding power and cannot be ignored.

It is clear that the practice of “reenactment” takes place under some form of compulsion and in the absence of legal counsel to the accused. Guilt is presumed, and the public conditioned to prejudge court decision. On occasion the participant in the charade has suffered violent attack by enraged onlookers.

Publication of the article cited above led to the following comments:

“ There's no excuse for this regardless of the lack of safe havens. A death sentence is appropriate here.”

“May be she should also be stabbed and buried alive as no one want her”

" The woman wasn't some hapless teenage girl, but a middle-aged woman who callously assaulted her baby. I hope she and whoever else is involved feel the full weight of the law."
A subsequent article probed and asserted motivations for the murder. In true Bangkok Post tradition the sources of the later revelations were not revealed, but one can surely identify them as the woman still appears to lack the protection of legal counsel. This website protested in a comment to the Post, but the comment was ignored.
We have received other complaints and accounts of the practice of reenactment and wonder at the immunity granted court decisions when this prejudicial practice continues.  






[1] International Covenant on Civil and Political Rights,  Article 10.1


[2] Idem, Article 14.2


[3] Idem, Article 14.1

Tuesday, February 02, 2016

Death Penalty Congress

"We would like to focus on Asia, since it’s one of the “pockets of resistance” of the abolition."
Message from the press officer of the 2016 Congress.

Any press out there interested to participate please contact:

Sunday, January 17, 2016

Saudi Arabia Executes 47 on 2nd January

One of the world's top executioners, Saudi Arabia, carried out the largest mass execution in the country since 1980, putting 47 men to death on January 2, 2016. According to the Saudi state news agency, all of the men were convicted on terrorism charges, and most were members of Al Qaeda. The mass execution to begin 2016 follows a 20-year high of 158 executions in 2015.
Among those executed were at least four Saudi Shia men, including Sheikh Nimr al-Nimr, a prominent Shia cleric sentenced to death in 2014 after a Saudi court convicted him on a host of vague charges apparently based largely on his peaceful criticism of Saudi officials.  The charges against al-Nimr included “breaking allegiance with the ruler,” “inciting sectarian strife,” and supporting rioting and destruction of public property during 2011-2012 protests in Shia-majority towns and cities. The proceedings of Saudi Arabia’s Specialized Criminal Court, which conducted his trial in 13 sessions over a year and a half, raised serious fair trial concerns, including vague charges that do not resemble recognizable crimes and trial sessions held without informing al-Nimr’s legal advocate.
The 47 executions were carried out inside prisons across 12 different provinces in Saudi Arabia. In each prison, the men were beheaded except for four that used firing squads, according to Reuters news agency.

The execution of Sheikh Nimr has exacerbated Sunni-Shiite conflict in the Muslim world, with a stand off between Saudi Arabia and Iran that threatens peace in the area.

Tuesday, January 12, 2016

Mary Jane Veloso, we remember you

                                                          Mary Jane, a happy birthday
"Mary Jane Veloso was reunited with her parents and two children at a prison in Yogyakarta two days after her birthday, where they presented her with gifts and letters from her supporters in the Philippines.
The 31-year-old was granted a temporary reprieve in April just moments before she was due to be executed alongside eight other convicted drug traffickers, including seven foreigners."

The care of a women for her children and parents is one of the treasures of humanity. It must not be wasted by a meaningless and legally dubious sentence of death.