The truth is sold short as justice comes only to those with money
I never questioned the driver’s intention. I don’t think he wanted to crash into the bike trailer and kill my husband. But he did
published : 17 May 2015 at 06:19
newspaper section: Spectrum
On April 22, I took the 8.30am train from Khon Kaen to Bua Yai, a small town in Korat, for an appointment with the public prosecutor.
Two days earlier, following a fruitful meeting with the law professors at Khon Kaen University (KKU), we had decided the best course of action was for me to speak with the prosecutor directly rather than do it through a private attorney.
Despite what the KKU professors said about my low chances of appeal, I believed it was what the prosecutor thinks and whether he’s on my side that matters. I hoped to be able to convince him to appeal.
I presented the prosecutor with the 12-page Thailand Accident Research Centre (Tarc) AIT Report, produced for a transport forum in Bangkok, which used our accident as a case study and explained clearly the cause of the accident, the injuries Francisco and I suffered, and the damage to the vehicles involved. I asked him if he could use this comprehensive report as the basis of an appeal against the first court ruling.
The first ruling on March 25 was based on the police report which said Mr Tiwarat had dozed off, not on the Tarc Report which showed clearly that a reckless attempt at overtaking was the cause of the accident. This report was presented at a forum on Friday, March 20, but I didn’t know about it until the following Monday when the Chilean consul, who attended the forum, told me about it.
The prosecutor flipped through the report and pointed to a specific paragraph, as if he was looking for something to confirm what he wanted to tell me.
Crash scene: The pickup involved in the fatal accident. The driver has been sentenced but the victim’s widow has been left feeling frustrated.
“The accident was unintentional,” he said.
I don’t understand why he’d want to emphasise this point. An accident is by definition unintentional.
In the first place, I never questioned the driver’s intention. I don’t think he wanted to crash into the bike trailer and kill my husband. But he did.
“OK, the accident was unintentional,” I said. “But he tried to overtake illegally by driving on the left shoulder. He didn’t wait for the truck in front of him to finish changing lanes to the right. Had he waited, he would have seen us on the left shoulder and probably would not have decided to overtake.”
But I didn’t get to finish what I’d wanted to say. As soon as I mentioned, “But he tried to overtake illegally by driving on the left shoulder…” the prosecutor interrupted. “That’s what most drivers here do.”
So, what do you mean? Are you trying to excuse the driver? If enough people do it, does that make it OK? Being the norm does not, and should not, excuse a wrong.
“That’s the first point — you agree the driver didn’t have the intention of killing your husband, right?” the prosecutor continued. “Let’s move on to the next point.”
By now, it was obvious to me the prosecutor wasn’t interested in listening to my point of view; clearly, he just wanted to explain his points and try to close the case. I noticed there were many other case files on his desk.
Thailand has the second-highest rate of road fatalities in the world, after Namibia. And since the Songkran Festival — when road deaths reach their peak at about 40-50 per day — had just ended, I understand he had piles of cases to deal with.
“Mr Tiwarat pleaded guilty and according to Thai laws, that will reduce his punishment,” the prosecutor said.
I protested: “But even though he’s been given a two-year sentence, it’s suspended. He’s not in jail; he’s free. What kind of punishment is this?”
In Singapore, the maximum penalty for the offence Mr Tiwarat was convicted of — dangerous driving causing death — is a fine, up to five years in jail, or both, as well as a potential driving ban.
“According to Thai laws, once the judge has delivered the sentence, the punishment cannot be increased; it can only go down,” the prosecutor said. “Mr Tiwarat cannot be punished further.”
What do you mean? The driver cannot get a fair punishment that matches his crime?
Suddenly, the prosecutor asked about how much money I had received other than the 100,000 baht in compensation Mr Tiwarat had paid me. I had been given 200,000 baht from KSK, Mr Tiwarat’s compulsory third-party insurance provider. They came during my husband’s funeral and handed me a big novelty-sized cheque for a photo opportunity. (Had I won a prize?) I regretted taking a photo with them in such bad taste.
The Ministry of Tourism and Sports had said it would give me 300,000 baht and the Ministry of Justice was supposed to pay 35,000 baht under the Compensation and Expenses for Injured Persons and the Accused Act. But an officer from the first ministry, who has been helping me to expedite the payment, said the Ministry of Justice was considering withdrawing the 35,000 baht since her ministry was going to pay me. Whatever its decision, I haven’t received the promised sums from either ministry.
“Why are we even talking about this? This is between me and the insurance company. I didn’t come here to talk about this. I want to know if you can appeal on my behalf,” I told the prosecutor.
“According to Thai law, the case is over,” he responded. “Mr Tiwarat didn’t kill your husband intentionally, he paid you compensation of 100,000 baht and you signed the agreement.”
Record attempt: Chilean cyclist Juan Francisco Guillermo Villa was trying to break a Guinness World Record for cycling across five continents. However, he was killed in a road accident in Nakhon Ratchasima on Feb 21 and his widow has struggled for justice.
‘THEY TOOK ADVANTAGE OF ME’
The agreement the prosecutor referred to was what nailed me. It was signed on March 5, while I was still hospitalised and under medication. That was four days before the police concluded their investigation, and two days before my husband’s funeral. What upset me most was that the interpreter, who came with Mr Tiwarat, did not explain the agreement completely.
I was not told the agreement included the following two points: That I promised not to seek more compensation from Mr Tiwarat through criminal or civil proceedings, and that I would not be concerned about the judge’s sentence.
I remembered when they arrived they told my friends to leave my room. I should have asked them why. But everything happened so suddenly, and I’d had many visitors coming in and out of my hospital room, and it was the norm to sign something minutes after some form of official communication.
In hindsight, they actually took advantage of my lack of language ability and the “unsettledness” of my situation to trick me into signing this unfavourable agreement.
“Yes, I signed the agreement. But can it be overturned? The interpreter didn’t explain it completely; and in fact, my name is not spelt correctly and it doesn’t even have my passport number,” I said. “In Singapore, all official documents require both the name and ID number because there may be another person with the same name.”
“This is Thailand. Thailand is different from other countries. Thai laws are different,” the prosecutor replied. “If you want to open the case, you have to get a private attorney.”
“OK, if I get a lawyer, where is the court hearing? Still at Bua Yai? Can the case be transferred to Bangkok [where more English-speaking lawyers are based]?”
“No, the hearing will be at Bua Yai because that’s the site of the accident,” the prosecutor said. “If you get a lawyer to appeal, you’ll have to spend a lot of money and the court hearing may take years. Tell me how much the driver’s private car insurance will pay you.”
Despite several negotiations, KPI, Mr Tiwarat’s private car insurance provider, still insists on paying me the same low amount which is divided into three parts.
For third-party liability for death, KPI will pay me 300,000 baht, which I accept since that is the policy’s upper limit.
For third-party liability for property, KPI only asked me about the cost of our bikes, so I told them it was about €2,000 each. So, KPI proposed 150,000 baht against a 600,000 baht limit. But in the next negotiation, the asked me for the cost of the bikes and related equipment.
I told them I had to wait for the contract from the company in Chile that sponsored most of our equipment. In the contract, the equipment costs 1,313.69 Chilean Pesos, or about 75,000 baht. So, for damage to property, KPI should pay a total of 225,000 baht.
But I asked for the upper limit of 600,000 baht because if my husband had the chance to complete his feat of cycling five continents in five years for at least 250,000km, he could have won prize money of US$200,000, and the value of the bike that helped him to accomplish the feat would have been priceless.
For third-party liability for bodily injury, KPI is only willing to pay 180,000 baht against a limit of 300,000 baht per person. This is unfair as KPI has lumped Lukas and myself together as one person, and refuses to pay us separately. Isn’t Lukas a person?
So KPI is only offering me 630,000 baht in total, less than US$20,000. In the proposal that KPI asked me to write, I asked for the upper limit for all parts.
Thus, I asked for a total of 1.5 million baht. I know insurance companies pay by the terms and conditions of the contract, but I appealed to their compassion too and gave them five reasons to pay me the maximum.
The prosecutor wrote down “750,000 baht” on a piece of paper. “Try to ask them to pay you this sum,” he said.
I wondered how he decided on that amount.
So, is justice not important? Is it unreachable in Thailand? That’s why he’s telling me to focus on getting more money from insurance and move on instead?
Recovery with complications: The widow of Chilean cyclist Juan Francisco Guillermo Villa, Baoling, and son Lukas in hospital in Bua Yai, Nakhon Ratchasima.
NO SENSE OF SATISFACTION
“Are you satisfied?” I was taken aback by the question. The prosecutor didn’t seem sarcastic.
How could I be satisfied when the court ruling was not based on truth but instead what’s favourable to the driver?
How could I be satisfied when nobody told me about the judicial proceedings and as a result I missed the only chance to be a joint plaintiff with the public prosecutor — and even missed the first, and most important, court hearing on
How could I be satisfied when the man who killed my husband, made me a widow and rendered Lukas fatherless at such a tender age walks free, with practically no punishment at all?
How to be satisfied when the prosecutor, who’s supposed to fight for the victim, didn’t even read the Tarc accident report completely, was not keen to listen, and just wanted to close the case?
During the meeting, the prosecutor repeated many times, “This is Thai law. Thailand is different.”
But he made no mention of justice, said nothing about the truth or what really happened. He emphasised how things are done here, instead of how things should be or how to improve the situation.
Without money, the man on the street cannot get justice.
With money, the man with a fat wallet can escape punishment.
And the Thai people accept this, and live with it?
I think Thailand is under a curse. n