Does Thaksin Shinawatra qualify for ‘outside prison’ confinement?

Today (September 9), all eyes are on the political and judicial landscape as the Supreme Court's Criminal Division for Holders of Political Positions reads the verdict in the "14th floor" case involving former Prime Minister Thaksin Shinawatra.

The case concerns the final enforcement of his sentence and his access to medical care while incarcerated.

Thanakrit Vorathanatchakul, an expert prosecutor, explained the criteria for external detention in Thaksin's case, particularly referring to the Department of Corrections' regulations on locations for confinement outside of prison.

These regulations outline the following key points:

Residential confinement

In order for a detainee to qualify for residential confinement, they must meet the following criteria:

They must be a convicted criminal, serving a first sentence, or sentenced to a term of imprisonment not exceeding four years. If the sentence is reduced due to a royal pardon, the most recent sentence reduction applies.

The detainee must have undergone assessment by the prison’s classification committee, which determines a personal sentence plan. Additionally, the detainee must voluntarily agree to serve their sentence in a location other than prison and have a low risk of re-offending.

The individual must not have previously been transferred to another confinement facility and violated conditions during such a transfer. They must also not have been convicted of certain crimes such as terrorism or drug-related offenses.

Medical facility confinement

A detainee may be transferred to a medical facility under the following conditions:

The detainee must be a convicted criminal whose sentence has been finalised, suffering from a serious illness that cannot be cured, requiring continuous medical care, or in a critical state, at risk of death or permanent disability, or unable to perform daily tasks independently.

A medical certificate from two government doctors must be provided to support the claim.

The regulations also outline conditions for the use of electronic tracking devices and surveillance cameras in external detention facilities, ensuring compliance with additional criteria during the detainee's confinement.

Why Thaksin may qualify for detention outside prison

Thaksin, now a convicted prisoner, is currently receiving medical treatment outside the prison under the Ministerial Regulation on the Transfer of Prisoners for Treatment Outside Prisons, BE 2563 (2020).

According to the regulation, when a prison warden receives a report that a prisoner is ill, has mental health issues, or suffers from contagious diseases, they must first seek treatment within the prison's healthcare facilities. 

If the prisoner’s condition does not improve, they may be transferred to a public hospital outside the prison for further treatment, with the prison warden following the medical professionals' recommendations.

According to the new regulations, there is a provision regarding extended medical leave, which states:

“If the medical leave exceeds 120 days, written approval must be obtained from the director-general of the Department of Corrections, along with the treating physician’s opinion and any relevant supporting documents. The Minister must also be informed.”

Steps for considering "external confinement"

Under the new regulation, some detainees may be confined in places other than prison. The process for considering this alternative confinement follows several key steps, with decision-making authority at each stage:

Step 1: Proposal for consideration
The process begins with a working committee tasked with reviewing the qualifications of each detainee to determine whether they meet the criteria for "external confinement." The committee then compiles a list of candidates and submits it for consideration by the prison warden.

Step 2: The crucial decision of the prison warden
Once the prison warden receives the list, two possible outcomes arise:

• Approval: If the commander agrees with the proposal, the matter is forwarded, along with a plan, to the director-general of the Department of Corrections for final approval.
• Disapproval: If the commander disagrees, the proposal is rejected, and the detainee's name cannot be reconsidered for another five months to prevent redundant proposals.

Step 3: Approval from the director-general and public disclosure
This is the final and most important step. If the director-general of the Department of Corrections approves the proposal:

• Public disclosure: The Department of Corrections will publish information about the confinement location on its website to ensure transparency and allow the public to verify the process.
• On-site inspection: The prison warden will send staff to inspect the proposed confinement site to ensure it meets the necessary conditions.

Step 4: Monitoring and compliance
Once approved, the detainee is transferred to the designated location. The facility’s management is responsible for ensuring that the detainee adheres to the agreed-upon conditions and restrictions.

Step 5: Revocation if terms are violated
If, during the period of external confinement, the facility proves unsuitable or the detainee fails to comply with the established rules, the working committee has the authority to revoke the approval.

This means the detainee will be returned to prison to serve their sentence. The revocation ensures that "external confinement" remains a tightly controlled process, following strict regulations.