The Asian Human Rights Commission (AHRC) deeply regrets, but is not surprised, that the five defendants who were earlier convicted for theft and illegal detention, in connection with the disappearance of human rights lawyer Somchai Neelapaijit, have all been exonerated in an Appeal verdict. The court ruled to acquit all the defendants on procedural and technical grounds.
In our previous appeal (AHRC-UAU-015-2011), we mentioned that the Criminal Court in Bangkok was to read the appeal verdict on the case of Somchai Neelapaijit, which was earlier postponed in February 7, 2011. The reading of verdict on March 11, 2011 marks the eve of Somchai's disappearance seven years ago. For more details, visit this campaign website.
When the appeal verdict was finally read, after numerous postponements, on March 11 all parties were present to hear the Appeal verdict at the Criminal Court. The reading was held at court room no. 913 at 9am. Somchai's wife, Angkana; his daughter, Prathabjit; several persons from non-governmental organizations (NGOs), staff from Embassies and journalists were present to hear the verdict.
Angkana and Prathabjit appeared as first joint-plaintiff and third joint-plaintiff respectively. The others who were present to hear the verdict were lawyers of the four defendants. The other defendant, Police Major Ngern Thongsuk, whom his family claimed had been missing, was not present in court.
Before the appeal verdict was read, the judge informed the guarantor of Ngern that the subject of the Appeal that the court has to resolve involves two issues: Firstly, the appeal against the reading of the verdict; secondly, the appeal asking not to seize the guarantee money because Ngern has disappeared and did not escape.
In ruling the first issue, the judge rejected the appeal against the reading of the verdict; thus, the reading pushed through.
THE APPEAL VERDICT
Somchai's wife, daughter could not be plaintiffs
The Court ruled that Somchai's wife, Angkana; and his daughters and son including Prathabjit, could not be considered as joint plaintiffs because legally they could not act on behalf the "injured person or death person", in this case the disappeared victim Somchai, to institute a criminal prosecution based on the conditions provided by sections 5 and 28 of the Criminal Procedure Code (CPC).
Under section 5 of the CPC, it requires that the "wife" and "descendants" of the injured person in the prosecution of criminal offenses "may act on (his/her) behalf" if they could show that "the injured person had died or is unable to act by himself". A similar condition also applies under section 28 of the CPC, which defines as to who "are entitled to institute the criminal prosecution in the Court".
In the court's verdict, in argued that the petition that Angkana and her children's lawyer had submitted to be considered as joint plaintiffs at the early stages when the trial began, did not show that Somchai has been assaulted to death and that he was disabled and had died.
Thus, even if Angkana is Somchai's legal wife and that their children were his legal son and daughters, they could still not be considered as joint plaintiffs as required by the CPC. The verdict also said that the petition that was submitted urging them to be joint plaintiffs did not explain anything about the cause that could have shown that Somchai had been injured, he had died or had been disabled. Also, the criminal offense that is subject for prosecution of the defendants does not involve assault or killing.
Testimonies of eyewitnesses are not enough evidence
The Appeal Court also ruled that for 2nd (Pol. Major Sinchai Nimpunyakampong), 3rd (Pol. Sergeant Major Chaiweng Paduang) and 4th (Pol. Sergeant Rundorn Sithiket) defendants, that there were not enough evidence that could link them or involve them in the incident because the eyewitness could not remember their faces. The eyewitnesses also did not identify the defendants in open court room when they were testifying in court.
With regard to the 5th defendant (Pol. Lieutenant Colonel Chadchai Liamsanguan), he was not present at the place where the incident happened. Even though there have been records of his communications with other defendants when the incident happened; however, the record that the prosecutor had submitted in court as evidence is only a photocopy of the original document. The prosecutor who submitted the evidence also did not present in court the person who made the copy to testify.
The court also ruled as inadmissible the other documents which had been certified as true copies that the prosecutors had submitted. It ruled that although they had been certified as true copies from the original documents by a lawyer of the company; however, the lawyer did not made the photocopy of the document himself. Thus, the lawyer did not know what the original documents were because he was not the one who made the copy. Again, the prosecutor also did not bring the person who made the copy to give testimony.
Therefore, the Court ruled that the documents could not be admitted as evidence thereby effectively exonerating the defendants. There is no evidence, according to the Appeal Court, that could show how the 5th defendant had indeed communicated with the other defendants when the incident happened.
Four eyewitnesses could not positively identify
For the 1st defendant, the Appeal court also ruled that regarding Police Major Ngern Thongsuk, all the four eyewitnesses against him did not point at him and identify him in open court as the person responsible for Somchai's disappearance.
One of the eyewitnesses, a woman, was close to where the incident had happened; however, the Appeal Court ruled that when she was investigated on three occasions, at first questioning she could remember the appearance of Ngern but on the second and the third questioning she was no longer sure whether she could still remember him. This is also the case for other eyewitnesses in that they could not confirm his identity.
The Appeal Court also ruled that it would have been impossible for the eyewitnesses to have identified Police Major Ngern because the place where the incident had happened was dark and the lamppost at the path walk had also been covered by a tree. Thus, the benefit of the doubt should be afforded to Police Major Ngern. Anyhow, Police Major Ngern has to be detained during the Supreme Court.
After verdict has been read, the AHRC is further concern about security of Angkana and her family. In our previous appeal (AHRC-UAU-005-2011), we have mentioned the continuing threats and intimidation on Angkana and her family. However, none of the reports of threats and intimidation, which Angkana had already reported to the Department of Special Investigation (DSI) and police, have been investigated.
Also, the broken CCTV in front of her house, which could have helped in monitoring their security, has not been fixed by the DSI and the police, who has full responsibility to protect her and her family as required by the witness protection programme.