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THAILAND: The role of the justice ministry in a travesty of justice--an analysis of the Court of Appeal acquittal of all police in the Somchai Neelaphaijit case and the situation of his family

An Open Letter from the Asian Human Rights Commission to the Minister of Justice, Thailand

Thank you for your letter of 15 March 2011 (No. 0808/1379) to the staff of the Urgent Appeals Programme, Asian Human Rights Commission, concerning the case of Somchai Neelaphaijit, a human rights lawyer whom police abducted from his car on 12 March 2004 at a time that he was representing clients whom police had tortured, and whose case remains unsolved and whose whereabouts are unknown to the present day.

I refer to two points in your letter. The first concerns the judicial process in the case against the five police officers accused of abducting Somchai. The second concerns persistent fears for the safety of his family.

Firstly, in your letter you state that "if the Court of Appeal confirms the judgement of the Criminal Court to sentence Police Major Ngern Thongsuk, the first defendant, to imprisonment, it will be very helpful for the Special Investigation Officer Team [of the Department of Special Investigation, Ministry of Justice] to complete the investigation file", which has been with the department, we add, for some five years now.

I regret to note that the Court of Appeal already handed down its judgement on March 11, a day before the seventh anniversary of Somchai's abduction, and four days before your letter was dated. It does not give us confidence that neither you nor staff members of your ministry was aware that the ruling had already been issued when the letter was signed and sent.

As you were apparently unaware that the Court of Appeal had given its judgement, and as you may still not be aware of this significant 59-page ruling, allow me to inform you of some of its key contents, which the AHRC has studied.

1. The case against all defendants was dismissed. The one policeman of the five convicted in the Criminal Court, Pol. Maj. Ngern, had his conviction overturned. Thus, there is now no longer even a single state officer who has been found guilty of an offence in this case, despite officials at the highest levels of government, including the former premier, Pol. Lt. Col. Thaksin Shinawatra, stating publicly that they knew that state officers were responsible, and despite the court of first instance also having indicated the same.

2. The Court of Appeal based its ruling on a lack of evidence against the accused. This is not because evidence did not exist but because the court ruled that it was not admissible. Specifically, the telephone records of the five defendants, which showed clearly that they were in contact with one another in the days leading up to the abduction and in the vicinity of the scene of the crime were not admissible, because they were not original or certified copies of the records.

3. The Court of Appeal also removed the wife and children of the disappeared man from being co-plaintiffs in the case, which has serious implications on their rights and capacity to be able to represent the family's interests in any further legal actions. The reason that the court gave for removing them was that under section 5(2) of the Criminal Procedure Code, a co-plaintiff must only be of a deceased person or a person who is unable to act for him or herself. In this case the court ruled that the victim did not meet those criteria.

It is fair to say that the travesty of justice began in the Criminal Court and wrought upon the victim and his family has been further enlarged through the appeal court's ruling. The question remains as to what you and your ministry will do about it. In that regard, I put to you the following specific questions, in light of the above facts:

1. Why was it not possible for DSI investigators of your ministry to obtain original or certified copies of the telephone records that would prove the relationship between the accused and link them to the scene of the crime? Presumably, as these records are of electronically stored data, the data still exists somewhere and could be produced in court if found and if the telecommunications providers concerned could be legally obligated to produce it. As this is a case involving the abduction and presumed killing of a person, please explain to me, what is the legal or institutional failure preventing the collection and presentation to court of evidence that would satisfy its procedural requirements?

2. The removal of the family from the case as co-plaintiffs as per the Criminal Procedure Code raises the problem of a huge lacuna in the criminal law of Thailand, and that is, if someone or a group of persons is successfully able to abduct, kill and dispose of the body of a person without any remains being found, as in this case, then practically no type of effective criminal action can be taken against them. The family cannot be a party to the case, and furthermore, no criminal offence can even be shown to have been committed. This lacuna is underscored in the present case by the absurd character of the charges against the accused, for coercion--the act of bodily forcing the victim from his vehicle--and theft of his property, the vehicle itself, but not the act of presumed killing and disposal of the body. Under international law, this act is now recognized globally as enforced disappearance. At present, a new convention on enforced disappearances is being established with global effect. I ask you, when will Thailand sign this convention, and when will it introduce a law to criminalize enforced disappearance and make amendments to its criminal law accordingly?

Secondly, with regards to Somchai's family, as you were apparently unaware of the abovementioned ruling, you may also not be aware of the true, precarious security situation of this family, which is subject to constant harassment and threats:

1. CCTV equipment that was installed at the front of the family's house has been broken for some time. Despite repeated requests to have it fixed, so far it has somehow been beyond the resources of your ministry to do even this much. As such, at present if intruders come to the family's residence there will be no footage taken of what transpires.

2. The family has been subject to threatening telephone calls. When they complained to the DSI about this and asked for some investigation, they were informed that if they wanted to know who was calling, they could contact the telecommunications firm to find out. In light of the recent ruling on inadmissibility of evidence in the case of Somchai, perhaps the personnel concerned were being ironic, or simply insensitive and disinterested. In either event, the DSI's response trivializes the family's genuine concern for their safety.

3. A large bone, too big to be carried by a dog, was left on the doorstep of the family's premises recently, and this incident both the family and the AHRC have brought to the attention of the DSI; however, when AHRC staff met DSI personnel in Bangkok and raised this matter it was brushed aside as if the family were being paranoid and it was nothing to worry about at all. The unconcerned attitude of the DSI personnel surprised and disappointed our staff, given that the bone is just the latest in a string of incidents at the front of the family's residence, including a previous case where both cars belonging to the family were broken into by intruders who were apparently not interested in theft of items like CD players and other valuables. It is also alarming given that the AHRC knows from many years of work with human rights defenders and the families of victims of extrajudicial killings and torture in Thailand that violent attacks are usually preceded by a series of warnings of this sort: indeed, Somchai was himself the target of such threats, which he disregarded, right up to the moment of his abduction.

In light of the above, your statement in your letter that "the Department of Special Investigation has already instructed their responsible staff to take special care in providing witness protection to Mrs. Angkana Neelapaijit and members of her family" is either false or the responsible staff are failing in the duties that they have been assigned. In either case, the situation of this family--at the present time especially, given that they must now weigh up whether or not to approach the Supreme Court to take further action over Somchai's disappearance or resort to other avenues--is completely unacceptable, and the Asian Human Rights Commission asks you again as to what your ministry will now do about it.

The case of Somchai Neelaphaijit is only one of thousands of its type in Thailand during recent years; however, you would understand that it is a case that has attracted intense international interest, and will continue to attract this interest until the culprits are brought to justice and the true facts of his abduction and killing are known. Therefore, I urge you to take these questions seriously and I look forward to your prompt reply.

Yours sincerely,

Wong Kai Shing
Executive Director
Asian Human Rights Commission, Hong Kong

Copies to:
United Nations Special Rapporteur on human rights defenders
United Nations Working Group on enforced and involuntary disappearances
Office of the High Commissioner for Human Rights, Regional Office, Bangkok

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