A Human Rights First White Paper

Trial Monitoring Report

The Disappearance of Somchai Neelaphaijit

February 21, 2006

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Drawing by Chumpol Akkapanpanonta

Trial Monitoring Report

The Disappearance of Somchai Neelaphaijit

Bangkok, Thailand

Introduction

The inquiry into the disappearance and apparent killing of the prominent lawyer and human rights

defender, Somchai Neelaphaijit cannot be separated from problems endemic to the Thai legal system, and

in particular to deteriorating human rights conditions in southern Thailand. Despite Thailand?s reputation

as a human rights leader in the region following the withdrawal of the military from politics in the early

1990s, its human rights record has deteriorated over the last five years. A culture of impunity for

violations by state officials, increasing insecurity for human rights defenders, escalating violence in the

south involving state forces and the minority Muslim population, and a loosening of rights guarantees due

to overly broad anti-terrorism decrees have all undermined the rule of law.

Somchai Neelaphaijit was last seen near the Chaleena Hotel in the Ramkamhaeng area of Bangkok on

March 12, 2004. His car was later found abandoned with a fresh dent in the back, suggesting it had been

rammed from behind.

Somchai was a prominent Thai Muslim lawyer known for his success over two decades of defending

clients accused of offenses relating to national security, terrorism, and insurgency in the troubled southern

provinces of the country. He served as chair of the Muslim Lawyers Club and vice-chair of the human

rights committee of the Law Society of Thailand (now the Lawyers Council).

Human Rights First decided to monitor the trial of those accused in his disappearance because of his

prominence, and because his case is emblematic of an increase in both attacks on defenders and

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disappearances in Thailand. The trial convened for several days every few weeks from August to

December 2005. In two trips to Bangkok, a representative of Human Rights First attended six days of the

trial and also interviewed Somchai?s family members and colleagues, prosecutors, officials from the

Ministries of Justice and Foreign Affairs, and local observers. The defense team declined to be

interviewed.

Based on this information we have prepared the following report describing the events of the trial,

evaluating its fairness, and making recommendations for future legal proceedings.

Context

It?s a shame for the country that someone who works to keep the rule of law was abducted. How can

ordinary people get protection when the lawyer himself wasn?t spared?

?Senator Sak Korsaengruang1

Non-governmental organizations and United Nations bodies have extensively reported flaws in Thailand?s

criminal justice system. In July 2005 the U.N. Human Rights Committee cited widespread reports of

torture and inhuman and degrading punishment committed by law enforcement officials and noted that

few investigations result in prosecutions.2

In the south a long-dormant insurgency has reignited in new and violent ways in recent years. Violence

and arbitrary arrests were not uncommon, but both reached a new level following a January 4, 2004 raid

by unidentified attackers on a military arms depot. Four military guards were killed and several hundred

guns were reported stolen in that attack. The same day unknown arsonists burned twenty schools.

Thai security forces faced enormous pressure to respond aggressively to the January 4 attack. The

following day, martial law, which had long been in effect in districts along the border with Malaysia, was

enacted in the three southern provinces of Pattani, Yala, and Narathiwat. Police investigators were sent

from Bangkok to investigate the gun robbery and arson attacks; these included officers from the Central

Police Division and the Crime Suppression Division (CSD). The effort was led by Kovit Whattana, who

was then Deputy Police Commissioner and is now Police Commissioner.

Local lawyers told Human Rights First that these police had little understanding of local language and

followed, say lawyers active in the region, typifies the approach of the Royal Thai Police to solving

crimes. With little attention to forensic evidence or credible witnesses, the police rely heavily on

confessions. Especially in the context of the south, where detainees often lack access to a lawyer and

other guarantees, local advocates report that confessions are obtained through torture and other forms of

abuse.4

1 Supara Janchitfah, ?The Case Is Not Closed,? January 15, 2006.

2 Ibid., Section 15.

3 Interview, Bangkok, December 2005.

Somchai case itself: ?Most Thai police are competent, and decent. [But] when bad police are pressured, they are likely to abduct witnesses.? The Nation,

?Warrants in Somchai Case Due Next Week,? April 4, 2004.

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Among the first to be arrested for the January 4 attack were five men accused of cutting down trees to

block efforts to pursue the attackers. The suspects were arrested at different times from February 19 to 23

and charged with violations involving ?national security, conspiracy to commit rebellion, to recruit people

and gather arms to commit rebellion, to function as secret society and to act as criminal gang.? The five

represented by Somchai Neelaphaijit.

On March 4, Somchai sought a court order for the five to receive a physical examination for effects of

detention but also ordered that the detainees be examined by a doctor and moved to a prison.

But Somchai also went public with his concerns. He delivered a speech on police torture and impunity

that one journalist described as ?a powerful, bitter, outraged speech.? On March 11, Somchai wrote a

letter to government authorities detailing the torture his clients had received at the hands of police, stating

in part:

I would like to present the truth to you. I truly hope that there will be further investigation

into the abuse of power and torture of the suspects by inquiry officials. And finally, I

sincerely hope that there will be improvement in the treatment of suspects in the future.

He disappeared the next day.

According to prosecutors, a possible motive for Somchai?s disappearance was that his torture complaint

was interfering with the standard police practice of coerced testimony. A fellow member of the Muslim

Lawyer?s Club told Human Rights First, ?I know Khun Somchai very well. If Somchai knew about a

torture case, he would do anything for them, including a lawsuit against police. So the plan to identify a

chain of suspects would be stopped.?6

The pressure to find those responsible for violence in the south put both suspects and their advocates at

risk. ?The police see lawyers as unwanted people,? explained Dej-Udom Kraitit, president of the Lawyers

Council. ?They view lawyers as an obstacle to their success of getting guilty verdicts whether through

an act that presumably would have been of greater concern to the military than the police.

Tanyong subdistrict, the 4th Suspect was blindfolded by police officer(s) and physically assaulted; strangled and choked, hands tied behind his back and beaten

with pieces of wood on the back and head, suffering some head wounds. In addition, he was also hanged from the toilet door with a piece of rope and was then

electrocuted with a fork charged with electrical currents, on the back of his torso and right shoulder. As a result, the suspect had to make a confession.?

?Official Request Form for Seeking Court Order to Send the Suspect to Have Physical Examination,? March 4, 2004 (unofficial translation on file with Human

Rights First).

detained for murdering a police officer in Narathiwat. This arrest lead to detention of a local official who in turn named Member of Parliament Najmuddin

Umar as the mastermind of the January 4 attack. Only Umar and another man were tried for the gun robbery; on December 15, 2005, both were found not

guilty. In court, the local official retracted his allegations against Umar, saying that police had beaten him and threatened his family to make him testify.

?About-turn at Najmuddin Trial,? December 27, 2004, translation available at http://www.seasite.niu.edu/trans/Thai/pages/TranslationProject/EnglishAriticles/

December2004/e13.1.htm.

7 Marwaan Macan-Markar, ?Case Of ?Disappeared? Lawyer Raises Rights Issues,? Inter Press Service, August 10, 2005.

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Two other trends provide context to this case: the killing of at least 20 human rights defenders since 20008

and an unaddressed pattern of disappearances. The Somchai case is emblematic of both these trends, and

the resolution of the case may impact both.

The Investigation

In Thailand, the police investigation becomes the basis for the public prosecutor?s report, and prosecutors

have little or no role in the investigative process. (For a discussion on the problems associated with this

practice, see the evaluation of the trial?s fairness below.)

Recognizing the lack of public confidence in the police, government officials made several public

statements that the Justice Ministry?s Department of Special Investigations (DSI) had launched a formal

inquiry of Somchai?s disappearance. But these statements were followed by conflicting statements that

indicated that no probe was actually underway. The Asian Legal Resources Center in Hong Kong

received a letter from the Minister of Justice stating that ?an ad hoc committee under the responsibility of

the Special Investigation Department? had been set up and had made ?a lot of progress.? But the Minister

of Justice later claimed that no steps had been taken because no request for an inquiry had been made,

despite the fact that Somchai?s wife and colleagues at the Law Society of Thailand had repeatedly made

just such a request.9

In a May 2005 communication to Human Rights First, an official with the Thai Government?s

Department of Rights and Liberties Protection stated that the case was the responsibility of the Royal Thai

Police, but added ? without providing any specifics ? that ?the Ministry of Justice has given an order to

the Department of Special Investigation to take further investigation.?

On July 19, as the U.N. Human Rights Committee was meeting in Geneva to consider Thailand?s human

rights conditions, a new DSI investigation was announced. The Deputy Prime Minister created an

interagency team that included the deputy attorney general, director of the national intelligence agency,

police commissioner, and other senior officials to guide DSI investigators. However, over the next six

months it became clear that the team was meeting infrequently, raising fears of continued inaction.10

In January 2006, Somchai?s wife, Angkhana Wongrachen, again urged action, saying the DSI team had

met only once in and did not appear to be calling in witnesses to provide information. The DSI director

replied that police were minimizing meetings to allow more time to solve cases.11

targets of killings and other violations and that ?any investigations have generally failed to lead to prosecutions and sentences commensurate with the gravity

of the crimes committed, creating a ?culture of impunity?.? See U.N. Doc. CCPR/CO/84/THA, July 28 2005, section 10.

Report of Thailand to the Human Rights Committee,? April 2005.

frequently and were at work throughout that period. Interview, Bangkok December, 2005.

11 ?Speed Urged in Somchai Case,? The Nation (Bangkok), December 2, 2005.

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Other efforts to investigate

Government officials have also failed to cooperate with efforts by Thai legislators to investigate the case.

A Senate committee announced in May 2004 that it had little hope of solving Somchai?s disappearance

due to poor cooperation from the police and government officials. The Committee?s final report,

completed in November 2004 concluded the disappearance may have been linked Somchai?s

representation of the five Muslim suspects, but that it could not obtain conclusive information. Senior

officials including the Prime Minister and the Police Commissioner ignored requests to appear before the

committee; those that did appear gave very limited information.12

The National Human Rights Commission began an independent investigation of Somchai?s disappearance

in late 2005. Although an official body, the Commission is generally marginalized by the government,

and Commission members have even received death threats after raising the spate of killings tied to antidrug

measures in 2003, and again for addressing the violence in the southern provinces the following

year.13

The Charges

In April 2004 five police officers were detained in connection with Somchai?s disappearance the previous

month:

Defendant No. 1 Major Ngern Thongsuk, Crime Suppression Division

Defendant No. 2 Lt. Col. Sinchai Nimbunkampong, CSD

Defendant No. 3 Lance Corporal Chaiweng Phaduang, Tourist Police

Defendant No. 4 Corporal Randorn Sithikhet, CSD

Defendant No. 5 Lt. Col. Chadchai Leiamsa-ngoun, CSD

In the absence of a body or sufficient forensic evidence, the charges did not rise to the level of the crime:

officers faced up to five years in prison; under the second they faced up to 20 years in prison, though such

sentences would be unlikely for members of the police force. They were released on bail, and one was

even allowed to remain in his job throughout the trial that followed.

Rights First.

Department of State, ?Country Reports on Human Rights Practices - 2004: Thailand,? February 28, 2005.

life, body, liberty, reputation or property of him or another person, or commits violence so that he does or does not do such act, or suffers such a thing, shall be

punished with imprisonment not exceeding three years or fined not exceeding six thousand Baht, or both.? The sentence increases to five years if either

firearms or five or more persons are involved.

and shall be punished with imprisonment of ten to fifteen years and fined of twenty thousand to thirty thousand Baht.? The sentence increases to

twenty years if any of the perpetrators carries arms, if the victim suffers grievous bodily harm, and ?If the gang-robbery causes death to the other person, the

offender shall be punished with death.?

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The weakness of the charges was due in part to the absence of a specific criminal offense of ?forced

investigation, that made it difficult to bring more serious charges. The Reply of the Kingdom of Thailand

on a List of Issues to be taken up by the U.N. Human Rights Committee acknowledged the lack of

evidence, noting ?police officers have not been charged with a more serious offence because there is no

substantial evidence to prove that Mr. Somchai was dead.? Somchai?s wife also emphasized the failure to

collect evidence: ?If only the investigators had paid more serious attention and did not rush to finalise

their findings, if only they interrogated more witnesses, the charges would not be this weak.?17

The Judges

Under the Thai legal system a panel of up to three judges plays a crucial role in the conduct and outcome

record each day, and deciding the verdict and sentence. As representatives of the King, the judges

authority cannot be questioned lightly.19

Given this role and authority, the selection of the respected Judge Suwit Pornpanich to lead the judges?

panel in the Somchai case was welcome. For the same reason, it was cause for alarm when he announced

in November 2005 that he would be leaving the trial for a position on the Supreme Court with just one

expressing concern, and the judge remained in his position through the end of the trial and the rendering

of the verdict.

The Trial

The trial was originally scheduled for 2006 but was moved forward to August 9, 2005. While this speed

indicates some recognition of the importance and international attention to the case, it also may have

exacerbated the problems with the investigation, encouraging investigators to omit important steps such

as checking alibis and following other leads.

Pretrial hearings in March 2005 implicated one of the defendants in the abuse of Somchai?s clients, an

Ngern Thongsuk and Lt. Col. Chadchai Leiamsa-ngoun were assigned to the gun robbery investigation,

although Lt. Col. Chadchai denied he was in the south at that time.

on offences against liberty) states that if someone restrains or detains any person to obtain a ransom, he or she shall be punished with imprisonment for 15 to

20 years and fined or imprisoned for life or executed if it causes death.

17 Supara Janchitfah, ?Rule of Law on Trial,? January 15, 2006.

was present.

to what is relevant and credible. Interview with Senator Thongbai Thongpao, Bangkok, December 2005.

hearing of a case shall not give judgment or a decision of such case, except for the case of force majeure or any other unavoidable necessity as provided by

law.? See Human Rights First letter to the Permanent Secretary of the Criminal Court, November 20, 2005 (on file at Human Rights First).

Report of Thailand to the Human Rights Committee,? April 2005.

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The prosecution

Somchai's wife Angkhana Wongrachen successfully applied to be a co-plaintiff in the case, a right of

potentially increased the effectiveness of the prosecution, as the team would be less

dependent on the police investigation than the public prosecutors, and could have recruited seasoned

human rights lawyers.

The co-prosecution was assigned to the Law Society of Thailand (now the Lawyers Council), a

government-sanctioned body to which all lawyers belong. However, most of the lawyers selected by the

Society came from the legal aid division, rather than the human rights committee, and were not so

familiar with human rights cases or prosecution. Their work may also have been hampered, especially in

the early days of the trial, by lack of cooperation with the public prosecutors, who had objected to the

naming of a co-plaintiff in the first place.

The prosecution was based on two main pieces of evidence: 1) eyewitness testimony that Somchai had

been last seen being forced into a car by men who resembled the defendants, and 2) mobile phone records

showing 75 calls among the five men made from locations near where Somchai disappeared on March 12.

(There was another round of more than 30 calls made among the five after Somchai?s car was found on

March 16.)

The defense

The defense team consisted of private lawyers who seemed well-prepared and forceful in representing

their clients? interests. From the first days of the trial the defense lawyers tried to raise alternative

theories to explain the disappearance, suggesting that Somchai might have been having an affair, was

involved in misappropriation of funds raised for a Muslim burial society, or had been targeted by

someone with a grudge. They pointed to everyone from the family members of soldiers killed in the

south to the governments of the United States and Israel, noting that Somchai had successfully defended

clients accused of planning embassy bombings.

The defense lawyers also sought to undermine the main prosecution evidence. Defense lawyers

questioned eyewitnesses aggressively and challenged the authenticity and accuracy of the mobile phone

records. They also called witnesses who testified that they had borrowed the phones in question on

March 12 while carrying out operations in Ramkamhaeng, where Somchai was last seen. For example, a

witness who was a friend and colleague of defendant Ngern Thongsuk testified that the defendant gave

him his mobile phone on the morning of March 12 and asked him to answer it if their boss called. The

witness testified that he then went out to execute arrest warrants in the vicinity of Somchai?s last known

whereabouts.

Many of the defense witnesses were policemen, including current and former subordinates of the

defendants, and other colleagues who had worked with the defendants for a decade or more. One defense

proceedings before the pronouncement of judgment of the Court of First Instance.?

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defense witnesses testified that they did not see any evidence that the gun robbery suspects had ever been

tortured, calling into question the motive put forward by the prosecution.24

The Verdict

Court proceedings ended on December 2, after which the prosecutors and defense teams each submitted

final written arguments in anticipation of a verdict. On January 12, 2006, the court found Defendant No.

1, Police Major Ngern Thongsuk, guilty of coercion and sentenced him to three years. The other four

defendants were acquitted due to lack of evidence. Thongsuk is free on bail of 1.5 million baht

(US$38,200), and both sides will appeal the verdict.

In announcing the verdict, Judge Suwit Pornpanich said he believed that phone records indicated that the

five defendants had followed the victim beginning the morning of March 12. But the judge also found

that the records included some photocopies and contained omissions and other discrepancies. Most

damagingly, he doubted the expertise of a police investigator who had described the records in court. In

the opinion of the court, these factors undermined the documents? evidentiary value. Furthermore, the

judge accepted the defense argument that the records could not prove the defendants? location, as mobile

phones can be used by anyone.25

The judge cited the eye-witness testimony that a second car had hit Somchai?s from the rear, that he was

then forced into that car, and that Major Thongsuk had been observed at the scene. The court found a key

eyewitness credible despite the difference in her testimony compared to the police investigation, and

specifically noted that she appeared afraid and intimidated.26

The judge found Major Thongsuk guilty under Section 309 of the Thai criminal code concerning

coercion, but did not apply the longer five-year sentence provided for in the second paragraph of that

provision because he could not conclude that arms were used or that five or more persons were involved.

The defendant was found not guilty on the robbery charge because it was not clear to the court that the

intention had been to take property.27

The three most junior defendants were acquitted due to lack of convincing testimony they were at the

scene of the crime. Lt. Col. Chadchai Leiamsa-ngoun, the senior officer alleged to have been a

mastermind who was never present at the scene, was acquitted due to the lack of weight given to the

phone records and the lack of any eyewitnesses linking him to the crime.28

evidence of torture. Personal observation, Bangkok Criminal Court, November 29, 2005.

acknowledged that he had not seen the condition of the men?s bodies under their long-sleeved prison uniforms or at close distance. Personal observation,

Bangkok Criminal Court, November 29, 2005.

25 Local observer?s notes on the reading of the verdict, electronic communication, January 25, 2006.

26 Local observer?s notes on the reading of the verdict, electronic communication, January 25, 2006.

this did not affect his three year sentence under section 209. Local observer?s notes on the reading of the verdict, electronic communication, January 25, 2006.

28 Local observer?s notes on the reading of the verdict, electronic communication, January 25, 2006.

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There are indications, however, that the case will not end with this verdict. Within days Prime Minister

Thaksin Shinawatra said of the missing lawyer, ?We know that he is dead, as we have found some

evidence . . . . Government officials were definitely involved in this, and there were more than four, but

whether the evidence will lead to punishment in court is another thing.? The Prime Minister, the head of

the DSI, and a Deputy Prime Minister all indicated that new charges were forthcoming, and might be

persistence of Somchai?s family and Thai human rights organizations, recognition of the way injustice has

fueled the violence in the south, and international pressure, including the presence of at least four

international NGOs and occasional embassy officials at the trial.

A new investigation and trial will be welcome, but only if it is able to avoid the flaws that undermined the

credibility of the first trial. Human Rights First therefore recommends careful consideration of the

following assessment.

Assessment of the Fairness of the Trial30

Human Rights First believes that this trial did not conclusively address the disappearance of Somchai

Neelaphaijit, primarily because the charges never reflected the gravity of the crime to which Somchai fell

apparent killing of Somchai. The root of the problem in this case seems to be the absence of evidence due

to a half-hearted investigation.

The weak inquiry, including inadequate forensic investigation and the failure to follow key leads, was due

concerns include inadequate protection of witnesses (a responsibility also entrusted to the police), and

rules of evidence that interfered with the effective presentation of the case.

2006.

this trial in with reference to international instruments relating to human rights defenders, disappearances, and the right to an effective remedy. For example,

Article 12 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized

Human Rights and Fundamental Freedoms (Declaration on Human Rights Defenders) protect the rights of individuals and organizations to ?participate in

peaceful activities against violations of human rights and fundamental freedoms.? There is also an emerging body of international law governing

disappearances. The Declaration and the Draft Convention on the Protection of all Persons from Enforced Disappearances includes the right to complain to

authorities, including the power to compel and protect witnesses. Finally, the repeated failure of the police to conduct proper investigations and the failure of

the Thai government to provide a more independent investigative body is a breach of Article 2 (3)(a) of the International Covenant on Civil and Political

Rights which states that ?any person whose rights or freedoms? are violated shall have an effective remedy, notwithstanding that the violation has been

committed by persons acting in an official capacity.?

justice for the disappearance of this respected attorney and urge the government to conduct a serious and competent investigation.? Press Statement, Sean

McCormack, Spokesman, Department of State, January 13, 2006.

defense argument claimed that evidence had been manipulated due to interdepartmental rivalries.

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Inadequate investigation

In this case, actually the investigation should have been extended to cover who took him and to where,

and whether he is alive or dead. Who ordered the abduction, who is the mastermind?

?Supreme Court judge Wicha Mahakhun33

The failure of the Royal Thai Police to investigate its own members effectively is a systemic problem in

the Thai legal system. Thongbai Thongpao, one of Asia?s senior human rights lawyers who is now a

senator, explained:

?I?ve received some complaints, including from observers: Why doesn?t the public

prosecutor ask more questions? You should know in Thailand police are the first to

investigate, to make a report, to interview witnesses. The report goes to the public

prosecutor, but the story comes from the police and the public prosecutor must follow this.

. . . Since police are the investigators and compile all evidence and make the report, and

since the accused are police and still in their posts you can consider what will happen.?34

The United States Department of State, in its 2004 human rights report on Thailand, also noted that this is

a widespread problem. The report cited Thai prosecutors that the police often have been an obstacle to

the prosecution of members of the force, leading to a ?climate of impunity that persisted in preventing any

major change in police behavior.?35

The reliance on the police is not absolute. Public prosecutors are able to participate in investigations

above, the Department of Special Investigation will conduct inquiries in some cases. And co-prosecutors

have some flexibility in securing new evidence and interviewing witnesses. The failure to effectively

invoke these provisions in the Somchai investigation and trial can be attributed largely to institutional

competition and above all a lack of political will.

For the most part, however, the police are in charge of the investigation, even where a member of the

police force is the accused. There is no effective, independent body that an aggrieved person can go to

that is capable of investigating human rights abuses committed by police, or that can even monitor the

way in which investigations are conducted. Despite the efforts of its members, the National Human Rights

Commission does not currently have the independence or authority to effectively play this role.

33 Supara Janchitfah, ?The Case Is Not Closed,? January 15, 2006.

34 Interview with Senator Thongbai Thongpao, Bangkok, December 2005.

35 U.S. Department of State, ?Country Reports on Human Rights Practices - 2004: Thailand,? February 28, 2005.

three agencies must be involved: the forensic doctor, investigating officer, and public prosecutor. Thailand Country Report, The Eleventh United Nations

Congress on Crime Prevention and Criminal Justice, April 18-25, 2005, Bangkok, available at http://www.inter.ago.go.th/UN/english_language.pdf, page 266.

public prosecutor must participate in the interrogation. Ibid., page 266. The Thailand Law Reform Office reported on May 24, 2005 that the Attorney-

General?s office was seeking an amendment to the Criminal Procedure Code to let prosecutors participate in the whole investigative process. Available at

http://www.thailawforum.com/news2.html.

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Throughout the trial there was also a pattern of inconsistencies and omissions in police paperwork. For

instance, although one defendant was named on the arrest report in the gun robbery case, a police witness

testified that this defendant had not been present and was only added so that he could be credited for the

helped to apprehend on March 12 in Ramkamhaeng. One witness, who claimed to have borrowed a

defendant?s mobile phone before going out to investigate Filipino gangs in Ramkamhaeng, explained the

absence of any written record of his assignment by saying that ?I just go out and investigate? 38

Inadequate forensic investigation

After Somchai?s car was found on March 12, it was turned over to the Royal Thai Police?s forensic

division. According to Senate testimony by the director of the Central Institute of Forensic Science, the

evidence from the car was not properly collected, and the police did not wear gloves when they brought

Vorawanich, commander of the forensics division, acknowledged that evidence may have been

destroyed.41

The Central Institute of Forensic Science, which is under the Ministry of Justice, conducted a parallel

investigation. The Institute was created due in part to the public loss of faith in the impartiality of police

Institute has also had to deal with apparent efforts by the police to undermine its work, including

inadequate forensic investigation in the Somchai case. Its director, Dr. Pornthip Rojanasunant, said the

public prosecutors never requested the evidence she collected, and no one from the Institute was called to

testify in court.44

Unexplored leads

Based on the gaps in the prosecution?s case, and in some cases according to direct testimony in court, it is

clear that the police failed to fully investigate:

? the whereabouts of the car used to abduct Somchai;

38 Personal observation, Bangkok Criminal Court, December 1, 2005.

Rights First.

40 Police Forensic Report, summary translation on file with Human Rights First.

41 Asian Human Rights Commission, Letter to Pol. Gen. Amonwiwat (Director-general of DSI), November 28, 2005.

made the public lose faith in the forensic tests conducted mainly by the Police by its Forensic Division, the Police Hospital, an organ attached with the Police.

The lack of accountability and the non-transparent procedures are among the major causes for such distrust. Due to the common agreement that there should be

improvement of the forensic science in Thailand, the new Ministry of Justice will include the Institute of Forensic Science as a new agency under its purview.?

Kittipong Kittayarak, ?The Thai Constitution of 1997 and its Implication on Criminal Justice Reform,? available at

http://www.unafei.or.jp/english/pdf/PDF_rms/no60/ch06.pdf.

page.arcview.php?clid=3&id=71114&usrsess=

44 Supara Janchitfah, ?The Case Is Not Closed,? Bangkok Post, January 15, 2006.

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? the alibis claimed by the defendants (and the use of their mobile phones);45 and

? rumors that Somchai was taken to specific locations outside Bangkok.46

Inadequate witness protection

Witnesses, including the victim?s family and the eyewitnesses to the crime, were subjected to threats and

intimidation. Somchai?s wife was telephoned on the morning of April 18, 2005 by a man she identified as

an intelligence official she had previously met. The caller asked her about her activities at the United

Nations. Several weeks earlier an unidentified man had visited and warned her not to advocate too

publicly for justice in her husband?s case. Angkhana told Human Rights First:

We are always threatened, for a long time. An intelligence official called me and asked if I

was going to the UN. Are you planning to go to UN? Are you sending a letter? Then a

man came to my house, said he was working with detainees and that I wasn?t safe

anymore, I could be shot. I told friends, who told the newspaper. The Minister of Justice

contacted me, said he wants to meet me, and has a duty to protect me. But the problem

was surveillance. They were in our house, they asked for our phone numbers. I signed a

two month protection contract, but did not extend it.47

The headlight of Angkhana?s car was smashed while she was listening to the reading of the verdict on

January 12. As Angkhana is a co-plaintiff in the case, these threats are a direct interference in the legal

process.

In 2003 the Office of Witness Protection was created under the Witness Protection in Criminal Cases Act,

Department of Rights and Liberties Protection in the Ministry of Justice, and coordinates the work of

seven agencies. However the staff and budget of the program is limited, and it plays a primarily

coordinating role, such that in 90% of cases the protection is carried out by the police.49

When police are alleged to be involved in the crime, the witness protection program tries to bring in

police from different regions or departments. However, the fact that the defendants in this case were from

the Crime Suppression Division, which has a presence throughout country, makes this solution especially

difficult. Angkhana?s unease with having police monitor her activities is a common complaint.

With perhaps even more implications for the outcome of the trial, eyewitnesses gave courtroom testimony

that departed from their initial statements to the police. One witness watched a video of defendants

investigation. Supara Janchitfah, ?Rule of Law on Trial,? Bangkok Post, January 15, 2006.

group of officials took Somchai to Mae Hong Son.? Chanravee Tansubhapol and Manop Thip-Osod, ?A Year on, and Still no News on Somchai,? Bangkok

Post, March 11, 2005. Angkhana also reported that the Prime Minister had told her Somchai was taken to Ratchaburi province, though he later claimed he was

only repeating a rumor.

47 Interview, Bangkok, November 2005.

provided by law.?

49 Interview, Department of Rights and Liberties Protection, Bangkok, December 2005.

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during the investigation and identified them as resembling the perpetrators. In court, the witness appeared

hesitant and could not identify the defendants. Three other witnesses similarly changed their earlier

perpetrators. The change in testimony has raised concerns that the witnesses were somehow coerced into

changing their testimony. As noted above, in the verdict the court noted the change in testimony and

described the witness as appearing afraid.51

In the end, since the judge did not consider the phone records as evidence, the eyewitness testimony was

the heart of the case. The lone conviction was based on such testimony, but the lack of consistent witness

testimony fatally undermined the case against the other defendants.

There were indications as well that even police investigators and prosecutors were intimidated. Two

policemen involved in the investigation reported threats and intimidation from their fellow officers.52

trial observers also reported receiving threatening phone calls during the course of the trial.54

Lt. Col. Chadchai Leiamsa-ngoun, the most senior of the defendants, remained an active member of the

police force throughout the trial. In fact, he was named policeman of the year by the Crime Suppression

sit with the defense lawyers. The other four were suspended from duty but reportedly requested

reinstatement even before the verdict of not guilty.

Prosecution performance

The prosecutors reportedly did not talk to the eyewitnesses beforehand or visit the scene with them, which

made it easier to undermine witness credibility on the stand. Both the public prosecutors and coprosecutors

suffered from heavy turnover and frequent absences. On the days that a Human Rights First

observer attended, there was one member on each team who attended regularly and prepared diligently,

with one or two others rotating in and out. One trial observer noted a gap of 15 minutes in which no

show up throughout the proceedings.

On November 3, the first day the defendants took the stand, two new public prosecutors took over the

case. Acknowledging they had no familiarity with the case, they requested a delay to study the evidence

presented so far. They were granted 20 minutes.57

50 Asian Human Rights Commission, Letter to Police General Amonwiwat (Director-general of DSI), November 28, 2005.

51 Local observer?s notes on the reading of the verdict, electronic communication, January 25, 2006.

52 Electronic communication from local observer, February 17, 2005; Supara Janchitfah, ?Rule of Law on Trial,? Bangkok Post, January 15, 2006.

53 Supara Janchitfah, ?Rule of Law on Trial,? Bangkok Post, January 15, 2006.

54 Electronic communication from local observer, February 14, 2005.

55 ?Speed urged in Somchai case,? The Nation (Bangkok), December 2, 2005.

56 FIDH/OMCT, ?Somchai Abduction Trial: Justice Granted or Justice Denied?? (Judicial Observation Mission report) No. 437/2, January 2006, p.7.

Somchai?s Case Undermines Judicial Process,? November 4, 2005.

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This event led to appeals from domestic and international monitors, which led to more consistent

attendance. However, the damage had been done, as the crucial opportunity to cross-examine the

defendants about their alibis and other elements of the defense was lost.

Rules of evidence

The trial operated under rules of evidence in which lawyers are not given access to documents and other

exhibits in advance of their introduction in court, making cross-examination of witnesses difficult. At

least 10 documents were introduced in the last week of the trial alone, making a total of some 300

documents from the defense and prosecution.

One member of the prosecution team told Human Rights First that he first saw the police investigation

report ?the day the witnesses came. One minute before the cross examination! I was reading and listening

at the same time!?58

In civil cases, all evidence is introduced at the start of the proceedings, and legislators and advocates have

tried for many years to make this practice apply in criminal cases as well. In 2004, the Criminal

Amendment Act slightly improved the rules of evidence. Under new sections 173/1 and 173/2 of the

Criminal Procedure Code, each side must present a list of documents that will be introduced in court.

Nevertheless, lawyers do not get access to the actual documents until they are presented in court. The

Somchai trial operated under the old rules, and a subsequent trial might be marginally better, but would

still face many of the same problems. Further amendments are being studied in the legislature.59

In theory, this problem is equally disadvantageous to both prosecution and defense, though one prosecutor

noted that in his prior experience as a defense lawyer information was more readily available.

Furthermore, observers and a member of the prosecution team told Human Rights First that defense

lawyers seemed able to go directly to relevant statements buried in lengthy documents that had just been

introduced. This created the impression that defense lawyers might have had advance access to police

investigation reports or other documents through contacts in the police department, although we cannot

confirm this.

Allegations prejudicial to defendants

It is in the interests of justice that the proceedings be fair to all parties. While Human Rights First was

unable to interview defense lawyers or their clients to learn more about these allegations, one defendant

claimed they had been framed due to rivalry between the Crime Suppression Division and the

Metropolitan Police Bureau. Such allegations of misconduct should be part of a thorough review of the

police investigation in this case.

58 Interview with member of the co-prosecution team, Bangkok, December 2005.

59 Interview with Senator Thongbai Thongpao, Bangkok, December 2005.

60 Asian Human Rights Commission, Letter to Pol. Gen Amonwiwat (Director-general of DSI), November 28, 2005.

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Conclusion

The trial of the five policemen charged in connection with the disappearance of Somchai Neelaphaijit did

not meet international standards. It did not provide an effective remedy to the family of the victim due to

an inadequate investigation, charges that did not rise to the seriousness of the crime, and inadequate

witness protection, as well as rules of evidence that interfere with the effective cross examination of

witnesses and defendants. Many of these problems were caused by the reliance on the Royal Thai Police

to investigate members of the force and to protect witnesses. Turnover on the prosecution teams (and

very nearly the panel of judges) may also indicate a failure by authorities to treat the case as seriously as it

deserves.

Recommendations to the Royal Thai Government

1. A credible investigation by the Department of Special Investigations is a prerequisite for any

effective trial on appropriate charges. Because the DSI itself is largely staffed by former

policemen and has proven ineffective in some other cases, this investigation must be backed by the

full support of the Minister of Justice and the Prime Minister. Any other efforts to uncover the

truth, such as the inquiries of the Senate and the National Human Rights Commission, should

receive the full cooperation and support of government officials.

2. The Royal Thai Government should establish an independent body that will investigate complaints

against the police for serious human rights abuses and misconduct during investigations.

3. The Royal Thai Government should provide the resources and autonomy necessary to allow an

effective witness protection program that does not rely on police protection in cases where police

are implicated in the crime.

4. In the event of a new trial of the same or other defendants on new charges, the public prosecution

and co-prosecution teams must ensure adequate attendance and preparation by all members.

5. The Thai Parliament should ensure that enforced disappearances are recognized in the Criminal

Code as a specific offense under Criminal law, in conformity with the UN Declaration and the

Draft International Convention on the Protection of all Persons from Enforced Disappearances.