Make Sure the Thai Government Fulfills Promise of Justice for Disappeared Lawyer

Alert Issued: January 18, 2005

”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.”

 — Prime Minister Thaksin Shinawatra

On January 12 a Thai judge found a mid-ranking policeman guilty of coercion in the case of the disappearance of human rights lawyer Somchai Neelaphaijit. Police Major Ngern Thongsuk received three years. But the other four defendants, all policemen, were acquitted due to lack of evidence, and the charges of robbery and coercion never matched the seriousness of the crime. Human Rights First observed the trial and found a number of concerns, summarized in the press release below.

Just before his disappearance in March 2004, Somchai had accused the police of torturing five men detained in the troubled southern region of the country.

In the days after the conviction, the Prime Minister at last confirmed that the government knew Somchai was dead and would soon file murder charges. He also stated that at least four government officials were involved in the crime.

This is very welcome news, but there have been similar promises from the authorities before.

That's why it's so important to keep the pressure on the Thai government. Please contact Prime Minister Thaksin and urge him to ensure the investigation, prosecution, and conviction of those responsible for this terrible crime.

Press Release and HRF Trial Observer’s Concerns about the Trial

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The Disappearance

After receiving several death threats, Somchai Neelaphaijit made a practice of informing friends and colleagues of his whereabouts at all times. But friends lost contact with the 53-year-old lawyer on the night of March 12, 2004. Somchai was last seen at the Chaleena Hotel in the Ramkamhaeng area. His car was later found abandoned with a fresh dent in the back, suggesting it had been rammed from behind.

Somchai was chairman of the Muslim Lawyers Group and deputy chairman of the Human Rights Committee of the Law Society of Thailand (now the Lawyers Council). He was also representing several groups of men detained following violence in the southern region of Thailand. Just before his disappearance he had filed a complaint against the police for torturing his clients. And just two weeks earlier, Somchai delivered a speech on police torture and impunity that one journalist described as “a powerful, bitter, outraged speech.” 1

The Investigation

The police investigation has been characterized as rushed and incomplete. Police officers investigating the crime scene are reported to have damaged important evidence, such as by sitting in the vehicle before it could be examined by forensic experts. 2 Meanwhile a Senate inquiry, which might have shed light on the disappearance, has been hampered by lack of cooperation from senior government officials.

In the absence of a body or sufficient forensic evidence, the charges did not rise to the level of the crime. Five police officers arrested in April 2004 were later charged with coercion (Article 309 of the Criminal Code) and "gang robbery" (Article 340). They were released on bail, and one was even allowed to remain in his job throughout the trial.

The primary evidence consisted of eyewitness testimony that Somchai had been seen forced into a car just before he disappeared, and phone records showing 75 calls between the five men near the lawyer’s last known whereabouts. A second flurry of calls occurred several days later, after the victim’s car was found. However, while phone records are often used in the course of an investigation, they are rarely cited in Thai courts.

Despite repeated, and often contradictory, claims that the Ministry of Justice’s Department of Special Investigations (DSI) would mount an investigation, there have been few signs of an active investigation.

The Trial

Human Rights First periodically observed the trial and interviewed numerous parties involved in the process. We have identified a number of concerns, to be included in a detailed trial report to be released in the near future. In addition to the concerns of inadequate investigation and inappropriate charges noted above, the trial appeared to suffer from problems relating to the protection of witnesses and the rules of evidence.

While the Government of Thailand has a witness protection program housed in the Ministry of Justice, in most cases the actual protection is carried out by the police, which would be inappropriate in this case. Neelaphaijit’s wife, who is also a co-plaintiff in the case, received several threats. Several eye-witnesses gave courtroom testimony that differed from initial statements to the police, raising fears of intimidation.

The trial also operated under rules of evidence in which lawyers were not given access to documents and other exhibits in advance of their introduction in court, making cross-examination of witnesses much more difficult. This problem was exacerbated by frequent turnover on the prosecution team.

On January 12 Major Ngern Thongsuk was convicted on the coercion charge and sentenced to three years. He is free on bail of 1.5 million bhat; both sides will appeal the verdict. The other four defendants were acquitted due to lack of evidence.

The Torture Case

Five of Somchai’s clients had been detained on February 23, 2004, on charges 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.” They were: Makata Harong (49), Sukri Maming (37), Manase Mama (25), Sudirueman Malae (23), and Abdullah Abukaree (20).

On March 4 Somchai Neelaphaijit sought a court order for the five to receive a physical examination for effects of torture. His application included the following remarks:

While under police custody and during the interrogation conducted at the provincial police station of Tanyong subdistrict, the 4th Suspect was blindfolded by police officer(s) and physically assaulted; strangled and choked, hand-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 piece of fork charged with electrical currents, on the back of his torso and right shoulder. As a result, the Suspect had to make a confession.

Sample Letter:

Mr. Thaksin Shinawatra
Prime Minister
Government house,
Pitsanulok Road, Dusit District,
Bangkok 10300
THAILAND

Dear Prime Minister Thaksin:

I am writing to express my concerns about the recent verdict in the disappearance of Somchai Neelaphaijit. The conviction of Police Major Ngern Thongsuk on charges of coercion is a first step, but only highlights how much more there is to do. Four others were acquitted on lack of evidence, and none of the charges ever matched the seriousness of the crime.

In the aftermath of the verdict, I was encouraged to hear your statements that a new inquiry by the Department of Special Investigations was underway and would soon yield results. A new effort by an institution with no ties to the suspects could produce information on the whereabouts of the victim, the circumstances of his disappearance, forensics evidence, and the validity of the suspect’s alibis. It is essential that there be comprehensive witness protection, provided by a body with no personal or institutional links to the defendants.

I still have several concerns about the effectiveness of the DSI investigation. The first is that representatives of the Royal Thai Government have made repeated promises that such an investigation is underway, with little results to show to date. Secondly, the DSI is largely staffed by former policemen. To prevent a repeat of the problems that plagued the first trial, it will be necessary to demonstrate political will at all levels. If a new effort is in fact nearing conclusion, it should not be rushed or politicized, but carried out thoroughly, credibly, and as transparently as official procedures allow.

The disappearance of Somchai Neelaphaijit denied all Thai human rights defenders the security needed to do their crucial work. The conviction of his killers may help undo some of this terrible damage.

Thank you for your continued attention to this important matter.

Sincerely,

1. “The politics of disappearance: Thai-style,” The Nation (Thailand),
   March 29, 2004.
2. Written statement submitted by the Asian Legal Resource Centre (ALRC) to the Commission on Human Rights, Sixty-first session, Item 11 (b) of the provisional agenda: Civil And Political Rights, Including The Questions Of: Disappearances And Summary Executions, E/CN.4/2005/NGO/34, February 7, 2005.