UPDATE (Thailand): Minister of Justice must clarify continued contradictions after verdict in Somchai Neelaphaijit case 

[RE: FA-06-2004: THAILAND: A human rights lawyer Mr. Somchai Neelaphaijit missing… UP-20-2005: THAILAND: Human rights lawyer still missing after nearly one year; Action needed today to have case transferred; UP-24-2005: THAILAND: Thai minister refuses to act on missing human rights lawyer case; UP-37-2005: Thai PM orders action on missing human rights lawyer, while court hears of torture; UP-45-2005: Wife of missing human rights lawyer intimidated; UP-49-2005: THAILAND: Government commits to giving witness protection to missing lawyer’s family; UP-89-2005: THAILAND: Repeated failed commitment to assign Department of Special Investigation to Somchai case; UP-107-2005: THAILAND: Special call for observers to attend September 7, 8 & 9 court hearings over missing human rights lawyer Somchai Neelaphaijit… UP-130-2005: THAILAND: Constant changes of prosecuting attorneys in Somchai’s case undermine judicial process; UP-133-2005: THAILAND: Sixth special call for observers to attend court hearings over missing human rights lawyer Somchai Neelaphaijit; UP-145-2005: THAILAND: Final special call for observers to attend court hearings over missing human rights lawyer Somchai Neelaphaijit; UP-004-2006: THAILAND: Verdict in case of missing human rights lawyer Somchai Neelaphaijit due on January 12]
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UP-015-2006: THAILAND: Minister of Justice must clarify continued contradictions after verdict in Somchai Neelaphaijit case

THAILAND: Disappearances; Attacks on human rights defenders; Impunity; Torture
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Dear friends,

As has been widely reported, one of the five police officers accused in connection with the disappearance of prominent Thai human rights lawyer Somchai Neelaphaijit was found guilty of coercion by the Criminal Court in Bangkok on 12 January 2006. Police Major Ngern Tongsuk was sentenced to three years in prison after the court found on the basis of eyewitness testimonies that he was among a group of persons who abducted Somchai. The other four defendants were released due to lack of evidence. Both the prosecution and defence for the police officer found guilty have indicated that they will appeal. (See AHRC-PL-002-2006; AS-005-2006 and AS-013-2006 for further discussion).

Meanwhile, the government response to the first verdict has been characterised by continued contradictions and confusion. A day after the conviction, the prime minister of Thailand stated publicly that Somchai is dead and that an ongoing investigation would lead to murder charges being laid by the end of February. The head of the Department of Special Investigation under the Ministry of Justice, Pol. Gen. Sombat Amornwiwat, also was reported as having said that the investigation was proceeding and would lead to charges being laid within the timeline set by the prime minister. However, the Office of the Attorney General has reportedly denied being given sufficient evidence upon which to lay charges of murder.

Below we are giving a detailed summary of the first verdict in this landmark case. The official verdict and testimonies have not yet been made available.

We are also asking that you write to the Minister of Justice to seek clarification of the contradictory reports on the progress of the case and urge him to instruct the relevant agencies to cooperate and proceed towards a speedy and effective conclusion of the murder investigation. Please also call for a reopening of investigations into allegations of torture made in open court by Somchai’s former clients [see UP-107-2005], which have not been addressed by the court in its judgment, and again call upon the Government of Thailand to implement a law to prohibit forced disappearance and establish an independent investigation agency in cases of grave human rights violations by state officers.

UNOFFICIAL SUMMARY OF VERDICT:

On 12 January 2006, the Bangkok Criminal Court gave its judgment in the first case relating to the alleged abduction of lawyer Somchai Neelaphaijit. The judgment was read by five judges with Judge Suwit Pornpanich presiding.

The accused were present as follows:
1. Police Major Ngern Tongsuk, Crime Suppression Division
2. Police Lieutenant Colonel Sinchai Nimbunkampong, Crime Suppression Division
3. Police Lance Corporal Chaiweng Paduang, Tourist Police
4. Police Sergeant Rundorn Sithiket, Crime Suppression Division
5. Police Lieutenant Colonel Chadchai Leiamsa-ngoun, Crime Suppression Division

The five accused were charged with coercion & gang robbery under sections 309 & 340 of the Penal Code of Thailand.

Court’s summary of the prosecution case

The victim, Mr. Somchai Neelaphaijit, was chairman of the Muslim Lawyers Club, and had been working as a legal representative for suspects in cases relating to national security offences. Mr. Somchai was the defense lawyer for Mr. Makata Harong, among five detainees who were arrested on allegations of having raided an armoury on 4 January 2004. They were sent to Bangkok, where they reported that they had been physically abused in order to gain confessions. They were allegedly forced to remove their clothes, and were spat on and humiliated by the police officers. On 10 March 2004 Mr. Somchai sent letters of complaint on their behalf to the Minister of Interior, the Commissioner-General of the Royal Thai Police, the parliament, senate and Ministry of Justice. Mr. Somchai’s work offended the five defendants / police officers [see UA-94-2004].

Defendants 1, 3, 4 and 5 allegedly pushed Mr. Somchai into their car and defendant 2 drove Mr. Somchai’s car away from the abduction site, which he later parked at Morchit 2 Bus Terminal. On 16 March 2004, the car was recovered. On 8 April 2004, defendants 1-4 presented themselves to the police [after it was announced that they would be charged] and on 30 April 2004 defendant 5 also presented himself to the police. All five defendants denied the charges [see UP-26-2004].

On 16 June 2004, the prosecutor together with Mrs. Angkhana Wongrachain [a.k.a. Neelaphaijit], the wife of Mr. Somchai acting as co-plaintiffs (and later Mr. Somchai’s four daughters who became co-plaintiffs also) filed the lawsuit against the five policemen. The suit stated that the defendants took a car, watch, pen and mobile phone belonging to Mr. Somchai, valued at a total of 903,460 Thai baht [USD 23,000]. To this date, there is no information on the whereabouts of Mr. Somchai or whether he is alive or dead.

Telephone records indicate that the five defendants had followed Mr. Somchai from the morning of 12 March 2004 until before he was abducted. The telephone records show that there were a total of 75 phone calls among the five defendants on the day that Mr. Somchai disappeared and 30 such calls on 16 March 2004 when Mr. Somchai’s car was found [see UP-116-2005].

Defendant 5 was the superior of defendants 1 and 2. Defendant 5 was also an enquiry officer in the January 4 armoury raid case.

In total 37 witnesses for the prosecution came before the court, including seven eyewitnesses. Also presented was the telephone record and analysis of the extensive use of mobile phones by the five defendants before and after the crime was committed.

Court’s understanding of events as presented by the prosecution

The court accepted that the phone records showing the five defendants following Mr. Somchai corresponded to the times that were stated in the testimony of Mr. Phatompong Likit, an intern lawyer who was together with Mr. Somchai from the morning of March 12 until shortly before he disappeared. His detailed memory about where they both were and at what time was very clear. He could answer the defence lawyer without hesitating and with confidence. In addition, the testimony of a lawyer friend of Mr. Somchai, Mr. Kitja, corresponded with this account. The defence did not produce evidence to counter the statements of these witnesses.

Therefore, the court accepted that on March 12, Mr. Somchai left his home and stayed overnight at a friend’s house in Suan Son area. On the morning of March 12, he left his friend’s house to go to his office. The mobile phone records indicate that the five defendants had followed Mr. Somchai from the morning. Mr. Somchai left his law office in Ratchada Soi 32 together with Mr. Pratompong and traveled by tollway to Silom and the Bankruptcy Court. At 2:30pm he traveled to the Civil Court of Southern Bangkok and went back to his office in Ratchada Soi 32. At 6pm he went to pray at the Santichon Foundation and at 7pm Mr. Somchai had dinner at a restaurant in Ladprao district, and then he went to the Chalina Hotel in Ramkhamhaeng Soi 65. He waited for Mr. Kitja there, but he did not come. So Mr. Somchai left the Chalina Hotel by car from Ramkhamhang Soi 65 and turned left towards Lamsali. While driving, his car was hit from behind and he was forced to park along the footpath. The car that had hit him parked behind. Subsequently, Mr. Somchai was abducted.

Court’s summary of the defence case

Defendant 1 was not involved in physically harming the suspects in the armoury raid case on 22 February 2004. His name appeared in the police arrest record of the five suspects due to his duty as a security escort to the then Deputy Police Commissioner General, Pol. Gen. Kovit Wattana, who was at that time one of the leading police officers responsible for the three provinces in the south.

On 12 March 2004, defendant 1 fought with his wife and drove to the Crime Suppression Division. In the morning he met Pol. Sgt. Maj. Manop, who was sleeping in the office. Defendant 1 left his two mobile phones on his desk in his office. He drove his car to Rayong and then used a public phone to call Pol. Sgt. Maj. Manop. He ordered Pol Sgt. Maj. Manop to keep his two mobile phones and to only answer calls from his police superiors. Pol. Sgt. Maj. Manop was not to use the mobile phones to call anyone. Defendant 1 did not know Mr. Somchai. He argued that the mobile phone records should not be admissible as evidence because they were forged.

Defendant 2 was at the office of the Crime Suppression Division during 8-12pm on 12 March 2004. At 7pm he lent his mobile phone to another police officer to investigate a case near the Ramkhamhaeng area. He waited at the office and at 10pm he went back home to Nakhon Phatom Province.

Defendant 4 worked under the supervision of defendant 2. During the day he went out to investigate a case and returned to the office at around 5pm. At 7pm he and defendant 2 lent their mobile phones to two police officers to investigate a case in the Ramkhamhaeng area.  At 10pm the two police officers returned to the office and gave back the mobile phones to defendants 2 and 4.

Defendant 3 had gone out for investigations near the Bang Rak area during the day and had returned to his accommodation near the Ramkhamhaeng area at 8pm, and had stayed with his wife and daughter.

Defendant 5 went on training from 17 November 2003 to 8 March 2004.  He was not involved in the police operation in the southern provinces. He did not know Mr. Somchai. Although his name was on a Royal Thai Police Order in the armoury raid investigation he did not receive that order. On 12 March 2004, defendant 5 was in the office and between 8-9pm he went to the Lotus Department Store nearby.

All defendants raised the issue that the Metropolitan Police Bureau has had some conflicts with the Crime Suppression Division [and that they were being targeted for this reason]. Defendant 5 referred to some personal conflicts he has had with Pol. Maj. Gen. Kitsada Pankongshun of the Metropolitan Police Bureau.

[See further UP-145-2005.]

Consideration of the telephone records

Questions arose as to whether or not the telephone records had been obtained lawfully and whether they were forged. Questions also arose as to whether the telephone records could be used only for the investigation of the case and not as evidence in the court.

According to article 226 of the Criminal Procedure Code, documentary evidence and oral evidence from an eyewitness can be used in court unless it is obtained through inducement, promise, threat, deception or other unlawful means.

The court documents numbered Jor 58-59, 62-64, 68-70, 72, 74, 76-78 and 80-82 were obtained by official requests referred to in court documents Jor 60, 61, 63, 65, 73, 75-79. The court considered that the telephone evidence from the AIS Telephone Company and Digital Phone Company was obtained legally. There was no prohibition on the use of these documents in court.

However, the court considered in detail the admissibility of the phone record placed before it as court document no. Jor 111. The court found that the record was a photocopy, which appeared to have been subject to tampering. This document did not seem to consist of the original documents from the telephone companies referred to by the prosecutor.

Pol. Maj. Thinnakorn Kesornbua, a police inquiry officer, testified about the analysis of the phone records but could not clarify many questions from the defence lawyers about the repetition of some numbers or the presence of duplicate telephone records. Document no. Jor 111 contains errors that affected the testimony of Pol. Maj. Thinnakorn, who is not a telecommunications expert. There were some doubts about this document as reliable evidence. Without the prosecutor bringing an expert witness to testify in support of this document it did not have enough evidentiary weight to make an impact.

Pol. Maj. Thinnakorn testified that court documents numbered Jor 109-110 were charts that were made by using the telephone records from court document no. Jor 111. Since that document was not admissible this affected the credibility of these other documents.

Even though the telephone records could be accepted as evidence in court, the mobile phones corresponding to the numbers given could have been used by anyone. The court was not convinced of the prosecution’s argument regarding the locations of the defendants through the use of the telephone records. The court then turned to consider other evidence.

Consideration of the eyewitness testimonies

The prosecutor brought seven eyewitnesses to the court who were otherwise not related to the case and did not know the five defendants. All the eyewitnesses verified that an incident did occur in the manner as stated above. Three eyewitnesses testified that they saw defendant 1 at the crime scene and he had pushed Mr. Somchai into the car that was parked behind.

Ms. Chawiwan Yuthhan testified during the police investigation that she saw a man of big build, with a bald head, wearing a black jacket, white t-shirt and dark-coloured trousers pushing Mr. Somchai into the car with a group of other men. The man resembled defendant 1. She testified to the police three times. The second time she testified that a picture of defendant 2 looked similar to the man who had walked to Mr. Somchai’s car and driven it away. The third time when shown video footage of defendant 2 she could not verify whether he was the one or not. [See further UP-107-2005 & AHRC-PL-50-2005] It also appeared that Ms. Chawiwan had called 191 [emergency number] and learned that the police were looking for eyewitnesses to the abduction. She identified herself and voluntarily testified before the police. She did not know Mr. Somchai or the five defendants.

The court accepted that this eyewitness testimony was reliable. Even though Ms. Chaiwiwan’s statements during the police enquiry were different from her testimony in front of the court, her evidence was still regarded as reliable. The length of time from the incident and the police enquiry to the court hearing was more than one year. During her court testimony it was obvious that she was afraid and intimidated [by the police defendants] and so she did not identify defendant 1 in court.

Mr. Adirek Yimvadee, also an eyewitness, said in his first statement to the police that he saw a Thai person about 170-180cm in height, with no beard, who was dressed nicely. In his second statement he identified the photo of Pol. Maj. Ngern. In his third statement, he was asked to watch a video. He testified that among the group of men, there was a bald-headed man and confirmed that defendant 1 was the person whom he saw at the crime scene. He testified that he was afraid when he identified Pol. Maj Ngern in the video, but said that he resembled the person at the crime scene.

Mr. Adirek’s character in front of the court showed that he did not feel threatened by the court environment. For example, he requested a jacket when he was too cold, told the court that he was hungry and also requested more money to cover his expenses for appearing in the court. However, the court believed that his initial testimony was reliable as he had volunteered himself as a witness during the police enquiries, rather than being coerced. Even though his three testimonies had some differences the court accepted that he had seen Mr. Somchai being pushed into a car by a man resembling defendant 1.

Ms. Sunan Kongchem also testified that she saw two cars parked one behind the other and that there was a man resembling defendant 1, of a big build and wearing a black jacket. Ms. Sunan heard some voices and saw a man being pushed into the car. Her testimony corresponded to the testimonies of Ms. Chawiwan and Mr. Adirek.

Consideration of the argument for defendant 1

Defendant 1 argued that he went to see his brother in Rayong Province because he had had a fight with his wife and had left his mobile phones at his office. Defendant 1 only had his brother testify in court to support his alibi. As his brother is a close relative, the court opines that he would help defendant 1 and therefore his evidence was to be questioned. The court opined that defendant 1 leaving his mobile phones in his office did not make sense. His argument about irregularities in the metropolitan police investigation, such as not holding a line-up or making sketches of suspects did not undermine the overall case as these are not compulsory regulations but are subject to the discretion of the investigating officers.

Passing of judgment

The court found that defendant 1 together with three to five other persons had abducted Mr. Somchai by pushing him into a car they had brought, while one of the group drove away Mr. Somchai’s car.

This act is an offence of coercion under section 309, paragraph 1 and section 391 of the Penal Code of Thailand. The higher punishment is under section 309. Therefore, defendant 1 was sentenced to three years in prison under that section.

On the question of whether or not a robbery was committed, even though the court heard ample evidence that defendant 1 and his group had forcibly taken Mr. Somchai into another car and had taken his car, there was no evidence that this was done with the intent to target Mr. Somchai’s property. Was the intention to take the property or to take Mr. Somchai? If the latter, as was the court’s view, then no robbery could have taken place.

The eyewitnesses could not positively identify defendants 2-4. Defendant 5 was not identified at the crime scene. However, the prosecution stated that he had masterminded the whole operation via phone calls made to the other defendants. As the phone records were not reliable evidence, the prosecution did not have enough proof of the involvement of defendant 5. Therefore, defendants 2-5 were found not guilty.

BACKGROUND INFORMATION:

For all links and further information on the case of Somchai Neelaphaijit, visit the Somchai Neelaphaijit webpage established by the AHRC: www.ahrchk.net/somchai. Please note that a Thai-language report on the investigation and trial process by the Thai Working Group for Human Rights Defenders has now been placed on the site (Word Document format).

SUGGESTED ACTION:

Please send a letter, fax or email to the Minister for Justice of Thailand calling on him to clarify the contradictory reports about the progress of the case since the first verdict was reached and urging him to instruct the Department of Special Investigation to resolve the case without further delay. Please also call for a reopening of investigations into allegations of torture made in open court by Somchai’s former clients [see UP-107-2005], which have not been addressed by the court in its judgment, and again call upon the Government of Thailand to implement a law to prohibit forced disappearance.

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