Appendix III: Letters by the ALRC & AHRC concerning institutionalised torture, extrajudicial killings & uneven application of law in Thailand

Letter by the ALRC to the Special Rapporteur on the question of torture regarding gross acts of torture by the Royal Thai Police

26 July 2004

Prof Theo van Boven
Special Rapporteur on the question of torture
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND

Fax: +41 22 917-9016
Dear Professor Van Boven

Re: Five men tortured by police of Tanyong Subdistrict, Narathiwat, Thailand

The Asian Human Rights Commission (AHRC), sister organisation of the Asian Legal Resource Centre (ALRC), has today issued an Urgent Appeal (UA-94-2004) calling for the release of the victims of torture connected with the case of missing Thai lawyer, Somchai Neelaphaijit, and that action be taken against the alleged torturers.

The five victims, Makata Harong (49), Sukri Maming (37), Manase Mama (25), Sudirueman Malae (23), and Abdullah Abukaree (20) were arrested and allegedly tortured in connection with a raid on the Narathiwat Rachanakarin army camp on 4 January 2004. The alleged perpetrators are serving police officers of Tanyong subdistrict provincial police station, Narathiwat province, in the south of Thailand.

After arresting the five men on February 23, the police approached the court on February 25 to continue to keep them in custody after the 48-hour limit established under Thai law, and obtained a first extension of detention to March 7. On March 4, the lawyer for the men, Mr Somchai Neelaphaijit, sought a court order that they be taken for physical examination, alleging that they had been tortured during the first three days in custody, before being transferred to the Crime Suppression Division in Bangkok. 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.”

Having extracted confessions through use of torture, the police then charged the men with a range of offences relating to alleged rebellion against the state, under sections 80, 83, 114, 209, 210, 213, 217, 218(4), 340 and 340(bis) of the Criminal Procedure Code. The police alleged that Makata was a member of an insurgent group, Barisan Revolusi Nasional (BRN), who hired the others to work with him.

Frustrated by his inability to get a judicial response to his applications regarding the torture of his clients, Mr Somchai travelled to Bangkok and distributed a petition on their case to at least five government authorities, on March 11. A full translation of the letter he submitted is attached for your information. The following day, March 12, Mr Somchai was himself taken from his car and forcibly disappeared. He is believed to be dead. Although five police officers have been identified as the persons responsible for initially detaining Mr Somchai, and a court case against them is pending, his subsequent circumstances remain a mystery. The five officers concerned have been charged with relatively minor offences, and not even with kidnapping.

On March 26, a team sent by a group of senators to meet with the five victims found the allegations to be true. However, members of the team were clearly reluctant to talk out about what they had uncovered. Dr Pradit Charoenthaithavee, a member of the National Human Rights Commission, said afterwards that:

“I don’t want to give more details particularly on the issue related to administration. If I am killed or abducted, who will take a responsibility? Before being transferred to a special prison, the 5 suspects told the court that they were severely tortured by the police but the court did not ask for any detailed information on that torture and send them to receive any medical treatment.” (Quoted in Matichon daily, March 27)

On May 18 the Criminal Court released the five men after state prosecutors failed to file charges against them within an 84-day statutory limit, citing insufficient evidence. However, the police immediately rearrested four of them on separate charges of conspiring to murder police officers at Tak Bai district police station, with only Abdullah Abukaree going free. The four men who have been rearrested are now being held in prison in Narathiwat province, and are obtaining legal assistance from the Law Society of Thailand, which is filing a suit against the police officers alleged to have tortured the men.

After he was released, Mr Abdullah Abukaree spoke to the media about his torture, which occurred over a span of three days:

“While being questioned, I was kicked, slapped and punched. They yelled at me and told me to confess that I took part in the camp raid. I didn’t know anything about it, so I denied it¡K When I denied involvement, I was tied to a chair and someone in the group [of interrogators] poked my body with a live electric wire. It was very painful. At those moments I wanted to die. I never felt pain like that before.” (Quoted in The Nation daily, June 1)

Despite public recognition that the men were tortured, and the initiation of legal action on behalf of the men by the Law Society of Thailand, there has been no discussion about their getting physical and psychological treatment and compensation for what they have suffered. Nor has there been any talk of bringing the alleged torturers to justice, and the police have denied wrongdoing. The Government of Thailand is reported to have recently committed to accede to the UN Convention against Torture and Other Cruel and Inhuman Treatment or Punishment. The ALRC sincerely hopes that efforts will be made to ensure that the Government of Thailand does so without delay, as it notes that in the past commitments by the State party to sign international instruments have not been kept. In the meantime, under domestic law the perpetrators can be charged only causing grievous bodily harm and malfeasance in office.

The ALRC notes with particular concern that the types of torture described by Mr Somchai, including beating sensitive parts of the body and electric shocks, indicate that this is most likely the work of experienced professionals who have engaged in such practices many times before. The ALRC is also deeply concerned that growing martial law powers in the south of Thailand, under which “terrorist suspects” are now being kept under military detention for one week before being turned over to the police, are likely to increase dramatically the incidence of torture there.

The ALRC has reason to believe that torture is widespread in Thailand, however, a culture of silence has for many years kept the issue from public discussion. There is no domestic organisation campaigning on the practice of torture in the country. The ALRC is aware from its close contacts in Thailand that lawyers, journalists and other concerned professionals there have for years known the details of many torture cases, but have shied away from them for fear of the consequences, dramatically illustrated in the case of Mr Somchai. The addendum to your report to the Commission on Human Rights for 2004 (E/CN.4/2004/56/Add.1) speaks to this point, listing a mere three cases of torture in Thailand (paras 1678-81), all of them involving non-Thai nationals.

The ALRC believes that with the public awareness of torture in Thailand aroused by the case of these five victims, the time is now right to break the popular mentality among people there that “this is not something that goes on in our country”. It urges you to take up the case of these five victims as a case of particular concern, and engage the Government of Thailand to fully address the extent and nature of the practice of torture in the country. The ALRC and AHRC would be more than willing to offer you any and all assistance in this regard.

Yours sincerely

(Signed)
Basil Fernando
Executive Director

cc: Muslim Lawyer Club (Thailand)
Thai Working Group on Human Rights Defenders

Letter by the AHRC to the Minister of Justice regarding grave cases of torture and the need to ratify the Convention against Torture

12 November 2004

Mr Pongthep Thepkanjana
Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor
Chaeng Wattana Road, Pakkret
Nonthaburi 11120
THAILAND

Fax: +662 502 6699/ 502 6734
Pages: 6

Dear Mr Pongthep

Re: Recent grave human rights violations by state officers in Thailand and the need to ratify the UN Convention against Torture

Further to our letter to you of 14 October 2004 pertaining to the case of the missing human rights lawyer, Mr Somchai Neelaphaijit, we now write to you regarding a number of recent cases of concern involving state officers in Thailand. In the opinion of the Asian Human Rights Commission (AHRC), all of these cases point to the need for Thailand to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and introduce it into domestic law as a matter of urgency. Although I understand that you are familiar with each of the following cases, some of the facts are here restated in brief, together with our observations.

Case 1: Cruel and inhuman treatment of Chol Narapinit and Siri-on Changluadlai at Lumpini Police Station, Bangkok

Mr Chol Narapinit, 28, and his wife Ms Siri-on Changluadlai, 17, were arrested at the Ploenchit skytrain station on 27 July 2004, reportedly on allegations of theft. They have alleged that the police assaulted them and stole a gold necklace from their possession; Ms Siri-on was pregnant at the time of the alleged assault. They were released by the Bangkok South Criminal court on November 5 after being detained by Pol. Maj. Kriangsak Tipjol at Lumpini Police Station for a continuous period of 102 days without charge. This period exceeded the statutory limit for seven periods of detention, totalling 84 days, by a further 18 days. Pol. Maj. Kriangsak had not sought a court order to detain the couple for the additional period. It has been reported that Mr Charnchai Chotivejthamrong, of the Southern Bangkok Criminal Litigation Division 6, which receives the cases from Lumpini Police Station, has stated that the division had at no time received a police report on the case. A third suspect in the case has also been reported as having been maltreated before being released on October 19, at the end of the statutory limit.

During her detention, Ms Siri-on gave birth to a child, but obtained no assistance from the police officers in the station. Her relatives came and took the child from her after five days. It is also alleged that Pol. Maj. Kriangsak recorded her age as 19 to avoid having to treat her in accordance with regulations for juvenile detainees, as per Thailand’s obligations under the UN Convention on the Rights of the Child, and the new Child Protection Act 2546/2003.

To date, the response of the Royal Thai Police has been promising. Pol. Maj. Kriangsak has been temporarily dismissed, and Division 5 of the Metropolitan Police Bureau has established three panels to investigate all officers concerned in the case, including the police station chief and deputy. We are informed that Pol. Maj. Kriangsak is to be charged with malfeasance under sections 148, 157 and 161 of the Penal Code, and confinement, under section 310. However, as no charges have yet been brought, Pol. Maj. Kriangsak has remained at large. We expect that charges will be laid and the accused will be arraigned shortly. Meanwhile, we appreciate that the Office of Witness Protection under your ministry has sought assistance for the victims from the Crime Suppression Division, and trust that all necessary steps are being taken to secure their safety.

While the actions pending against Pol. Maj. Kriangsak are necessary, other officers must also be held responsible for what has occurred. That a young woman could be left in a police station detention cell, and give birth there, for a period of over 100 days speaks to an institutional tolerance of gross human rights abuse. Apart from the arresting officers and those alleged to have assaulted the victims, all of those found to have been responsible for the management of the police station and its detention cells during this period must be held to account. The AHRC trusts that investigations and criminal prosecutions that follow will assess the liability of all officers involved, and not merely Pol. Maj. Kriangsak. In particular, action must be taken against the station superintendent, Pol. Col. Suwat Jaengyodsuek, and his deputy, Pol. Lt-Col Rangsan Praditpol. As superintendent and deputy superintendent of the police station where the abuses occurred, these two officers hold the ultimate responsibility for what has taken place. It defies belief that Pol. Col. Suwat could not have known that people were being held in prolonged detention in his police station, and that a young woman gave birth unattended there. The superintendent was either complicit in the abuse or utterly incompetent and unsuited for his post; in either case action must be taken against him.

The AHRC appreciates your publicly-reported remarks that strict criminal and disciplinary action be taken against the officers in this case, and expect that you will be directing all the necessary resources of your ministry towards this end. In particular, we are concerned that the internal investigations currently being undertaken by the Royal Thai Police be complemented by external enquiries through the Office of the Attorney General without delay, and the Department of Special Investigation (DSI) under your ministry. Reports we have received that the case may be handed to the National Counter Corruption Commission (NCCC) are worrying, as it is not should not be the function of this agency to investigate gross violations of human rights affecting the physical integrity of detainees. We trust that you will ensure that proper action be taken against the perpetrators in accordance with the law to ensure full judicial proceedings follow.

Apart from criminal prosecutions of the offenders, the AHRC also urges you to ensure that the victims are properly compensated for their maltreatment at the hands of state officers, in accordance with the Compensation for Crime Victims Act 2544/2001. We note that the Director-General of the Department of Rights and Liberties Protection under your ministry is reported to have stated that the couple would be entitled to financial compensation. We would hasten to add that the act also stipulates that victims be entitled to medical treatment, including physical and mental rehabilitation. In light of the circumstances under which the victims were detained, and particularly the condition of Ms Siri-on in being forced to give birth without any assistance from the police while in detention, compensation by way of appropriate rehabilitation must not be overlooked.

Case 2: Torture of Mr Ekkawat Srimanta at Phra Nakhon Si Ayutthaya Police Station and Uthai Police Station, Ayutthaya Province

Mr Ekkawat Srimanta, 21, was arrested in the first week of November 2004 by officers in Ayutthaya Province, on allegations of robbery. It is alleged that officers attached to the Phra Nakhon Si Ayutthaya and Uthai police stations brutally tortured Mr Ekkawat, who was rushed to the local hospital by friends after being released without charge. He is seriously injured, and has extensive burns and injuries on his body, including his penis and testicles, where electric shocks were applied.

Twenty-three officers believed to have been involved in the case have now been transferred to Bangkok under orders from Pol. Gen. Kovit Watthana while investigations are ongoing. Twelve of those transferred for enquiries are reported to be from Phra Nakhon Si Ayutthaya Police Station: 1. Pol. Lt-Col. Suebsak Pinsang; 2. Pol. Snr Sgt-Maj. Preecha Meewongsom; 3. Pol. Sgt-Maj. Winai Kampang; 4. Pol. Sgt-Maj. Somchai Raksakul; 5. Pol. Sgt Pichit Sangchan; 6. Pol. Sgt Kitti Traplom; 7. Pol. Sgt Nontawat Wonghong; 8. Pol. Cpl Pakorn Satabutra; 9. Pol. Cpl Suwan Ruensawang; 10. Pol. Sgt Wirach Chantanit; 11. Pol. Sgt Chareon Meksaen; 12. Pol. Sgt Wichit Suanchimplee. Eleven of those transferred for enquiries are reported to be from Uthai Police Station: 1. Pol. Lt-Col. Picha Rujinam; 2. Pol.Capt.Sritong Jonrod; 3. Pol. Capt. Manoch Bunsong; 4. Pol. Snr Sgt-Maj Wichai Kernumnuay; 5. Pol. Snr Sgt-Maj Panya Enon; 6. Pol.Sgt Pensan Chantem; 7. Pol. Sgt Somkid Chodsomboon; 8. Pol. Sgt Monchai Chaloiyan; 9. Pol. Cpl Pitak Chamcharas; 10. Pol. Sgt Wasan Mingkwan; 11. Pol. Snr Sgt Wisut Raknak. The Commander of Police Region 1, Pol. Lt-Gen. Chalor Chuwong, has stated that criminal proceedings will follow, and the victim is understood to have sought the involvement of the DSI. The AHRC also notes that Justice Weecha Mahakul, of Court of Appeal Region 1 has stressed that the transfer of these police is not sufficient, and they should be suspended and charged without delay.

Of particular concern in this case is that the manner of torture alleged to have been carried out on the victims bears a marked resemblance to that inflicted on the five men previously being defended by the missing human rights lawyer, Mr Somchai Neelaphaijit, namely: 1. Makata Harong; 2. Sukri Maming; 3. Manase Mama; 4. Sudirueman Malae; 5. Abdullah Abukaree. The AHRC has written to you on a number of occasions to express concern over the apparent inaction in efforts to locate the whereabouts of Mr Somchai, as well as seeming indifference to the plight of the five torture victims. In particular, the practices of inflicting wounds on sensitive parts of the body and applying electric shocks to the testicles and penis suggest the work of seasoned and experienced professional torturers who have engaged in such practices many times before. The AHRC has repeatedly expressed concern that torture is widespread among state security agencies in Thailand, however, up until recently intimidation and limits to freedom of expression in the media have meant that it was not publicly discussed. Happily, this situation is now changing, and your ministry should be expected to play a central role in securing the rights of the victims in these cases, and preventing further abuses from occurring, through an aggressive campaign to prosecute and punish all known offenders.

Again, the AHRC is pleased to note that you have gone on the public record to state that your ministry will assist in enquiries into this case and that those officers found guilty of torture will be charged. As in the above-mentioned case, however, the AHRC is concerned that the Office of the Attorney General engage in independent enquiries into the incident without delay, rather than the NCCC, and that protection and compensation for the victim also be guaranteed in accordance with the standards noted above. Additionally, the AHRC supports the call of the victim for the involvement of the DSI, with a view to examining the role of the police station chiefs in this case. From the experience and observations of the AHRC in other countries in Asia where the practice of torture in police stations is widespread, it is rarely conducted without the knowledge, or at least tacit approval, of the station commanders concerned. Therefore, the AHRC you to pay particular regard to this aspect of these cases to ensure that police station superintendents are held fully responsible for abuses committed under their commands. Without stern action being taken against superior officers condoning torture as well as those actually committing it, the practice will not diminish.

The AHRC notes that although article 31 of the Constitution of Thailand prohibits torture, regrettably the Government of Thailand has to date not signed or ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Nor is there a specific provision prohibiting torture under the Penal Code of Thailand. We are informed that in this case the perpetrators may be charged with malfeasance under sections 157 and 161, and grievous bodily harm under sections 297, 298 and 289. Notwithstanding, the current legal domestic legal provisions to deal with torture in Thailand fall far short of that envisaged by the CAT, and have not been tailored in a manner that will effectively address the serious endemic torture and cruel and inhuman treatment suggested by these recent cases.

In light of these two cases, I would also yet again like to stress the need for an independent body for receiving and investigating complaints against police officers in Thailand. The reforms to the police force of recent times are in no way sufficient as to protect the basic human rights of their victims in cases such as these. To our knowledge, no steps have been taken to allow for complaints to be lodged against police officers through any independent channel, other than the Ombudsman and National Human Rights Commission, both of which are subsidiary agencies lacking the power to implement judicial proceedings. The AHRC also supports calls from within Thailand for urgent changes to the management of criminal cases so that the Office of the Attorney General will be given a lead role in investigations rather than the police. We expect that were you as the Minister of Justice to initiate efforts to make changes in accordance with recommendations coming from numerous quarters, you would obtain a great deal of public and professional support and sympathy for your efforts.

Case 3: Deaths in custody of at least 78 persons and other casualties arising from protest outside Tak Bai Police Station, Narathiwat Province

Although the mass killing in Narathiwat Province of this October 25 is now well known internationally, many questions remain to be answered in relation to the tragedy. For the AHRC, a key concern is what is the Attorney General doing about this case? In contrast to the incidents described above, to date there is no evidence of steps being taken towards criminal proceedings against the military personnel involved in the deaths in custody of at least 78 persons and other killings there. It is unclear to the AHRC as to whether or not there is a specific reason for the seeming difference in treatment of police and army personnel. However, the AHRC understands that for the purposes of the application of the criminal law in Thailand both should be subject to the same provisions and sanctions.

Of the 78 persons known to have died in custody, 22 were buried without having been identified. Of the remainder, the AHRC has the names of 32 persons, all of them men: 1. Mamarusaki Latae; 2. Nuhan Modoeseng; 3. Mayalee Yaka; 4. Sukrunai Ar-wae; 5. Sachuden Masoe; 6. Doelor Chae Ar-wae; 7. Manor Porsar; 8. Mahama Sama-aae; 9. Marohing Makar; 10. Roymee Duerae; 11. Ar-Hama Saree; 12. Roha Ar-wae; 13. Harong Patorma; 14. Hamran Ar-rong; 15. Muelee Arwaekuechi; 16. Samree Arwaebango; 17. Nasueree Ebroheng; 18. Gifree Mama; 19. Idrae Ar-wae; 20. Ar-rong Sue; 21. Rusadee Jongo; 22. Rosee Samae; 23. Saroj Tolae; 24. Basaree Lueni; 25. Rosuemai Salae; 26. Abdularyee Yaring; 27. Haron Ar-wae; 28. Subaideelah Suriya; 29. Nipaosee Maelae; 30. Arbeedee Gabagor; 31. Sabuting Yusoe; 32. Sama-air Udo.

At least another 40 persons are reported as having disappeared in the aftermath of the killings, and although it is likely that some of these persons are among the 22 buried without being identified, there are reports that the number of those disappeared is much larger. One recent unconfirmed report is that at least 18 bodies were seen floating in the Tak Bai River shortly after the killings. The Chairperson of the Senate Committee on Social Development and Human Security, Dr Niran Pithakwatchara, has also stated that eyewitnesses have told him that the number of persons killed had exceeded the number publicly cited to date.

All of these gaps in information regarding the killings speak to the important role of the Attorney General in investigating and prosecuting those persons responsible. After October 25, four doctors from the Forensic Science Institute under your ministry are known to have conducted partial examinations of the 78 victims removed from army trucks, and to have taken samples for further testing. They played a critical part in exposing the scale of the tragedy at an important early stage, which is appreciated. However, full autopsies were not conducted in compliance with sections 148-156 of the Criminal Procedure Code. Questions must now be asked as to what your ministry is doing to address this situation in order that criminal proceedings are commenced through the Office of the Attorney General without further delay. Although investigations by the senate and the fact-finding team appointed by the Prime Minister are ongoing, there is no reason to delay criminal investigations until these have been completed. It is the role of the Attorney General to investigate and prosecute all crimes, including those committed by government officers, without regard to other factors. Whereas in the recent cases involving police officers described above there appears to be some acceptance of this, by contrast the same appears to be lacking where these military personnel are concerned.

As the scale of the tragedy at Narathiwat far exceeds the incidents described above, and as the military personnel involved unquestionably have criminal liability for their actions, it is hard to imagine that no charges have yet been laid. In particular, the Office of Attorney General should already be commencing criminal proceedings against the alleged perpetrators of the 78 custodial deaths, for which there can be absolutely no excuses. When a death in custody occurs, a state agent must be held criminally responsible. Arguments to suggest that the death or deaths were accidental, were caused by poorly trained personnel, or were due to other extenuating circumstances are totally unacceptable, and in light of the International Covenant on Civil and Political Rights, to which Thailand is a party, utterly irrelevant. Article 2 of the covenant stipulates the necessity for victims of rights violations to have access to effective judicial remedies. We reiterate, therefore, that there is no need to postpone criminal proceedings until other politically appointed enquiries are completed. In fact, it would be negligent to do so, as it would afford time for the perpetrators of these abuses to conceal the extent of their crimes. It is the primary responsibility of Office of Attorney General to ensure that all deaths in custody and extrajudicial killings are fully examined, the perpetrators identified, and held to account for their actions; these things must be done at once.

All of the above cases speak to the urgency for the Government of Thailand at this time to sign and ratify the Convention against Torture, and bring it into domestic law. The AHRC avers that in each of these cases were the CAT a part of the law in Thailand and mechanisms already established to implement it, the perpetrators of the abuses would face far more stringent and appropriate penalties than exist under the national law at present. Those would take into account the gravity with which the international community views acts of torture and cruel and inhuman treatment or punishment. A strong law prohibiting torture in Thailand, combined with public education programmes, could dramatically reduce the incidence of gross human rights abuses. Although the AHRC understands that the Government of Thailand has committed itself to become a party to the CAT, it is unaware of any progress in this regard. As the Minister of Justice we expect that you will be deeply concerned to see the CAT brought into your national legal system without delay, in order that your capacity to deal with gross violations of human rights by state officers is further strengthened.

Yours sincerely

(Signed)
Basil Fernando
Executive Director

CC:
1. Dr Thaksin Shinawatra, Prime Minister
2. Dr Bhokin Bhalakula, Minister of Interior
3. General Sampan Bunyanan, Minister of Defense
4. Mr Khampree Kaocharoen, Attorney General
5. Pol. Gen. Kovit Watthana, Commissioner-General, Royal Thai Police
6. Pol. Lt-Gen. Pansiri Prapawat, Commissioner, Metropolitan Police Bureau
7. Pol. Lt-Gen. Chalor Chuwong, Commander, Police Region 1
8. Pol. Maj-Gen. Kosin Hinthao, Commander, Metropolitan Police Bureau Division 5
9. Mr Charnchao Chaiyanukij, Director-General, Department of Rights and Liberties Protection, Ministry of Justice
10. Mr Charan Phakdeethanakun, Secretary-General to the Supreme Court President
11. Professor Saneh Chamarik, Chairperson, National Human Rights Commission
12. Mr Pichet Sunthornphipit, Ombudsman
13. Mr Dej-Udom Krairit, President, Law Society
14. Mr Abdelfattah Amor, Chairperson, UN Human Rights Committee
15. Mr Jacob Egbert Doek, Chairperson, UN Committee on the Rights of the Child
16. Professor Theo van Boven, UN Special Rapporteur on the question of torture
17. Professor Philip Alston, UN Special Rapporteur on extrajudicial, summary, or arbitrary executions
18. Ms. Yakin Erturk, UN Special Rapporteur on violence against women
19. Ms Manuela Carmema Castrillo, Chairperson, UN Working Group on arbitrary detention
20. Mr Diego Garcia-Sayan, Chairperson, UN Working Group on enforced or involuntary disappearances
21. Ms Lee Wan-Hea, Action Regional Representative, Asia Pacific, UNESCAP

Letter by the AHRC to the Minister of Justice regarding institutionalised torture and the need to ratify the Convention against Torture

24 November 2004

Mr Pongthep Thepkanjana
Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor
Chaeng Wattana Road
Pakkred, Nonthaburi
Bangkok 11120
THAILAND

Fax: +662 502 6699/ 6734 / 6884
Pages: 4

Dear Mr Pongthep

Re: Request for immediate action against torturers and complicit or negligent superiors in the Royal Thai Police

Further to my letter to you of 12 November 2004 pertaining to a number of recent cases of torture and cruel and inhuman treatment involving state officers in Thailand, the Asian Human Rights Commission (AHRC) is concerned by apparent delays in bringing criminal charges against some key perpetrators. It is also concerned by expressions of support for police torturers from some official quarters in Thailand, despite early remarks from you and the Prime Minister Dr Thaksin Shinawatra to the effect that torture would not be tolerated.

The AHRC would like to draw your attention in particular to the following personnel of the Royal Thai Police:
1. Police Major Kriangsak Tipjol, formerly of Lumpini Police Station, Bangkok, and his immediate superiors, Superintendent Police Colonel Suwat Jaengyodsuek, and his deputy, Police Lieutenant Colonel Rangsan Praditpol
2. Crime Suppression Inspector Police Lieutenant-Colonel Suebsak Pinsaeng, formerly of Phra Nakhon Si Ayutthaya Police Station, Ayutthaya province, and his immediate superiors, including Superintendent Police Colonel Atthapol Dedduang
3. Seven unidentified officers of Tanyong Police Station, Narathiwat province, and immediate superiors, including the officer in charge, Deputy Superintendent Pol. Lieutenant-Colonel Chairat Karnchananej
4. Police Lieutenant-General Amarin Niamsakul, Commissioner, Immigration Bureau

According to the information available to the AHRC, despite ongoing investigations and initial disciplinary action against Pol. Maj. Kriangsak for his illegal detention and cruel and inhuman treatment of Mr Chol Narapinit and Ms Siri-on Changluadlai, he has not yet been formally brought up on charges. By contrast, the police authorities have been quick to secure an arraignment against the two victims in this case, after they complained publicly of their maltreatment. Additionally, the AHRC has been informed that Maj. Kriangsak’s superior officer Pol. Col. Suwat has been transferred to the south of Thailand. As noted in the previous letter to you it is quite unacceptable for either Pol. Col. Suwat or his deputy Pol. Lt-Col. Rangsan to hold positions of authority within the police force in light of this incident. The AHRC sincerely hopes that further action will be taken against the two officers to ensure that face serious disciplinary action. The AHRC also urges you to pursue investigations to establish whether or not they were complicit in the maltreatment of detainees in the station, and whether or not they should also be subject to criminal proceedings. Indeed, in our previous letter to you the AHRC noted with appreciation your publicly reported remarks that strict criminal and disciplinary action would be taken against the officers connected to this case, and we are keenly awaiting further news.

Even more disturbing are reports coming to the AHRC that Pol. Lt-Col. Suebsak may be a mentally unbalanced serial torturer who was the ringleader in atrocities committed against detainees at the Phra Nakhon Si Ayutthaya Police Station. Another officer named as being behind the abuses at the station is Pol. Sgt-Maj. Winai Kampaeng. Although the case of Mr Ekkawat Srimanata is the only one publicly reported in detail to date, the AHRC has obtained reliable information regarding at least one other recent case of torture in the station. It has been reported to the AHRC that detained persons coming to the station were first beaten without any questions being asked, after which some would be taken to a torture chamber on the third floor. The police are alleged to have kept equipment there for extreme torture, which included stripping detainees naked, tying them down and electrocuting sensitive parts of their bodies; however, all of these materials were removed by the time investigators came to the station over the case of Mr Ekkawat. During these torture sessions, the officers are reported to have drunk alcohol. Persons aware of what was taking place inside the police station have stated that they believe Pol. Lt-Col. Suebsak is mentally unstable, as he reportedly appeared to relish the opportunity to torture. If this is in fact the case then it raises more serious questions about the role of his superiors, particularly the officer in charge of the station, Superintendent Pol. Col. Atthapol Dedduang, in either tacitly or openly approving the use of torture under their command. In this regard, it is also notable that of the 23 officers initially believed directly connected with this case, to which we referred in our previous letter, all of them are ranking police holding the position of sergeant or higher. Also with regards to this case the AHRC would again remind you of the publicly reported comments of Justice Weecha Mahakul, of Court of Appeal Region 1, to the effect that the police officers involved should face criminal charges. Again, the AHRC has already noted its appreciation of your intention to pursue the case accordingly, and would trust that you will be making swift progress. Urgency in dealing with the case should be expected particularly given the public statements by the Attorney General that the Ayutthaya public prosecutor has been instructed to form an investigating team, and in light of the fact that the victim has received death threats for refusing to withdraw his complaint.

The actions of these officers again draw attention to the serious torture of five detainees at Tanyong Police Station, Narathiwat province, by as yet unidentified personnel in February 2004. The AHRC has written to you previously about this incident in connection with the case of missing human rights lawyer Mr Somchai Neelaphaijit. The AHRC is deeply concerned that although a senate committee obtained a photograph of one or more of the suspect officers, the police department has reportedly refused to comply with its request to identify the man in question. The AHRC urges you to take serious steps to investigate this case and obtain the identities of the suspected police torturers with a view to criminal action against them also. Likewise, their immediate superiors at the time of the torture being committed should be held primarily responsible, particularly in the absence of any other names being available to date.

The recent nationally televised comments from Police Lieutenant-General Amarin Niamsakul, Commissioner of the Immigration Bureau, to the effect that torture by the police is acceptable are also bound to cause outrage among concerned persons in Thailand and around the world. Although the AHRC appreciates that you spoke out publicly against the officer’s remarks, this is in our opinion by no means sufficient. The comments by Pol. Lt-Gen. Amarin contradict article 31 of the Constitution of Thailand, which prohibits torture, and also article 7 of the International Covenant on Civil and Political Rights, to which Thailand is a state party. As you will be well aware, these legal provisions prohibiting torture are underpinned by the principle of jus cogens, that no derogation be permitted. For a senior police officer to suggest otherwise is both sheer folly and completely unacceptable. When reported internationally, they are also bound to cause serious damage to Thailand’s reputation abroad. Accordingly, the AHRC urges you to call for his dismissal from office. It is entirely incompatible with his position that Pol. Lt-Gen. Amarin holds an opinion of this nature, let alone airs it on television, and firm action must be taken against him so other officials will understand that such comments and the practices they condone are unwelcome in Thailand.

The AHRC notes with appreciation that Mr Chol and Ms Siri-on, and Mr Ekkawat are being given protection through the assistance of the Rights and Liberties Protection Department under your ministry. These are to our knowledge the first cases to be brought under the Protection of Witnesses in Criminal Cases Act 2546 (2003), which we are informed came into force around the start of the month. Accordingly, the AHRC trusts that every necessary step will be taken to ensure that the complainants are free from threats against their lives by the alleged perpetrators or their associates. As the management of protection for these victims is setting a precedent for cases yet to come, it is cause for considerable public interest. If these persons or others coming forward to seek protection under the act at this time are nonetheless subjected to threats or harm, it would damage public confidence in the new protection regime at an early and crucial stage in its development. We have no doubt that you wish the witness protection programme to be a success and will be closely monitoring developments in these cases to ensure that it is so. If Thailand is able to establish an effective witness protection programme, particularly where state agents are the accused, it will be an exemplar for other countries in the region. The AHRC would certainly vigorously promote an effective model for witness protection from Thailand in other Asian countries where similar reforms are needed.

The AHRC also takes this opportunity to remind you that all the victims in these cases should be entitled to full compensation, medical treatment and physical and mental rehabilitation for the damage caused to them by the torture and cruel and inhuman treatment committed by the police officers in question. In these regards I refer to my previous letter of November 12.

The AHRC also wishes to express appreciation for the recent announcement that a special task force will be established through the Office of the Attorney General to work alongside police to investigate cases in the public interest. This is an important early step in changing the management of investigations in order to prevent the kind of abuses described above taking place in the future. However, prevention of torture by the police also requires effective investigations of cases that do occur, and strong criminal charges being brought against the alleged culprits. For this to take place, the AHRC would again emphasise the need for a mechanism to receive and investigate serious complaints against the police, and the need to ratify and implement the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Without having taken these steps, the criminal justice system in Thailand will remain poorly equipped to address properly the practice of torture among state agents, despite the best intentions of persons such as yourself to ensure that the perpetrators do not escape punishment.

Yours sincerely

(Signed)
Basil Fernando
Executive Director

Letter by the AHRC to the Minister of Justice regarding further grave acts of torture and the need to ratify the Convention against Torture

13 December 2004

Mr Pongthep Thepkanjana
Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor
Chaeng Wattana Road
Pakkred, Nonthaburi
Bangkok 11120
THAILAND

Fax: +662 502 6699/ 6734 / 6884
Pages: 4

Dear Mr Pongthep

Re: Alleged torture of Mr Metta Saiphan and Mr Anucha Siriporn na Ratchasima at Phra Nakhon Si Ayutthaya Police Station

I am writing to you further to my previous letters to you of 12 and 24 November 2004 pertaining to a number of recent cases of torture and cruel and inhuman treatment involving state officers in Thailand. The Asian Human Rights Commission (AHRC) has obtained information regarding another case of torture at Phra Nakhon Si Ayutthaya Police Station that we believe deserves special investigation. The details of the case are as follows.

Victims:
1. Mr Metta Saiphan, 24, of Bang Kapi district, Bangkok
2. Mr Anucha Siriporn na Ratchasima, 28, of Ayutthaya
Complainant:
Rattanawalee Saiphan, 28, cousin of first victim, residing at Soi Ramkhamhaeng, Hua Mak, Bang Kapi district, Bangkok
Alleged Perpetrators:
Police officers of Phra Nakhon Si Ayutthaya Police Station, including some identified by another torture victim Mr Ekkawat Srimanta, who have already been suspended from service as follows:
1. Pol. Snr Sgt-Maj. Preecha Meewongsom;
2. Pol. Sgt-Maj. Winai Kampang;
3. Pol. Sgt-Maj. Somchai Raksakul;
4. Pol. Sgt Kitti Traplom;
5. Pol. Sgt Nontawat Wonghong;
6. Pol. Cpl Suwan Ruensawang;
7. Pol. Sgt Chareon Meksaen;
8. Pol. Sgt Wichit Suanchimplee.

The other police officers named on the case record are as follows:
1. Pol. Lt-Col. Suthep Srisang;
2. Pol. Lt-Col Nareunart Phutthaisong;
3. Pol. Maj. Paitoon Wansarn;
4. Pol. Cpl Kamphonsak Phakpiboon;
5. Pol. Sgt-Maj. Suwan Ruangsawang;
6. Pol. Cpl Winai Saengphet;
7. Pol. Cpl Boonlerd Khamsamui;
8. Pol. Cpl Somkiat;
9. Pol. Cpl Krisada;
10. Pol. Cpl Phoomsirin Sommongkol;
11. Pol. Cpl Kamphon Chanwong;
12. Pol. Cpl Pradit;
13. Pol. Maj. Pairoot.

According to the information available to the AHRC, Metta Saiphan and Anucha Siriporn na Ratchasima were both arrested and charged with theft on 31 March 2004. According to the police report, they stole a purse from a woman while on a motorcycle, and attempted to escape. The police located and arrested them at Panancheung Temple, after which they were taken to Phra Nakhon Si Ayutthaya Police Station for questioning.

At the police station the two men were allegedly tortured and threatened into confessing for over an hour. The types of torture used included suffocation with layers of plastic bags, beating on the body, using pepper spray, and standing on the chest. The men were told that if they did not confess to the charge of theft, they would have another nine charges added against them. After this time, they confessed. However, it is alleged that the police also did not place them in a line-up for identification by the complainant.

The two men were put in detention and subsequently retracted their confessions; however, the case has gone to court (black no. 920/2547 at Phra Nakhon Si Ayutthaya Provincial Court). During the initial hearings, they had a duty lawyer, who did not study the case nor give any good advice. After the cousin of Metta heard about the torture case of Ekkawat Srimanta in November, she also lodged a complaint of torture and forced confession on their behalf, and obtained a new lawyer to represent the men. On November 29 the new lawyer argued in the second court hearing that they had been tortured, and pointed to the procedural irregularities in the case. He also cited news reports of other torture cases, and named some of the police accused of torturing Ekkawat as among those who had tortured his clients. He asked a police officer appearing for the prosecution to match the names of the police officers facing enquiries over the torture of Ekkawat against those who had tortured his clients. However, after the lawyer made the allegations of torture, the police officer present and the public prosector both went missing during the afternoon hearing. The judgment in the case is expected on December 21. Meantime, the two men are being kept at Phra Nakhon Si Ayutthaya Provincial Prison, as neither was able to meet the THB 200,000 bail set for each.

As the lawyer for the two men has already intimated in court that their confessions were obtained through torture, the AHRC urges you to ensure that an independent investigation be undertaken into these allegations, in accordance with Thailand’s obligations under the International Covenant on Civil and Political Rights. This could be done in conjunction with the investigations of the Ayutthaya police officers accused of torturing Ekkawat, which you have already ordered to be carried out under the Department of Special Investigation and in cooperation with the Office of the Attorney General. The AHRC would like to note with appreciation your decision to transfer investigations and trusts that they will be carried out expediently and with a view to full judicial proceedings against those officers believed to have committed torture. As these cases are setting precedents in terms of offering witness protection and the conducting of joint investigations, the AHRC is keenly noting their developments. In particular we are concerned that the criminal case still pending against at least one of the two persons inhumanly detained in Lumpini Police Station, Mr Chol Narapinit, not be used by the police to obtain revenge against the victims after they complained of maltreatment and initiated legal proceedings. We trust that you are doing everything to ensure that the case against them proceeds strictly in accordance with principles of natural justice.

However, the AHRC is concerned that at the same meeting of November 29 no discussion is reported to have occurred regarding the case of missing human rights lawyer Somchai Neelaphaijit, despite your earlier assertions that progress is being made, particularly with regards to uncovering the whereabouts of his remains. I trust that you are doing your utmost to ensure that all possible steps are taken to answer the many questions that remain hanging over his forced disappearance, and understand that the case has attracted a great deal of international attention.

Returning to the above-mentioned case, one aspect that is particularly disturbing is the apparent contempt with which the police involved feel inclined to treat criminal and judicial procedure. Not only did the police not bother to conduct a line-up, but they also appear in the habit of stacking records to include the names of many more officers than are actually involved in the enquiries. According the information received by the AHRC, one officer appearing in court as a witness for the prosecution on October 18, named Paitoon, in fact had nothing to do with the arrest or investigation of the two men, despite the fact that his name appears on the police record. That the police did not even bother to conduct a line-up or to send the appropriate officers to court, and that the police officer and public prosecutor disappeared from court after the allegations of torture arose all speak to how this type of behaviour is deeply entrenched in the institution. It appears that for some police in Thailand, correct procedure is little more than a joke. Yet these procedures exist, as you know very well, in order to safeguard the rights of citizens. Where police officers feel free to bypass or disdain proper investigatory and judicial procedure, it poses a serious threat not only to the entire policing institution, but also to the rule of law and prospects for natural justice. I would urge you to take into account allegations of such irregularities in this case when determining the need for a full independent investigation along the lines of those already being undertaken regarding other recent cases of special concern.

Finally, I would again remind you that the prevention of torture in police stations requires not only effective investigations but also rigorous criminal charges against the alleged culprits. For this purpose, Thailand should ratify and implement the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment without delay. The AHRC has been informed by way of a letter from the National Human Rights Commission of Thailand of December 1 that your government is at present considering becoming a part of the Convention, and I trust that you will do your utmost to facilitate that process.

Yours sincerely

(Signed)
Basil Fernando
Executive Director

CC:
1. Dr Thaksin Shinawatra, Prime Minister
2. Dr Bhokin Bhalakula, Minister of Interior
3. Mr Surakiart Sathirathai, Minister of Foreign Affairs
4. Mr Kraisak Choonhavan, Chairperson. Senate Committee on Foreign Affairs
5. Mr Kampree Kaewcharern, Attorney General
6. Pol. Gen. Sombat Amonwiwat, Director-General, Department of Special Investigation
7. Pol. Gen. Kowit Wattana, Commissioner-General, Royal Thai Police
8. Pol. Lt-Gen. Chalor Chuwong, Commander, Police Region 1
9. Mr Charnchao Chaiyanukij, Acting Director-General, Department of Rights and Liberties Protection, Ministry of Justice
10. Mr Charan Phakdeethanakun, Secretary-General to the Supreme Court President
11. Professor Saneh Chamarik, Chairperson, National Human Rights Commission
12. Mr Pranoon Suwanpakdee, Acting Secretary-General, National Human Rights Commission
13. Mr Vasant Panich, Chairperson, Sub-Committee on Legislation and Administration of Justice, National Human Rights Commission
14. Mr Pichet Sunthornphipit, Ombudsman
15. Mr Dej-Udom Krairit, President, Law Society
16. Professor Manfred Nowak, UN Special Rapporteur on the question of torture
17. Mr Leandro Despouy, UN Special Rapporteur on the independence of judges and lawyers
18. Ms Wan-Hea Lee, Action Regional Representative, Asia Pacific, UNESCAP
19. Mr Eric Sottas, Director, World Organisation Against Torture (OMCT)

Letter by the AHRC to the Ombudsman pertaining to refusal to investigate case of alleged torture

9 March 2005

Mr Poonsup Piya-anant
Ombudsman
Ombudsman’s Office
1193 Exim Bank Building, 20th Floor
Phaholyothin Road
Samsen-nai, Phayathai
Bangkok 10400
THAILAND

Fax: +662 299 0484
Pages: 3

Ref: PR 21/8137

Dear Mr Poonsup

Re: Refusal of the Ombudsman to entertain complaint of Ms Duangnait Thongthai with reference to the alleged torture of Mr Anek Yingnuek by officers of the Phra Nakhon Si Ayutthaya Police Station

The Asian Human Rights Commission (AHRC) is writing to you with reference to your letter of 24 December 2004 replying to the complaint of Ms Duangnait Thongthai that police officers of the Phra Nakhon Si Ayutthaya Police Station tortured her brother Mr Anek Yingnuek on 9 September 2004.

To briefly recall the facts of the case, officers from the Phra Nakhon Si Ayutthaya Police Station arrested Mr Anek on 9 September 2004 on the charge of robbery. The accused has alleged that at the police station, the police officers tortured him for several hours to extract a confession. The types of alleged torture included beating with PVC pipe, suffocation with plastic bags and electrocution of his penis and testicles. Mr Anek alleges that due to the torture he named Messrs Sukit Ratchamontri, Kampon Kongwiset, and Pirom Kruesorn as accomplices, who were arrested the next day. It is alleged that they were also tortured to obtain confessions. The four have been charged with robbery and possession of illegal weapons (Phra Nakhon Si Ayutthaya Provincial Court black nos 1621/2547, 1675/2547 and 38/2548).

The AHRC has ascertained from the contents of your letter to Ms Duangnait that you inquired into the case with the officers of the Phra Nakhon Si Ayutthaya Police Station and the Office of the Public Prosecutor in Ayutthaya Province on 11 November 2004. Furthermore, you have decided that because the case is pending before the court, in accordance with article 24(2) of the Ombudsman Act BE 2542 (1999) you are unable to pursue the matter.

While strongly recognising and asserting the importance of res judicata as a fundamental principle in upholding the rule of law, the AHRC opines that in this instance the complaint lodged by Ms Duangnait and the matters pending before the courts are separate albeit related issues. Specifically, the matters awaiting judgment in the Phra Nakhon Si Ayutthaya Provincial Court pertain to whether or not the accused men have committed a number of criminal offences. The court is not sitting in judgment to determine whether or not the police tortured the men in order to obtain confessions. The matter that Ms Duangnait has brought to your attention is with regards to this latter concern, which, as noted, is outside the purview of the pending court case. It follows that Ms Duangnait’s complaint should not be closed in accordance with article 24(2). Accordingly, the AHRC urges you to reopen your investigation into this complaint to establish as to whether or not prima facie there are valid grounds to accept that the police of Phra Nakhon Si Ayutthaya Police Station may in fact have tortured the accused.

From our own investigations, the AHRC has found that the allegations of Mr Anek and his colleagues are sufficiently credible as to warrant investigation by independent government agencies. It is to be regretted that to date none has done so, and the AHRC therefore earnestly hopes that your Office will take responsibility with regards to this matter and commence an enquiry or refer the case to the appropriate government organ for action.

In particular, the AHRC would add that in a case of alleged wrongdoing by police officers, enquiries by the Ombudsman to the said police station where the abuses occurred are highly unlikely to produce anything other than simple denial. The AHRC therefore urges that the Ombudsman make a strong commitment to investigating thoroughly cases of actions by state officers alleged to have causing serious harm to persons. This means pursuing all possible avenues for information into the alleged act or omission, and not merely making enquiries with the accused authority.

More broadly, the AHRC is concerned that article 24(2) of the Ombudsman Act and similar provisions not be too narrowly interpreted as to make ineffectual the Ombudsman’s mandate. If the scope of the Ombudsman’s jurisdiction is unnecessarily curtailed by the Office of the Ombudsman itself it is likely to quickly cause widespread public discouragement and undermine the potentially significant role that the institution may have in Thailand. It is the experience of the Asian Human Rights Commission that it is necessary for institutions such as the Ombudsman to take the initiative in expanding and developing their mandates, and that where this happens there is a significant benefit for society as a whole. This is an observation drawn from many years of deep experience on rule of law and human rights issues in the Asian region. As the Ombudsman is a new institution in Thailand, it is strongly hoped that you will seize the opportunity to give its mandate real life, and meet the strong expectations that citizens of Thailand such as Ms Duangnait who have humbly approached your Office for assistance.

On behalf of the Asian Human Rights Commission I therefore reiterate our request that you reconsider the complaint of Ms Duangnait Thongthai with regards to the alleged torture of her brother Mr Anek Yingnuek, and open a thorough enquiry into the said incident, or refer the matter and the complainant to the appropriate government organ through which to pursue the matter.

Yours sincerely

(Signed)
Basil Fernando
Executive Director

CC:
1. Dr Thaksin Shinawatra, Prime Minister
2. Mr Pongthep Thepkanjana, Minister of Justice
3. Dr Bhokin Bhalakula, Minister of Interior
4. Mr Surakiart Sathirathai, Minister of Foreign Affairs
5. Mr Kampree Kaewcharern, Attorney General
6. Pol. Gen. Kowit Wattana, Commissioner-General, Royal Thai Police
7. Pol. Lt-Gen. Chalor Chuwong, Commander, Police Region 1
8. Mr Charnchao Chaiyanukij, Acting Director-General, Department of Rights and Liberties Protection, Ministry of Justice
9. Pol. Gen. Sombat Amonwiwat, Director-General, Department of Special Investigation
10. Mr Kraisak Choonhavan, Chairperson, Senate Committee on Foreign Affairs
11. Mr Charan Phakdeethanakun, Secretary-General to the Supreme Court President
12. Professor Saneh Chamarik, Chairperson, National Human Rights Commission
13. Mr Pranoon Suwanpakdee, Acting Secretary-General, National Human Rights Commission
14. Mr Vasant Panich, Chairperson, Sub-Committee on Legislation and Administration of Justice, National Human Rights Commission
15. Mr Dej-Udom Krairit, President, Law Society
16. Professor Manfred Nowak, UN Special Rapporteur on the question of torture
17. Mr Leandro Despouy, UN Special Rapporteur on the independence of judges and lawyers
18. Ms Lee Wan-Hea, Action Regional Representative, Asia Pacific, UNESCAP

Letter by the AHRC to the Minister of Justice regarding defective policing and public defenders in Thailand

9 March 2005

Mr Pongthep Thepkanjana
Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor
Chaeng Wattana Road
Pakkred, Nonthaburi
Bangkok 11120
THAILAND

Fax: +662 502 6699/ 6734 / 6884
Pages: 5

Dear Mr Pongthep

Re: A man receives a ten-year jail sentence for coming to the assistance of a drunk disabled person (Black no. 535/2546; Red no. 1113/2547)

The Asian Human Rights Commission (AHRC) wishes to draw your attention to the following case of concern, which is currently going to appeal. We wish to draw to your attention to particular troubling aspects in the circumstances of the case, which we believe deserve investigation as matters separate from those pending before the courts.

Details of the case
Accused: Chanon Suphaphan; aged 20 at time of incident, now 23
Investigating Officer: Police Sub-Lieutenant Sornsaran Kaensingh, Singhburi District Police Station
Case number: Black no. 535/2546; Red no. 1113/2547; Singhburi Provincial Court

According to the accused and his witnesses, around 6pm on 24 November 2002, Mr Sanan Phunainnoi drove Mr Thawatchai Nakthong, who suffers a disability in his right leg, on Thawatchai’s motorcycle out from a funeral ceremony at Tantanote temple, Muang district, Singhburi province. About 300 meters from the temple, Thawatchai, who was heavily drunk, fell from the motorcycle and on to the road. He was not able to get up. Mr Manop Phunainnoi, a village headman at the time and brother of Sanan, was on a second motorcycle to the rear and witnessed the event. At the time Mr Chanon Suphaphan was coming along a parallel road. His house is some 50 metres away. Manop hailed him and asked him to help Thawatchai up from the road. This Chanon did. His parents also came and saw this, as did other local villagers. In total, around nine persons witnessed the event. Thawatchai was not seriously injured. However, he was incoherent and unable to stand or walk properly due to alcohol. It is reported by all concerned that Thawatchai is known locally to be a drunkard and that his state on that day was not unusual. Therefore, all parties involved left him by the roadside with his motorcycle and went on their respective ways.

On 17 December 2002, Chanon was summoned to the Singhburi District Police Station, where he was charged with robbery of Thawatchai. He and his parents were completely surprised by the charges. Apparently, Thawatchai had complained to the police on December 2 that he was beaten and robbed by Chanon. He claimed that on 23 November 2002, Chanon had asked him for three Buddha amulets, but he refused to give them. He claimed that on November 24 Chanon had assaulted him at the site where he had fallen from the motorcycle. Chanon denied the allegations and was released on bail.

Subsequently, according to the mother of the accused, the police did not do anything to investigate the case to assess the veracity of the allegations against Chanon. On 17 December 2002 the parents and Chanon came with seven other witnesses to the police station when it was time to extend bail. They brought the witnesses together with them in a pick-up truck. However the police did not take any witness statements. They did the same again on December 27 and again the police declined to take any witness statements, without offering any reason for their refusal. They did the same again on 10 January 2003, and this time the police took written statements after Chanon’s mother very strongly insisted upon it. However, they told the family just to choose the key witnesses, so the number was reduced to four. Those four persons then signed a written testimony. The four witnesses included Mr Manop, Ms Chusri Panthongwattanakul, Mr Savek Khamnoi and Mr Kae Kingthong.

The mother of the accused also claims that the police were negligent in their duties of investigating the material evidence. For instance, she alleges that Pol. Sub-Lt. Sornsaran Kaensingh did not collect material evidence himself. A relative of Thawatchai took photographs of the site of the incident and Pol. Sub-Lt. Sornsaran certified them without going to the place in person. In fact, the photos were of the wrong location, around 50 metres away from where the incident actually occurred.

On 3 April 2003 the public prosecutor filed a criminal case against Chanon. He was then appointed a lawyer. According to Chanon and his parents, the lawyer did not study the case or meet with witnesses, but simply told them not to worry because they had a village headman, who is a government official, as a witness. At no point did he come to visit the site of the incident or speak to any of the persons concerned.

On 22 October 2004 the trial opened in Singbhuri Provincial Court and heard statements by the plaintiff and three witnesses. None of the three were eyewitnesses to the event. One was the superior officer of Pol. Sub-Lt. Sornsaran, Police Lieutenant Colonel Sirisak Naksuk. The second was Mr Nern Lukindra, a health care officer from the local public health centre who reported treating Thawatchai for injuries to his face the following day, November 25. He was not aware when he came to the court that he was being summoned as a witness for the plaintiff. He simply came to confirm the contents of his report that he had treated Thawatchai for injuries. He is understood to have said that Thawatchai was still smelling of alcohol at the time and nor did he mention that he had been assaulted. The third was the aunt of Thawatchai, Mrs Samnao Indrarit, who met him the morning after the alleged assault.

On October 26, the accused and two witnesses were heard. One witness was the village headman, Manop. The second was Mr Kae Kingthong, who met the plaintiff around 9pm on November 24 around the same location near the monastery, and saw that he was bleeding from the face. However, he avers that Thawatchai did not mention that he had been assaulted.

The police presented the complaint and photographs to the court in evidence, but did not present the witness statement taken on 10 January 2003. At no time was this statement mentioned. The appointed defence attorney also did not raise this issue. Outside of the court, the relatives of Chanon asked the police why they did not present the witness statement for the defence, but the police did not respond.

On November 26 the court found Chanon guilty of robbery under section 339(3) of the Penal Code and sentenced him to the maximum 10 years in jail. It also ordered the return of the three amulets, or payment of 500 Thai Baht, to the injured party.

The accused has now appealed against the case. He is obtaining alternative legal assistance. Over 200 local villagers have signed a petition supporting his claim of innocence.

Meantime, according to Chanon’s mother, approximately 10 days after the judgment, she lodged a complaint form at the police station regarding the missing witness statement. After one week she was contacted by telephone and told that she would not be able to see the document. A couple of days after, she lodged a second complaint form, this time at the court, to the office of the public prosecutor. Again she was refused.

Observations
The AHRC is concerned about this case because of the respective roles played by the investigating officer and the court-appointed lawyer. Their actions speak to larger issues concerning the institutions of justice and protection of human rights in Thailand.

According to the accused, his parents, the former village headman and others familiar with the case, the police failed to properly investigate the case. In the first instance, the failure appears to have been a matter of sheer negligence. The police did not care to do their job. They did the minimum amount of paperwork necessary and left it at that. The AHRC has written to you previously to express concern over police failure to follow correct procedure and the consequential damage caused by this failure on the rights of citizens.

More seriously, however, the family of the accused has alleged that they had to pester the police constantly until they were even prepared to take witness statements speaking to the position of the defendant. From this point onwards, the information made available to the AHRC regarding this case suggests that the police were in fact inclined to deliberately undermine the defence case. They did not record statements by all witnesses; they did not produce the witness statement in court; they have not since made the said statement available to the defendant. Given that none of the parties to the case are known to have had any prior relations with these officers, their omissions appear to have been aimed at securing a conviction in response to promotion and monetary incentives.

This is a deeply disturbing conclusion. It is well known that the Royal Thai Police employs a heavy system of incentives, and that at times in recent years-such as during the 2003 campaign popularly described as the ‘war on drugs’-these have been used very aggressively to motivate police towards catching criminals at all costs. This case raises very serious concerns as to how frequently in ordinary criminal cases the police fail to investigate and decline to record or present evidence that may support the defence simply because a non-guilty verdict might contribute to their prospects for promotion and bonuses.

It also speaks to a matter that the AHRC has raised with you previously: the continued almost exclusive control of the investigation system in Thailand by the Royal Thai Police. This is a problem in the criminal justice system in Thailand that the AHRC is aware you and the Attorney General, among others, have admitted to publicly. The AHRC understands and appreciates that reforms are currently being introduced to give the Office of the Attorney General a greater role in investigations in cases deemed to be in the public interest. While this welcome development cannot come fast enough, the AHRC is concerned that it will not touch on common criminal cases such as the above. For so long as the local police for all practical purposes retain absolute control over the investigation and lodging of these cases, they will continue to be characterised by the perversion-rather than upholding-of justice.

Of grave concern also in this case is the role of the court-appointed attorney. Like the police, he was clearly totally disinterested in the needs of his client. In fact, it would be fair to say that he did even less than the police, perhaps expecting that the case would simply be dropped or perhaps without any interest for the consequences at all. Under any circumstances the case raises serious questions about the role of public defenders in Thailand. The AHRC has heard many complaints about court-appointed lawyers doing little if anything to help their clients. One elderly villager with whom a staff member of the AHRC spoke recently observed that, “In my experience, people who have public defenders are found guilty.” The question that should be asked is in how many courts the public defender is actually serving the interests of the public prosecutor? Section 242 of the Constitution of Thailand, which provides for the right to have a state-appointed advocate, presumably was not drafted with the intention that the public defender act in this manner. The unfortunate consequences of the failure of the court-appointed lawyer to do his job fall not only on the accused but also on the society as a whole. When large numbers of people subscribe to the opinion voiced by the villager mentioned above, the effect is to cause a general demoralisation in society, and loss of faith in its key institutions. When people lose faith in the ability of the judiciary to perform its functions fairly and properly for reason of inactive and disinterested police and public defenders, the rule of law is undermined. Under those circumstances, prospects for protection of human rights become very dim indeed.

Accordingly, the Asian Human Rights Commission urges you to look into this case as a matter of concern, and in particular, the alleged negligence of the investigating officer, Pol. Sub-Lt. Sornsaran, and his superiors at Singhburi District Police Station. It also points in particular to the fact that the accused has a right to access all records to his case in accordance with section 58 of the Constitution of Thailand, and therefore, steps should be taken to make available to him the said missing witness statement without delay. The AHRC also urges you to review further, in light of the observations above, enquiry and defence procedures in order to ensure that similar injustices as have been alleged in this instance are not visited upon other persons in Thailand.

Yours sincerely

(Signed)
Basil Fernando
Executive Director

CC:
1. Dr Thaksin Shinawatra, Prime Minister
2. Dr Bhokin Bhalakula, Minister of Interior
3. Mr Surakiart Sathirathai, Minister of Foreign Affairs
4. Mr Kampree Kaewcharern, Attorney General
5. Pol. Gen. Kowit Wattana, Commissioner-General, Royal Thai Police
6. Mr Charan Phakdeethanakun, Secretary-General to the Supreme Court President
7. Mr Charnchao Chaiyanukij, Acting Director-General, Department of Rights and Liberties Protection, Ministry of Justice
8. Mr Kraisak Choonhavan, Chairperson, Senate Committee on Foreign Affairs
9. Professor Saneh Chamarik, Chairperson, National Human Rights Commission
10. Mr Pranoon Suwanpakdee, Acting Secretary-General, National Human Rights Commission
11. Mr Vasant Panich, Chairperson, Sub-Committee on Legislation and Administration of Justice, National Human Rights Commission
12. Mr Pichet Sunthornphipit, Ombudsman
13. Mr Dej-Udom Krairit, President, Law Society
14. Mr Leandro Despouy, UN Special Rapporteur on the independence of judges and lawyers
15. Ms Wan-Hea Lee, Action Regional Representative, Asia Pacific, UNESCAP

Letter by the AHRC to the Minister of Justice regarding the disappearance of Mr Somchai Neelaphaijit and need for a law to prohibit forced disappearances

24 February 2005

Mr Pongthep Thepkanjana
Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor
Chaeng Wattana Road
Pakkred, Nonthaburi
Bangkok 11120
THAILAND

Fax: +662 502 6699/ 6734 / 6884
Pages: 4

Your ref: 0204/06808

Dear Mr Pongthep

Re: Failure to initiate full, prompt and independent enquiry into the case of disappeared human rights lawyer Mr Somchai Neelaphaijit and implications for justice in Thailand

The Asian Human Rights Commission (AHRC) has previously informed you, through our letter dated 14 October 2005, about our concern over inaction in investigating the case of disappeared human rights lawyer, Mr Somchai Neelaphaijit (Criminal Court case no. 952/2547). We have referred to the case in a number of subsequent letters to your office, for instance, those dated 24 November and 13 December 2004.

The AHRC is extremely disappointed that despite your written assurance of 5 August 2004 that every possible step was being taken to uncover Mr Somchai’s whereabouts and hold the perpetrators responsible in accordance with the law, almost a year since his forced disappearance on 12 March 2004, his fate remains unknown.

The AHRC takes this opportunity to again remind you of what you wrote on that occasion. In your letter of August 5, you asserted that “an ad hoc committee under the responsibility of the Special Investigation Department (SID), the Ministry of Justice has been set up to work on information gathering, forensic evidence as well as other investigation for the case” (our emphasis). You add that the committee had since its establishment made of “a lot of progress”.

It has since become apparent that these assertions were false. No such committee has been established, let alone made progress. It is known that the wife of the victim, Ms Angkana Wongrachain, a joint plaintiff in the criminal case proceeding against the five police officers alleged to have abducted Mr Somchai from his vehicle did on September 23 request the Department of Special Investigation (DSI) to take up the case. She also publicly complained about the lack of efforts by investigators with regards to this enquiry. The AHRC has also learnt that she has been hampered in efforts to obtain documents pertinent to the said court case.

The AHRC regrets to learn that when the request from Ms Angkana was first submitted to the committee to examine special cases to be taken up by the DSI, it was rejected. The reasons for rejection are unknown to us, and the reasoning in refusing the case is altogether unfathomable. This is particularly so given your earlier assertions that the case was already with the DSI, and also your written remarks that “the Prime Minister Dr Thaksin Shinawatra had given a clear command to all Thai agencies concerned that every necessary measure must be taken to search for Mr Somchai Neelaphaijit’s whereabouts, and those who are responsible for his disappearance and safety will have to be brought to justice without exception” (our emphasis).

Unfortunately, the AHRC is left to conclude that your comments of August 5 were not genuine, but intended only to deflect attention and discourage persons truly interested in the whereabouts of Mr Somchai from learning the truth. It is now nearly one year since Mr Somchai went missing. Still the question remains: where is Somchai?

Since the case has remained entirely in the hands of the Royal Thai Police it has languished. This is not surprising, as the police are themselves the alleged perpetrators of the crime. It is quite impossible that the facts of the forced disappearance and presumed death of Mr Somchai will become known for so long as the agency believed responsible these crimes is also responsible for investigating them. We also presume that the five officers alleged to have abducted Mr Somchai are being protected by powerful persons within the police force and the government, as they would have been acting on the orders of superiors, not autonomously.

It has now come to our attention by way of a media report of 21 February 2005, citing Mr Tharit Pengditha, Vice Director-General of the DSI, that the case of Mr Somchai will again be brought to the committee on special cases this February 25. Thus, an opportunity again exists for the DSI to take control of the case and conduct a proper and efficient investigation to the satisfaction of the victim’s family and wider public without delay.

Although it must be said that at this stage we have lost all confidence in the ability of your ministry to effect justice in this case, we urge you to breathe new life into your earlier stated commitments and ensure that the DSI be given full control of this case. As you are the deputy-head of the committee responsible for overseeing this decision, answerable only to the Prime Minister-whom you have asserted backs all and any necessary steps to uncover the truth about the whereabouts of Mr Somchai-it is beholden upon you to see that this is done. The DSI must also be given the necessary resources to complete its enquiries quickly and effectively.

In view of the role that Mr Somchai played defending victims of torture in the south of Thailand, and his prominence as a highly respected human rights lawyer, were this case to be properly addressed now it may in some small part help to reduce tensions in that region.

The AHRC would also again take this opportunity to remind you that the matter of the alleged torture of the five persons whom Mr Somchai was defending when he was disappeared, namely Makata Harong, Sukri Maming, Manase Mama, Sudirueman Malae and Abdullah Abukaree, remains, to our knowledge, completely unaddressed. Nor have we obtained any information to indicate that proper criminal enquiries are ongoing against any of the police officers in Ayutthaya province accused of torture, which we have brought to your attention. We would be gratified to hear otherwise. In the meantime, our sister organisation the Asian Legal Resource Centre has prepared a report for the UN Human Rights Committee that adverts to all of these cases.

The AHRC is also dismayed by the non-role of the Ministry of Justice, and in particular, Attorney General, in the enquiries following the mass deaths in custody in Narathiwat last October 2004. The total failure of judicial agencies to become properly involved at a critical juncture in events there has no doubt contributed to the daily growing violence seen in the south. The denial of judicial remedies to the aggrieved by way of criminal prosecutions of the perpetrators is directly responsible for the spreading discontent in that region. In this you as the Minister of Justice are personally accountable. The politically appointed enquiry into that incident was, in our opinion, from the start established in order to deny the necessary role of the judicial arm in addressing the tragedy. It has ended, predictably, in a whitewash. The possibility of some remote disciplinary action against the senior officials involved is in no way a satisfactory response to the custodial death of at least 78 persons, not to mention the deaths of an unknown number of others.

It is extremely disappointing that despite your rhetorical commitment to address custodial abuses in Thailand, no effective steps have been taken on individual cases or at the policy and legal levels to this end. Although the AHRC has been informed through a number of channels for some time now that the government of Thailand intends to ratify the UN Convention against Torture and introduce it into domestic law, we have no evidence to suggest that it will do so soon. Like the case of Mr Somchai, it appears to be another matter of a rhetorical commitment without substance. We would be pleasantly surprised were it otherwise.

The AHRC also again points to the fact that at present there exists no independent body for receiving and investigating complaints over custodial abuses in Thailand. The National Human Rights Commission, although an important agency for the protection and promotion of human rights, is not empowered with the judicial authority necessary to effect its investigations through the law. As such, it remains all but impossible for persons in Thailand to obtain natural justice in cases involving errant police officers or other state officials.

No better example of this last point exists than the case of Mr Somchai Neelaphaijit. Despite his wide reputation and the enormous publicity given to his disappearance in the days after the event, all has come to nought. There is an unequivocal link between Mr Somchai’s disappearance and state officers, and quite likely some senior officials. Assuming that Mr Somchai is dead, the responsibility for his death lies with your government. We urge you to at last take up your obligations, for the sake not only of the victim and his loved ones, but also for the sake of the reputation and future of the entire justice system in Thailand. If under the circumstances the government of Thailand is unable to fulfil these obligations, it will be yet another decisive victory for all the state agents who continue to commit grave human rights abuses with impunity in your country. This is, therefore, a case that your justice system can ill-afford to lose.

Yours sincerely

(Signed)
Basil Fernando
Executive Director

CC:
1. Dr Thaksin Shinawatra, Prime Minister
2. Dr Bhokin Bhalakula, Minister of Interior
3. Mr Surakiart Sathirathai, Minister of Foreign Affairs
4. Mr Kampree Kaewcharern, Attorney General
5. Pol. Gen. Kowit Wattana, Commissioner-General, Royal Thai Police
6. Pol. Lt-Gen. Pansiri Prapawat, Commissioner, Metropolitan Police Bureau
7. Mr Charnchao Chaiyanukij, Acting Director-General, Department of Rights and Liberties Protection, Ministry of Justice
8. Mr Kraisak Choonhavan, Chairperson, Senate Committee on Foreign Affairs
9. Pol. Gen. Sombat Amonwiwat, Director-General, Department of Special Investigation
10. Mr Charan Phakdeethanakun, Secretary-General to the Supreme Court President
11. Professor Saneh Chamarik, Chairperson, National Human Rights Commission
12. Mr Pranoon Suwanpakdee, Acting Secretary-General, National Human Rights Commission
13. Mr Vasant Panich, Chairperson, Sub-Committee on Legislation and Administration of Justice, National Human Rights Commission
14. Mr Pichet Sunthornphipit, Ombudsman
15. Mr Dej-Udom Krairit, President, Law Society
16. Mr Diego Garcia-Sayan, Chairperson, UN Working Group on enforced or involuntary disappearances
17. Ms Hina Jilani, Special Representative of the UN Secretary General on human rights defenders
18. Professor Manfred Nowak, UN Special Rapporteur on the question of torture
19. Professor Philip Alston, UN Special Rapporteur on extrajudicial, arbitrary or summary executions
20. Ms Lee Wan-Hea, Action Regional Representative, Asia Pacific, UNESCAP

Petition by the AHRC to His Majesty the King of Thailand regarding forced disappearance of Mr Somchai Neelaphaijit

11 March 2005

His Majesty Bhumibol Adulyadej
Office of His Majesty’s Principal Private Secretary
Grand Palace
Thanon Na Phra Lan
Bangkok 10200
THAILAND

Fax: +662 224 3259
Pages: 2

Your Majesty

Re: Disappeared human rights lawyer Mr Somchai Neelaphaijit

In highest respect and great humility the Asian Human Rights Commission (AHRC) wishes to request Your Majesty to consider the case of disappeared human rights lawyer Mr Somchai Neelaphaijit. The AHRC earnestly requests that Your Majesty’s high office convey concerns over this case to the Royal Thai Government in order that the family of Mr Somchai may obtain justice and thereby the rights and dignity of all Your Majesty’s subjects be secured.

Your Majesty will be familiar with the case of Mr Somchai, who was forcibly disappeared from his car while in Bangkok one year ago, 12 March 2004. After that date, His Excellency the Minister of Justice of the Royal Thai Government informed the AHRC that His Excellency the Prime Minister had ordered that every possible measure be taken to locate Mr Somchai’s whereabouts and hold the perpetrators of the crime responsible.

The Asian Human Rights Commission was gratified by His Excellency’s reassurance; however, since then it has become extremely disappointed and discouraged about this case. Mr Somchai has not been found. The alleged perpetrators of his disappearance deny the charges against them, which under any circumstances do not reflect the gravity of the crime. The AHRC, the wife of the victim and others have repeatedly sought for the case to be transferred to the Department of Special Investigation under the Ministry of Justice, but it has remained in the hands of the Royal Thai Police. While the AHRC respects the institution of the Royal Thai Police, as the accused persons are also officers of the said institution, it opines that it is inappropriate for the Royal Thai Police to be responsible for the investigation.

The Asian Human Rights Commission has tried without success to pursue this case through conventional channels. Therefore, after one year, the AHRC has decided to approach Your Majesty with all due respect, in order that the wife and five children of the victim may at last know what happened to him, and see the perpetrators held to account.

The Asian Human Rights Commission wishes to suggest to Your Majesty that the case of Mr Somchai is not only of deep importance to his family, but also for all of Your Majesty’s subjects. The case of Mr Somchai obtained very high public attention, and it is important that it be solved fully in order that the citizens of the Kingdom of Thailand have respect for-and faith in-its institutions of justice.

In particular, the Asian Human Rights Commission believes that given Mr Somchai’s leading role as a human rights defender in the south of the Kingdom, were his case properly addressed now it may in some small part reduce the tensions that are causing daily suffering to Your Majesty’s subjects there. In this respect, the AHRC would like to express its deepest sympathy and concern for all persons who have been adversely affected by this needless conflict.

The Asian Human Rights Commission need not point out to Your Majesty that the case of Mr Somchai is one of strong international concern, and has attracted attention from many quarters. Therefore, the reputation of Your Majesty’s Kingdom abroad also rests very much upon the whereabouts of Mr Somchai being uncovered and the perpetrators of his disappearance being held fully accountable for their actions.

Accordingly, the Asian Human Rights Commission urges Your Majesty’s high office to express concerns over the case of Mr Somchai Neelaphaijit to the Royal Thai Government such that his family may obtain some redress and Your Majesty’s subjects be satisfied that justice has been done.

In closing, the Asian Human Rights Commission wishes to point out to Your Majesty that forced disappearance of this kind is a heinous crime, and one that is condemned by all civilised societies. A draft International Convention on the Protection of All Persons from Forced Disappearance was introduced in 1998. The AHRC sincerely hopes that the Royal Thai Government will also take the necessary steps to subscribe to the principles entailed in that draft convention and introduce a law to prohibit forced disappearance in the Kingdom of Thailand in the near future.

With utmost respect, the Asian Human Rights Commission submits this modest request to Your Majesty for due consideration.

Yours sincerely

(Signed)
Basil Fernando
Executive Director

Appendix III: Letters by the ALRC & AHRC concerning institutionalised torture, extrajudicial killings & uneven application of law in Thailand

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Appendix III: Letters by the ALRC & AHRC concerning institutionalised torture, extrajudicial killings & uneven application of law in Thailand

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