Home / News / Urgent Appeals / THAILAND: Verdict on Somchai's case--his wife, daughter could not be plaintiffs; not enough evidence to convict accused

THAILAND: Verdict on Somchai's case--his wife, daughter could not be plaintiffs; not enough evidence to convict accused

March 17, 2011

Thai

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-017-2011

17 March 2011

[RE: AHRC-UAU-015-2011: THAILAND: Court to read verdict on Somchai's case on the eve of his disappearance seven years ago--observers requested]
---------------------------------------------------------------------
THAILAND: Verdict on Somchai's case--his wife, daughter could not be plaintiffs; not enough evidence to convict accused

ISSUES: Enforced disappearances & abductions, human rights defenders, impunity, threats & intimidation, victims' assistance and protection
---------------------------------------------------------------------

AHRC 2010 HUMAN RIGHTS REPORT: THAILAND

THE INTERNAL SECURITY STATE DIGS IN
http://www.humanrights.asia/resources/hrreport/2010/

---------------------------------------------------------------------

Dear friends,

The Asian Human Rights Commission (AHRC) deeply regrets, but is not surprised, that the five defendants who were earlier convicted for theft and illegal detention, in connection with the disappearance of human rights lawyer Somchai Neelapaijit, have all been exonerated in an Appeal verdict. The court ruled to acquit all the defendants on procedural and technical grounds.

UPDATED INFORMATION
:

In our previous appeal (AHRC-UAU-015-2011), we mentioned that the Criminal Court in Bangkok was to read the appeal verdict on the case of Somchai Neelapaijit, which was earlier postponed in February 7, 2011. The reading of verdict on March 11, 2011 marks the eve of Somchai's disappearance seven years ago. For more details, visit this campaign website.

When the appeal verdict was finally read, after numerous postponements, on March 11 all parties were present to hear the Appeal verdict at the Criminal Court. The reading was held at court room no. 913 at 9am. Somchai's wife, Angkana; his daughter, Prathabjit; several persons from non-governmental organizations (NGOs), staff from Embassies and journalists were present to hear the verdict.

Angkana and Prathabjit appeared as first joint-plaintiff and third joint-plaintiff respectively. The others who were present to hear the verdict were lawyers of the four defendants. The other defendant, Police Major Ngern Thongsuk, whom his family claimed had been missing, was not present in court.

Before the appeal verdict was read, the judge informed the guarantor of Ngern that the subject of the Appeal that the court has to resolve involves two issues: Firstly, the appeal against the reading of the verdict; secondly, the appeal asking not to seize the guarantee money because Ngern has disappeared and did not escape.

In ruling the first issue, the judge rejected the appeal against the reading of the verdict; thus, the reading pushed through.

THE APPEAL VERDICT

Somchai's wife, daughter could not be plaintiffs

The Court ruled that Somchai's wife, Angkana; and his daughters and son including Prathabjit, could not be considered as joint plaintiffs because legally they could not act on behalf the "injured person or death person", in this case the disappeared victim Somchai, to institute a criminal prosecution based on the conditions provided by sections 5 and 28 of the Criminal Procedure Code (CPC).

Under section 5 of the CPC, it requires that the "wife" and "descendants" of the injured person in the prosecution of criminal offenses "may act on (his/her) behalf" if they could show that "the injured person had died or is unable to act by himself". A similar condition also applies under section 28 of the CPC, which defines as to who "are entitled to institute the criminal prosecution in the Court".

In the court's verdict, in argued that the petition that Angkana and her children's lawyer had submitted to be considered as joint plaintiffs at the early stages when the trial began, did not show that Somchai has been assaulted to death and that he was disabled and had died.

Thus, even if Angkana is Somchai's legal wife and that their children were his legal son and daughters, they could still not be considered as joint plaintiffs as required by the CPC. The verdict also said that the petition that was submitted urging them to be joint plaintiffs did not explain anything about the cause that could have shown that Somchai had been injured, he had died or had been disabled. Also, the criminal offense that is subject for prosecution of the defendants does not involve assault or killing.

Testimonies of eyewitnesses are not enough evidence

The Appeal Court also ruled that for 2nd (Pol. Major Sinchai Nimpunyakampong), 3rd (Pol. Sergeant Major Chaiweng Paduang) and 4th (Pol. Sergeant Rundorn Sithiket) defendants, that there were not enough evidence that could link them or involve them in the incident because the eyewitness could not remember their faces. The eyewitnesses also did not identify the defendants in open court room when they were testifying in court.

With regard to the 5th defendant (Pol. Lieutenant Colonel Chadchai Liamsanguan), he was not present at the place where the incident happened. Even though there have been records of his communications with other defendants when the incident happened; however, the record that the prosecutor had submitted in court as evidence is only a photocopy of the original document. The prosecutor who submitted the evidence also did not present in court the person who made the copy to testify.

The court also ruled as inadmissible the other documents which had been certified as true copies that the prosecutors had submitted. It ruled that although they had been certified as true copies from the original documents by a lawyer of the company; however, the lawyer did not made the photocopy of the document himself. Thus, the lawyer did not know what the original documents were because he was not the one who made the copy. Again, the prosecutor also did not bring the person who made the copy to give testimony.

Therefore, the Court ruled that the documents could not be admitted as evidence thereby effectively exonerating the defendants. There is no evidence, according to the Appeal Court, that could show how the 5th defendant had indeed communicated with the other defendants when the incident happened.

Four eyewitnesses could not positively identify

For the 1st defendant, the Appeal court also ruled that regarding Police Major Ngern Thongsuk, all the four eyewitnesses against him did not point at him and identify him in open court as the person responsible for Somchai's disappearance.

One of the eyewitnesses, a woman, was close to where the incident had happened; however, the Appeal Court ruled that when she was investigated on three occasions, at first questioning she could remember the appearance of Ngern but on the second and the third questioning she was no longer sure whether she could still remember him. This is also the case for other eyewitnesses in that they could not confirm his identity.

The Appeal Court also ruled that it would have been impossible for the eyewitnesses to have identified Police Major Ngern because the place where the incident had happened was dark and the lamppost at the path walk had also been covered by a tree. Thus, the benefit of the doubt should be afforded to Police Major Ngern. Anyhow, Police Major Ngern has to be detained during the Supreme Court.

ADDITIONAL INFORMATION:

After verdict has been read, the AHRC is further concern about security of Angkana and her family. In our previous appeal (AHRC-UAU-005-2011), we have mentioned the continuing threats and intimidation on Angkana and her family. However, none of the reports of threats and intimidation, which Angkana had already reported to the Department of Special Investigation (DSI) and police, have been investigated.

Also, the broken CCTV in front of her house, which could have helped in monitoring their security, has not been fixed by the DSI and the police, who has full responsibility to protect her and her family as required by the witness protection programme.

--------

Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)


Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-017-2011
Countries :
Campaigns :
Share |
Subscribe to our Mailing List
Follow AHRC
Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.