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UPDATE (Thailand): Constant changes of prosecuting attorneys in Somchai's case undermines judicial process

November 4, 2005

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Update on Urgent Appeal

4 November 2005

[RE: FA-06-2004: THAILAND: A human rights lawyer Mr. Somchai Neelaphaijit missing… UP-20-2005: THAILAND: Human rights lawyer still missing after nearly one year; Action needed today to have case transferred; UP-24-2005: THAILAND: Thai minister refuses to act on missing human rights lawyer case; UP-37-2005: Thai PM orders action on missing human rights lawyer, while court hears of torture; UP-45-2005: Wife of missing human rights lawyer intimidated; UP-49-2005: THAILAND: Government commits to giving witness protection to missing lawyer's family; UP-89-2005: THAILAND: Repeated failed commitment to assign Department of Special Investigation to Somchai case; UP-107-2005: THAILAND: Special call for observers to attend September 7, 8 & 9 court hearings over missing human rights lawyer Somchai Neelaphaijit… UP-118-2005: THAILAND: Fourth special call for observers to attend court hearings over missing human rights lawyer Somchai Neelaphaijit, UP-123: Grave concern about change of principal judge in case of missing human rights lawyer Somchai Neelaphaijit, UP-126-2005: Fifth special call for observers to attend court hearings over missing human rights lawyer Somchai Neelaphaijit]
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UP-130-2005: THAILAND: Constant changes of prosecuting attorneys in Somchai's case undermines judicial process

THAILAND: Disappearances; Defective prosecution system; Impunity
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NEW SOMCHAI NEELAPHAIJIT WEBPAGE: www.ahrchk.net/somchai

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Dear friends,

The Asian Human Rights Commission (AHRC) is gravely concerned by the constant change of prosecuting attorneys in the case against five police officers who were charged with abduction of human rights lawyer Somchai Neelaphaijit and the incompetent and manner with which they have worked. Most recently, on 3 November 2005 when it was the first day for the defence witnesses to take the stand, there were again new prosecuting attorneys, who were not aware the details of the case, and they could hardly conduct effective cross-examination.

Such low-quality performance by the public prosecution effects not only on the outcome of Somchai's case but also reflects very badly on the Office of the Attorney General, the Department of Criminal Litigation and indeed the entire judicial system of Thailand.

We call for your urgent intervention into this matter. Please write to the Attorney General of Thailand and urge him to ensure that the same lawyers would deal with the case for its duration. Please also urge him to dispatch a senior advocate to the proceedings, considering the manifest important of this case.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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UPDATED INFORMATION:

On 3 November 2005, the case against five police officers in connection with the alleged abduction of human rights lawyer Somchai Neelaphaijit (Black Case No. 1952/2547) was heard at the Bangkok Criminal Court. However, there were again new prosecution attorneys, who were previously unknown to the case. In the morning there were four and in the afternoon there were two. During the hearing process, they appeared completely unfamiliar to the case. When it came time for the cross-examination, remarkably the lawyers confessed that they did not know the details of the case well and requested the judge to postpone the cross-examination until the next day. However, the presiding judge refused their request and allowed them 20 minutes before proceeding. As a result, they could not effectively cross-examine the defendants even though it was critical for the prosecution.

The judge also asked the prosecuting attorneys why they keep changing, both in numbers and in persons. They replied that the other lawyers were assigned other cases.

The AHRC is extremely disturbed to hear of the incompetent and unprofessional manner with which the case has been handled by the public prosecution. If this is the way a prosecution is conducted in high-profile cases such as Somchai's, it is easy to imagine that in ordinary cases the performance is far worse. The lawyers' consistent low-quality performance in the court and their frequent changes illustrates a lack of seriousness in handling Somchai's case by the public prosecution.

The AHRC therefore urges the Attorney General to ensure that the same lawyers will deal with the case for its duration. A senior advocate should remain in the proceedings throughout, considering the importance of this case and the complicated and lengthy trial proceedings.  We refer you to also see the AHRC statement and press release regarding this matter: AS-111-2005 and AHRC-PL-69-2005. 

LATEST UPDATES:

The AHRC has earlier issued an Urgent Appeal and expressed our concern over the possible change in the principal judge over the trial of five police officers in connection with the disappearance of Somchai Neelaphaijit (See further: UP-123-2005). We are happy to inform you that this did not eventuate.

On November 1, the court again heard testimonies regarding the alleged tortue of Somchai's clients by the police, when two senators who visited the detained torture victims addressed the court. Sak Korsaengruang, chairman of a Senate committee looking into Somchai's disappearance and the last prosecution witness, said that he believed Somchai's disappearance was linked to his complaint to the court that police interrogators had tortured his five clients.

Mr. Sak also said his investigation team had worked with Pradit Charoenthaithawee, a member of the National Human Rights Commission, and Porntip Rojanasunant, then deputy director of the Justice Ministry's Central Forensic Science Institute. Later the team and the two experts visited and examined the five suspects in prison. Marks on their bodies confirmed that they had indeed been tortured. Mr. Sak said the five told his team that they had been physically abused by the police to force a confession to crimes they had never committed. One of the suspects claimed police gave him electrical shocks, causing severe burns to his testicles and penis. Another suspect claimed he had been made to stand naked on his toes on a chair, with a rope around his neck for one whole night. He would have died if he had fallen.

Regarding the testimony of the first defendant, we refer you to an article in the Nation newspaper: Suspect gives alibi in Somchai case

FURTHER BACKGROUND TO THE CASE:

The AHRC has released copious material speaking to the importance of the disappearance of Somchai Neelaphaijit: all material has now been compiled on the new webpage: www.ahrchk.net/somchai.

For additional information or inquiries regarding the case please contact the Urgent Appeals Desk of the AHRC.

SUGGESTED ACTION:
Please send a letter to the Attorney General of Thailand demanding that the same lawyers would deal with Somchai's case for its duration and that the court process would be conducted by highly qualified professional lawyers. Please note AHRC has just learnt that the Attorney General has changed. Please use the new name as follow.

Sample letter:

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Dear Mr. Pachara,

Re: THAILAND: Constant changes of prosecuting attorneys in Somchai's case undermines judicial process [Black Case No. 1952/2547 at the Bangkok Criminal Court]

I write to voice my concern over the constant changes of prosecuting attorneys in the case against five police officers who were charged in connection with the abduction of human rights lawyer Somchai Neelaphaijit. I have been informed that the numbers of lawyers present for the public prosecution have varied from four or five to just one. I am gravely concerned that the unprofessional manner of public prosecution on show in the trial may badly affect the outcome of the case.  

I have learned that on 3 November 2005 there were again changes in the prosecuting attorneys of the case even though it was the first day for the defence witnesses to take the stand. The lawyers are said to have appeared to be completely unfamiliar with the case. Consequently, they could not effectively cross-examine the defendants even though it was critical for the prosecution that they do so.

I therefore strongly urge you to use your authority to ensure that the same lawyers would deal with the case for its duration, and dispatch a senior advocate in the proceedings throughout, considering the manifest important of this case. I also urge you to immediately take other direct measures as necessary to ensure better performance by the prosecutors for the duration of the case.

Yours truly,


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SEND A LETTER TO:

Mr Pachara Yutidhammadamrong
Attorney General
Office of the Attorney General
Lukmuang Building
Nahuppei Road
Prabraromrachawang, Pranakorn
Bangkok 10200
THAILAND
Tel: +662 224 1563/ 222 8121-30
Fax: +662 224 0162/ 1448/ 221 0858
E-mail: ag@ago.go.th, oag@ago.go.th 

SEND A COPY TO:

1. Pol. Lt. Col. Dr Thaksin Shinawatra
Prime Minister
Government House
Pitsanulok Road, Dusit District
Bangkok 10300
THAILAND
Fax: +66 2 282 8631 or 66 2 629 8213
E-mail: thaksin@thaigov.go.th, govspkman@mozart.inet.co.th

2. Pol. Gen. Chidchai Wanasatidya
Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor
Chaeng Wattana Road
Pakkred, Nonthaburi
Bangkok 11120
THAILAND
Tel: +662 2 502 6776/ 8223
Fax: +662 502 6699/ 6734 / 6884
Email: ommoj@moj.go.th; chidchai@moj.go.th 

3. Prof. Saneh Chamarik
Chairperson
The National Human Rights Commission of Thailand
422 Phya Thai Road
Pathum Wan District
Bangkok 10300
THAILAND
Fax: +66 2 219 2940
E-mail: commission@nhrc.or.th, saneh@nhrc.or.th 

4. Ms Hina Jilani
Special Representative of the Secretary General on human rights defenders
Att: Ben Majekodunmi
Room 1-040
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006 (Attn: Special Representative on HR defenders)
E-mail: bmajekodunmi@ohchr.org

5. Mr. Diego Garcia-Sayan,
Chairperson

c/o Tanya Smith

Secretary a.i.
UN Working Group on Enforced or Involuntary Disappearances
C/o OHCHR-UNOG, 1211 Geneva 10,
SWITZERLAND
Fax: +41 22 917 9006 (Attn: Working Group on Disappearances)
E-mail: urgent-action@ohchr.org

6. Mr. Leandro Despouy
Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers
Att: Sonia Cronin
Room: 3-060
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9160
Fax: +41 22 917 9006 (Attn: Special Rapporteur on the independence of judges and lawyers)
E-mail: scronin@ohchr.org


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Update
Document ID :
UP-130-2005
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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.