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UPDATE (Thailand): Trial against 58 accused in Narathiwat continuing; constant delays in prosecution witnesses

September 11, 2006

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

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Update on Urgent Appeal

12 September 2006

[Re: UA-143-2004: THAILAND: At least 84 people killed in Southern Thailand on 26 October 2004; UP-65-2004: THAILAND: A list of the victims of the mass killing in Narathiwat province; Immediate international intervention needed; UP-25-2005: THAILAND: Three generals found responsible for mass killing transferred without penalty; UP-094-2006: THAILAND: Trial opens against 58 accused in Narathiwat protest; key witnesses for prosecution go missing]
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UP-178-2006: THAILAND: Trial against 58 accused in Narathiwat continuing; constant delays in prosecution witnesses

THAILAND: Mass extrajudicial killing; denial of custodial rights; impunity; delays
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VIDEO OF ATTACK ON TAK BAI PROTESTORS ONLINE: http://thailand.ahrchk.net/takbai

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Dear friends,

The trial of 58 accused over a protest outside the Tak Bai District Police Station in Narathiwat in October 2004 that led to 85 deaths is going on again in September. The Asian Human Rights Commission (AHRC) is once more calling for observers and journalists to attend. At the last hearings in August prosecution witnesses yet again failed to appear in court. There are now serious questions about the constant delays and whether or not the accused will be able to get a fair trial. With almost 2000 witnesses scheduled to appear, it may take years for the case to be completed, putting a huge burden on the defendants and their families. Strong attention is needed on the court in Narathiwat to see that the trial is not completely derailed through the damaging tactics being used by the prosecution or its witnesses.?

On September 13, 14, 20 & 21 the Narathiwat Provincial Court is due to continue hearing the charges against 58 accused over the protest held in front of the Tak Bai District Police Station on 25 October 2004, which ended with 85 deaths, 78 in army custody.

The case against the accused is being used to divert attention from the fact that no army or police officials were ever held criminally responsible for the mass deaths and other events of that day. In fact, key perpetrators have been promoted: for instance, the police station commander, Sommai Puttakul, has been promoted from lieutenant-colonel to full colonel and transferred to a position of regional authority. These same persons responsible for mass deaths and the horrible mishandling of the entire incident in October 2004 are the witnesses for the prosecution in this case, and they are using their positions to sabotage the court process and needlessly delay the case, causing further hardships for the defendants, who are mostly poor villagers from surrounding areas.?

At the previous hearings in August, the provincial permanent secretary Niphon Narapitakul failed to appear for the second time. In June he sent a letter saying that he had to go to Bangkok for work (UP-126-2006). On August 16 he again sent a letter to the prosecutor just before the hearing, saying that he had to Chonburi for a seminar. Earlier, the first and second witnesses for the prosecution (an army commander and the police station chief) had also failed to appear in court when called (UP-094-2006). So far the court has not taken steps to discipline the prosecution over non-appearing witnesses.

Since the hearing of witnesses started in April, so far only three prosecution witnesses have been heard; 1935 witnesses are due to give testimony. The trial is scheduled to run until July 2007, but given that in its first four months only three persons have testified, there are serious concerns about how much longer it is likely to take.

Observers in the court, including those from the AHRC, have also noted that this appears to be another instance in Thailand where the public prosecutor's office is taking a case to court without evidence, under pressure from police and other agencies. None of the three witnesses who have spoken so far have given any information to the court to demonstrate guilt of the accused, and have even been unable to identify them.

The AHRC has pointed out in a number of other recent cases how the prosecutor in Thailand is used to push charges in cases where there are not sufficient grounds to do so, but where the police or powerful persons have some other agenda, as in the criminal defamation trial of women's rights defender Ticha Na Nakorn (UA-302-2006). In other cases, the poor work of the public prosecutor has undermined a case, as in the trial of five officers in connection with the police abduction and murder of human rights lawyer Somchai Neelaphaijit (www.ahrchk.net/somchai).

SUGGESTED ACTION:

For concerned persons in Thailand, please attend the Narathiwat Provincial Court as observers; persons in neighbouring Malaysia may also be interested to attend. The court is located in Tambon Khokkien, Amphur Muang, Narathiwat. The four dates of trial in September are 13, 14, 20 & 21; hearings begin at 9am. For a full list of defendants and charges please see our previous update: UP-094-2006.

Please write a letter to the Attorney General of Thailand to question the role of the public prosecutor in this case. Please send copies of the letters to the other persons listed below.

To support this appeal, please click:

Suggested letter:

Dear __________,

THAILAND: Prosecution has duty to ensure that witnesses appear on schedule in case against Arsami Arleeluvee (or Arsamee Arleekuvee) and others in Narathiwat Provincial Court (Black No. 96/2548)

I am writing this letter to express my extreme disappointment at the handling of the prosecution arising out of the protest held outside the Tak Bai District Police Station on 25 October 2004 in the case against Arsami Arleeluvee (or Arsamee Arleekuvee) and 57 others in Narathiwat Provincial Court, under Criminal Code sections 32, 33, 83, 91, 138, 139, 140(1), 215, 216, 358 and 360 as well as Martial Law sections 4, 8, 11 and 15.

I am aware that the trial is continuing this September 13, 14, 20 & 21. It is not scheduled to be completed until July 2007. But so far out of 1935 witnesses scheduled to depose before the court, only three have in fact testified. All of them have appeared only after causing delays to the schedule by not arriving at the court on the scheduled date. In August, Narathiwat Provincial Permanent Secretary Niphon Narapitakul for the second time sent a letter just beforehand stating that he could not attend due to work elsewhere: on this occasion due to a seminar being held in Chonburi.

What is more important? The lives and liberty of 58 persons who have been wrongly accused to distract attention from the killing of 85 others by the Royal Thai Army and Royal Thai Police, or a seminar in a far away province? How is it that the 58 accused, who are mostly from poor rural families, have been able to present themselves at court reliably and on time, together with lawyers, family members and supporters, but senior government officials are unable to show the same respect for the court and due process in Thailand?

I recall that the 1997 Constitution of Thailand assures all persons of "the right to a speedy, continuous and fair inquiry or trial" under section 241. What kind of speedy, continuous or fair trial is being granted these 58 persons?

It is the responsibility of the prosecution to ensure that its witnesses appear in court on schedule. The constant failure to do this, as well as the patent lack of evidence being presented by any of the three witnesses so far raises serious doubts about whether or not the case has been prepared properly or whether it is simply being used as a means to divert attention from the fact that it should be the prosecution witnesses themselves who are sitting before a court--on charges of murder, manslaughter and other gross offences in connection with the deaths and permanent physical disabilities caused on 25 October 2004.

In view of the above, I urge that steps be taken to review this case and withdraw the charges against the 58 accused, in order to end this contribution to the senseless harassment of the suffering population in the south of Thailand. I also urge that the necessary steps be taken to initiate prosecution cases against the members of the Royal Thai Army, Royal Thai Police and other personnel responsible for the deaths and other abuses in Narathiwat of October 2004, including the first and second prosecution witnesses in this case respectively: Lt. Gen. Pisarn Wattanawongkiri and Pol. Col. Sommai Puttakul.?

In this respect I wish to remind you of the recommendation of the UN Human Rights Committee to the Government of Thailand in 2005:

"The Committee is concerned at the persistent allegations of serious human rights violations, including widespread instances of extrajudicial killings and ill-treatment by the police and members of armed forces, illustrated by incidents such as the Tak Bai incident in October 2004, the Krue Se mosque incident on 28 April 2004 and the extraordinarily large number of killings during the “war on drugs?which began in February 2003... creating a culture of impunity. The Committee further notes with concern that this situation reflects a lack of effective remedies available to victims of human rights violations, which is incompatible with article 2, paragraph 3, of the Covenant [on Civil and Political Rights] (arts. 2, 6, 7). The State party [Thailand] should conduct full and impartial investigations into these and such other events and should, depending on the findings of the investigations, institute proceedings against the perpetrators. The State party should also ensure that victims and their families, including the relatives of missing and disappeared persons, receive adequate redress..." (CCPR/CO/84/THA, 28 July 2005, para. 10)

I so far see no efforts to implement this recommendation. Until such a time as serious efforts are in fact taken, and the perpetrators of such heinous abuses prosecuted, sadly Thailand will remain under the shadow of impunity, and its human rights record remain a dark spot on an otherwise relatively good international reputation.

Yours sincerely,


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PLEASE SEND YOUR 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 or oag@ago.go.th


PLEASE SEND COPIES TO:

1. Pol. Lt. Col. Dr. Thaksin Shinawatra
Caretaker Prime Minister
Government House
Pitsanulok Road, Dusit District
Bangkok 10300
THAILAND
Tel: +662 280 1404/ 3000
Fax: +662 282 8631/ 280 1589/ 629 8213
E-mail: thaksin@thaigov.go.th or govspkman@mozart.inet.co.th

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

3. Dr. Kantathi Suphamongkhon
Caretaker Minister of Foreign Affairs
Ministry of Foreign Affairs
443 Sri Ayudhya Road
Bangkok 10400
THAILAND
Fax: +662 643 5320
Tel: +662 643 5333
Email: kantathi@thaigov.go.th or ommfa@mfa.go.th or permsec@mfa.go.th

4. Prof. Saneh Chamarik
Chairperson
The National Human Rights Commission of Thailand
422 Phya Thai Road
Pathum Wan District
Bangkok 10300
THAILAND
Tel: +662 2219 2980
Fax: +66 2 219 2940
E-mail: commission@nhrc.or.th or saneh@nhrc.or.th

5. Mr. Philip Alston
Special Rapporteur on Extra-judicial, Summary, or Arbitrary Executions
Attn: Lydie Ventre
Room 3-016
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9155
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR EXECUTIONS)

6. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Attn: Sonia Cronin
Room: 3-060
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9160
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR JUDGES & LAWYERS)


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)

Document Type :
Urgent Appeal Update
Document ID :
UP-178-2006
Countries :
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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.