Thailand: a report on the criminal trial and investigation of the enforced disappearance of the Thai human rights lawyer, Somchai Neelapaichit

The ICJ found serious irregularities in the overall criminal investigation and the case presented by the prosecution, which denied the victim’s family the effective remedy to which they are entitled under international law.

Five years since prominent Muslim lawyer Somchai Neelapaichit was allegedly abducted and killed by five police officers in central Bangkok, on 12 March 2004, his fate remains unknown and no one has been held accountable in final judgment for the crime of his enforced disappearance. The case has received widespread national and international media  coverage and is seen as emblematic of the difficulty of achieving justice in cases of serious human rights violations in Thailand.

For 20 years Somchai Neelapaichit championed various human rights causes. He was well known for representing clients accused of insurgency-related violence in the deep South, where increased conflict since January 2004 has claimed over 3,300 lives. On 11 March 2004, the day before his disappearance, he submitted a complaint to government authorities alleging torture by state officials of Malay-Muslim clients who had been charged with criminal offences.
Although several former government officials, including a former Prime Minister and the Attorney General, have  publicly stated that they know Mr Neelapaichit was killed, the accused police officers were charged with relatively minor offences and faced no disciplinary action. The only officer convicted has remained free pending a drawn out and ongoing appeals process, and recently disappeared himself under questionable circumstances. Successive governments have promised to bring the case to closure. On 21 January 2009, newly appointed Prime  Minister Abhisit Vejjajiva announced the Government’s intention to ensure swift and meaningful progress in investigating and bringing to justice the perpetrators of Mr Neelapaichit’s enforced disappearance.
Between August 2005 and January 2006 an ICJ representative observed the criminal trial of the five police officers  charged in relation to the disappearance. ICJ Commissioner Justice Elizabeth Evatt, a former Australian Judge and former member of the UN Human Rights Committee, was sent to observe part of the trial and the verdict on 12 January 2006. Since then, the ICJ has closely monitored the case and had regular meetings with Thai lawyers and government officials and with Angkhana Neelapaichit, wife of Somchai Neelapaichit.
The ICJ considers that the defendants received a fair and public trial, which, on the whole, was conducted by the Court in accordance with international standards. However, it found serious irregularities in the overall criminal investigation and the case presented by the prosecution, which denied the victim’s family the effective remedy to which they are entitled under international law.
Failures in the administration of justice process include:
  • Failure of the prosecution to charge the defendants with offences reflecting the seriousness of the crime.
  • Serious questions over the independence and impartiality of the original investigation.
  • Credible reports that evidence was destroyed and that state officials, in particular the police, continue to obstruct the investigation process.
  • The failure of investigators to use court sanctioned powers – such as search, seizure and arrest – to overcome attempts to obstruct the case by the police and other agencies.
  • Consistent reports of threats, intimidation and harassment of the family of Mr Neelapaichit and key witnesses, before, during and after the trial.
  • Substantial gaps in the physical forensic evidence submitted to the court, including: failure to preserve the integrity of the victim’s car before it had been subject to a full and independent forensic examination, and failure to examine some hair samples found in the victim’s car against samples from three of the defendants.
  • Failure to properly investigate, and prepare adequate expert evidence regarding, the mobile phone records of the five defendants, including submission of photocopies with certain records blanked-out and failure to investigate and explain a call to Government House by one of the suspects on the day of the disappearance.
  • Lack of disciplinary action against the five accused police officers while under investigation, and the upholding of this decision by the Administrative Court.
  • Failure of the appeals process to achieve progress three years after the initial verdict.
  • Failure to monitor the whereabouts of Pol. Maj. Ngern Thongsukand, the only convicted police officer, pending the verdict of the appeal court.
In a bizarre twist, as pressure for justice has mounted, it is alleged that Pol. Maj. Thongsukand has himself disappeared in a landslide on 19 September 2008. The credibility of this report is disputed by Angkhana Neelapaichit. The primary obstacle to justice appears to be the failure of the prosecution to penetrate the wall of silence within the police and to ensure witnesses protection. There is a gap between Government policy and the willingness of investigators to use full legal powers – such as court-sanctioned search, seizure and arrest – to obtain essential evidence. This has undermined the Government’s obligations under domestic and international law to take all necessary measures to hold responsible those involved in crimes associated with the enforced disappearance.
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