February 21, 2012
ALRC-CWS-19-05-2012
Language(s): English only
HUMAN RIGHTS COUNCIL
Nineteenth session, Agenda Item 3, Interactive Dialogue with the Working Group on enforced or involuntary disappearances
A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general
consultative status
Thailand: Continued Impunity For Enforced Disappearance In Thailand
The Asian Legal Resource Center wishes to bring the importance of continued action to end enforced disappearance in
Thailand to the attention of the Human Rights Council. While the signing of the International Convention for the
Protection of All Persons from Enforced Disappearance on 9 January 2012 by the Government of Thailand is a positive
step, the Convention must be ratified and domestic laws must be passed and implemented if its provisions are to be made
concrete. As disappearance is one form of violence routinely used by Thai state security forces with impunity against
citizens, the opportunity to secure accountability represented by the ratification and full implementation of the
Convention is significant.
Documented cases indicate that enforced disappearances of citizens, including human rights defenders, dissidents, and
ordinary people, have been carried out by Thai state security forces for over forty years. Like the murder of citizens
by state security forces, enforced disappearance is both a clear violation human rights of individuals and one with
lasting effects on the families and communities of victims. Yet in the case of enforced disappearance, the suffering
caused by the loss of the victim is compounded by the fear and uncertainty created by the lack of resolution which the
conditions and aftermath of death that the crime of enforced disappearance engenders. For families, colleagues, and
communities of victims, the message from state security forces is clear: one can be taken from one's family and
community, brutally killed, and then the material evidence hidden so that neither proper mourning nor legal processes
which rely on material evidence of murder can take place.
The Justice for Peace Foundation has documented over 90 cases of enforced disappearance that took place between 1991 and
2010 in Thailand, and there are likely many more cases that remain unknown. In only one of these cases has a prosecution
taken place, and to date, the prosecution has been unable to hold the perpetrators to account. This case, the
disappearance of Mr. Somchai Neelaphaijit, is indicative of the challenges to ending impunity for enforced disappearance
and the need for ratification and full implementation of the Convention, including the passage of domestic legislation,
in Thailand.
Mr. Somchai Neelaphaijit was forcibly disappeared on the evening of 12 March 2004 in Bangkok. He was pulled from his
white Honda Civic near a busy intersection on Ramkhamhaeng Road in Bangkok by five plainclothes police officers. At the
time of his disappearance, Mr. Somchai was working on behalf of five men who had alleged that they were tortured by
state security officials while they were in state custody in southern Thailand, which had recently been placed under
martial law. The five men had been accused of being involved in the theft of over 300 guns and burning of schools which
had taken place in Narathiwat Province on 4 January 2004. The five men confessed to the police during the initial period
of their detention, after being suspended from the ceiling with ropes, having urine put into their mouths, and being
electrically shocked on their genitals. On 11 March 2004, the day before his disappearance, Mr. Somchai submitted a
complaint to the court that detailed the forms of torture experienced by the five men. He argued that this was both a
violation of their human rights and the Thai Criminal Code.
As a result of concerted action by the Neelaphaijit family and human rights activists, five police officers from the
Crime Suppression Division were arrested in April 2004 in connection to his enforced disappearance. In the absence of
domestic legislation specifying enforced disappearance as a crime, the police could not be tried for his disappearance.
As Mr. Somchai's body was never recovered and given evidentiary rules in the Thai Criminal Procedure Code (CPC), the
police could not be charged with murder, and so were instead changed with robbery and coercion with the use of violence.
In the nearly eight years since Mr. Somchai was forcibly disappeared, the case has moved slowly through the Thai justice
system. In January 2006, one out of the five police officers, Pol. Maj. Ngern Thongsuk, was convicted and sentenced to 3
years in jail. The other four police officers returned to work without sanction. Pol. Maj. Ngern appealed the decision
and remained out on bail. After a long delay, the appeal verdict was set to be read in the Criminal Court in Bangkok in
September 2010. The failure of Pol. Maj. Ngern to appear in the court for the reading caused the reading to be delayed
for several months.
When the appeal verdict was finally read in the Criminal Court on 11 March 2011, its results were gravely disappointing
for those concerned with securing accountability in the case of the enforced disappearance of Mr. Somchai Neelaphaijit
as well as those concerned with broader questions of the court’s ability in aiding in the securing of accountability for
enforced disappearance in Thailand. The results indicated the inability within current Thai law to hold perpetrators of
enforced disappearance to account in two significant ways:
a. The Appeal Court ruled that the family of Mr. Somchai Neelaphaijit could not be joint plaintiffs in the case. The
Appeal Court ruled that they could not be joint plaintiffs because legally they could not act on behalf the "injured
person or death person," to institute a criminal prosecution based on the conditions provided by sections 5 and 28 of
the CPC. Under section 5 of the CPC, it notes 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 those who "are entitled to
institute the criminal prosecution in the Court." The verdict argued that Mrs. Angkhana and her children did not show
that Somchai has been assaulted to death or that he was disabled and had died, and so could not be joint plaintiffs.
This decision both denies the rights of families of victims of enforced disappearance to seek justice and also indicates
the problems created by the failure to specify disappearance as a crime within Thai law. Given that the purpose of
enforced disappearance is to remove all traces of a human being, it is impossible for the court to expect that the
evidence needed to prove death would, or could, be available.
b. The Appeal Court ruled that there was not enough evidence to convict the five police officers prosecuted, including
Pol. Maj. Ngern Thongsuk, who had been convicted by the Court of First Instance. In the case of Pol. Maj. Ngern, as well
as the 2nd (Pol. Maj. Sinchai Nimpunyakampong), 3rd (Pol. Serg. Maj. Chaiweng Paduang) and 4th (Pol. Serg. Rundorn
Sithiket) defendants, the verdict noted that there was not enough evidence that could link them or involve them in the
incident because the eyewitnesses did not identify the defendants when they were testifying in court. The verdict noted
that with regards to the 5th defendant (Pol. Lieut. Col. Chadchai Liamsanguan), there was not sufficient evidence
proving that he was present at the place where the incident happened. Even though there were phone records of his
communications with other defendants when the incident happened, the verdict noted that it was insufficient because the
mobile phone records submitted were only a photocopy of the original document, despite having been certified as a true
copy.
At this time, the verdict of the Appeal Court in the case of the Mr. Somchai Neelaphaijit is being reviewed at the
Supreme Court and the Department of Special Investigation continues to investigate his case as a murder case. The
difficulties of evidence and procedure faced in the court case to date indicate the need for domestic legislation
specifying the crime of enforced disappearance and providing for appropriate paths to securing accountability and ending
impunity.
In addition, during the nearly eight years since Mr. Somchai Neelaphaijit was forcibly disappeared, and in particular
since they began to struggle to secure justice, his wife, Mrs. Angkhana Neelaphaijit, and the rest of the Neelaphaijit
family have faced constant harassment and threats to their lives and safety. Formal recognition of the crime of enforced
disappearance and the passage of domestic legislation that provides for specific protection for witnesses and families
of victims of enforced disappearance is urgently needed.
In closing, the Asian Legal Resource Center wishes to commend the Government of Thailand for signing the International
Convention for the Protection of All Persons from Enforced Disappearance and indicating its support for ending impunity
for state violence. In order to make the provisions for accountability and protections for victims concrete for those
who have suffered from enforced disappearance, the Asian Legal Resource Center calls for the Council to:
a. Urge the Government of Thailand to ratify the International Convention for the Protection of All Person's from
Enforced Disappearance and promulgate domestic legislation in line with its provisions.
b. Urge the Government of Thailand to proceed with urgency in the investigation and prosecution of ongoing cases of
enforced disappearance to end impunity and foster the respect for human rights.
c. Urge the Government of Thailand to ensure that witnesses and families of victims of enforced disappearance are fully
protected.
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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative
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Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights
issues at the local and national levels throughout Asia.
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ENDS