Briefing Note Legal Proceedings related to the death of Imam Yapa Kaseng

Post-Mortem Inquest Proceeding

As required by section 150 of the Criminal Procedure Code (CPC), the Public Prosecutor submitted a motion to the Narathiwat Provincial Court on 15 May 2008 requesting the Court to conduct a post-mortem inquest into the death of Imam Yapa Kaseng.

The Court scheduled four hearings between June and November 2008, during which the deceased’s family, the deceased’s fellow detainees at Task Force 39, the soldiers identified as being on duty and responsible for the deceased’s detention, the medical officer who conducted the post-mortem examination (an autopsy was never carried out), and the Acting Camp Commander all gave testimony.

The Court presented its inquest findings on 25 December 2008. It found that Imam Yapa and the other detainees were held in a police truck inside Task Force 39’s base at Wat Suan Tham in Narathiwat province. The Court held that Imam Yapa was healthy and well prior to being taken into custody on 19 March 2008 and in the morning of 20 March 2008 when his wife and daughter could see him from outside the camp. He was taken out of the truck that served as a makeshift detention cell two separate times during the night of 20 March 2008. Based on the report of the post-mortem medical examination, the Court found that bruises and abrasions on the deceased’s body resulted from blunt-force trauma that caused his ribs to break and puncture his right lung. The Court also held that the injuries could only have been sustained in the last one or two days before his death on 21 March 2008. The Court concluded that the injuries sustained by Imam Yapa could only have happened when he was held in the custody of Special Taskforce 39.

Subsequent Proceedings

The ICJ understands that the criminal investigation of the Yapa case has been forwarded to the National Anti-Corruption Commission (NACC) for further investigation. Section 150 of the CPC states that the post-mortem inquest file shall be transmitted to the Public Prosecutor who must then forward it to the inquiry official for further proceedings. If the inquiry official considers that an offence of malfeasance in office may have been committed (sections 147-166, Criminal Code), the inquiry file is forwarded onto the NACC under section 84 of the Organic Act on Counter-Corruption B.E. 2542 (1999) (the ‘NACC Act’). The NACC Act requires that any allegation of malfeasance in office by a State official be submitted to the NACC for investigation. In particular, the NACC has jurisdiction over an official who exercises his functions in a way that causes injury to any person, which is a criminal offence.¹Criminal Code, section 157. In the event that the NACC’s investigation concludes that there is a prima facie case that a criminal offence has been committed, it transmits its recommendation for
prosecution along with other relevant documents to the Attorney General.²Organic Act on Counter-Corruption, B.E. 2542 (1999), section 97.

The ICJ queries whether the NACC is the most appropriate agency to be leading torture investigations, given the slow progress in the Yapa case and in other torture cases that we understand are being investigated by the NACC (relating to the treatment of the clients of disappeared lawyer Somchai Neelapaichit and the victims of the Tak Bai incident). The investigation of serious violations of human rights such as torture must be entrusted to independent authorities that have the necessary resources, the political capital and the will to push such sensitive cases forward to prosecution.

Criminal Case

The lawyers for the deceased’s family filed a private prosecution on 20 August 2009, naming Maj. Wicha Phuthong, Sub. Lt. Siriket Vanichbumroong, Sgt. Maj. 1st class Reung-narong Bua-ngam, Sgt. Bandit Thinsuk, Sgt. Narongrit Hanvej (“Military Defendants”) and Pol. Lt. Thanongsak Wangsupha (“Police Defendant”) as the defendants. The motion alleges that the defendants in the case breached Criminal Code sections 157 (wrongful conduct of official), 290 (assault causing death), 295 (assault causing injury), 297 (grievous bodily harm), and 309 and 310 (offences against liberty).

A preliminary hearing is being held, pursuant to section 162(1) of the CPC, at Narathiwat Provincial Court, to determine whether there exists a prima facie case against the defendants. To date, hearings have been held on 19 October and 25 December 2009, at which one witness (a son of the deceased person) testified for the plaintiffs in the private prosecution. The next hearing will be on 18-19 February 2010, at which one more private prosecution witness will testify.

The Military Defendants are represented by a private lawyer. A provincial public prosecutor of Narathiwat Province is representing the Police Defendant. Under Thai law, public prosecutors may be appointed to defend government officials in civil and criminal cases where there is no conflict of interest (e.g., no pending public prosecution) and where it is not contrary to the public interest to do so.³Public Prosecutor Act, B.E. 2498 (1955), section 11(3), and Regulation No. 211, Office of the Attorney General’s Regulation on Criminal Prosecution by Public Prosecutors, B.E. 2547 (2004). During the cross-examination of the private prosecutor’s witness, the public prosecutor (acting for the defence) directed his cross-examination at showing that the Police Defendant was not involved in any criminal acts and that any crime was committed by the Military Defendants alone. The cross-examination of the lawyer for the Military Defendants also touched on this point. ICJ trial observers noted that neither the public prosecutor nor the lawyer for the Military Defendants was present while the other questioned the witness: the arrival in Court of the lawyer for the Military Defendants was delayed as a result of additional security at checkpoints following an insurgent bomb attack, and the public prosecutor was allowed to excuse himself from the afternoon session in order to attend Prosecutor Sports Day in Bangkok.

If the Court determines that there is no prima facie case against the Police Defendant and severs him from the case, it is likely, though not mandatory, that the case would be transferred to the military courts. Such a transfer would occur if the judge of the criminal court finds that the civilian courts lack jurisdiction based on an objection by the Military Defendants or on the judge’s own motion. The ICJ is concerned about the prospect of a trial in military court. In countries around the world, the use of military tribunals to hear cases involving allegations of serious human rights violations has often led to impunity for those violations, denial of the right to an effective remedy (especially as leading to prosecution and punishment of those responsible) and the denial of reparations to victims. In addition, the ICJ considers that Thai military courts are not sufficiently impartial and independent to meet the standards of Article 14(1) of the International Covenant on Civil and Political Rights; nor are their proceedings open to the public, as required by international human rights law. The ICJ’s believes that allegations of human rights violations that amount to crimes under domestic or international law must always be tried in publicly accessible
proceedings in civilian courts.

Civil Case

On 19 March 2009, the family of the deceased also filed a civil case against the Ministry of Defence, the Royal Thai Army and the Royal Thai Police, alleging breaches of the Act on Liability for Wrongful Act of Officials, B.E. 2539 and sought THB10 million in compensation (approx. US$ 330,000). The defendants have denied any liability. In addition, the Ministry of Defence has argued that the Internal Security Operations Command, rather than the Ministry of Defence, would be responsible for any wrongdoing by the individuals involved, if wrongdoing is found to have occurred. Since ISOC does not have formal legal personality under Thai law, any civil suit would have to be launched against the Prime Minister’s Office. The civil immunity provision of the Martial Law Order, however, would prevent the Civil Court from taking jurisdiction over an individual military defendant.

The Civil Court fixed 28 September 2009 for the settling of issues and the framing of an agreement statement of facts between the parties. However, on that day the defence submitted a petition requesting that the case be transferred to the Administrative Court. The plaintiff’s lawyers objected to this request, arguing that the case was properly within the jurisdiction of the Civil Courts. As a result, the Civil Court has temporarily stayed the proceedings to determine the jurisdictional issue. Both the Civil Court and the Administrative Court will follow legislative procedures and render opinions on their respective jurisdiction in the case. The Civil Court has already opined that it has
jurisdiction,⁴Civil Court Opinion of 12 October 2009. and sent its opinion to the Administrative Court. If the Administrative Court reaches a different conclusion on jurisdiction, a special committee will be formed to make a final determination of the issue.⁵Act on the Determination of the Powers and Duties Among Courts, B.E. 2542 (1999), section 10.

ICJ Assessment

Overall, the ICJ is concerned at the lack of progress in the Yapa case at every level, particularly in light of the availability of strong evidence that a serious crime was committed, which also amounts to a grave violation of human rights. The public investigation appears to be moving at a glacial pace. The Court has not required the defence lawyers in the private criminal prosecution to act in an expeditious or coordinated manner. In the civil case, considerable time may be required to resolve the jurisdictional issues before hearings on the merits even begin.

Thailand, as a State party to the ICCPR, has an obligation to provide a remedy for human rights violations, notwithstanding that persons acting in an official capacity have committed the violation. Remedies must provide practical and meaningful access to justice. The right to an effective remedy obligates Thailand to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. For serious human rights violations, including crimes under domestic or international law, it is also essential that individual responsibility be ascribed to ensure accountability.

The ICJ calls upon the NACC, the Office of the Attorney General, the Thai judiciary, the Royal Thai Army, and the police to expedite the public criminal investigation into the death of Imam Yapa. All relevant branches of Government must take steps to ensure that the family of Imam Yapa receives appropriate remedies for their loss in a timely manner, including an effective criminal investigation and prosecution of the alleged perpetrators, as well as financial compensation.

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• 1
  Criminal Code, section 157.
• 2
  Organic Act on Counter-Corruption, B.E. 2542 (1999), section 97.
• 3
  Public Prosecutor Act, B.E. 2498 (1955), section 11(3), and Regulation No. 211, Office of the Attorney General’s Regulation on Criminal Prosecution by Public Prosecutors, B.E. 2547 (2004).
• 4
  Civil Court Opinion of 12 October 2009.
• 5
  Act on the Determination of the Powers and Duties Among Courts, B.E. 2542 (1999), section 10.