A brief report: “One year and the use of legal mechanisms to solve Billy’s enforced disappearance”

Human Rights Lawyers Association For immediate release on 17 April 2015 A brief report: “One year and the use of legal mechanisms to solve Billy’s enforced disappearance”

It has been one full year since a Karen human rights defender of Ban Pong Luk-Bang Kloy, Mr. Pholachi Rakchongcharoen, aka “Billy”, has been made disappeared on 17 April 2014. He was on a journey from his village to compile information to use as incriminating evidence against officials of the Kaengkrachan National Park who have burned down houses and properties of the ethnic Karens in the National Park area in 2011.

Billy was last seen on 17 April 2014 about 17.00 while being held in custody by the Kaengkrachan National Park officials. He was found to have in possession of wild honey and beehives and was detained for that reason. The officials, however, claimed to have given him a warning and then released him from custody. But there have been no written records of either the arrest or the release.

A core member of the Karen village at Ban Bang Kloy, Mr. Billy was serving them as a human rights defender and a paralegal volunteer in a litigation launched by the villagers against the Department of National Parks, Wildlife and Plant Conservation and the Ministry of Natural Resources and the Environment with the Central Administrative Court. It stemmed from the forced eviction and arson of properties belonging to more than 20 families in Ban Bang Kloy in May 2011. The operation ‘The Replication of the Deportation, Eviction/Arrest of Ethnic Minorities Encroaching the Area of Kaengkrachan National Park along the Thailand-Burma Border Project” or “Operation Tanao Sri”, was led by the Head of the Kaengkrachan National Park, Mr. Chaiwat Limlikitaksorn. It aimed at pushing out the villagers from the area despite studies have been previously made to affirm that the ethnic Karens are aboriginal people and have been dwelling in the area for more than a century. The disappearance of Mr. Billy happened while he was preparing information to support the legal case, the next hearing of which was to take place on 19 May 2014. In addition, Mr. Billy was getting prepared to submit a petition to His Majesty the King on the same matter. It is believed that Mr. Billy was made disappeared along with documents and evidence related to the legal fight and the petition.

A legal move was first initiated by Ms. Pinnapa Pruksapan, Billy’s wife, who has reported the disappearance with police at the Kaengkrachan Police Station on 18 April 2014 once she was aware that Billy had gone disappeared after being held in custody by the National Park officials.

On 22 April 2014, upon hearing of the incidence, the Human Rights Lawyers Association (HRLA) has conducted initial fact-finding and issued an open letter urging the Department of National Parks, Wildlife and Plant Conservation to review the performance of the Head of the Kaengkrachan National Park.

On 23 April 2014, representatives from the HRLA, the International Commission of Jurists (ICJ), and Cross Cultural Foundation (CrCF) have made a trip to the district of Kaengkrachan, Petchaburi Province to ask for information from the Head of the Kaengkrachan National Park, Ms. Pinnapa Pruksapan and other relatives of Mr. Billy. On the same day, the lawyer team met to prepare a petition for the Court to issue an injunction and to have Mr. Billy released from unlawful detention as per the wish of his relatives.

On 24 April 2014, Ms. Pinnapa Pruksapan and HRLA’s lawyers have submitted a petition to the Petchaburi Provincial Court in the Black Case no. Special 1/2557 asking the Court to conduct a habeas corpus hearing invoking Article 90 of the Criminal Procedure Code and Section 32 of the 2007 Constitution of the Kingdom of Thailand. The Court granted as per the request and took evidence from two witnesses on that day including Ms. Pinnapa Pruksapan, Billy’s wife as the plaintiff, and Mr. Krathong Chokwiboon, Headman of Ban Bang Kloy. Ten more witnesses were to be examined on 30 April, 12 May, 2 June, and 16 June 2014, respectively, with a closing session on 7 July 2014. Among those witnesses called to the dock included Mr. Chaiwat Limlikitaksorn, the Head of the Kaengkrachan National Park plus four other National Park officials, Dr. Nirand Pitakwatchara, National Human Rights Commissioner, two student internees, inquiry officials of the Kaengkrachan Police Station and an expert witness from Advanced Info Service PLC.

On 25 April 2014, the NHRC’s Subcommittee on Human Rights has met to on the disappearance of Billy. On the same day, Pol Gen Aek Angsananont, Deputy Royal Thai Police Chief, called a meeting with police officials and concerned agencies including the Provincial Police Region 7, Crime Suppression Division (CSD), and Ministry of Justice’s Department of Rights and Liberties Protection to discuss the case. Meanwhile, Pol Col Suksawat Suksawaeng, Deputy Commander of the Petchaburi Provincial Police has accompanied Mr. Billy’s wife to meet with Pol Gen Aek Angsananont, Deputy Royal Thai Police Chief who assured her that an effort shall be made to protect her family and to promptly bring Billy back.

On 27 April 2014, the Commander of the Provincial Police Region 7 met with the investigation team on the case of Mr. Pholachi Rakchongcharoen or “Billy” while Ms. Pinnapa Pruksapan and Mr. Krathong Chokwiboon, Headman of Ban Bang Kloy as well as their relatives have been asked to provide more information and to be informed of progress of the investigation.

On 28 April 2014, the ICJ, CRCF and HRLA have issued a statement urging the Thai government to thoroughly and impartially investigate the disappearance of Mr. Pholachi Rakchongcharoen or “Billy”.

On 2 May 2014, the United Nations High Commissioner for Human Rights (UNHCHR) issued a statement regarding the case of Mr. Pholachi Rakchongcharoen or “Billy” in Geneva, Switzerland. The UNHCHR spokesman, Mr. Rupert Colville expressed his concern about a lack of progress in the investigation regarding the disappearance of human rights defenders in Thailand including Mr. Pholachi Rakchongcharoen or “Billy” who has come out to demand the right to land for indigenous peoples in Thailand. He was last seen on 17 April 2014 while he was coming back from another village preparing information to be used in a lawsuit against the authorities at the Kaengkrachan National Park which have burned down and destroyed houses and properties of the ethnic Karens living in the National Park in 2010 and 2011. The Head of the National Park claimed though he had Billy held in his custody on 17 April for having in possession wild honey, but he had already released Mr. Billy. But no one else has seen him again since then.

On 15 May 2014, it was reported in the press that the Inquiry Committee led by Mr. Thammarat Wongsopa, the Director of Protected Areas Regional Office 3 (Ban Pong revealed the result of its investigation that Mr. Chaiwat Limlikitaksorn was found guilty of violating the Civil Service Act B.E. 2551 (2008) for wrongfully performing or refraining to perform official duties according to applicable laws, rules, and regulations or leaving or neglecting of official duties without reasonable cause which results in severe detriment to any person or the government service, wrongfully performing or refraining to perform official duties without intent, but having caused severe detriment to any person, but according to the what happened, it cannot be determined that the official has committed the breach with intent to cause severe detriment to any person. As to what extent the disappearance of Mr. Pholachi or Billy is related to the performance of duties by Mr. Chaiwat Limlikitaksorn or any particular persons, the Committee deems that it should be subject to the investigation of the inquiry officials who are performing their duties as provided for by the law. On the same day, DNP issued an order to remove Mr. Chaiwat Limlikitaksorn from Kaeng Krachan National Park for one month, from 15 May onward, and he was to be working at the Protected Areas Regional Office 3 (Ban Pong), Ratchaburi.

On 20 June 2014, Ms. Pinnapa Pruksapan has submitted a letter of petition to Gen Prayuth Chan-ocha and the United Nations High Commissioner for Human Rights (UNHCHR) asking for help to track down her husband.

On 17 July 2014, The Petchaburi Provincial Court dismissed the habeas corpus case as from the examination of Mr. Chaiwat, four National Park officers and two student internees, all of them have testified coherently and consistently that Mr. Pholachi has been released. Even though the lawyer of the petitioner brought to the Court inquiry officials from Kaeng Krachan Police Station who claimed that the statement given by the student internees to the police was different from the evidence given to the Court, but since the evidence given by the inquiry official was simply hearsay evidence, it was then not admissible. From the examination of witnesses, it does not convince the Court that Mr. Pholachi has still been held in custody by the National Park officers and the case is dismissed.

On 19 August 2014, officials from the Department of Special Investigation (DSI) and the Central Institute of Forensic Science (CIFS) visited Kaeng Krachan to interview villagers living near the spot where Billy was brought to and last seen. It was an attempt to establish a clear route of the spots involved with his disappearance. In addition, it was aimed at collecting evidence and DNA sampling of Billy’s son as important material evidence to match the DNA sampling found in the pickup truck used for taking away Billy for further inquiry and then his release. It was the first time DNA collection was used as part of the investigation.

On 22 August 2014, the DNP Order no.1939 /2557 was issued on 22 August for Mr. Chaiwat Limlikitaksorn, special forestry officer from the Protected Areas Regional Office 3 (Ban Pong) and the Head of the Kaeng Krachan National Park who had been transferred to work temporarily at the DNP headquarters in Bangkok since middle of June to be reinstated as the Head of the Kaeng Krachan National Park of Petchaburi and Prachuap Khiri Khan from 22 August to 30 September 2014.

On 16 September 2014, Ms. Pinnapa and HRLA’s lawyers submitted a motion of appeal to the Petchaburi Provincial Court regarding the dismissal of the habeas corpus case regarding Mr. Pholachi Rakchongcharoen or Billy who was allegedly held in unlawful custody by the National Park officials. The Appeals Court decided to accept to review the case on 22 September 2014.

On 19 September 2014, DSI made a trip to the area to collect more evidence and sent it to the Central Institute of Forensic Science for further verification and if the DNA samplings matched. The DNA sampling was taken from blood stain. And the results could only reveal it belonged to a male.

On 25 September 2014, the Petchaburi Provincial Police interviewed Mr. Chaiwat Limlikitaksorn before submitting an investigation report to the Office of Public Sector Anti-Corruption Commission (PACC) for further action regarding the violation of Article 157 of the Penal Code

On 1 October 2014, Mr. Niphon Chotban, DNP’s Director-General, Ministry of Natural Resources and the Environment, issued an order no. 2383/2557 to transfer Mr. Chaiwat Limlikitaksorn, Kaeng Krachan National Park Chief who was serving for the Protected Areas Regional Office 3 (Ban Pong) to be Kaeng Krachan National Park Chief of Petchaburi and Prachuap Khiri Khan from 1-5 October 14, and then to become Director of the Watershed Management Unit at the Protected Areas Regional Office 1 (Prachinburi) afterward. Meanwhile, Mr. Kamol Nuanyai, Chat Prakan Waterfall National Park Chief in Pitsanuloke will replace him as Kaeng Krachan Naitonal Parl Chief, effective since 6 October 14.

On 29 January 2015, the Provincial Police Region 7’s investigation team has concluded the investigation report concerning the allegation that Mr. Chaiwat Limlikitaksorn, the Head of the Kaengkrachan National Park and four other officials had arrested and held in custody Mr. Pholachi Rakchongcharoen or “Billy” on 17 April 2014. The National Park officials were pressed with charges for being an official, wrongfully exercises or does not exercise any of his functions to the injury of any person, or dishonestly exercises or omits to exercise any of his functions according to Article 157 of the Penal Code. On the same day, Ms. Pinnapa Pruksapan has submitted a letter of petition to the PACC’s Secretary General urging PACC to expedite the investigation of the disappearance of Mr. Billy who was allegedly arrested and held in custody by the National Park officials.

On 26 February 2015, the Petchaburi Provincial Court read the verdict of the Appeals Court Region 7 regarding the habeas corpus case and the request for the release of Mr. Billy from unlawful detention. The Court has found from the examinations of Mr. Chaiwat Limlikitaksorn and four other National Park officials plus two student internees that Billy had been released. Even though there were some incongruence of the evidence they have given, but it was pertaining to no material essence. The evidence submitted by the plaintiffs has also failed to establish that Mr. Bill is still being held in unlawful detention. Given the lack of ground of the petition, the Appeals Court Region 7 concurred with the Lower Court and decided to dismiss the case.

Nevertheless, given the importance of the case to justice process policy, the lawyer team is preparing to appeal the order again since the case concerns enforced disappearance and the state is obliged to mete out decisive measures to support the investigation and to prevent another occurrence of such incidence. Since Thailand has signed the International Convention for the Protection of All Persons from Enforced Disappearance, as a state party, it is should provide for necessary measures to prevent enforced disappearance and impunity of the perpetrators.

For more information, please contact:
Waraporn Uthairangsi (attorney) 084-8091997
Human Rights Lawyers Association (HRLA) 02-6930682