The 12th Anniversary of the Enforced Disappearance of Attorney Somchai Neelapaijit

CrCF Public Statement The 12^th Anniversary of the Enforced Disappearance of Attorney Somchai Neelapaijit: All enforced disappearance cases have not been promptly investigated

For immediate release on 12 March 2016

Today marks the 12-year anniversary of the enforced disappearance of prominent human rights lawyer, Mr. Somchai Neelaphaijit, on 12 March 2004. The evidence suggested the involvement of more than five police officers in his disappearance.  His family has been campaigning to bring the perpetrators to justice.

The public prosecutor of the Department of Special Litigation’s Division 6 indicted five police officers at the Criminal Court including Pol Major Ngern Thongsukand, Pol Major Sinchai Nimpunyakampong, Pol Sergeant Major Chaiweng Paduang, Pol Sergeant Rundorn Sithiket and Pol Lieutenant Colonel Chadchai Liamsanguan in the Black Case no. 1952/2547 for gang robbery and coercion. The accused were indicted with these more minor crimes, in part, because Thailand does not have a specific law criminalizing enforced disappearance. The Lower Court also allowed the family to act as co-plaintiffs in the case.

The Appeals Court, however, overturned the verdict of the Lower Court allowing Mr. Somchai’s wife and family to act as co-plaintiffs, which was recently confirmed by the Supreme Court. Both Higher Courts reasoned that the application to be co-plaintiffs failed to meet the requirements of section 5(2) of the Criminal Procedure Act. They held that it had not been proven that Mr. Somchai had been injured or fatally harmed such that he is unable to act on his own behalf, even though the Civil Court earlier ruled that Mr. Somchai is a “disappeared person”.

According to Article 61 of the Civil and Commercial Code, when a person is adjudged to have disappeared, it is assumed that the person has died legally.  The order of the Civil Court declaring Mr. Somchai a “disappeared person” remains effective and has never been rescinded. The failure of the criminal proceedings to bring to justice the perpetrators is partly due to: the fact there is no specific law to criminalize enforced disappearance, the way the law was narrowly interpreted, and the lack of independence and professionalism of the Royal Thai Police in the investigation.  This clearly demonstrats the perpetuation of a culture of impunity among state officers and, given how the culture is so entrenched in society, the justice system has completely failed to address the issue.

The Cross Cultural Foundation (CrCF) is a human rights organization working to advocate for access to justice and human rights protection.  Cases of enforced disappearance continue to happen in Thailand along with secret detention. State agencies and independent organizations have failed to investigate these cases effectively which has led to delays and perpetrators not being brought to justice.  No attempts have been made to effectively establish the truth and to shed light on the fate or whereabouts of these disappeared persons.

For example, on 4 December 2015, Mr. Natthaphong Sikhachot, 19 years-old, was forcibly taken from his home in Muang District, Chachoengsao. Reportedly, four young men who claimed to be narcotic suppression police officers from Chachoengsao raided the house of Mr. Natthaphong Sikhachot and took him away without charging him and without providing his family with any further information. For more than three months already, Mr. Natthaphong has been made disappeared and the investigation has borne no fruit as to his fate or whereabouts.

In the Southern Border Provinces, on 24 January 2016, it was reported that three young men abducted Mr. Fadel Sohman, 28 years, and shoved him into a black car in the parking lot of a private school in Khok Po District, Pattani. Mr. Fadel was acquitted in a security related case by the Pattani Provincial Court in 2010. His disappearance was reported to the local police over two months ago, but there has been no progress and his fate or whereabouts are still unknown. The abduction of Mr. Fadel in broad daylight in a public space has caused much fear among the local people who feel gravely concerned about their safety.

On 17 April 2014, Mr. Pholachi Rakchongcharoen, also known as Billy, a Karen human rights defender, was apprehended by the Chief of the Kang Krachan National Park, Petchaburi, for possessing honey collected from the forest, a violation against the National Park Act.  According to the findings of the police investigation, “Billy was not released”. The investigation by the Office of Public Sector Anti-Corruption Commission (PACC) simply focused on offences related to Article 157 of the Penal Code (malfeasance in office) and is not proportionate to the gravity of the offence, including the possible enforced disappearance of Mr. Pholachi and the fact that his fate and whereabouts have been unknown for nearly two years.

The Cross Cultural Foundation (CrCF) makes the following recommendations to the Thai government and concerned authorities:

1. The Royal Thai Police Commissioner who is directly in charge of all criminal investigations is obliged to act and examine information seriously and promptly if there is a credible allegation that a person has been disappeared and should make an effort to investigate the allegation to shed light on the whereabouts of the disappeared. This should be done regardless if the act was allegedly carried out by a government officer or another person. A rigorous effort by the authorities to receive the complaint and investigate the case will help act as a deterrent against the act of enforced disappearance. The act of enforced disappearance is one of the most heinous crimes and it warrants a prompt, independent and effective criminal investigation.
2. The government and the Ministry of Justice should accelerate efforts to enact the Draft Prevention and Suppression of Torture and Enforced Disappearance Act in compliance with international standards. The act of enforced disappearance must be criminalized and the government should ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay. This will set a legal precedent in Thailand as promised including before the international community and the UN.
3. All regulations and directives providing for secret detention, detention in undisclosed locations and detention without bringing a person before the court must be repealed. This includes the detention provided for by NCPO Order no. 3/2558, the seven-day detention provided for under Martial Law, the 30-day detention provided for under the Emergency Decree, and the three-day detention provided for under the Narcotic Suppression Act, among others. When facts can be established that the act of enforced disappearance has occurred including the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law, a criminal investigation and disciplinary action should be initiated to ensure justice – since an act of enforced disappearance is a most serious human rights violation per the obligations prescribed in the International Convention for the Protection of All Persons from Enforced Disappearance, enforced disappearance is prohibited in all circumstances and all times against any person.

For more information, please contact Pornpen Khongkachonkiet Tel. 02-6934939