SOMCHAI VERDICT - WHAT NEXT?

C O N F I D E N T I A L SECTION 01 OF 02 BANGKOK 000711

SIPDIS

SIPDIS

E.O. 12958: DECL: 02/01/2015
TAGS: PHUM PGOV TH
SUBJECT: SOMCHAI VERDICT - WHAT NEXT?

REF: BANGKOK 000235 AND PREVIOUS

Classified By: Political Counselor Susan M. Sutton for reasons 1.4 (d)


1. (SBU) SUMMARY. The verdict in the trial of five police
officers implicated in the disappearance of Somchai
Neelapaijit, while disappointing, opens the door for further
investigation of the police role in the case. Trial
observers agree that the weak effort of the prosecution is
largely to blame for the four acquittals. Following the
verdict, PM Thaksin publicly stated his belief that Somchai
is dead and that RTG officials were involved. Thaksin
assured the public that MOJ,s Department of Special
Investigations (DSI) would conclude its investigation in
February, but it remains unclear whether DSI has even begun
work. Several sources have privately stated that the presence
of trial observers from the NGO and diplomatic community
helped pressure the prosecution and had a positive impact on
the outcome. At the same time, Somchai,s family continues
to suffer from intimidation for their efforts to pursue the
case. The family vows to appeal the verdict. END SUMMARY.

VERDICT RAISES MORE QUESTIONS THAN ANSWERS


2. (U) On January 12, the Thai Criminal Court convicted
Police Major Ngern Thongsuk of coercion for his role in
forcing human rights lawyer Somchai Neelapaijit into a car on
March 12, 2004, after which he was never seen again. Ngern
was found guilty based on the eyewitness testimony of three
individuals who stated that Ngern and three to four other
individuals forced Somchai into a car and sped away.
Witnesses were unable to positively identify any of the other
defendants. As expected, both sides have already vowed to
appeal the verdict (NOTE: Thai law permits both the plaintiff
and the defendant to appeal lower court rulings. END NOTE)
Although Ngern has been sentenced to three years in prison,
he was immediately released on a 1.5 million baht ($US
38,0000) bail.


3. (U) The court decided that one of the prosecution's most
important pieces of evidence, cell phone records of 75 calls
placed linking the five defendants on the day of the
abduction, could not be taken into account. The court
determined that the prosecution had failed to provide
sufficient technical testimony to counter the defense's
allegation that the records could have been falsified.


4. (U) On January 17, the European Commission mission in
Bangkok hosted a briefing, attended by representatives of
approximately twenty Western missions, in which Somchai's
widow Angkhana Wongrachen (and a co-plaintiff) and her legal
advisor gave their views on the outcome of the trial. Poloffs
from the US, the UK, Canada and Switzerland had frequently
attended the trial as observers. Numerous NGOs remarked
throughout the trial that having diplomatic observers in the
courtroom had been a key factor in preventing the transfer of
the judge mid-way through the trial, and in forcing the
prosecution to step up its effort.

WIDOW BLAMES PROSECUTION, NOT THE COURT


5. (U) Although both Angkhana and her legal advisor noted
their disappointment with the overall verdict, they both saw
reasons for optimism. They also noted their satisfaction
with the performance of the judge, who they agreed had been
fair. The fact that one defendent was found guilty made it
appear as though all of them were involved, especially
considering the judge's closing statement in which he
intimated that he believed in the phone records he had been
forced to ignore. The verdict ratcheted up the pressure on
the RTG to expose the truth behind Somchai's disappearance,
and on the Department of Special Investigation (DSI) to
conduct a more vigorous investigation.


6. (SBU) Trial observers agree that much of the blame for
the verdict lies with the lackluster effort put forward by
the prosecution, which consisted of both public prosecutors
and voluntary counsel provided by the Law Society of
Thailand. The Observatory for the Protection of Human Rights
Defenders reported that no single prosecutor was regularly
present for the duration of the trial. In fact, one trial
observer told of an occasion where no prosecuting attorney
was present for over fifteen minutes of important defense
testimony.


7. (SBU) The harshest judgment was reserved for the Law
Society of Thailand, of which Somchai had been an active
member. Although the Australian interpreter struggled to
find an English-language word to translate the legal
advisor's descriptive epithet for the President of the Law
Society, she eventually decided on "ratbag". Despite having
a cadre of attorneys trained in human rights law, none of
these lawyers were assigned to the case. Somchai Homlaor,
chairman of the Law Society's human rights division, and an
Embassy contact, told Poloffs he believed that the lackluster
performance of the prosecution was due in large part to a
lack of motivation. With suspicion about the involvement of
shadowy higher-ups in the disappearance, and reported
intimidation of witnesses and even police investigators,
attorneys simply did not want to be assigned to the case.
Those who were assigned saw little incentive in getting to
the bottom of things. Whereas many NGOs considered the case
to be a landmark one, the RTG did its best to ensure that the
case was given no special attention. Attorneys could
reasonably believe that, as with witnesses, no special
protection would be offered them.

INSTITUTIONAL FLAWS CREATE LOOPHOLES FOR THOSE WITH
CONNECTIONS


8. (U) Many observers noted that institutional flaws in the
legal system, none of which are unique to Thailand, hinder
the effective prosecution of cases against high-ranking
defendants. First, the initial investigation was under the
control of the Thai police, whose intentionally sloppy
investigation shows they were clearly uninterested in
investigating their colleagues. Linked to this is the fact
that the prosecution in Thailand rarely conducts any of its
own investigation; they traditionally rely solely on the
evidence and information provided by the police. Third,
there is no system in effect to protect witnesses. During
the trial, several eyewitnesses changed their stories and at
least one police investigator requested help from a prominent
politician in response to efforts to intimidate them by
unknown persons.


9. (U) The day following the verdict, PM Thaksin Shinawatra
stated publicly, "I know that Somchai is dead, and more than
four government officials were involved..." Thaksin claimed
that the MOJ,s Department of Special Investigations (DSI) is
actively compiling evidence to file murder charges. He vowed
that DSI would complete its investigation in February. In
August 2005, the MOJ,s Department of Special Investigations
(DSI) announced the formation of a special panel to
investigate Somchai's disappearance after Angkhana testified
about the case to the UN Human Rights Committee in Geneva.
As the court trial ended, it was unclear whether DSI had even
begun its investigation. The Geneva-based International
Commission of Jurists, which closely monitors the case,
claimed that as of January 12 the special panel had yet to
hold a single meeting.


10. (SBU) Prior to the establishment of the special panel,
sources informed Post that transferring the case to DSI would
be "fruitless" because "influential people" in both DSI and
the Thai Police were involved. (see 05 Bangkok 1842) DSI
officials have declined Poloff,s repeated requests to meet
and discuss progress in their investigation.

INTIMIDATION OF SOMCHAI,S FAMILY


11. (SBU) On the evening following the verdict, Angkhana
Wongrachen informed Poloff that her car had been broken into
and vandalized in the courthouse parking lot on the final day
of the court proceedings. Although access to the parking lot
was controlled, and security was tight outside the
courthouse, nobody reporting seeing anything out of the
ordinary.


12. (C) COMMENT. The effort (or lack thereof) to uncover the
truth behind Somchai,s disappearance is a test of the RTG,s
commitment to defending human rights and rule of law. The
principle barrier to resolving this case is a lack of
sufficient evidence due to a shoddy initial investigation and
an unresponsive prosecution. Accusations that the police
actively obstructed the investigation, that witnesses and the
victim's family were intimidated, and DSI,s continued
foot-dragging all reinforce the impression that higher-level
people are attempting to cover their tracks. In the words of
a member of a Muslim student organization from southern
Thailand speaking in the wake of the verdict, "Somchai was
from Bangkok, not the South. He was well-known and his case
has international attention. If he cannot expect justice in
Thailand, how can we?" END COMMENT.
BOYCE