What really happens to witnesses in Thailand? Some cases

Protection or harassment? Angkhana Neelaphaijit

Angkhana Neelaphaijit was given two months of protection by the Metropolitan Police Bureau, organised by the Witness Protection Office

Angkhana Neelaphaijit is the wife of the prominent human rights lawyer Somchai Neelaphaijit, who was forcibly disappeared on 12 March 2004. Five police officers, four of them members of the powerful Crime Suppression Division, were charged in connection with his abduction. On 12 January 2006 one was sentenced to three years in prison. The court acknowledged that Somchai had been abducted. The prime minister and others have acknowledged that the perpetrators were police. The Department of Special Investigation is continuing inquiries, but Angkhana has doubted its sincerity, and especially that of its director, whom she has urged to step aside from the investigation.

Angkhana has advocated strongly for justice. She was also a joint plaintiff in the criminal case against the five accused, against the wishes of the public prosecutor. As a result, she has been a target for threats.

On 18 April 2005, Angkhana received a telephone call from a man whose voice she recognised as that of a government intelligence officer. He asked about her interventions in the United Nations. Shortly after, another man approached her near her house and warned her against any high-profile advocacy on her husband’s case, such as going on television or making other public statements. (See appeal in Appendix IV.)

After strong interventions and publicity of the threats, the then-justice minister ordered that Angkhana be given protection. The Witness Protection Office organised for two police officers from the Metropolitan Police Bureau to protect her from the next day. Angkhana agreed to protection for an initial two months.

The two police officers, both men, came to Angkhana’s house. They did not appear to have clear orders or a good understanding of what to do. They thought that they would stay in the house. Angkhana refused to allow them to stay with her. They rented accommodation nearby instead. Each day they patrolled around the house. At night they stayed at their accommodation, but called frequently to check that everything was alright. When Angkhana complained about the manner of giving protection, one of the officers apologised, saying that they hadn’t been given an assignment like this before and that they lacked detailed instructions. In short, they did not understand what they were supposed to do.

Angkhana’s husband had been abducted by the police, and she had sought protection from the perpetrators or their associates. Not surprisingly, she felt more insecure with the constant presence of the police than she did without them. Neighbours and friends stopped visiting the house. Her family also felt intimidated. The police wanted to know the phone numbers and movements of her five children, four of them young women. When she met the prime minister, she asked him directly if her phone was being tapped, and he did not deny it.

When the two-month period was finished, Angkhana declined to renew the witness protection, as she felt harassed and burdened by the police. She obtained the assistance of colleagues and made her own private arrangements for security.

On 21 March 2006 Angkhana was again threatened by the same man who approached her in 2005, at a time that she was working with the Central Institute of Forensic Science on possible locations of her husband’s remains. The man warned her not to go out or she might have an accident or find a bomb under her car. She did not seek any protection from the government, saying that it would not do any good. Other threats also she has not reported for the same reason.

On 10 April 2006 two Members of the European Parliament submitted written questions to the European Union asking whether or not it has “communicated its concern over the security threats to Mrs. Angkhana to the Government of Thailand”. The following month the European Union took up her case under a programme for woman human rights defenders. Angkhana has also received national and international awards for her work. She feels that together these actions from human rights groups and national and international agencies to support her and commemorate her husband have protected her and her family more effectively than anything offered by the government.

The dangerous courtroom: Chaweewan Yuthaharn & Adirake Yimwadee

Chaweewan Yuthaharn and Adirake Yimwadee were eyewitnesses to the abduction of human rights lawyer Somchai Neelaphaijit; neither received witness protection

Chaweewan Yuthaharn and Adirake Yimwadee were eyewitnesses in the case against the five police officers accused in connection with the disappearance of prominent human rights lawyer Somchai Neelaphaijit. Ultimately, it was on the basis of their testimonies that one of the five defendants was convicted on 12 January 2006.

Both Chaweewan and Adirake very reluctantly approached police investigators to tell what they saw, and said that they were told that they would only have to give testimony at the police station and would then be allowed to go home. Neither of them had expected that they would have to testify in open court. Had they been aware of this, it is highly unlikely that either of them would have come forward in the first place.

Chaweewan, a young woman, initially told the investigating officers that she had clearly seen the abduction, and positively identified the one defendant who was later found guilty. But in court on 25 August 2005 she refused to identify him when he sat before her. She was visibly afraid and looked straight ahead at the bench, or downwards. When asked repeatedly to try to identify the accused, she only snatched glances at him and immediately looked downwards again.

Adirake similarly refused to respond to many questions in the court. When asked by the judge if he was aware that he could perjure himself by denying his earlier testimony, he neatly described his dilemma by saying that as the police were both investigators and defendants in the case, he was afraid of each side.

Chaweewan and Adirake felt very vulnerable when appearing in the court not only because of the persons they were testifying against but also because of the court procedure and layout.

Witnesses in Thailand sit on benches outside the court waiting to be called. There is no special waiting room or other arrangements for them. If the defendants are on bail, they can enter and leave the courtroom as and when they like, each time passing by the witnesses. Court observers also come and go. On the days that the eyewitnesses appeared in this case, there were many police present as observers. Others were milling around downstairs. The large number of police appears to have been organised to intimidate the eyewitnesses, as they were not there on other days. They also went to and fro freely. Even at lunch time, no special arrangements were made by the court for protection of the witnesses. Some human rights monitors attending the court sat with Chaweewan in the cafeteria.

Once in the courtroom, the witness is sandwiched between the prosecution and defence, facing the judge. The courtrooms in Thailand are generally small, and the witness is seated within two to three metres of bailed defendants, in full profile view. There is no physical barrier separating the victim or witness and the defendants. Nor is there any special security in cases where the defendants have posted bail.

Layout of a Criminal Court room in Thailand (defendants not under custody)

Sketch of the Criminal Court in Bangkok on 25 August 2005
(Chaweewan testifies at centre)

Both Chaweewan and Adirake were also asked by the prosecutor to watch video tapes that they had used to identify the defendants, which were played on a laptop computer that had been brought to the court by a police officer and set on a small table behind the witness’s seat. Each had to turn around and face the assembled court observers, which included the many plain-clothed police and other supporters of the defendants, to watch the video. Chaweewan was visibly unwilling to comply, and the sequences were played over. Lawyers and defendants got up and milled around behind her. At one point, observers were also invited in to take a look. A crowd gathered around behind the witness, with people talking and moving here and there as they pleased.

By contrast, in many other jurisdictions around the world, the defendants are not allowed to come and go during the hearing, and are not entitled to speak unless permitted by the judge. Also, the witness stand is kept at the furthest convenient point possible from the defendants, and the two are separated by court staff, lawyers of both parties and other persons involved in the court process. Security personnel are also assigned should the defendant or another party to the case become violent or try to leave illegally.

Layout of a Criminal Court room in the UK
(Source: Magistrates’ Association, UK)

In some jurisdictions, screens may be placed around the witness box, or the witness may give testimony through a live video link from an adjacent room, and chief testimony can be given by pre-recorded video.

At present there is little in the judicial procedure of Thailand to protect the rights and interests of witnesses in court. The Criminal Procedure Code contains some provisions for children to give testimony through a social worker or video, but no equivalent provisions exist for adults. Under section 237 bis it allows for the prompt recording of testimony in cases where the witness “will depart from the Kingdom, has no habitual residence, or has residence far from the Court of trial, or there are reasonable grounds to believe that he will be tampered [with] directly or indirectly”. As the prompt recording of testimony should be a basic principle in all criminal trials, this provision is not remarkable. And as the section allows for a defendant to cross-examine such a witness himself, except in offences punishable with death, it may compound the abuse that has already been caused by allowing for the possibility that a police officer can stand in front of a person whom he has humiliated, beaten, electrocuted or raped and ask intimidating questions in order to escape prosecution.

The Asian Legal Resource Centre had staff present when the eyewitnesses to the abduction of Somchai Neelaphaijit testified before the court. They were shocked at the almost complete disregard for their security, despite the fact that they were appearing in a reputed human rights case and giving information to the court that could send ranking police officers to jail. They found that Chaweewan travelled to and from the court unescorted and by bus. They immediately communicated their concerns to the Department of Rights and Liberties Protection, and an officer from the Witness Protection Office was dispatched the following day. (See letter in Appendix IV.)

The observers also raised serious questions about the role of the judge in ensuring that each of the witnesses be adequately protected and feel comfortable in the court, in the interests of fair trial. It was apparent that like others present in the court, the presiding judge sensed the fear of the eyewitnesses, especially Chaweewan: a young woman forced to sit in front of five glowering ranking police officers in a male-dominated courtroom. Apparently in response to her discomfort, the presiding judge ensured that in addition to two female assistant judges, another senior woman judge joined the bench in the afternoon. However, this was the only notable concession made in response to the witness’s obvious distress.

In reaching a verdict based on Chaweewan’s testimony, the judge acknowledged that she had been afraid while in court and therefore relied upon the investigation records submitted by the prosecution rather than what she and Adirake said in the courtroom. However, this judgment opens many avenues for appeal by the one defendant found guilty and only reinforces the fact that the lack of witness protection undermines due process, threatens the integrity of the courts, and encourages impunity.

What more could the court have done? Certainly there were times when the court could have been better managed to better respect the interests of the witnesses. However, beyond that there appear to be few avenues for judges in Thailand to give orders or take action in response to a fearful witness. The generic model offered by the Witness Protection Office allows for a witness to request protection from the court and for the court to notify the relevant agencies to take the necessary steps. However, again there appear to be no specific criteria for the court in determining whether or not to accept a request, and judges in Thailand generally show little sensitivity to the security needs of witnesses coming before them.

By contrast, in other jurisdictions where the court is satisfied that the quality of evidence given by the witness is likely to be diminished for reason of fear or distress, special protection can be given. This may depend upon the importance of the witness’s evidence, severity of the alleged offence, age of the witness, and behaviour towards the witness by the accused, his family or associates. Were such criteria available to courts in Thailand it seems certain that the eyewitnesses to the abduction of Somchai Neelaphaijit would have been given some kind of additional protection, although under the current circumstances this would have inevitably entailed further police involvement.

The police decide: Phra Kittisak Kitisophon

Phra Kittisak Kitisophon was given five months of protection by the Crime Suppression Division, organised by the Witness Protection Office

Phra Kittisak Kitisophon has been involved with the Mettadhammarak Foundation, which aims at promoting Buddhism by supporting community activities related to education, and preserving the environment and local forestry. Phra Kittisak and Phra Supoj Suwagano were supporting villagers involved in land disputes and trying to protect community and temple forest nearby their Buddhist training and studies centre in Chiang Mai province. Members of the foundation have been threatened in the past, allegedly by local influential businessmen. In March-June 2005 there was an attempt to develop the land into rubber plantations, which the foundation fought.

On 17 June 2005, Phra Supoj was hacked to death in the forest 300 meters away from his temple accommodation. Subsequently, Phra Kittisak also began receiving death threats. The temple worker who first found Phra Supoj’s body was harassed by local police nightly. After she moved away from her house to escape them, it was burned down.

Phra Kittisak sought protection three days after Phra Supoj was killed. The Witness Protection Office was given responsibility, and it contacted Phra Kittisak. Although the Department of Special Investigation was put in charge of the murder case, it did not offer protection on the ground that it did not have enough personnel. The office suggested that it organise protection by local police (Police Region 5), but Phra Kittisak refused as he believes that local police were connected with the killing. So instead he said that he wanted the Bangkok-based Crime Suppression Division to protect him.

The Crime Suppression Division provided four officers from June 25, for one month. It then withdrew the officers, saying that they were no longer needed. After the foundation requested further protection, the police were reinstated a couple of days later, until October 18.

The four officers sent were young and did not seem to know what they had to do. They had had no special training. They waited for advice from their superiors. Initially there was mistrust between the officers and the monks. The police were skeptical about whether the witnesses really needed protection. But by October they were more sympathetic.

Since October Phra Kittisak has had no protection. (See appeal in Appendix IV.) This is despite the fact that he has continued to receive threats. Both the Witness Protection Office and Department of Special Investigation have supported his requests for further protection, but the final decision is in the hands of the implementing agents, the police, who are unwilling to commit officers for a long time.

Torture celebrity lacks protection: Ekkawat Srimanta

Ekkawat Srimanta was allegedly tortured by the police and his case transferred to the Department of Special Investigation, but he received only short-term protection

Ekkawat Srimanta was arrested on 2 November 2004 by officers in Ayutthaya province, just north of Bangkok, on allegations of robbery. The officers at Phra Nakhon Si Ayutthaya Police Station took him into detention where they allegedly covered his head with a hood and beat him all over his body to force him to confess to robbery. Then they transferred him to Uthai Police Station, where officers allegedly electrocuted Ekkawat on his penis and testicles. Unusually, he was released shortly after, and rushed to hospital by friends.

Media reports and images showed Ekkawat with burns all over his testicles, penis, groin, and on his toes. He had injuries from beatings all over his body, including the marks of combat boots on his back, swollen thighs, swollen cheeks, face and throat, and blood in his eyes. He was visited at the hospital by a string of senior police and government officials. Two police officers were assigned to protect him for thirty days.

The twenty-three officers recorded on the case record were transferred to Bangkok while investigations were opened. The regional commander stated on November 9 that criminal proceedings would follow, and the case was transferred to the Department of Special Investigation on November 29. But no officer is known to have faced criminal charges, despite these commitments and the overwhelming circumstantial evidence. All the accused police have retained their posts.

Many human rights and legal groups were involved in the case. Ekkawat spoke at a seminar on torture organised by the National Human Rights Commission. He was represented by the Lawyers Council of Thailand.

Despite the case receiving enormous publicity and being classified as “special”, Ekkawat is not known to have received any long-term special protection measures. Finally, he withdrew his lawsuit against the police prior to the case opening in the Ayutthaya Provincial Court on 11 November 2005, without informing his lawyer. (See appeal in Appendix IV.) Almost a year passed between the time of the incident and the time of trial. After media and public attention moved elsewhere, the defendants had apparently coerced and threatened the victim to withdraw his case. Unprotected, Ekkawat was an easy target.

“Defendant” not “witness”: Anek Yingnuek

Anek Yingnuek and three friends were allegedly tortured by the police but had no access to witness protection as they were made criminal defendants based on forced confessions

Like Ekkawat Srimanta, Anek Yingnuek was arrested by officers of the Phra Nakhon Si Ayutthaya Police Station on 9 September 2004 on charges of robbery. At the police station, he was allegedly tortured for several hours. The police allegedly beat him with PVC pipe and suffocated him with plastic bags. They also allegedly electrocuted him through a fork stuck into ice on his penis, testicles and other body parts. Three of Anek’s friends were also allegedly tortured, and charged. At least one of the officers was later implicated in the torture of Ekkawat Srimanta. During the trial, Anek and his friends testified in court that they had been tortured; however, the judge ruled out the testimony on procedural grounds. Despite the plausibility of the allegations and severity of the said torture, no investigation is known to have been conducted.

As Anek and his friends were made criminal defendants due to forced confessions, they are disbarred from seeking witness protection under the existing law. Yet by speaking out in court they risked reprisals. As in other cases in Thailand, the court showed no sensitivity to this danger. The only path that lies open to them in the event of threats is to seek assistance from their custodian, the Department of Corrections.

The relatives of Anek, including his mother, are also isolated and unprotected, despite living in the same vicinity as the police accused of torture. Anek’s mother has been the most active among the family members in fighting for the rights of her son, and it was she who first lodged the complaint of torture, after Ekkawat’s case was reported in the media. At least one relative of another victim also complained at that time, offering a similar account of abuse and thereby strengthening the credibility of the complaints. In January 2006 the relatives were sued by one of the police officers over a small report in a newspaper about their complaints. They now are subject to criminal defamation charges and have been forced to present themselves and have the cases documented at the local police station.

Need for fast and effective intervention: Urai Srineh

Urai Srineh was allegedly tortured by the police but received no immediate protection and was intimidated to not lodge a criminal complaint

Urai Srineh was at home with his family on 24 May 2005 when a group of men entered the house. They allegedly identified themselves as police officers and told Urai to go with them. They did not offer a warrant or give a reason for their actions. They allegedly took Urai from in front of his family, and placed him in a car blindfolded and handcuffed.

Urai was reportedly driven around for about two hours before being taken into a room, still blindfolded, and allegedly being told to confess to the killing of six people.

Urai strongly maintained his innocence, after which he was allegedly repeatedly electrocuted on his testicles and groin over some hours, and beaten. After the perpetrators brought another person to the room and he said that Urai was not involved, they took Urai home. As he was taken out, Urai allegedly saw that he was leaving the Chonburi Provincial Police Station.

After reaching his house, Urai was taken to the Klaeng District Hospital and then transferred to the Rayong Provincial Hospital due to the severity of his injuries. He was found to be suffering burn marks on his groin, swollen testicles, an injury on his left toe, and bruised wrists due to the use of handcuffs. He was unable to urinate. He was experiencing numbness in his lower body and lung and kidney problems. According to doctors who examined him, the injuries were serious and could result in lasting damage.

While Urai was at the hospital, he was visited by some government representatives and lawyers, during which time he was reportedly informed that he could obtain protection. However, no immediate steps were taken to this end, although he was obviously very vulnerable. Unlike the case of Ekkawat Srimanta, his torture did not attract media attention and therefore also did not warrant a corresponding reaction from the authorities. The lawyers visiting Urai also were harassed by persons believed to be police or government officers, who came to take photographs of them and follow their vehicle.

When Urai was alone, he was reportedly visited by some police led by the investigating officer in charge of the murder case, Pol. Maj. Manop Prasart of Klaeng District Police Station in Rayong province. He was allegedly paid money not to lodge a complaint and to cover his medical expenses. Once he was released from hospital he moved away from the district.

In November 2005 the sister organisation of the Asian Legal Resource Centre, the Asian Human Rights Commission, received a letter from the Ministry of Interior confirming that Urai Srineh had been abducted and assaulted, but “not by the Police”. The ministry’s conclusion was based on the inquiries of Chonburi and Rayong provincial police officers.

Two other accused in this case have also alleged that they were tortured. As they have been detained and charged, like Anek Yingnuek and his friends they are not be eligible for witness protection under the current law.

Especially vulnerable witnesses: “Min Min” case

Four witnesses to the murder of a migrant worker were reportedly kept in custody for “protection” while the accused was allowed to go free

According to staff of the Burma Lawyers Council in Mae Sot, Tak province, on 8 December 2005 the son of the Mai Kyaw Kee village chief, Par Saw Tee, beat and shot to death a migrant worker named Min Min because of a personal dispute. On December 17 the case was brought to the attention of the Mae Sot District Police Station, and on December 20 the police arrested the accused. However, instead of holding the accused in custody, they allegedly released him and kept four key Burmese witnesses in detention instead, including the father of the victim, for their “protection”.

After the Asian Human Rights Commission intervened in the case at the end of January 2006, it obtained the attention of the National Human Rights Commission and at least one government agency, whose staff visited the police station. The four persons were subsequently handed over to the Burma Lawyers Council, which was asked to make arrangements for their security until the time of the trial. The investigation has proceeded slowly. Meanwhile, most other persons connected with the case have since left Thailand.

This case speaks to the problem of giving protection to especially vulnerable witnesses. These include migrant workers–in particular, undocumented migrants–and ethnic and religious minority groups. Persons belonging to such groups frequently speak little or no Thai and are unfamiliar and afraid of the national administrative and legal system. They are unlikely to be aware that they may have rights, even if they entered the country illegally, and equally unlikely to attempt to exercise them. Under these circumstances, the police make their own rules, usually to the detriment of the weakest party to the case and contrary to the interests of human rights and the rule of law.

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