For immediate release on 23 September 2015
CrCF questioning the issue of justice: It took seven years for the NACC to determine that only one military officer was involved with the torture of Imam Yapha who died while being held in official custody
The death of Mr. Yapha Kaseng was relating to the incidence on 19 March 2008 when military and police officials were searching the area in Tambon Rueso, Rueso District, Narathiwat and several suspects related to insurgency in the Deep South were rounded up, and among them was Mr. Yapha Kaseng, an Imam at Rohimah Mosque, Ban Kor Dor, Moo 5, Tambon Rueso, Rueso District, Narathiwat. On the morning of 21 March 2008, Mr. Yapha was found dead in the custody of the military at the Taskforce 39 Narathiwat, then located in Wat Suan Tham, Tambon Rueso Ok, Rueso District, Narathiwat. According to the Post Mortem Inquest by the Narathiwat Provincial Court, the Black Case no. OCh 9/2551, Red Case no. OCh 19/2551, it was determined that Mr. Yapha’s death was caused by the act of military officials who physically assaulted him while holding him in custody and while performing their official duties. On 30 August 2015, the Office of the National Anti-Corruption Commission has determined in the Black Case no. 01-2-115/2552 and Red Case no. 120-2-5/2558 with unanimous vote among the subcommittee conducting the inquiry that among the five military officials alleged to have committed the crime, there was a prima farcie case against only one official for the alleged physical assault against Mr. Yapha Kaseng while no sufficient evidence was found to hold the other four military officials accountable to the charge.
After the death of Mr. Yapha, his family has been demanding justice through launching civil and criminal suits. As to the civil suit, the family was awarded 5.2 million baht from the in charge office of the officials after a settlement in the Bangkok Civil Court on 20 July 2011. As to the criminal suit, in order to bring the perpetrators to justice, they have reported the case to the police at the Rueso Police Staiton, Tambon Rueso, Rueso District, Narathiwat. The police said that since this was a criminal case in which government officials were accused of committing an offence while performing their official duties, they should then be charged for abusing of office for committing a fatal assault against Mr. Yapha Kaseng. Thus, the case was referred to the review of the Office of the National Anti-Corruption Commission (NACC) since June 2008. But the NACC process took quite a long time, thus, the relatives decided to file a case against the officials with the Narathiwat Provincial Court directly. The Court dismissed the case on 2 September 2010 claiming that this case was concerned with the allegation against a military official and it did not fall under jurisdiction of the Court of Justice, but the Military Court. But since relatives of Mr. Yapha Kaseng were not considered an injured party, they had no legal standing to bring the case to the Military Court. The military law requires that only the judge advocate have the power to bring a case against a military official with the Military Court.
The Cross Cultural Foundation (CrCF) and family of the deceased have been monitoring the performance of duties by the inquiry officials at the Rueso Police Station and the Office of the National Anti-Corruption Commission (NACC) and have the following observations to make;
1. That the review of the NACC on the Black Case no. 01-2-115/2552 and Red Case no. 120-2-5/2558 lasted more than seven years was an unacceptable delay and inefficiency. The NACC unanimously agreed with the finding of the inquiry subcommittee that among the five military officials alleged to have committed the crime, there was a prima farcie case against only one official for the alleged physical assault against Mr. Yapha Kaseng while no sufficient evidence was found to hold the other four military officials accountable to the charge.
2. But according to detail of the death of Mr. Yapha Kaseng, the finding of the NACC does not match evidence given by witnesses during the inquest in the Narathiwat Provincial Court since witnesses asserted that they saw other persons being involved in the commission of the crime as well. It was thus believed that there was more than one perpetrator. And given the circumstance relating to the torture and ill treatment during the two day custody, it was impossible that the physical assault could have been made possible without cooperation, support or acquiescence of several officials and their superior official. But the NACC simply determined that there was no sufficient evidence to hold the other military officials culpable and this has made the relatives question the efficiency, independence and transparency of the inquiry conducted by the NACC.
3. CrCF notes that the inquiry officials of the Rueso Police Station have decided to refer the case to the NACC claiming that the fatal assault against Mr. Yapha Kaseng allegedly by military officials was a case of malfeasance, instead of referring it to the public prosecutor to indict the case against the alleged offenders with the Court as per the Penal Code’s Article 289 (5) coupled with Article 83 for murdering other person by employing torture or acts of cruelty. Instead, the police wanted to hold them accountable for abuse of office and referred the case to the NACC. This has made the relatives feel suspicious that it was an attempt to deviate the issue of investigation or it was a tactic to delay the investigation to allow any tampering with evidence. That the military officials have physically abused Mr. Yapha until he died could be an offence as to the Penal Code’s Article 289 (5) which is punishable by death, the penalty rate of which is more severe than the abuse of office as to Article 157 which carries the imprisonment of one to ten years or a fine of two thousand to twenty thousand baht, or both and the process is under the jurisdiction of the NACC.
4. If the only official determined by the NACC to be culpable for the crime is indicted with the Military Court, it would deprive the injured parties including relatives of Mr. Yapha Kaseng of the opportunity to be co-plaintiff in the case and they would be disallowed to give any evidence to the Court. This will make it possible for the other perpetrators to enjoy impunity. It will reiterate the fact that relatives of Mr. Yapha Kaseng or even other people in the Deep South and general public monitoring the horrible case for more than seven years will never find justice from the Thai justice system. The problem will possibly derail the ongoing effort by the government and people to nurture peace in the Deep South.
5. That the Thai authorities have been negligent and allowed torture to be committed against Mr. Yapha Kaseng and it is believed that officials at the operational level and their superior officials might have been acquiescent to the act, and given a lack of transparency in the investigation and the denial of request of the injured party to participate in the process to bring justice helping the perpetrators to enjoy impunity for more than seven years or perhaps forever is a gross violation to international obligation for Thailand since it is a party to the Convention Against Torture.
A lesson learned from the death of Mr. Yapha Kaseng is the legal constraints that have enabled the perpetrators to enjoy impunity since the relatives of the deceased are not eligible to bring the case against them. This has made it impossible to review if the acts committed by the government officials could be considered the performance of official duties or not. CrCF suggests that concerned agencies in the justice process explore the ways to ensure that genuine justice can be done and guarantee the independent, prompt and fair operation of each of the concerned agencies to restore trust among people who long for genuine justice.
For more information, please contact:
Ms. Pornpen Khongkachonkiet, phone 02-6934939
Mr. Preeda Nakphew, attorney, phone 089-6222474