World Refugee Day: The Ambiguity in the Search for Wanchalerm and the Gridlock in the Thai-Cambodian Justice System

It has been a year since Wanchalerm ‘Tar’ Satsaksit, a Thai democracy and LGBTQI activist and political exile, was disappeared in Phnom Penh, Cambodia, on 4 June 2020. Like his fate, the effort to reveal the truth remains uncertain, as both the Thai and Cambodian government are still lost at the pre-trial stage.

On 4 June 2021, Sitanan Satsaksit, Wanchalerm’s sister, asked both the governments, “is it time to make a progress towards the search for Wanchalerm yet?”. She also confirmed that her brother had been in Cambodia up until his disappearance.

20 June has been designated by the United Nations as the Word Refugee Day. The Thai Lawyers for Human Rights would like to invite you to look at the recap of the progresses, or lack thereof, in the pursuit of this Thai exile’s whereabouts in Cambodia thus far.

The perpetrators have not been identified. Cambodian authorities merely filed charges of “unlawful arrest and detention and unpermitted possession of arms” in the pre-trial investigation stage.

On 27 October 2020, the investigating judge of the Phnom Penh Municipal Court issued a warrant summoning Sitanan, Wanchalerm’s sister who was in Thailand, to present herself for an inquiry about her brother’s disappearance near Mekong Garden Apartment in Chroy Changva District, Phnom Penh.

The warrant indicated that the summon was related to the “unlawful arrest and detention and unpermitted possession of arms” according to section 253 and 490 of the Cambodian Criminal Code. The perpetrators were yet to be specified. Thus, we have to continue keeping an eye on the result of the pre-trial investigation involving Sitanan’s presence on 8 December 2020, as well as the forwarding of the investigating judge’s personal opinion to the royal prosecutor, and see whether the perpetrators would be targeted with the mentioned charges.

Sitanan lets the Cambodia’s justice system to further work on identifying the perpetrators. Based on the existing evidences that she has, the perpetrators involved a group of 3-4 unidentified individuals who were carrying arms and wearing black clothes. They came in a navy or black Toyota Highlander with license plate number 2X-2307 to the place of incident, which was in front of the apartment where Wanchalerm had lived during his exile.

Further, on 5 and 19 January 2021, Sitanan submitted additional requests to the investigating judge of the Phnom Penh Municipal Court to summon personal and documentary evidences that could be used to identify perpetrators and circumstantial factors.

Notably, while the pre-trial investigation under the Phnom Penh Municipal Court was still ongoing, the Cambodian government has issued three letters responding to the Committee on Enforced Disappearances (CED) under the United Nations. In summary, the letters explained that the immediate investigation by the Ministry of Interior, which regulates the national police, revealed that Wanchalerm was not on the list of residents of the alleged apartment. Meanwhile, the authorities tried to look for traces from the CCTV footage said to be where the incident took place and also found no conclusive evidence. The vehicle used for the alleged offense was not registered. And the three personal witnesses that lived near the alleged scene insisted that no kidnap had taken place.

As it has turned out, the international quest of finding truth between Thailand and Cambodia still requires an affirmation whether the abduction has actually taken place in Cambodia or not.

Thailand sets to investigate “whether Wanchalerm was in Cambodia and where the abduction took place”. Who is in charge of this case, the Attorney General or DSI?

On 2 June 2021, Wanchalerm’s family received a confirmation from Pol.Lt.Col. Korrawat Panprapakorn, the director-general of the Department of Special Investigation (DSI) who himself had come out to receive Sitanan’s follow-up letter, that DSI was in the process of investigating the links and documents like passport. However, it could still not be concluded whether Wanchalerm had disappeared overseas.

Since the case has been forwarded from the Office of Attorney General and the Grievance Management Committee Related to Torture and Enforced Disappearance Cases under the Rights and Liberties Protection Department in January 2021, the DSI has yet to accept to work on this case specifically. Meanwhile, Chanchai Chalanonniwat, a deputy spokesperson for the Office of the Attorney General, explained to Sitanan on the same day that the investigation by public prosecutor would be initiated when it has appeared for a fact that the offence had taken place outside the Kingdom of Thailand, which replied upon the result of investigation from the Cambodian Court. That said, the public prosecutors were not clear either whether the process was still ongoing or has been completed by the Cambodian Court.

The ambiguity in the responsibilities between the Office of Attorney General and the DSI to take the lead in Wanchalerm’s case has posed an obstacle for Sitanan since the beginning of the search for her brother. Currently, Thailand’s Criminal Code contains no provisions assigning the mandate of enforce disappearance offense to a specific body. In addition, the overlapping jurisdiction of the Thai and Cambodian justice system has made it difficult for Sitanan to proceed with the case.

Sitanan was confident that her brother was abducted while residing in Cambodia. He was subject to enforced disappearance, maltreatment, physical assault, or liberty deprivation, which was considered a punishable offence outside the Kingdom of Thailand under section 8 of the Criminal Code in conjunction with section 20 of the Criminal Procedure Code. Thus, the Attorney-General should be the competent officer in charge of the investigation of Wanchalerm’s disappearance. On this ground, Sitanan submitted a letter addressing the Attorney-Generation on 23 June 2020, as well as presented facts and submitted letters confirming the facts multiple times.

Due to the complexity of the case involving witnesses and evidences found abroad and in order to facilitate a cross-border coordination for Thai authorities, Sitanan also decided to hand a letter to the DSI requesting that Wanchalerm’s case be admitted as a special case on 25 June 2020.

According to the Special Case Investigation Act B.E. 2547 (2004), a special case shall have any of the following natures: 1. A complex criminal case that requires special inquiry, investigation and special collection of evidence, 2. A criminal case which has or might have a serious effect upon public order and moral, national security, and international relations, 3. A criminal case which is a serious transnational crime, 4. A criminal case in which influential person being a principal, instigator or supporter, and 5. A criminal case in which the Administrative Official or Senior Police Officer is the alleged culprit, or being the accused.

One year after her brother’s disappearance, Sitanan found out that both the Attorney General Office and DSI had been pushing the case back and forth several times.

On 8 July 2020, the Department of Special Investigation issued a clarification that in the case of Wanchalerm it was incumbent on the Office of Attorney General to work on this extraterritorial case. However, in December 2020, the Office of Attorney General concluded that it was inconclusive whether Wanchalerm had really disappeared in Cambodia and whether the evidences of the alleged offense exitsted.

Therefore, Wanchalerm’s case was reverted to the DSI for a fact-finding mission. The DSI has accepted the case on 7 January 2021 and was set to verify Wanchalerm’s existence in Cambodia and the abduction location.

The indecision and hesitancy to work on the case has created power ambiguity in the investigative mandate in case of enforced disappearance between the two agencies. This shows a legal gap in Thailand due to an absence of a legislation to deal with enforced disappearances specifically, as well as reflects the absence of an earnest effort to uncover the fate and whereabouts of Wanchalerm.

Wanchalerm’s identity and residency in Cambodia have always been known by the Thai and Cambodian government. Sitanan has formally presented strong evidences for it.

8 December 2020, 19 March 2021, and 25 March 2021 are the dates on which Sitanan presented data and evidences confirming Wanchalerm’s identity and address to the Phnom Penh Municipal Court, Cambodia, and the Office of Attorney General and the Department of Special Investigation, Thailand, respectively. The key documents include:

1. Thai passport containing the name Mr. Wanchalerm Satsaksit. Date of issue 17 JUL 2013, date of expiry 16 JUL 2018.

2. Cambodian passport containing the name SOK HENG with picture of Wanchalerm. Date of issue 21 AUG 2015, date of expiry 21 AUG 2025.

3. The memo of the Subdivision 3 of the TCSD dated 24 June 2018 reporting the result of investigation of the Facebook page “I must have received 100 million Baht from Thaksin”. Previously, the Technology Crime Suppression Division (TCSD) file a complaint against this page in the Criminal Case no. 55/2560, believing that Wanchalerm was associated with this page.

Pol.Lt.Col. Panlarn Pathompornwiwat, inspector of the Subdivision 3 of the TCSD, additionally conducted an investigation on residency matter, which pointed out that Wanchalerm might be seeking refuge abroad. The details appear in the following images with captions below:

Image 1: Taxi with license plate number 25-8194

Image 2: Image and text “Mekong Garden Apartment & Condo”

Image 3: Map of Mekong Garden Apartment & Condo and Phnom Penh city

Image 4: Entrance of Mekong Garden Apartment & Condo

Image 5: Text saying “on 15 February 2016 the taxi returned to Mekong Garden”

4. Investigation report of punishable crime committed outside the Kingdom dated 21 August 2020, which the Technology Crime Suppression Division (TCSD) forwarded to the Office of Attorney General, stating that

  • According to the complaint filed by Col. Burin Tongprapai to take a legal action against the Facebook page “I must have received 100 million Baht from Thaksin” with charges of the Computer-related Crime Act for damaging the country’s security,
  • The TCSD has conducted an investigation and collected evidences and found that the admin of the said Facebook page is Mr. Wanchalerm Satsaksit, arrest warrant dated 25 June 2018. The accused’s place of residence is in Cambodia and no immigration data is present. Thus, it is believed that the said offense was committed outside of the Kingdom of Thailand and related to the Kingdom of Thailand. The punishable offense which is committed outside the Kingdom of Thailand is under section 20 of the Criminal Procedure Code.

5. Order of the National Council for Peace and Order (NCPO) no. 44/2557 summoning Mr. Wanchalerm Satsaksit to report himself to the NCPO.

Sitanan has obtained the abovementioned facts and informed the government agencies of both countries accordingly. She has also said in an interview that these evidences showed that Thai government was aware all along that Wanchalerm was a political exile in Cambodia, depending on how the Thai state saw it. The DSI said that it would give an answer in 6 months. Thus, we have to see whether the DSI will keep its promise.

“The Thai State cannot deny not being aware of the evidences. The agencies have been in contact and learned that Wanchalerm was in Cambodia. We believe that the Thai and Cambodian government knew that that they could request data from the Cambodian government or the airline, be it de jure or de factor. The Cambodian government should have the immigration record. We only have the copy of flight booking, but we do not have the passport. We could not enter Wanchalerm’s apartment room because the authorities would not allow us.”

The ambiguity in the Thai government’s mandate to identify Wanchalerm, the denial of facts that link the incident in Cambodia to the international community, and the delay in the Cambodia’s pre-trial investigation process which surprisingly contradicts the evidences shown to public had resulted in a lack of progress in the attempt to track Wanchalerm’s fate and whereabouts.

A genuine investigation in Wanchalerm’s case and a hunt for the perpetrators and accomplices are the starting point of safety for the Thai political exiles, who were forced to flee the home country out of safety reasons for both their lives and their properties. Moreover, the quest for truth is another test for the Southeast Asian countries to prove if this region can truly be free of enforced disappearances.