Thai Criminal Law - Thailand
Criminal procedure represents all the stages between the commission of an infraction and the condemnation or acquittal of an individual charged with perpetrating this infraction or criminal offence. This procedure generally begins at the arrest or at the issuing of a ticket and ends after the appeal delays are over. The procedure varies a lot depending upon the infraction and its gravity or upon the person who is accused, if for example this person is not an adult.
The following text is taken from THE CRIMINAL JUSTICE SYSTEM AND COMMUNITY-BASED TREATMENT OF OFFENDERS IN THAILAND, by Kanokpun Kalyanasuta and Atchara Suriyawong.
"I. THE CRIMINAL JUSTICE SYSTEM IN THAILAND
A. Criminal Proceedings
Responsibility for the administration of criminal law in Thailand is shared by several organisations: the Royal Thai Police, Office of the Attorney General, the Courts of Justice, the Ministry of Justice (Department of Probation and the Central observation and Protection) and the Ministry of Interior (Department of Corrections).
After an arrest, law enforcement agencies present information about the case and about the accused to the prosecutor. According to the Criminal Procedure Code, investigation is conducted by the inquiry officials who are mainly the police. Thai prosecutors are not granted the power to initiate investigation nor institute the case themselves. Prosecutors begin their function after receiving investigation files from the inquiry officials. The only channel to involve with the investigation is to instruct the inquiry officials to conduct an additional investigation if the prosecutors deem that the facts or evidence as they appear in the file are not clear enough.
When the investigation is completed, a report is filed with the public prosecutor, who then prepares an indictment and gives a copy to the accused or his counsel, who enter a plea of guilty or not guilty. Based on the plea and evidence that had been gathered, the judge either accepts a case for trial or dismisses all charges.
Trials are normally held in open court, and the accused is presumed to be innocent until proven guilty. During trials, accused persons or their counsels can cross-examine prosecution witnesses and reexamine defence witnesses. After that, the judge decides the sentence. A sentencing hearing may be held at which evidence of aggravating or mitigating circumstances from an offender’s background and the offender’s criminal behaviour can be taken into account.Courts often rely on pre-sentence investigations by probation officers.
The sentencing choices that may be available to judges include one or more punishments of the following (the Penal Code Section 18):
1. Death Sentence: this type of punishment is carried out by means of shooting. However, there are guidelines in both the Thai laws and the United Nations code where safeguard measures for implementing the death sentence are provided. Despite its existence in the laws, the death sentence is infrequently carried out in Thailand. Most of the prisoners who receive the death sentence have their sentences commuted to life imprisonment. Throughout the history of modern corrections in Thailand, there have been 300 prisoners executed.
2. Sentence to Imprisonment: this is the major type of punishment to deal with criminal offenders in Thailand. The imprisonment terms range from one day to life imprisonment. Under the Thai laws, a term of imprisonment is a determinate sentence and must be carried out till its termination. The prison authority has no right to commute the sentence or to offer sentence reduction. Under this existing sentencing system, a large prison population is created which must rely, on the Royal King’s Pardon as a means to control the number of inmates in the system.
3. Sentence to Confinement: the punishment of confinement is less than imprisonment. If the court imposes a punishment of imprisonment not exceeding three months, and if it does not appear that such a person has received the punishment of imprisonment previously, the court may impose the punishment of confinement not exceeding three months in lieu of the punishment of imprisonment. Any person receiving the punishment of confinement shall be held in a place of confinement which is not a prison.
4. Fine: this type of sentence is applied to petty crime. Offenders are ordered to pay a certain amount of money to the authorities as punishment. Failure to pay the fine results in an order of confinement.
In reducing the punishment, if the punishment of imprisonment to be imposed upon the offender is only for a period of three months or less, the Court may determine a lesser punishment of imprisonment, or if the punishment of imprisonment to be imposed upon the offender is only for a period of three months or less, with a fine, the Court may determine a lesser period of imprisonment, or a fine only. (the Penal Code section 55)
5. Forfeiture of Property: this type of punishment is applied to items, weapons, and assets which offenders used or acquired to commit an offence.
1. The Legal Basis of Probation
If the court passes judgment that the offender is guilty, he/she may be put on probation. There are two types of court decision for probation, but the contents of probationary supervision are the same. The basic requirements of probation provided in the Thai Penal Code are as the follows:Whenever any person commits an offence punishable with imprisonment and in such case the Court shall punish with imprisonment not exceeding two years, if it does not appear that such person has received the punishment of imprisonment previously, or it is the punishment for an offence committed by negligence or a petty offence, the Court may, when taking into consideration the age, past criminal record, behaviour, intelligence, education and training, health, condition of the mind, habit, occupation and environment of such person or the nature of the offence, or other extenuating circumstances and, pass judgment, if it thinks fit, that such person is guilty, but the determination of the punishment is to be suspended, or the punishment is determined, but the punishment is to be suspended, and then release such person with or without conditions for controlling his behaviour, so as to give such person an opportunity to reform himself within a period of time to be determined by the Court, but it shall not exceed five years as from the day on which the Court passes judgment. (the Penal Code section 56)
2. Conditions of Probation
Regarding the conditions for controlling the behaviour of the offender (probation conditions), the court may determine one or more conditions as follows to:
1. Report himself to the probation officer from time to time so that the official may make inquires, give advice, assistance or admonition on the behaviour and carrying on of an occupation, or arrange an activity to be done for community service or the public benefit, as the official and offender think fit;
2. Be trained or to carry on an occupation;
3. Refrain from keeping company with certain people or from any behaviour which may lead to the commission of a similar offence again;
4. Take the offender to have treatment for drug addiction, physical and mental illness, and other illness as determined by the court;
5. Have other conditions determined by the court in order to rehabilitate or prevent him from recommitting an offence.
B. Criminal Justice Organisations
1. Royal Thai Police
The Royal Thai Police are the National Law Enforcement Agency and one of the largest government ministerial offices of Thailand, responsible for crime prevention and suppression for the whole kingdom. The first step in a criminal case is a preliminary investigation carried out by a police officer; the investigation might include searches of suspects, their homes and others thought to be implicated.
Arrested suspects are required to be taken promptly to a police station, where the arrest warrant is read and explained to them. They are then held or released on bail. The provisions for bail and security are defined by law.
The Royal Thai police emphasize protection more than suppression through including the participation of the community in support of police work, to have the greatest possible effect. They will increase activities in the areas of crimes and in the surveillance of places where criminals tend to associate.
Police Stations are the main organ of the Royal Thai Police. These offices need to develop personnel, systems of work, including efficient use of all administrative resources in order to carry out their functions of serving the people in justice, crime prevention and suppression.
2. Office of the Attorney General
A public prosecutor is an official under the office of the Attorney General and is governed by the Regulation of Public Prosecutor Officers Act 1978 (B.E. 2521). The Office of the Attorney-General, formerly called the Public Prosecution Department, was separated from the Ministry of Interior and became a state agency under the direct supervision of the Prime Minister in 1991 to make the Office free from outside influence and interference.
The public prosecutor is responsible for bringing a criminal prosecution on behalf of the government and represents the government in civil cases where the government is a party to the proceedings. When the investigation is completed, a report is filed with the public prosecutor, who then prepares an indictment and gives a copy to the accused or his counsel, who enter a plea of guilty or not guilty.
Based on the plea and the evidence that has been gathered, the judge either accepts a case for trial or dismisses all charges. Trials are normally held in open court, and the accused is presumed to be innocent until proven guilty. If the defendant has no counsel and wishes to be represented the court appoints a defence attorney. During trials, accused persons or their counsels can cross-examine prosecution witnesses and re-examine defence witnesses.
Authority and Functions
The authority and functions of the Office of the Attorney General can be classified into three main categories:
(i) Criminal Justice Administration
This is to conduct a criminal prosecution to protect the state and public as well as to defend innocent government officials who have been charged with criminal cases relating to the lawful performance of their duties. The Office also takes on an active role in international co-operation to suppress crime and for international mutual assistance in criminal matters because the Attorney General is the “Central Authority” under the “International Co-operation in Criminal Matters Acts of 1992 (B.E.2535)”.
(ii) Government Interests Protection
This is to render legal opinions to government agencies and state enterprises as well as to review draft contracts both domestic and international, between private entities and government agencies of state enterprises. Furthermore, the Office is charged with the power to handle civil cases where the government agencies or state enterprises are parties.
(iii)Public Interests Representation
This is to disseminate legal knowledge to the public in the fields of democracy, human rights, environment and other laws. These functions have been carried out both by personal instruction method and through mass media such as television, radio and newspapers. In addition, the Office also renders legal aid to the poor and needy people, i.e. assisting them in lawsuits and the conciliation process.
The authority and functions of the Office of the Attorney General will be continuously developed in order to effectively fulfill the role of the guardian of the law and the protector of public interests, especially with a view to coping with this new era of globalisation and technological advance.
3. The Courts of Justice
The Constitution of the Kingdom of Thailand, 1997 (B.E.2540) has a substantial impact on the reorganisation of the judicial system in Thailand. The types of court recognized under the 1997 Constitution are: the Constitution Court, the Court of Justice, the Administrative Court and the Military Court. The Constitution Court and Administrative Court were recently established as a result of the provisions of such constitution. Although this change decreased the scope of the jurisdiction of the Courts of Justice, most cases fall under the jurisdiction of the Courts of Justice.
The structure of the Courts of Justice is divided into two parts: administration and adjudication. After August 20, 2000, the Courts were separated from the Ministry of Justice. The office of the Judiciary is the organisation responsible for the administration of the Courts of Justice.
The Courts of Justice are classified into three levels consisting of the Courts of First Instance, the Courts of Appeal and the Supreme Courts. The Courts of First Instance are categorized as general courts, juvenile and family courts and specialized courts. The general courts are ordinary courts which have authority to try and adjudicate criminal and civil cases. The Courts of Appeal handle an appeal against the judgment or order of the civil courts and the criminal courts. The Supreme Court is the final court of appeal in all civil and criminal cases in the whole kingdom.
Each court of appeal and the Supreme Court has a research division consisting of research judges.
The primary function of the division is to assist justices by examining all relevant factual and legal issues of cases to ensure uniformity and fair results.
4. Department of Corrections
The Department of Corrections is the final agency of the criminal justice system. The responsibility of the Department of Corrections concerns the taking into custody of offenders being sentenced by the court and the rehabilitation of offenders; so that they will be able to reintegrate themselves into society as good citizens after release. The Department of Corrections is a preventive agency in terms of crime suppression and, at the same time, it plays an important role in the development of human resources of the country.
Presently, the correctional system in Thailand comes under the administration of the Department of Corrections, Ministry of Interior. The Department’s main responsibilities are to execute penal sentences imposed by the Courts and any lawful orders. The implementation of these responsibilities is carried out by means consistent with procedures, and measures stipulated in law. The Criminal Procedure Code B.E. 2477 (1934), the Penal Code B.E. 2499 (1956), the Penitentiary Act B.E. 2479 (1936) are a few of the laws which govern the Department. The Department has committed itself to fulfill the following functions:
(i) To keep prisoners whose age ranges from 18 and above in custody and ensure their appearance in Court.
(ii) To ensure that all the procedures for detaining prisoners in custody are consistent with laws, regulations, government policy, and the principle of criminology and penology, as well as the United Nations Standard Minimum Rules for the Treatment of Offenders and other recommendations.
(iii) To manage prisoners according to individual background, risk factors, and individual needs.
(iv) To equip prisoners with lawful earning skills through various vocational training programmes.
(v) To provide a safe, secure and humane environment whereby prisoners are able to have access to social services, recreation facilities, education, vocational training, religious, health care, and other forms of welfare.
(vi) To coordinate and cooperate with other criminal justice agencies in order to achieve maximum protection of society.
1. Prisoners become good citizens and shall not recommit crime
2. Prisoners become skillful and are able to find good work after release
3. Prisoners have good physical and mental health
4. Society and community accept and support the rehabilitation of prisoners.
1. The efficiency of custodial and security systems
2. The rehabilitation of offenders.
The Thai Department of Corrections regulates remand detention, confinement, imprisonment, the execution of capital punishment, and several non-institutional treatments. At present there are 185 correctional facilities located throughout Thailand. The average daily population in 2002 is some 250,000 which is a substantial increase over the previous 10 years.
5. Department of Probation
The Thai Government agreed to provide probation services for adult offenders and gave the Ministry of Justice the authority to organise such services. The Central Probation Office began its operation on August 7, 1979 in Bangkok. Then the Central Probation Office was upgraded to be the Department of Probation, Ministry of Justice, on March 15, 1992.
(...)According to Royal Decree of the Division of the Department of Probation, Ministry of Justice 1992 (B.E.2535), the Department of Probation has the following duties and responsibilities under the Probation Procedure Act in accordance with the Penal Code 1979 (B.E.2522).
a) To promote and encourage the process of the offender’s corrections and rehabilitation under the Probation Procedure Act in accordance with the Penal Code 1979 (B.E.2522).
b) To plan and develop the system of probation, the offender’s treatment measures and to cooperate with the Ministerial Operation Plan, in setting up policies as well as to follow up and evaluate the administration and efficiency of the agencies under the department.
c) To conduct the pre-sentence investigation, supervision, corrections and rehabilitation of the offenders who have been subjected to the Probation Procedure Act in accordance with the Penal Code 1979 (B.E. 2522).
d) To operate other duties besides the above principal duties and responsibilities required by law or the cabinet.
By the year 2012, the Department of Probation will be the principal organisation in community corrections and drug addicts rehabilitation by means of a compulsory system. We will promote crime control and prevention through community networks; will demonstrate the leadership role of innovation and engage the community to get involved in participatory administration of justice and offender’s treatment; in respect of staff; will assume the professional and service-minded roles through competence and capability; in respect of the Department, will assume the distinct cultures of learning organisation, appearance, work, ethics and honesty, transparency and accountability, and high standards recognized internationally.
(iii)Mission (Strategic Plan and Operational Plan 2002 - 2006)
a) To provide offender services of preparing investigation reports, enforcing conditions of supervision, and supportive services conferred by virtue of the enactment concerning deferred prosecution of pre-trial release, parole, and probation both adult and juvenile.
b) To provide drug treatment and rehabilitation of offenders by means of a compulsory system.
c) To provide offenders with social welfare services after termination of probation and release on conditions.
d) To advocate and mobilize community resources to provide better services for offenders and to enhance and develop community networks.
e) To study and research, to develop the rehabilitation system, information technology, and legal rules as well as other related regulations.
f) To develop the organisational structure, administration, and staff for providing better services through professionalism with competence and capability.
g) To promote crime prevention and diversion services in the criminal justice process.
(iv) Policies and Operational Directions for the Fiscal Year 2002
(especially concerning community-based corrections)
a) To prepare for the establishment of the drug addicts rehabilitation centre in accordance with the Drug Addicts Rehabilitation Act. B.E., which has been read by parliament, by working harmoniously with other related organisation, public and private, through fostering national cooperative efforts, however, it depends on the supportive resources from the government.
b) To put emphasis on studying, and research for the appropriate approaches for working to implement the July 10, 2001 resolutions of the council ministers. The Department of Probation will be the principal organisation in the probation service at the suspension of prosecution stage, trial and after the trial stage.
c) To put emphasis on having offender classification used by all offices, including to create and develop programmes to support classification.
d) To promote study and research in order to bring about innovation as well as alternatives on probation to probation services aimed at reducing the workload and increasing the effectiveness based on the resources in the community and social conditions.
At present there are 14 divisions and 88 probation offices throughout the country. Additionally, there are two new divisions namely the Drug Addicts Rehabilitation Center and the Office of the Secretary of the Drug Addicts Rehabilitation Center.
After the public administration reform and restructuring the Ministry of Justice (October, 2002), the organisational structure may change into 5 groups to conform with the mission as follows.
1. Probation and Treatment Development Group
2. Rehabilitation of Drug Addicts Group
3. Community Affairs and Community Service Group
4. Bangkok Probation Office Group
5. Probation Office Region 1-9 Group
6. Juvenile Justice System
Thai law limits children’s criminal responsibility by their age. Children under 7 years old are not liable to criminal punishment. Those between 7 and 14 are not liable to any punishment either, but the law gives the court the option to use juvenile procedures, depending on the children’s behaviour and environment and other mitigating circumstances, thereby giving the children an opportunity to turn over a new leaf rather than punishing them severely as a deterrent. Above that age (15 years and older), youths may have to face criminal punishment, but the court may use its discretion to reduce the sentence.
In provinces where there are Juvenile and Family Courts or Juvenile and Family Sections, the juvenile justice system is applied including: rehabilitation, vocational training and family reunion. However, in provinces with no such structure, adult procedures will be applied according to the nature and the extent of the offences, with the exception of the sentencing stage when the juvenile justice standard is allowed by the law.
The death penalty and life imprisonment cannot be applied to children and youth and the punishment cannot be increased due to repeated offences.
The law gives the investigating officer the right to detain the child for not more than 24 hours and will then have to speedily send the child to an Observation and Protection Centre where the child will be provided with appropriate accommodation. Child offenders have a right to bail during the investigation or during the trial. The bail procedures or criteria for bail application are not as complicated as the ones applied to adult offenders.
Sentencing of a child offender. The Juvenile and Family Court or the regular court may exercise the
following discretion in its decision:
(i) If the child commits a minor offence and his or her conduct is not damaging, the court may admonish and then release the child unconditionally;
(ii) If there are mitigating circumstances and the child’s conduct is not too damaging, the court may consign the child to the care of his or her parents or legal guardian or the person with whom the child has been living on condition that they pledge a bond with security;
(iii) If the circumstances of the offence are violent and the child’s conduct is damaging, but the child does not deserve a sentence of criminal punishment, the court may consign the child to the care of parents, legal guardian or the person with whom the child has been living, subject to a bond with security and probation;
(iv) If the circumstances of the offence are violent and the child’s conduct requires correction, the court may order the child to be detained in an Observation and Protection Center for a certain period of time which must not last longer than the offender’s twenty-fourth birthday. Alternatively, the court may order a maximum or minimum period of training at the Center;
(v) If the circumstances of the offence are as serious as an adult’s and the child’s conduct is very damaging and not conducive to the application of juvenile procedures, the court may sentence the child to prison but the sentence must be reduced proportionally.
Treatment of juvenile offenders after the sentence. When the Juvenile and Family Court or regular court has passed a judgment on the child, if the child’s behaviour later improves, the court may reconsider the case and order a better treatment for the child or youth offender. On the contrary, if the child’s behaviour deteriorates, the court may instigate new controls on the child.
In a case where the court hands over the child to his parents, guardian or to the person with whom the child resides, the court may determine the conditions for controlling behaviour of the child in the same manner as provided in the Penal Code section 56. In such case the court shall appoint a probation officer or any other official to control the behaviour of the child."