Due to a well-known recent criminal case in South of Thailand in one of the most beautiful islands, our law firm in Bangkok H&P, has been approached a by many media and foreign journalists regarding our professional opinion on the different phases of a criminal lawsuit in Thailand.
The lack of general knowledge of the legal proceeding have pushed us to prepare this article to bring some light and clarify the key aspects of the criminal law proceeding in Thailand based on our legal experience assisting foreigners.
In Thailand, the criminal procedure consists of two main phases which is the start of the criminal lawsuit and the court’s proceeding. The start of the criminal lawsuit is the phase that will happen before the court has accepted the case. For the court’s proceeding, it will include all the proceeding that will take place in the court, including the court of the first instance, the appeal court, and the supreme court.
The initiation of a criminal lawsuit in Thailand
To start a criminal lawsuit in Thailand, the injured persons can choose either start a lawsuit by themselves or by the public prosecutor. Each legal paths have a very different process before the court will accept the case, which will continue to the trial.
If the injured persons decide to file a complaint by themselves, they must appoint a lawyer in Thailand or a law firm to file a complaint behalf of them.
When the complaint has been filed, the court will have the preliminary hearing in order to examine whether the accusation is reasonable or not.
The court can dismiss the case if the accusation is unreasonable without having to proceed with the trial. On the other hand, if the accusation is reasonable, the court will accept the case and then proceed to the court trial process.
Based on our criminal lawyers’ experience in Thailand, by not filing a police complaint before the lawsuit, the injured persons may be lack of evidence for charging the defendant, especially when they must prove without doubt that the defendant committed such crime or criminal offence. The injured person will be the plaintiff in this legal proceeding by starting a criminal lawsuit. H&P lawyers always advice to file a police report so our lawyers in Thailand can work with the police officer to obtain solid evidences of the criminal offence that can be used later in the trial. It is undeniable that Thai police have more access to obtain evidences than the lawyers or private investigators.
If a lawsuit is initiated by a public prosecutor, the injured persons must submit a petition to the police to investigate the case first. The police cannot start investigating by themselves unless it is an uncompromised offense such as murdering, stealing, or fraud etc.
The compromised offense can only be started by the injured persons filing a petition first. After the police receive the petition, the Thai police will start investigating the case and gathering the evidences and provide the research into the case file. Then, the police officer will send the case file to the public prosecutor to examine after finishing the investigation.
When the public prosecutor receives the case file, he will examine it and decide whether he will file a complaint, dismiss the case, or order to carry on with more investigation. If he decides to file a complaint, the court can accept the case without having to have the preliminary hearing. However, if the court decide that there should be a preliminary hearing, the case can have the preliminary hearing. In this method, the public prosecutor will be the plaintiff in the case, unlike the first method or path. However, if the public prosecutor decides not to file a complaint for the case, the injured persons can still file a criminal lawsuit by themselves.
In the preliminary hearing, the plaintiff can bring some witnesses to testify and prove that the allegation is reasonable enough for the court trial. On the other hands, the defendant cannot bring the witness to testify in this phase, but the defendant can still appoint a lawyer to assist in this phase. We do not need to point out that the timing is as critical as a lawyer representation from the early stage of the proceeding. The lawyer work and immediate response is, in some cases, key to stop criminal proceedings against our clients.
That is the reason why H&P Criminal lawyers in Thailand, work closely with the foreign embassies and are listed in many important embassies, to ensure that the foreigners are correctly assisted within a few hours after they have been arrested by the police otherwise these foreigners can commit serious mistakes that will have a negative effect on the legal defense later.
The court of the first instance
After the court has accept the case, the criminal case will go to the court trial phase, which includes the witness examination.
In the witness examination, the plaintiff has a duty to prove beyond doubt that the defendant has committed such crime or offence. If the plaintiff cannot prove without doubt, the court will rule that the defendant did not commit such crime or offence.
After the witness examination has been completed, the judge will have the verdict, which is the verdict of the court of the first instance. If the plaintiff or the defendant are not satisfied with the verdict, they can submit a petition to the appeal court to revise the case.
The Court of Appeal
If one of the parties decides to submit a petition to the appeal court to revise the case, they must submit a petition to the court of the first instance.
Nonetheless, if both of the parties do not submit a petition to appeal within 1 month, the court of the first instance’s verdict will be the final verdict.
If one of the parties decides to submit an appeal petition, the court of the first instance will have to review that petition whether it is supposed to be revised by the appeal court.
If the court of the first instance accept the petition, the opposing party will have to submit a counter appeal within 15 days from the date that they receive the copy of appeal.
When the counter appeal is submitted, the appeal court will review the appeal and counter appeal and then will issue a verdict or ruling.
In general, the appeal court will not have to examine the witnesses again. However, if the appeal court sees that it should be a witness examination, there can be the witness examination as well but this is not the normal practice according to H&P Lawyers experience.
On the other hands, if the court of the first instance does not accept the appeal petition, the party, who submit an appeal petition, can submit a petition to the appeal court to let the court examine whether the case should be revised by the appeal court.
If the appeal court accept the petition, the process will continue from submitting the counter appeal like a normal process. However, if the appeal court does not accept the petition, the verdict of the court of the first instance will be the final verdict.
The Supreme Court
After the appeal court has the verdict, both of the parties can submit a petition to the Supreme court if they are not satisfied with the appeal court’s verdict.
They can submit the petition to the court of the first instance to review whether the case should be revised by the Supreme Court. When the court of the first instance accepts the petition, the court of the first instance will submit a petition to the Supreme Court and the opposing party will have to submit a counter petition within 15 days from the date that they receive a copy of the petition.
Then the case will be revised by the Supreme Court and the Supreme Court will have the verdict or ruling, which is the final verdict. It cannot be revised again by any courts.
However, if the court of the first instance does not accept the petition, the petitioner can submit the petition to the Supreme Court. If the supreme court accept the petition, the petition to the supreme court will be revised by the supreme court, but if not, the appeal’s court verdict will be final.
If you need a lawyer in Thailand to represent you in a criminal lawsuit, as plaintiff or defendant, please contact our litigation lawyers in Bangkok at [email protected]