Criminal Law in Thailand Part 29: The criminal trial _ provisional release

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Dave The Dude

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Criminal Law in Thailand Part 29: The criminal trial _ provisional release

  • Published: 14/11/2010 at 12:00 AM
  • Newspaper section: Spectrum

In earlier columns we've touched on the issue of what happens pending a final judgment about your criminal case. Do you have to spend the time in jail, or will you be released? We've had so many questions about this that we thought it would be worthwhile to spend a couple of columns on this.

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ILLUSTRATION: NATTAYA SRISAWANG

If you have been charged with a crime you may be jailed before and during trial and appeal. You may, however, apply to a court to allow you freedom during these periods. If you've been charged, but no trial has taken place, your lawyer would file the application, called an application for provisional release, with the court before which you will be tried.
If you've been convicted of a crime in a trial court but your appeal has not yet been filed, or if it's been filed but hasn't yet been transmitted to the appeal or Supreme Court, the application for your provisional release is also sent to the trial court. If the appeal court has received the file for your appeal, it's the appeal court that decides on whether you will get provisional release. Note: the Supreme Court is also called the Dika Court by lawyers. Judgments from this court must be presided over by three judges.
The court that decides on your provisional release has the power to temporarily release you, called release for the time being, before it decides on your provisional release, and will do so unless it believes:
- You will not show up for your trial or appeal.
- You will tamper with the evidence or that releasing you will impede the government's case against you.
- You will cause danger to another person or persons.
- You will be unlikely to make bail or security, as will be discussed later.
Let's assume your lawyer has filed an application for your provisional release with the court. How does it decide whether you should be kept in jail or freed pending the court's decision on guilt or innocence, which may take months or years? Here are the factors on which the judge will decide on whether to free you on provisional release pending resolution of your case:
- How serious is the crime? If it's something that makes you a danger to society if you are out of jail, the court may deny provisional release.
- How strong is the evidence against you? If the court feels the evidence against you suggests that it is likely that you committed the alleged offence, it may decide to keep you in jail now. If you are later convicted, any time served before this will be subtracted from the sentence, unless the judgment explicitly provides otherwise. In any event, the time served, both before and after the sentence is delivered, may not exceed the maximum punishment for that offence.
- Are there special circumstances that caused you to commit the crime? For example, you might have stolen food to feed another who was starving. Although this might be a crime, it might provide adequate grounds to allow for provisional release.
- How likely are you to be able to post the bail and/or bond?
- Is it likely that you will appear for the trial or appeal, or, if you are freed, will you try to skip town?
- What is the position of the public prosecutor and any alleged victims about giving you freedom while the trial or appeal is pending?
If the judge decides in your favour he or she may set bail or require a bond. This and other issues about provisional release will be discussed next time.
 
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