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Criminal Law in Thailand Part 33: How the prosecutor gets involved
A criminal trial against any individual in Thailand may be
started in two ways _ by the public prosecutor or by the injured party. This
time we will discuss criminal trials brought by the public prosecutor because it
goes to the heart of the justice system in Thailand.
If the trial is is to be conducted by the public prosecutor, there must first
be an inquiry by another official, usually a police officer. The inquiry is
conducted by the official in charge of the case using available resources such
as getting statements from the parties taking witness statements and visiting
the scene. The inquiry official then recommends whether to pursue prosecution.
In either case, the recommendation is sent to the public prosecutor.
If the recommendation is in favour of prosecution, the inquiry official also
brings the defendants to appear before the prosecutor at the time the documents
are presented.
The public prosecutor can send the case back to the inquiry official for more
information but is ultimately responsible for deciding whether to prosecute. If
the public prosecutor decides not to prosecute, he or she issues a
non-prosecution order.
If the decision is to prosecute, a prosecution order is issued and a charge
is later filed against the accused in court.
If the defendant has not previously been sent to the public prosecutor
because the inquiry official recommended against prosecution, the public
prosecutor will also order that the accused be brought to him or her.
If a public prosecutor has issued a prosecution order, it is up to the
prosecutor's discretion to determine what to do with the defendant pending
trial. The defendant can be kept in custody, jailed or granted provisional
release as discussed in earlier columns. If the prosecutor orders that the
accused be jailed before being charged in court, the accused may apply to the
court for provisional release.
After the defendant is charged, it is up to the discretion of the court to
determine whether to detain a defendant or grant a provisional release.
If the decision to prosecute has been made by the public prosecutor, charges
will be made against the accused in court.
Before the trial, the judge may decide to hold a preliminary hearing, though
this is up to the justice's discretion. At that hearing, the accused is
identified and the charges are explained to him or her. The accused is asked
whether he or she committed the offence and to make a statement, which is
recorded. If the accused refuses to make a statement, that fact is recorded, and
there is a preliminary examination of the facts.
If the accused pleads guilty at the preliminary hearing, the judge will
accept the charge for trial.
What happens if the accused pleads not guilty? The judge will conduct a
preliminary examination of the case. If the public prosecutor can successfully
argue that the basic elements of the crime exist, the court will accept the
charge for trial. If the public prosecutor is unable to show the judge these
basic elements, the judge may dismiss the case then and there.
The state does not have the obligation at the preliminary hearing to provide
the accused with a lawyer at state expense, though the accused may bring his or
her own lawyer.
If the judge decides not to have a hearing, or if after the hearing the judge
decides to proceed with trial, the trial date will be determined by agreement
between the judge, the public prosecutor and the defendant's lawyer. As with the
earlier stages, the judge has discretion as to whether to jail the defendant or
grant provisional release pending the trial.
- Published: 19/12/2010 at 12:00 AM
- Newspaper section: Spectrum
A criminal trial against any individual in Thailand may be
started in two ways _ by the public prosecutor or by the injured party. This
time we will discuss criminal trials brought by the public prosecutor because it
goes to the heart of the justice system in Thailand.
If the trial is is to be conducted by the public prosecutor, there must first
be an inquiry by another official, usually a police officer. The inquiry is
conducted by the official in charge of the case using available resources such
as getting statements from the parties taking witness statements and visiting
the scene. The inquiry official then recommends whether to pursue prosecution.
In either case, the recommendation is sent to the public prosecutor.
If the recommendation is in favour of prosecution, the inquiry official also
brings the defendants to appear before the prosecutor at the time the documents
are presented.
The public prosecutor can send the case back to the inquiry official for more
information but is ultimately responsible for deciding whether to prosecute. If
the public prosecutor decides not to prosecute, he or she issues a
non-prosecution order.
If the decision is to prosecute, a prosecution order is issued and a charge
is later filed against the accused in court.
If the defendant has not previously been sent to the public prosecutor
because the inquiry official recommended against prosecution, the public
prosecutor will also order that the accused be brought to him or her.
If a public prosecutor has issued a prosecution order, it is up to the
prosecutor's discretion to determine what to do with the defendant pending
trial. The defendant can be kept in custody, jailed or granted provisional
release as discussed in earlier columns. If the prosecutor orders that the
accused be jailed before being charged in court, the accused may apply to the
court for provisional release.
After the defendant is charged, it is up to the discretion of the court to
determine whether to detain a defendant or grant a provisional release.
If the decision to prosecute has been made by the public prosecutor, charges
will be made against the accused in court.
Before the trial, the judge may decide to hold a preliminary hearing, though
this is up to the justice's discretion. At that hearing, the accused is
identified and the charges are explained to him or her. The accused is asked
whether he or she committed the offence and to make a statement, which is
recorded. If the accused refuses to make a statement, that fact is recorded, and
there is a preliminary examination of the facts.
If the accused pleads guilty at the preliminary hearing, the judge will
accept the charge for trial.
What happens if the accused pleads not guilty? The judge will conduct a
preliminary examination of the case. If the public prosecutor can successfully
argue that the basic elements of the crime exist, the court will accept the
charge for trial. If the public prosecutor is unable to show the judge these
basic elements, the judge may dismiss the case then and there.
The state does not have the obligation at the preliminary hearing to provide
the accused with a lawyer at state expense, though the accused may bring his or
her own lawyer.
If the judge decides not to have a hearing, or if after the hearing the judge
decides to proceed with trial, the trial date will be determined by agreement
between the judge, the public prosecutor and the defendant's lawyer. As with the
earlier stages, the judge has discretion as to whether to jail the defendant or
grant provisional release pending the trial.
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