While civil law focuses on resolving disputes and compensating victims, criminal law punishes wrongdoers in order to support justice and social order. It is important for Canadians to understand the distinction between these two types of litigation in Thailand.
A judge will preside over trials, and appeals are heard by the Court of Appeals (Dika court) or Supreme Court. Specialist courts, such as the Tax Court, Intellectual Property and International Trade Court and Bankruptcy Court, are also available.
Criminal Cases
The Thai legal system can seem intimidating to those unfamiliar with it, especially for foreigners who find themselves in troubled circumstances. Having an understanding of criminal litigation in Thailand is important because it can help foreign nationals avoid serious consequences, whether they are charged with a petty offense or serious felony.
Civil and Criminal cases in Thailand are decided by judges and not juries. The burden of proof is on the prosecution to prove that the defendant committed a crime and knew that it was wrong. This is known as the “beyond a reasonable doubt” standard. If convicted, the defendant faces substantial prison terms or even deportation.
It is essential for anyone who finds themselves facing criminal charges in Thailand to have a well-researched, knowledgeable local lawyer at their side. A competent attorney will work to prevent surprises by keeping the client updated on all developments throughout the process. They will also prepare for potential trials by carefully reviewing all the evidence, and they will make sure that all relevant witnesses are called.
In addition to the Courts of First Instance, the country has the Court of Appeal and the Supreme Court (or Dika court, Thai: ). The latter two courts have jurisdiction on appeals from decisions by the Court of First Instance and the Court of Appeal, respectively. Moreover, certain specialized matters may be heard in the Tax Court, Labor Court and Central Intellectual Property and International Trade Court.
Civil Cases
Many parties to a dispute in Thailand are anxious to avoid litigation, fearing that such recourse will disrupt commercial relationships, cause excessive legal expenses, and extend the period of time that a conflict remains unresolved. While these concerns are legitimate, there may be occasions where a party to a civil dispute has no other option than to pursue redress through the Thai courts.
Like most countries, Thailand does not have a jury system; the court decides the case’s outcome based on its examination of the evidence presented by each party and expert witnesses. The judges also take into account previous Supreme Court decisions as a reference when adjudicating cases.
The law in Thailand provides a variety of penalties for various civil offenses, including fines and imprisonment. For example, a person who commits an act of fraud in connection with insurance policies can be convicted and sentenced to a prison term of up to five years. Similarly, people who violate the country’s laws on lese-majeste (insulting the dignity of the ruling monarchy) can be punished by a prison term of up to 15 years or a heavy fine.
If a party is unable to afford court proceedings, they can apply to have their case heard by the judicial aid commission and be provided with a lawyer on a pro bono basis. Additionally, every civil court has a volunteer attorney who is available to offer free legal advice and assistance for those who are in need.
Bail
Defendants in criminal cases may apply for a provisional release pending trial to avoid being detained. This is commonly referred to as posting bail in other countries. This is because, in Thailand, it is a core principle of the legal system that Defendants are innocent until proven guilty.
For civil cases, a plaintiff files the case in court in the jurisdiction in which the cause of action arises or where the defendant resides. The court then determines the facts of the case and renders a judgment based on that evidence. A judgement may include compensation for damages, interest, litigation fees, and attorneys’ fees.
During the investigation phase of a criminal case, the police and other relevant authorities gather evidence including interviewing witnesses. If the evidence is sufficient, the prosecutor will formally charge the suspect. If you have been charged with a criminal offence, you can appeal the conviction and/or sentence within a certain timeframe if you believe it is unfair. Choosing the right attorney is crucial in these circumstances. A lawyer familiar with the Thai legal system and foreign clients will be able to provide you with accurate information and expert guidance on your specific situation. They can also help you assess your eligibility for freedom insurance, or a bail bond. The process involves submitting a bail memorandum addressing CPC Section 108 requirements, and securing sufficient collateral to mitigate flight risks.
Trial
In most cases, a criminal trial starts when someone submits a formal complaint to police or to the court directly. In the latter case, the court holds a preliminary “investigative” hearing to determine whether the accusation has merit. As in most countries, acquitted persons are legally entitled to the presumption of innocence and can seek compensation for wrongful detention or malicious prosecution.
Civil litigation in Thailand is generally heard by the District Court or the Supreme Court, and specialised courts can also hear certain types of matters such as labour disputes or intellectual property lawsuits. A number of these courts are now introducing new technology and e-litigation systems to streamline processes and increase efficiency.
Unlike in some other countries, Thailand does not have a jury system, and the judge presiding over the case will decide both the verdict and sentence based on the evidence presented. Judges are permitted to question witnesses for clarification but cannot introduce any new evidence on their own initiative.
As in most jurisdictions, a defendant can appeal a judgment at each level of the appellate process. Even an acquittal by the Court of First Instance could be overturned on appeal to a higher court if a legal error was made in the lower court’s decision. This is known as the doctrine of double jeopardy, and it is important for anyone who believes they have been wrongfully convicted to consult with a lawyer in Thailand as soon as possible to discuss their options.
