Overview of the criminal law system in Thailand

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Disclaimer

Information on this webpage is provided as a public service by the Government of Canada. While every effort is made to provide accurate information, information contained here is provided on an ”as is” basis without warranty of any kind, express or implied. The Government of Canada assumes no responsibility or liability of any kind and shall not be liable for any damages in connection to the information provided. This publication is not intended to provide legal or other advice and should not be relied upon in that regard. The reader is encouraged to retain a lawyer, if arrested or detained, and to supplement this information with independent research and professional advice. The information on this webpage is updated on a regular basis; however, laws are subject to change at any time.

Context

This document is intended to give you basic information on how the Thai criminal law system functions. It is not a substitute for legal advice, which can only be provided by a lawyer qualified to practice in Thailand. It should also be read in conjunction with A Guide for Canadians Detained Abroad.

If you break the laws of another country, you are subject to the judicial system of that country. Being a foreigner or not knowing the local laws is not an excuse. Global Affairs Canada can neither protect you from the consequences of your actions nor override the decisions of local authorities.

The Thai and Canadian criminal law systems are significantly different. This can increase the stress and practical problems arising from arrest and imprisonment in Thailand.

For example, please note that in Thailand:

The Government of Canada will seek to ensure that you are not penalized for being a foreigner and that you are neither discriminated against nor denied justice because you are Canadian. It cannot, however, seek preferential treatment for you or try to exempt you from the due process of local law. The Government of Canada cannot interfere in the judicial system of another country, just as Canadians would not stand for another government interfering in Canada’s judicial process.

For further information on the services consular officials can and cannot provide, please consult A Guide for Canadians Detained Abroad and the Canadian Consular Services Charter.

Your choice of legal representation in Thailand can be critically important and should be made with care. Consular officials can provide a list of lawyers who practice in the area of law related to your particular type of case and who may have represented Canadians in the past. They cannot, however, recommend specific lawyers. You may prefer to hire a lawyer who is not on the list. This decision remains your responsibility. For further information, consult Hiring a foreign lawyer in A Guide for Canadians Detained Abroad.

Thai legal system

The legal system of Thailand is based upon civil law. Under Thai criminal law, an accused is innocent until proven guilty and the burden of proof rests with the public prosecutor. The defendant must be given the benefit of the doubt. 

Should an accused be convicted of committing an offence, he or she will be subject to the punishment as prescribed by law. The basic provisions governing criminal offences can be found in Thailand’s Penal Code and Criminal Procedure Code. 

The role of the public prosecutor is to present facts and information to the court to establish the guilt of a defendant and request the court to punish the defendant in accordance with the provisions of the law. 

The decision to plead “guilty” or “not guilty” is entirely the decision of the defendant. In the event the defendant pleads guilty, the law permits the court to reduce the punishment by not more than one half. The public prosecutor is not authorized to recommend the punishment. Also, the legal system does not provide for plea bargaining or pleading guilty to a lesser charge.

The court system in Thailand consists of three levels of courts: the Courts of First Instance, the Court of Appeal and the Supreme Court. All cases must commence in a Court of First Instance. In general, the law stipulates that all court proceedings be conducted in open court and in the presence of the defendant. 

Arrest and detention

Please note: Thailand is an INTERPOL member country. You may be subject to an INTERPOL notice.

Thai criminal law is applicable to both citizens of Thailand and foreigners who commit crimes within the territory of Thailand.

In general, an arrest can be made by an administrative or police officer upon the issuance of an arrest warrant by the court. However, an arrest can be made without a warrant in the following instances:

When a person has been arrested for committing an offence, the investigating officer is authorized to detain the alleged offender up to 48 hours from the time the person arrives at the police station. If the investigating officer cannot complete the investigation within this time, the law requires that the alleged offender be placed in the custody of the court. The period of detention permitted by law is based on the penalty prescribed for the offence being charged, as follows:

If the investigating officer is unable to complete the investigation in order to enable the public prosecutor to lodge the criminal complaint with the competent court within the relevant remand period, the court will release the alleged offender from custody.

If an alleged offender has been charged but no warrant of arrest has been issued, and the officer believes there are grounds to detain the person, the investigating officer may order the alleged offender to appear at court to request the court to issue a warrant of detention. If the alleged offender does not comply with the order, the investigating officer is authorized to arrest the alleged offender.

Your rights under the Vienna Convention on Consular Relations

If you are detained or arrested abroad and wish to have Canadian consular officials notified, you should communicate that request clearly to Thai authorities. Thai authorities have an obligation, under the Vienna Convention on Consular Relations, to advise you of your right of access to a consular representative. They are not, however, obliged to inform a Canadian consular post of your detention or arrest, unless you ask them to do so.

Under the convention, Thai authorities are also required to send any communication you address to a consular post. For example, if you write a letter to the Embassy of Canada or a Canadian consular office in Thailand, that letter must be delivered. This is in accordance with your rights to communicate with, and have access to, a consular official. These rights must be exercised in conformity with the laws and regulations of Thailand.

If you choose to speak with Canadian consular officials, any information you give them will remain confidential, subject to the provisions of Canada’s Privacy Act. It will not normally be passed on to anyone other than the consular officials concerned with your case without your permission. However, under the Privacy Act, personal information may be disclosed in certain circumstances, such as in cases where disclosure would clearly benefit you, where the public interest in disclosure clearly outweighs any invasion of your privacy, or pursuant to a court order. Please consult the Consular Services privacy notice statement for more details.

At your meeting with a consular official, please inform him or her if Thai authorities did not inform you of your right to request that Canadian officials be advised of your arrest or detention, or if at any time they denied you the right to communicate with or have access to a Canadian consular official.

Dual citizenship is not legally recognized in Thailand. If local authorities consider you a Thai citizen, they may refuse to grant you access to Canadian consular services, thereby preventing Canadian consular officials from providing you with those services. You should always travel using your valid Canadian passport and present yourself as Canadian to foreign authorities at all times to minimize this risk. Citizenship is determined solely by national laws, and the decision to recognize dual citizenship rests completely with the country in which you are located when seeking consular assistance. See Travelling as a dual citizen for more information.

Investigation

In Thailand, the police are responsible for conducting criminal investigations.

Under normal circumstances, when someone is alleged to have committed an offence, the investigating officer will summon this person to the police station. The alleged offender will be required to give his or her name, nationality, parents’ names, age, occupation, address, place of birth. The alleged offender has the right to remain silent and is not required to provide any statement. The investigating officer will notify the alleged offender of the facts concerning the alleged offence and of the charges. The investigating officer is required to give the alleged offender an opportunity to defend himself or herself and provide facts that are of benefit to his or her case. See the Rights of an alleged offender section for more information.

After completing the investigation, the investigating officer must, based on the evidence, recommend whether or not to prosecute the alleged offender and send the investigation file to the public prosecutor for review. The public prosecutor, upon review of the file, can order that the alleged offender be either prosecuted or not, or order further investigation on particular issues that are deemed unclear.

In cases in which the public prosecutor orders that the alleged offender be prosecuted, the public prosecutor will proceed to file a criminal complaint against the alleged offender in court. The alleged offender, who now becomes referred to as “the defendant,” will be brought from the prison to the court one working day following the filing of the criminal complaint to receive a copy of the criminal complaint. If the defendant has already engaged a lawyer, the lawyer may not be aware that the defendant has been brought to court. You should endeavour to keep your lawyer informed if you are brought to court.

A victim or injured party has the right to join the public prosecutor who lodged the criminal complaint as a co-plaintiff in the case. This must be formalized before the judgment in the case is given by the Court of First Instance.

Bail

When an alleged offender or defendant has been arrested and held in custody, he or she has the right to apply for bail. However, bail is rarely granted. If the person is in the custody of the investigating officer, the application for bail shall be submitted to the investigating officer. If the person is in the custody of the court, then the application shall be submitted to the court.

The alleged offender or defendant, or an interested party, must apply for bail by pledging bail collateral. Once the application has been submitted, a response is usually provided on the same day. The most common types of collateral that may be used are cash; bank passbook containing a fixed deposit equivalent to the amount of bail required; and/or land title deeds.

In the case of foreigners, the person’s original passport or a certified copy must be submitted with the bail application, and the passport is typically kept as a guarantee. If bail is granted, the court will send a letter to the Immigration Bureau to inform them that the person has been granted bail but is required to remain in the country, unless permission is otherwise given by the court. While on bail, an alleged offender or defendant can reside and travel anywhere in Thailand. The person is required to appear in court on the day of an appointment set by the court.

If the Court of First Instance denies bail, the applicant may appeal against the bail denial to the Appeals Court. The decision of the Appeals Court is final; however, the applicant is allowed to submit a new application for bail.

Rights of the alleged offender

An alleged offender who has been taken into custody or detained has the right to notify a person of their choice—or request that a person of their choice be notified—of the arrest and the place of detention at the first opportunity. In addition, the alleged offender has the right:

When a foreigner has been charged or arrested for an offence, the police officer will ask to inspect his/her passport to see whether he/she has entered Thailand legally and whether permission to stay in Thailand remains valid. If the foreigner has entered the country legally, the permission to stay has not expired and the offence for which the person has been arrested is not related to the passport, the police do not have the right to retain the passport.

Rights of the defendant

From the time the public prosecutor files a criminal complaint against the defendant with the court, the defendant has the following rights:

If the defendant has a lawyer, the lawyer may act on behalf of the defendant in the matter.

The law requires that the investigation, preliminary hearings and trial be conducted in the Thai language. If there is a need for translation, the investigating officer, public prosecutor or court shall provide an interpreter without delay.

Criminal trial

It is the sole and independent discretion of the judge presiding over the court to decide the guilt or innocence of a defendant and, in the case of a guilty judgment, to determine sentencing. The jury system does not exist in Thailand.

Once the defendant has received a copy of the public prosecutor’s complaint, a court official will informally inquire whether the defendant intends to plead guilty to the charge(s) and whether the defendant requires a lawyer. The court will be informed accordingly.

If the offence is punishable by a minimum imprisonment of less than five years and the defendant has informed the court official that he/she intends to plead guilty to the charge and does not require a lawyer, the court may take the defendant’s plea and pass judgment instantly without having to take any evidence.

In a case where the minimum punishment for the offence is imprisonment of five years or greater, the court is required to hear the evidence and determine guilt before a judgment can be made. This includes cases in which the defendant declares that he/she does not require a lawyer and pleads guilty to the charge.

In a case punishable by death, the court is obligated to appoint a defence lawyer regardless of whether or not the defendant has requested court-appointed legal services.

In a case where the defendant denies the charge, or a case where the defendant pleads guilty to an offence for which the minimum punishment is imprisonment of five years or greater, the court will set an appointment for a meeting of the parties. The public prosecutor and the defendant, together with the defendant’s lawyer, will meet to officially enter the plea of the defendant and to inquire regarding the witnesses each party intends to call and the evidence to be submitted. At this point the dates for the hearing of witnesses are set. The interval between the time the defendant is served with a copy of the criminal complaint and the meeting of the parties may be three to six weeks.

Evidence and court proceedings

Oral evidence given by witnesses is audio-recorded by the presiding judge and subsequently transcribed by a court clerk. In addition, the judge records a summary of the testimony provided. A written statement given by a witness in the form of an affidavit is deemed to be hearsay.

The Court of First Instance is a trial court where all evidence is submitted. In general, the hearings of witnesses will be held on consecutive days until all the evidence has been heard. In a case in which the defendant is detained, the court often attempts to schedule hearings within a period of six months from the date of the meeting of the parties. However, if there are delays due to witness scheduling, the court can reschedule new dates. There is no time limit set by the law.

If a victim or injured party is unable to remain in Thailand until the trial date, the law permits the evidence from the injured party to be taken prior to the commencement of the trial.

Once all evidence has been submitted, the court will set a date for the pronouncement of the judgment. This is generally two to four weeks after the last hearing date. The judgment includes a summary of the complaint filed by the prosecutor, the plea entered by the defendant, the evidence presented by the prosecutor and the defendant, the findings of the court and the verdict. If the defendant is found guilty, the court will also prescribe the punishment or sentence.

In the case of a guilty verdict, if the sentence is less than three years and the defendant has not previously been imprisoned for any crime (except for negligent or petty offences), the court has the discretion to suspend the imprisonment sentence.

Appeals

Either party may appeal a judgment of the Court of First Instance to the Appeals Court within one month of the verdict.

The Appeals Court generally does not hear additional evidence; it will base its findings and judgment on the evidence submitted during the trial. All legal arguments are submitted in writing and the proceedings are not conducted in public. The identity of the panel of judges is not disclosed, thus the parties are not permitted to meet the judges. The procedure in the Appeals Court may take between eight months to two years.

Once the judgment has been made by the Appeals Court, it will be put into a sealed envelope, to remain confidential, and sent together with the case file to the Court of First Instance that initially tried the case. When the Court of First Instance receives the sealed envelope containing the judgment, it will schedule a date for the reading of the Appeals Court’s judgment. A notice is sent to the public prosecutor to attend the reading, but a notice is not sent to the defendant or his or her lawyer. The court orders that the imprisoned defendant be brought to court on the scheduled reading date. Therefore, the defence lawyer generally will not know when the judgment of the Appeals Court has been read. It is the defendant’s obligation to notify his or her own lawyer should he or she wish to appeal the case to the Supreme Court.

An appeal of the Appeals Court decision to the Supreme Court must be made within one month of the reading of the Appeal Court judgment. The same appeal procedures apply in the Supreme Court process.

Deportation

Following the conclusion of criminal proceedings concerning a foreigner, his or her permit to stay in Thailand will often be expired or revoked. Therefore, the person can no longer legally remain in the country. In such cases, he or she is taken into custody and detained at the Immigration Detention Center to await deportation. The Thai government is not responsible for the airfare or travel expenses for deportation. Until the person obtains a valid passport and air ticket to leave the country, he or she must remain at the Immigration Detention Center.

Exceptions for narcotics cases

Several exceptions exist in narcotics-related cases. When a defendant is represented by a lawyer and is judged to have intentionally missed a court hearing or has taken flight, and if there is a need to preserve the evidence, the court may hear the evidence in the absence of the defendant. However, the defence must be given an opportunity to cross examine and to present evidence to rebut the evidence submitted by the prosecutor.

If the defendant pleads guilty to the charge, the court may pass judgment without taking any evidence, except where there is reason to suspect that the defendant did not commit the offence, or where the offence to which the defendant pleaded guilty is punishable by a minimum sentence of life imprisonment or the death penalty.

Transfer to a Canadian prison

Canada has a transfer of offender treaty with Thailand that enables Canadians convicted of offences in Thailand to serve their prison sentence in a Canadian penal institution if both the Canadian and Thai governments consent to the transfer. Transfers are not automatically granted. Among other criteria, an application for transfer can be submitted only after you have been convicted and sentenced and there are no further legal proceedings pending. You should consult your lawyer if you are considering applying for a transfer. You should also ask your consular officer for general details on transfers, including requirements for exit visas. For further information on transfer requests, please consult A Guide for Canadians Detained Abroad.

Clemency intervention in death penalty cases

Under Thai law, the death penalty is an option for several offences, including some drug-related offences. If you have been charged with or convicted of a crime punishable by death, you should consult your lawyer and speak to a Canadian consular official. The Government of Canada opposes the use of the death penalty in all cases, everywhere, and will undertake clemency intervention in your case. Clemency intervention is defined as any diplomatic effort, at any stage of the process after detention, aimed at avoiding imposition of the death penalty or the sentence being carried out.

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