General Practices in Thai Trials
It is important to note for foreigners entering Thailand that all court proceedings will be conducted in the Thai language. Additionally, any documents that are produced in a foreign language must be translated into Thai.
There is no jury in the Thai judicial system, therefore, the Judge will decide the outcome of a trial based on the evidence presented by the parties. The Thai Judiciary System employs the Continuous Trial System, meaning that all hearings are conducted continuously until the trial is completed unless there is an unforeseen circumstance.
During the trial, the accusatorial process will be implemented, meaning that all witnesses will be examined by both the prosecution and the defense attorneys. Pieces of evidence that are made up of microfilm or replica copies are not considered valid pieces of evidence, although they are admissible depending on the judge’s discretion.
Foreign civil judgments are not recognized in Thai courts. If a party wishes to introduce a foreign judgment as evidence, it must be authenticated by the Thai Embassy or Consulate in the foreign language and translated into Thai. Moreover, a judgment made by a foreign court is admissible as evidence in the trial if the petitioning party has proven that the foreign judgment has reached finality.
If the defendant wishes to appeal a decision, the Court of Appeals (Thai: ศาลอุทธรณ์) has jurisdiction to hear appeals for decisions given by the Court of First Instance (Thai: ศาลชั้นต้น), while the Supreme Court (or Dika court, Thai: ศาลฎีกา) has jurisdiction on appeals from the Court of Appeals. Furthermore, there are four specialized courts in Thailand, namely: the Tax Court, the Intellectual Property and International Trade Court, the Bankruptcy Court, and the Labor Court. Only career judges who possess the necessary knowledge and experience preside over specialized court proceedings. Appeals against specialized court judgments must be submitted to the appropriate division of the Dika Court, i.e., the Labor Division, the Intellectual Property and International Trade Division, the Tax Division and the Bankruptcy Division.
Overview of Criminal Court Proceedings
Arrest and Detention
If an alleged offender has been arrested for committing an offense, the investigating officer has the right to detain the individual for up to 48 hours from when they arrived at the police station.
The period of detention differs by penalty designated concerning the offense being filed as follows:
✓ in a case of a crime punishable by incarceration less than 6 months or a fine not exceeding 500 Thai baht, the court has the power to detain the offender for no longer than 7 days;
✓ if the criminal offense is punishable by incarceration of more than 6 months but less than 10 years, or a fine of 500 Thai baht, or both, the court has the power to enforce several successive periods of detainment, not exceeding 12 days each, and the total period cannot exceed 48 days;
✓ if the criminal offense is punishable by maximum incarceration (10 years or longer), the court has the power to enforce several successive periods of detention not exceeding 12 days each, and the total period cannot exceed 84 days.
A criminal proceeding will only transpire when the investigating officer provides the criminal complaint to a public prosecutor and if the public prosecutor deems the case worthy of going to trial, they will submit the case to the Court of First Instance. If the public prosecutor decides not to lodge the criminal complaint, the Court will release the alleged offender from custody.
Before a criminal trial takes place, the public prosecutor, the defendant’s lawyer and the litigant will meet to officially enter the plea of the litigant and discuss any information regarding witnesses each party proposes to call and the evidence to be submitted.
✓ In a case where the offense is punishable by a minimum imprisonment of fewer than 5 years and the defendant has informed court officials that they intend to plead guilty to the charges and does not require a lawyer, the court may take the defendant’s plea and pass judgment instantly.
✓ In a case where the minimum punishment is 5 years or more, the court is required to review the evidence and determine guilt before a judgment can be made.
✓ In a case punishable by death, the court is required to designate a defense lawyer regardless of whether or not the defendant has requested court-appointed legal services.
✓ If the alleged offense includes narcotics, the court can pass a ruling without taking evidence if the defendant pleads guilty, unless there is reason to suspect that the defendant did not commit the offense.
If the victim is unable to remain in Thailand until the trial date, the law permits any evidence submitted by the party to be taken before the commencement of the trial.
In Thailand, there is no jury system, therefore, it is the responsibility of the judge presiding over the court to determine the guilt or innocence of a defendant, as well as determining the sentencing if the litigant is found guilty.
Once all the evidence from the trial has been submitted, the court will set a date for the judges’ decree, this generally takes from two to four weeks to occur. The judgment includes a summary of the complainant allegation, the plea given by the defendant, the evidence presented by the prosecutor and defendant, the findings of the court and the verdict.
In the case of a guilty verdict, if the sentence is less than three years and the defendant has not been imprisoned for any crime (except for petty offenses), the court has the capacity to suspend the imprisonment sentence.
Following the conclusion of the criminal proceedings, a foreign defendant’s ability to stay in Thailand will often be revoked or will have expired. In such cases, the defendant will be taken into custody and detained at the Immigration Detention Center to await deportation.
To depart from the Immigration Detention Center, the individual must have a valid passport and air ticket, it is important to note that the Thai government is not responsible for any of the travel expenses of deportation.
If a litigant (either defendant or prosecutor) wishes to appeal a judgment, they must submit their appeal to the Court of Appeals within 1 month of the verdict. When an appeal is submitted, no additional evidence will be accepted. The Appeals Court will base its judgment on the evidence submitted during the trial.
The procedure in the Appeals Court may take between 8 months to 2 years to finalize.
Once a choice is made, the Court of Appeals will provide their decision alongside the case file to the Court of First Instance. The Court of First Instance will announce the Court of Appeals ruling on a scheduled date, and a notice of the reading will be given to the prosecutor but not the defendant nor their lawyer.
Since the defendant’s lawyer will not be formally notified, they will not be aware of the Appeal Courts’ decision until it has been announced.
If the defendant is in custody, the court will order that the defendant be brought to the court on the scheduled reading date. Therefore, it is the defendant’s responsibility to notify their lawyer as to whether they wish to appeal the case to the Supreme/Dika Court.
If the defendant wishes to appeal to the Dika Court, the defendant must submit their appeal hearing within 1 month of the Appeal Court’s verdict.
Overview of Civil Court Proceedings
A civil proceeding is described as “an action brought before the court whereby one party sues another for the enforcement or protection of a right, or the prevention of a wrong”.
Civil cases include:
✓ Business disputes
✓ Personal domestic controversies
✓ Torts (a wrongful encroachment on an individual’s rights)
To file a suit, the claimant must go to their lawyer and file a complaint in writing with the Court of First Instance. The written complaint must outline the nature of the claim, the relief sought and the allegation upon which the claim is based.
When filing a complaint, the claimant should consider some important factors, including the merits of the claim, the designation of the case, the jurisdiction of the court and the determination of relevant parties. A failure to adhere to these requirements may result in the striking out of the claim or a summary judgment.
When a civil case is filed in a Thai court, the judiciary will plausibly encourage the parties to settle the issue through a process of court-supervised mediation. A preliminary hearing will be scheduled to identify any issues in the dispute, as well as facilitate compromise between the parties.
The court may also set in motion a continuous trial should it determine that a compromise is not likely. However, if the parties decided to compromise, the court may postpone the hearing.
Execution of Judgment
Once a judgment has been passed, the court allows 1 month from the time of service from the time of the acknowledgement of judgment for the losing party to comply with the order. If the losing party chooses not to comply with the court’s order, the successful party may file an independent execution case with the Execution Court.
The execution may involve a payment or the conclusion of an action.
If either litigant (claimant or defendant) is not pleased with the judgment has the right to appeal the decision with the Court of Appeals in their jurisdiction. An appeal must be submitted within 1 month from the date of judgment by submitting a petition with the court that issued the judgment.
No appeal will be granted in civil actions involving 50,000 Thai baht or less unless the Courts of First Instance ascertains that there are reasonable grounds for the Appeals Court to consider the matter. Decisions on appeals are formed on documents presented by the lower court, the petition that was given, and the respondent’s answer to the petition. No new evidence will be accepted, including verbal arguments, except for in exceptional circumstances.
The Court of Appeals may decide to:
✓ Affirm the decision of the lower court;
✓ Decide that the decision is flawed and forward it to the lower court with an order to enter judgment as specified by the Court of Appeals;
✓ It may request that the case be tried again;
✓ The Court of Appeals may provide a ruling itself
If the defendant is not pleased with the decision of the Court of Appeals, they can appeal to the Supreme/Dika Court, only if the case involves more than 2,000 Thai baht, or if the Court of Appeals judge confirms that there are reasonable grounds for the Dika Court to consider the case.
The Dika Court uses the Petition and any written documents forwarded by the Court of Appeals. The same criteria apply to the Dika Court as the Appeals court; there is no acceptance of new evidence unless the court deems it necessary to reach a fair decision.
Proceedings in the Supreme/Dika Court can last from a year and a half to 2 years.