123RD INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

A BRIEF OUTLINE OF THE CURRENT SITUATION ON THE
PROTECTION OF VICTIMS OF CRIME IN THAILAND
Dr. Kittipong Kittayarak＊
I. INTRODUCTION
Early in history, criminal law was essentially law for victims. Victims of crime were the center of theadministration of criminal justice. Most criminal sanctions aimed at providing redress to the victims, typicallyin the forms of compensation and restitution. The concept of crime as a “private wrong” has been replacedby the emergence of the notion that crime is an act against the well being of the state and thus needs “publicprosecution”. The importance of the role of the victim of crime was limited to that of a “witness”. Over the
past few centuries, the defendant and the State evolved as the two parties with legal standing in criminal
proceedings. The victims were virtually forgotten and became, in the words of Bard, “the party without
institutionalized voice in the legal process”1.
The changing paradigm during that period was based on the following premises2:
1. A crime is primarily an offense against the government rather than a private wrong.
2. The government, because it acts for the good of the citizenry, cannot be held accountable for its
mistakes or negligence in the administration of criminal justice.
3. Specially trained professional officers are better at controlling crime and seeing that justice isaccomplished than the private citizens or victims of the offenses.
4. Victims are useful to the system as information sources and witnesses; their interests are notimportant to the system and could interfere with the efficient administration of justice.
5. Because of the great power of the state and the potential for abuse, persons accused or suspected ofcommitting a crime need to be protected with an array of procedural rights and privileges.
This “new paradigm” which has remained the mainstream thinking of the criminal justice systems aroundthe world for a long time until the older ideas have been rekindled only recently by the movement for theprotection of crime victims.
II. CURRENT SITUATION REGARDING THE RIGHTS OF VICTIMS OF CRIME IN THAILAND
As in many countries, the rights of crime victims have received due attention in Thailand only recently.
There are several factors leading to the awareness of the plight of victims of crimes in Thailand. To begin
with, in my opinion, the movement for the protection of rights of women and children has contributed a great
deal to the awareness and concerns of the plight of victims of domestic violence and child abuse. Dissatisfied
by the poor response of the criminal justice system, which does not adequately protect women in case of
sexual assault and domestic violence, leaders of the movement have effectively highlighted the weakness ofthe criminal justice systems and created civil society networks to substitute such shortcomings. They havebrought to light the plight of crime victims and the necessity for them to be better assisted, supported,
informed and, sometimes, participated in their own criminal trial. In addition, the increasing awareness of therights of victims in Thai criminal justice was a result of a long campaign for criminal justice reform in the
country. Such movement, which happened during the drafting of the Constitution of 1997, allowed theopportunity to put several provisions regarding the rights of victims in the Constitution. For instance,
Section 53 provided that:＊

Director General,
Department of Probation,
Ministry of Justice,
Kingdom of Thailand
1
M. Bard, “Unblaming the Victim” in Social Policy (Winter 1985) at 43-46.
2
P.S. Hudson, “The crime victim and the criminal justice system: A time for change” Pepperdine Law Review 11(1984), at 24.

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RESOURCE MATERIAL SERIES No.63“Children, youth and family members shall have the right to be protected by the State against violence andunfair treatment.
Children and youth with no guardian shall have the right to receive care and education from the State asprovided by law.”
Although the protection rendered by this Section does not address crime victims in general, it however
deals with such issues as domestic violence, which is one of the major areas where victims need special
protection and treatment.
In addition, Section 245 of the Constitution stipulates that:“In a criminal case, a witness has the right to protection, proper treatment and necessary and appropriate
remuneration from the State as provided by law.
In the case where any person suffers an injury to the life, body or mind on account of the commission of acriminal offence by other person without the injured person participating in such commission and the injury
cannot be remedied by other means, such person or his or her heir has the right to receive aid from the State, upon
the conditions and in the manner provided by law.”
This provision is a mandate for the setting up of the scheme for compensation and assistance of victims
and witnesses in the Thai criminal justice system.
With the mandate by the Constitution and the increasing interest of the general public in the necessity ofreform of the criminal justice system, the past five years saw a dramatic increase in the protection andassistance of crime victims in both laws and practices. The Criminal Procedure Code was amended to adopt a
new procedure for interrogation of children who were victims of violence, particularly of domestic violence.
They were allowed to have a prosecutor, psychologist and social worker present during the interrogation.
Teleconferencing was also provided during court hearings so as to reduce the pressure of confrontation withthe defendants. Moreover, recently Parliament has passed the law on compensation for crime victims andthe wrongfully accused. Currently, a new agency called Department of Rights and Liberties Protection,
which includes a division on victims’ assistance, was recently established. The Department is now in theprocess of preparing ministerial regulations setting up the scheme for compensation.
III. VICTIMS’ RIGHTS TO INFORMATION AND PARTICIPATION IN THE CRIMINALJUSTICE PROCEEDINGSThe right of crime victims to be informed is perhaps the most fundamental right without which the otherrights and services available to them may be meaningless. There has been an increasing consensus among
many countries that it is necessary to change current practices, which do not provide basic information tocrime victims about the status of their cases. To some critics, the underlying thinking for these changes,
however, may not result directly from the recognition of the significance of the right of the victims of crime asmuch as of the fact that the criminal justice system would benefit by “being nicer to victims”. Several
research studies have pointed out that the reason that victims of crime did not report crime incidents to thepolice was because they were apprehensive about how they would be treated and whether they would be
believed. Moreover, the major reason why victims and witnesses did not cooperate with the authorities were
not because they were uncooperative but because they were intimidated by the criminal justice system anduninformed as to what they were expected to do. As a result, there have been notable improvements in thecriminal justice systems of many countries in regard to new developments designed to address victim’s needs
for better treatment and more information, as well as to the need of the State to have cooperative witnesses.
Although such developments are very much welcome, it should be noted that crime victims do not justwant to be treated nicer but to be able to participate in the criminal justice system. In this aspect, there has
been heated debate on whether or not and to what extent it should be allowed. Advocates of victims’ rights toparticipate in the criminal justice process present a host of arguments in its favor, ranging from the moral topenological. Some argue that sentencing will be more accurate if victims convey their feelings and that thecriminal justice process will be more democratic and better reflect the community’s response to crime.
Victim participation will also remind the judges and prosecutors that behind the state remains a real personwith an interest in how the case is resolved. It may also lead to increased victim satisfaction and cooperation
with the criminal justice system, thereby enhancing the system’s efficiency. Moreover, when the court hears
from offenders’ family and friends, fairness dictates that the people who were actually injured should be
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VISITING EXPERTS’ PAPERS
allowed to speak. Some researchers also suggested that victim’s participation also promotes psychologicalhealing of victims as well as the rehabilitation of offenders as they confront the reality of the harm that theycaused to victims.
On the other hand, opponents of the movement also pointed out many reasons for disagreement. For
instance, some suggested that it might disrupt court proceedings or expose the court to public pressure fromwhich it should be insulated. Moreover, critics are afraid the court may be prejudiced by the presence ofvictims, which may diminish the quality of justice. Prosecutors and judges may be cautious of this since itmeans that their control over cases will be eroded.
A. Right to Information
In general, the right of victims to be informed has not yet been legally guaranteed in Thailand. In practice,
however, victims were given some types of information according to the internal policy or directives of eachcriminal justice agency. Although in my opinion, there would be no strong objection to the enhancement of
the right of crime victims to be informed of the status of their cases, there has been inadequate attention toits improvement by the relevant authorities. This may be because of the lack of appropriate perspectives oncrime victims on the part of the Thai criminal justice officials.
As far as the notification of termination of investigation proceedings and decisions of the prosecution areconcerned, crime victims are not automatically entitled to the notification of termination of proceedings fromthe police nor do they automatically receive any notification from the prosecution on whether or not the caseis prosecuted. Practices vary from office to office on this.
Regarding the inspection of files and information, the victims of crime in Thailand do not have any right toinspect the files of inquiry. During the drafting of the Constitution, a question was raised as to whether andto what extent the victims of crime should have the right to access the police and prosecutor’s files.
However, after a debate, it was decided that they are not allowed to see the files except their own statement,
since there was a fear that important evidence might be jeopardized. In practice, however, the police andprosecutor, upon their discretion, will allow some access by the injured party, particularly to the injured
party’s lawyer.
With regard to the right to know reasons for non-prosecution, Section 241 of the Constitution provided
that “In a criminal case for which the public prosecutor issues a final non-prosecution order, an injured person,
the suspect or an interested person has the right to know a summary of evidence together with the opinion of
the inquiry official and the public prosecutor with respect to the making of the order for the case, as provided
by law”. The aim of this provision is to make the prosecutor’s decision not to prosecute more transparent as
it may be checked by the injured party. Moreover, this may allow the injured party to decide whether or not
he will start his own private prosecution.
Apart from the above mentioned right to information, I believe that it is also necessary to keep the victims
of crime informed of the outcome of court proceedings and the release of the offenders from custody.
B. Right to Participation in Criminal Proceedings
Unlike in most countries where there has been heated debate regarding whether or not victims of crimeshould be allowed to participate in judicial proceedings, Thailand, under the still prevalent concept of private
prosecution stipulated in its Criminal Procedure Code, allows victims of crime the full right to bring theircases to the court by themselves as joint prosecutors. Although the laws on criminal procedure in Thailand
were modeled after the civil law system, many elements of common law were presented in the laws as wellas in practices, including the concept of private prosecution.
According to the Thai criminal procedure, the victims of crime have the full right to bring the case tocourt by themselves without having to initiate a complaint to the police. Criminal offenses have beenclassified into two types: compoundable and non-compoundable offenses. Compoundable offenses are nonserious crimes; while non-compoundable offenses are more serious crimes which have a more adverse
impact on society.
For compoundable offenses the decision on whether or not to initiate criminal proceedings remains fully
within the hand of the injured party. The injured party may either request the police to proceed with criminal
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investigation by submitting a complaint to the police or he or she may prosecute the case directly to the
Criminal Court by himself. Without a complaint from the injured party, neither the police nor the prosecutor
can start investigation or prosecution. In addition, if the injured party decides to withdraw the compliant
during any stage of the criminal proceedings, the case will be dismissed.
In regard to non-compoundable offenses, however, the main responsibilities of criminal prosecution
remain with the State throughout the prosecution. The injured party, however, can still play a role in thecriminal proceedings. For instance, apart from being able to file a complaint to the police or file a separate
suit directly to the Court, the injured party can also submit a request to the court for permission to join in theprosecution’s case as a “joint prosecutor”. The prosecutor, however, is in charge of the case and can request
the court to withdraw the status of joint prosecutor from the injured party if he thinks he or she may
jeopardize the case.
In reality, there are not many cases brought to the Court through this private prosecution channel. Thisis because of the high cost of litigation and the lack of investigation facilities and capabilities on the part of the
injured party.
In my opinion, the model in Thailand is a result of the product of the westernization of law but not of
genuine concern for the right of the accused. In fact, the choice of the victims of crimes should not be
between joining the proceedings as a “joint prosecutor” or not joining at all. Instead of providing such avenue,
which is in fact impractical, the criminal process must take into account the real needs of the victims of crime.
Most victims, I believe, do not want to be involved to the extent of being a “joint prosecutor”. In most
instances, they want to have the right to observe and to have some “ownership” of the process. I am insupport of the model of “private accessory prosecutor” as adopted in Germany which may provide a middle
ground for victims’ participation in criminal proceedings.
IV. CRIME VICTIM’S RIGHT TO RESTITUTION AND COMPENSATION
It is obvious that crime victims suffer damage from crime in terms of loss of property, bodily injury, deathand mental suffering. Such suffering definitely causes some damage and costs to the victims. It is only fair tosay that such damage and costs should not be left unaddressed, but, where appropriate, offenders shouldmake fair restitution to victims, their families or dependents. Such restitution should include the return ofproperty or payment of the harm or loss suffered, and reimbursement of expenses incurred as a result of thevictimization. To obtain such restitution, many jurisdictions allow the consideration of civil claims in criminal
proceedings or the issue of a restitution order directly by the court. Apart from claiming directly from theoffenders, who oftentimes are unable to pay their dues, crime victims may generally be entitled tocompensation from the State for monetary relief, separate from the apprehension and conviction of theoffender.
A. Civil Action in Criminal Procedure
In Thailand, the injured party is not allowed to enter into the so-called partie civile, a procedure whereby
the victim of crime can pursue a civil claim against the offender at the same time and in the same proceedings
as the criminal trial. However, the Thai Criminal Procedure allows the prosecutor, in some types of offenses,
such as in cases of theft, snatching, robbery, gang-robbery, piracy, extortion, cheating and fraud, criminal
misappropriation and receiving stolen property, to apply for restitution of the property or the value thereof on
behalf of the injured party. A civil case can also be instituted by the injured party in connection with thecriminal case. However, in reality such an avenue is too difficult to attain restitution since the injured party
would need to have assistance from a lawyer and the lengthy civil proceeding would deter such practice.
B. Restitution
A Restitution order issued directly by the criminal court that the offender should compensate the victim isanother method that, if available would directly assist the victim of crime to attain restitution. However, inThailand, there is no law allowing the court to issue such an order. In order to assist the victims of crime, theCourt in some countries may on its own initiative and discretion issue such order. Restitution, in my opinion,
if appropriately used, is an effective measure, which may serve rehabilitative and punitive purposes. It is agood way to alleviate harm done to the victim and may provide a constructive way for the offender to be held
accountable for their action.

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VISITING EXPERTS’ PAPERS
C. State Compensation Scheme
Although crime victims are entitled to the choice of partie civile or restitution order as mentioned earlier,in reality, it would be difficult for them to receive adequate compensation or any compensation at all. This isbecause in many criminal cases offenders cannot be identified and brought to justice. Moreover, offenders
may lack enough money to make up for victims’ damages. Victims themselves may not be able to collectenough evidence to sustain civil actions as well as to hire a lawyer. For these reasons, state compensation isa necessary means of providing financial relief for victims of crime.
As mentioned earlier, the Thai Constitution of 1997 stipulated that a state compensation scheme forvictims of crime be established. Recently, the Victim Compensation Act of 2001 was promulgated and theMinistry of Justice is in the process of drafting ministerial regulations for the implementation of the scheme.
V. RESTORATIVE JUSTICE AND VICTIMS OF DOMESTIC VIOLENCE: A PILOT PROJECT
As in the case of Thailand it is very difficult to introduce restorative justice from a top down approach, we
decided to start with the issue of domestic violence, particularly in cases of battered wives. This is because
domestic violence particularly when female spouses are assaulted by their loved ones has recently received agreat deal of attention in Thai society. Through long, continued and efficient campaigns by women’s rights
advocates, the public has started to realize the inadequacies of the conventional criminal law and criminal
justice process in protecting the rights of the aggrieved wife. In such cases it is obvious that in most cases
the victims do not want their husbands to be put into prison; they just want them to change their behavior andstop hurting them.
Unlike in other countries where the criminal justice system may already have more appropriate
alternatives the criminal justice system in Thailand does not leave many choices for the aggrieved wives,
since the police, for obvious reasons, do not want to receive these complaints as the incidents are viewed as afamily matter. The battered wives will mostly be forced to reconcile with the aggressors, a venue which does
not adequately protect them or guarantee that future similar incidents will not occur. On the other hand, if
the police decide to proceed with the complaints, it is more likely than not that the wives will later request
the police or prosecutors to withdraw the cases for fearing that the husbands will have to be imprisoned, aresult which will directly affect the women and their children economically and socially. Such dilemma
represents the weakness of the existing conventional criminal justice process to which restorative justice canappropriately fill the gap.
As a matter of fact, an attempt to introduce the restorative justice approach to the solution of domestic
violence was made even before the formal introduction of the restorative justice concept in January 2002. A
few years earlier, while serving as the Director of the Thailand Criminal Law Institute, I and a group of
women’s rights advocates attempted to introduce a programme for the treatment of the aggressor as part ofan alternative to prosecution in domestic violence cases. At that time, although the idea was well received byacademics and practitioners, it was very difficult to start the programme without a strong commitment fromthe police, the prosecutors and a coordinating agency, such as, for the case of Thailand, the probation services.
After I had the opportunity to run the Department of Probation in August 2001, I then reintroduced thisprogramme on the first appropriate occasion in November of 2002, since November is the month for
campaigning against violence against women and children.
The project, which was named by the media as “husband rehabilitation clinic” or, literally in Thai,“husband repairing factory,” aims at setting up a diversion programme at the prosecution level for treatmentof abusive husbands. It is proposed that the police, after receiving complaints from the victims of aggression,
proceed with the case rather than viewing it as a family matter and decline to accept the complaint. At theprosecution level, the prosecution will consider conditional dismissal of the charge if the following
prerequisites are met: consent of the victims; the aggressors are repentant and willing to undergo atreatment programme if necessary; and the nature of the case is appropriate for pretrial dismissal (factors
such as the gravity of the case, etc. will be looked at). If the prosecutor decides that conditional dismissal ismore appropriate than prosecution, he will submit the case to the probation officer. The probation officer,
after considering the facts and circumstances of the case, may organize a conference among the victim, theaggressor, their relatives or trusted persons (if necessary) and respected members of the community (ifappropriate) to find appropriate measures for the treatment of the aggressor and the solution to the personal
conflict and/or other problems. In this process, the probation officer will act as a facilitator trying to seek
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reconciliatory measures for the belligerent couple. The aggressor may be subject to some or all of thefollowing conditions: attending appropriate treatment programmes (such as programmes to control anger orto quit drinking, etc.); regularly report to a probation officer within a specified period of time; and providing
restitution or rendering community service, as deemed necessary. If the aggressor is able to meet with theconditions set for him, the probation officer will report the positive result to the prosecution who will thendrop the charge. On the contrary, if the agreed conditions are broken the prosecutor will continue with thesuspended prosecution.
By having this alternative programme, it is hoped that not only both the victims and aggressors indomestic violence will be appropriately taken care of, but such measures will also allow the police to be more
efficient in the preventive campaign against domestic violence.
As mentioned earlier, the project was proposed once again in November 2001 during the National
Seminar for the Protection of the Rights of Women and Children, an event held every year during the monthof November. This time it began to receive wider support from the public and has become front-page news.
However, it was not until November 2002 at a Seminar on Restorative Justice and Domestic Violence,organized by the Department of Probation and the Thailand Research Fund (TRF), that it became the talk of
the town and one of the biggest news items during the campaign month for ending domestic violence.
During the early debate on at what stage should the case be referred to this restorative process, there
were suggestions that this should be done during the police level. However, there are several reasons whichhave made it less appealing to do as such. Firstly, it is not legally possible for the police once they haveaccepted the complaint by the battered wife to use its own discretion not to pursue the case. Secondly, there
are some concerns in regard to the use of discretion at this level which has low visibility and thus is difficult
to structure and control.
Although the proposed scheme has received high publicity and overwhelming support from the public, theDepartment of Probation is still unable to launch the project as early as expected due to reluctantance on thepart of the Office of the Attorney General to start the suspension of prosecution scheme without any
corresponding legislation. The proponents of the scheme are of the opinion that no law is needed in this casesince in limited circumstances, particularly in petty crimes, the prosecution has already adopted theopportunity principle in dropping the prosecution of several cases on the grounds that prosecution will serve
no public interest. Such non-prosecution orders were issued even without any conditions. As a result, indomestic violence cases where the victims provide their consent, the nature of the case is not aggravated andthe offenders are willing to undergo and complete a rehabilitative and restorative programme, there are evenless grounds for prosecution. Although there is no real opposition to the idea, some believe that it may bebetter to wait for the law on suspension of prosecution before attempting an innovative idea such as this.
Others, particularly more conservative criminal justice and judicial officials, may simply not understand theseriousness of the problem and may not see any urgent need for a special programme of this kind.
Despite the obstacles for the immediate implementation of the scheme, I am quite confident that the
project will soon be implemented. On the latest movement, the Office of the Attorney General has shown aninterest in the programme and a discussion with the Department of Probation as to how to implement such a
programme will soon occur.

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