THE THAI CRIMINAL JUSTICE SYSTEM AND PROTECTION FOR
VICTIMS OF CRIME AND USE OF RESTORATIVE JUSTICEPROGRAMM ES
Chirawan Khotcharit

I. THE HISTORY OF THE THAI CRIM INAL JUSTICE SYSTEM
A. The Sukhothai, the Ayutthaya and the Thon Buri Periods
The Thai legal system and the judiciaryʼ
s history started between AD 1238 to 1350 (the Sukhothaiperiod)when the King, himself, adjudicated all disputes between his citizens. Later in the Ayutthaya
period (AD 1350 to 1767), the Thai legal system was developed by introducing the Dhammasattham ―the ancient Hindu jurisprudence―as the law code of the realm. The Dhammasattham was a fundamental law dealing with both civil and criminal matters. Unfortunately,during the reign of King Taksin
the Great (AD 1767 to 1782), the country was faced with a series of battles; therefore, the law andjudiciary system had little improvement.
B. In the Early Rattanakosin Period (Absolute Monarchy)
Later, at the beginning of the Chakri Dynasty in 1782, the Law of Three Seals was written,as thecode law,by revising the laws derived from the Ayutthaya period. In the reign of King Rama V,there
was important development of the legal and judiciary system when the country was required tostandardize the law and legal system equally to foreign nations. The first criminal law code wasenacted in 1908,and drafting of the Civil and Commercial Code was started but was not completed until
the reign of King Rama VII.
C. In the Present Rattanakosin Period (Democracy)
The Revolution of 1932 changed the form ofgovernment from an absolute monarchyto a democracy
and had an important effect on the Thai legal and judiciary system. The Constitution B.E. 2475 (AD1932) established the powers, functions and duties as well as the structure of the Executive, theLegislative and the Judiciary. The Constitution of the Kingdom of Thailand,B.E.2540 (1997)has hada significant impact on the reorganization of the political system as well as the judicial system ofThailand.
D. The Courts of JusticeBefore 1997, there were two types of Courts in Thailand;however in 1997, a significant change in
the Judiciary power had been made. Under the 1997 Constitution (and the 2007 Constitution),there were(and now are)four types of courts:the Constitutional Court,the Courts of Justice,the Administrative
Courts and the Military Court. The Courts of Justice are classified into three levels comprising theCourts of First Instance, Courts of Appeal and the Supreme Court. Courts of First Instance arecategorized as general courts, juvenile and family courts and specialized courts, called the Central
Intellectual Property and International Trade Court, the Central Bankruptcy Court, the Central TaxCourt and the Labour Court. The general courts are ordinary courts which have authority to try andadjudicate criminal and civil cases.
E. Judges of the Court of Justice
There are four types of judges in the current Thai judicial system, namely, career judges, seniorjudges, lay judges, and Kadi (Datoh Yutithum). Firstly, career judges are recruited by the Judicial
Commission and are appointed by His Majesty the King. In order to be an eligible candidate for career
judge one has to be of Thai nationality, at least 25 years of age and must have earned a BachelorʼsJudge, Thon Buri Criminal Court, Court of Justice, Thailand.

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degree in law, passing the examination of the Thai Bar Association, and having not less than twoyearsʼworking experience in the legal profession. A candidate must pass a highly competitive
examination given by the Judicial Commission. Once the candidates are recruited, they have to be
trained as judge-trainees for at least one year. Those candidates who complete the training withsatisfactory results will be approved by the Judicial Commission and tendered to His Majesty the Kingfor royal appointment to be a junior judge. A solemn declaration before His Majesty the King is also
required before taking office as a judge. Secondly,senior judges must be at least sixty years ofage andhave performed judicial services for at least twenty years and also pass the assessment of healthperformance, according to the Act on Rules for Appointing and Holding Senior Judge Position, B.E.
2542 (AD 1999). Judges who are qualified and wish to be senior judges must express their intention inwriting to the President of the Supreme Court. Senior judges are able to remain in office until theyreach seventy years of age. A senior judge cannot be appointed to hold the office of court executive,
such as a Chief Justice, or even to perform duties in place of such person. Thirdly, Lay Judges whoare laymen recruited separately to perform duties in the Juvenile and FamilyCourts,the Labour Courts
or the Central Intellectual Property and International Trade Court. The reason for having lay judges
is to have an experienced person or an expert in a relevant field who can work closely with a career
judge in adjudicating cases. Unlike a career judge,becoming a lay judge is not a permanent position.
Each lay judge holds his or her office for a term of years depending on which specialized court he or
she is working for. Forty Kadi (Datoh Yutithum),according to the Act on the Application of Islamic
Law in the Territorial Jurisdictions of Pattani, Narathiwat, Yala, and Satun Provinces, B.E. 2489
(1946), the Islamic Law on Family and Succession except the provisions on prescription in respect ofsuccession shall apply instead of the Civil and Commercial Code in adjudicating civil cases concerning
family and succession of Muslims. In such cases,career judges and a Kadi,who is an expert on Islam,
will sit on the bench together to adjudicate the case to comply with the principles of Islam. A Kadi
must not be less than thirty years of age, know the Thai language at the prescribed level, and haveknowledge of Islam to enable him to apply the Islamic laws relating to family and succession.

II. THAI CRIMINAL JUSTICE SYSTEM
Concentrating criminal cases in Thailand, the prosecution process is the responsibility of several
government organizations:the Royal Thai Police, the Office of the Attorney General, the Courts ofJustice, and the Ministry of Justice. Almost all criminal cases are filed by the State, the publicprosecutor, against a person or organization who violates a penal law. Which acts or omissions areconsidered as crimes or offences must be identified by the Penal Code. Special penal laws,for example,
the Narcotics Control Act B.E. 2522 (AD 1979), the Land Traffic Act B.E. 2522 (AD 1979), and theNational Forest Act B.E.2507(AD 1964),however,can identify and impose punishment on one who doesor omits something that is considered as a criminal act. Even though an act is socially or morally
wrong,no criminal liability is incurred until that act is classified as a crime under the law. The reason
why the public prosecutor―not the private injured person or the victim―sues the offender,is because
crimes are considered offensive to peace and order in society. The victim is considered only as awitness for the State to prove the criminalʼs guilt. This long process starts with the victim having to
go to the Police to report of a criminal incident. The Police then proceed to investigate the alleged
crime and report their findings to the Office of the Prosecutor. Later,the Office of the Prosecutor files
the appropriate criminal case with the Court. Courts have jurisdiction in the district where an offence
has been committed, alleged or believed to have been committed, or where an accused resides or isarrested, or where an inquiry official conducts an inquiry. After the court hears the witnesses of theprosecution and the defence,it then renders its judgment. Due to the fact that the victim of the crimeis also affected by the offender and the overwhelming number of criminal reports, the Criminal
Procedure Code empowers the victim of the offence, a private citizen, to hire lawyers to directly filethe criminal case in court,instead of reporting it to the police. In the Thai justice system,only judges
decide criminal cases;the jury system does not apply in this country.
A. The Crime Victimʼ
s Right To Be Compensated
Early in history,criminal law was essentially law for victims who were the center ofthe administration of criminal justice. For example,compensation and restitution were criminal sanctions aimed atproviding redress to the victims. However, the criminal justice system had changed to a system ofretributive justice and became offender centered―a system that only put emphasis upon guilt and142

156TH INTERNATIONAL SENIOR SEM INARPARTICIPANTSʼPAPERSpunishment. Crime victims are recognized as the rights of the accused and,at best,valuable witnesses
for the prosecution of the stateʼs case; on the other hand, at worst, they are sometimes viewed as
impediments to the prosecutorial process. The concept of crime as a victim redressing has been
replaced by the notion that crime is an act against the well-being of the state. Therefore, society,including crime victims,seeks the most severe possible punishment for offenders. Victims believe thatthe longer offenders are in jail,the happier the victims will be in the future,but such severe punishmentoften leaves victims feeling empty and unsatisfied because a retributive criminal system cannot
compensate their losses,ease their fears and insecurities,restore their confidence or heal their physicaland emotional wounds. On the other hand,after serving their time in the prison,offenders often returnto the community even more antisocial than before and tend to recidivate.
The Thai criminal justice system recognizes the crime victimʼ
s right to be compensated by theoffender. According to Section 43 of the Criminal Procedure Code, public prosecutors―only in casesof theft, snatching, robbery, piracy, extortion, cheating and fraud, criminal misappropriation andreceiving stolen property―may seek restitution on behalf of the victims. Later in 2005,the Criminal
Procedure Code was amended;Section 44/1 grants to authority to the public prosecutor to have theright to claim compensation for loss of life, bodily or mental harm, injury to person, impairment ofreputation or proprietary damage from the crime offenders on behalf of the crime victims or injuredpeople. Before this amendment, crime victims had to file complaints with the civil court for suchcompensation at their own expense;therefore,many of them tended not to pursue their rights. (Crimevictims also can apply for compensation awards to the Victim Compensation and Restitution Board(VCR), Ministry of Justice, according to the Victim Compensation and Restitution for the Accused
Person Act and the Witness Protection Act B.E.2544 (AD 2001)).
B. Crime VictimsʼRights in Domestic Violence Offences
The problem of domestic violence has been increasingly realized and acknowledged in Thai society.
Domestic violence cases should not be conducted using the conventional criminal judicial process
because it does not take an interest in the harm suffered by the victim and the community and cannot
prevent offenders from recommitting their crimes. Therefore,Thailand enacted the Domestic Violence
Victim Protection Act to handle domestic violence cases. The Domestic Violence Victim Protection
Act,B.E.2550(AD 2007),which deals with any act committed with an intention to cause bodilyor mentalharm,or an act committed intentionally in a manner that may cause bodily or mental harm,to a family
member or any coercion or undue influence conducted with a view to make a family member dosomething,refrain from doing something or accept any act illegally,has some kind ofprotection which
is different from the general criminal cases. For example,under section 6,the domestic violence victim
has right to get treatment from a physician and to have a consultation with a psychiatrist,psychologist
or social worker. If the domestic violence victim would like to file a complaint, he or she can file acomplaint on his or her own or allow the competent official to file a complaint on his or her behalf. In
order to respect the domestic violence victimʼ
s privacy rights,section 9 orders that in domestic violence
cases,no person shall publish or make known to the public in anymanner whatsoever anypicture,story
or any information which may cause damage to the person who commits an act of domestic violenceor to the domestic violence victim. As mentioned above, domestic violence cases are different fromgeneral criminal cases because of the relationship between the offender and the victim. These kindsof cases need to have some special court orders. Therefore,section 10 orders that the domestic violence
victim has the right to ask the competent official to impose provisional remedial measures or means
in favour of the domestic violence victim,such as an order requiring the person who commits domestic
violence to receive a diagnosis from a physician, to pay financial assistance in accordance with his
station in life,not to enter into the residence of the family or to stay close to any person in the family,
as well as an order concerning care of his or her child. Thon Buri Criminal Court established thePsychosocial Clinic. This Clinic employes psychosocial clinic consultants who have a duty to give a
consultation for domestic violence offenders and victims. Psychosocial clinic consultants are lay
persons with psychological or social-work experience, and they must attend the psychosocial clinicʼ
straining.
C. Child Offenders, Victims and Witnesses
The Thai criminal justice system is concerned about children who have been involved in criminalcases as offenders, victims or witnesses. Therefore, section 133 bis of the Criminal Procedure Code143

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orders that in cases of offences punishable with maximum imprisonment of three years and upward,orin the case of offences punishable with fewer than three yearsʼimprisonment and the injured person or
witness who is a child so requests,or in the case of causing bodily harm to a child not yet over eighteen
years of age,the examination of a child victim or witness shall be made separately in a place suitablefor him or her, and a psychologist or social worker, a person requested by the child and the publicprosecutor shall participate in such examination. At trial, section 172 ter of the Criminal Procedure
Code orders all courts to provide a suitable place for child witnesses and requests that a psychologist
or social worker must attend to help the child witness during the examination-in-chief, crossexamination, and re-examination.
D. M ediation Center and Reconciliation Center
The M ediation Center has authority to mediate compoundable offences when the crime victim or
injured person files the complaint by himself or herself, while the Reconciliation Center deals with
non-compoundable cases in which the State, through a public prosecutor, brings a lawsuit before thecourt. The Medication Center and Reconciliation Center allow offenders, victims, and their family
members to participate in every session. During the mediation and reconciliation process,the offenderand victim will participate in a face-to-face victim-offender meeting, including both joint and caucus
sessions. The mediation and reconciliation system has a special concern for the needs of crime victims.
The crime victim has a chance to express his or her emotion, agony and insecure feelings as well as
to ask for compensation and restitution from the offender. At the same time,the offenders are able toshow their responsibility,sympathy and regret. During the mediation process,a mediator will conduct
and facilitate both parties to express their real interest and finally get to the agreement. On the other
hand, during the reconciliation process, a judge has a duty to explain the charge,the accusedʼs rights
and liability and victimʼ
s rights. Unfortunately,the mediation and reconciliation process are alternative options.
E. Courtroom without Directly Confronting the Accused
In general,the trial and taking of evidence must be conducted in open court and in the presence ofthe accused. A witness has to give evidence in front of the accused. The judge, public prosecutor,
defendant and defendantʼ
s attorney shall be present in the courtroom. A criminal trial shall be madewith direct confrontation of the witness and the accused. However, in some cases, the originalcourtroom is not suitable for adult witnesses who feel fear or embarrassed by the accused. Thon Buri
Criminal Court is concerned about the rights and safety of witnesses. Therefore,Thon Buri Criminal
Court established the Courtroom without Direct Confrontation of the Accused. In this courtroom, awitness gives testimony in the courtroom where the judge,public prosecutor and defendantʼ
s attorney
are together but a witness will not confront the accused. Moreover,there is the Witness Room wherea witness can rest and relax before and after giving testimony. This type of courtroom is suitable fora witness who is a child under 18 years of age, women and the elderly who are afraid or ashamed ofthe accused. Up until now,there was only one courtroom without direct confrontation of the accusedin the Kingdom of Thailand.

III. CHALLENGES FOR THE THAI CRIMINAL JUSTICE SYSTEM
From my experience as a Thon Buri Criminal Court judge, the challenge for the Thai criminal
justice system, in terms of protecting victimsʼrights and applying Restorative Justice, firstly is theattitude of crime victims and judges. Secondly,as mentioned above,the victim and society desire theseverest punishment possible for the offender,which is actually a burden to the court and the criminal
justice system. Thirdly,the Mediation and Reconciliation process concentrates only on crime victims
and offenders but leaves the whole community out of the process, and the victims usually refuse thecourtʼs efforts to have the victim meet with the offender, or they only reluctantly participate in themediation and reconciliation process. Even if the concept of Restorative Justice has been introduced
to the juvenile criminal justice system since 2010, the criminal justice system has not fully applied
Restorative Justice in its system.

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The Courtroom without Direct Confrontation of the Accused145

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The Witness Room147

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The Courtroom for Child Witnesses

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