Criminal lawyer with over thirty years of experience
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Criminal lawyer with over thirty years of experience
We receive by appointment only
THAI CRIMINAL LAW
Committing a crime in thailand, a passage to hell
(Extract from an article of Dr. Carlo Filippo Ciambrelli)
Let me start by the end or, as we may say, let's grasp the bull by the horns. Thailand, the so-called "Land of Smiles", it's one of the worst places in the world to commit a crime.
The laws governing a country are divided into two major legal systems: Common Law and Statutory Law.
In countries, as Thailand, governed by the "statutory law system" the laws are clearly "codified" or "listed" in a sort of legal-Bibles: the penal (criminal) Code and the Civil Code.
In the Penal Code, (link to Thai Penal Code) practically every possible crime is well described and "equipped" with the indication of the relative minimum and maximum applicable penalty. The difference between the minimum and the maximum penalty is the only feasible discretion conceded to judges and juries.
Consequently in the majorities of the countries adopting the "rigid-although-clear" statutory law system, (S.L.S.) the judge will apply the law and impose the penalty in the relation of the circumstances, including a possible admission of guilt given to the court by the defendant, within the limits written in the Code. And here we find the first huge difference between the Thai and the European S.L.S.: In Thailand, a confession will practically, even though not automatically, in most of the cases cut the penalty by half. Including the "minimum applicable penalty". Furthermore, in Thailand, as in the Common Law countries, it is possible to ask (apply) for a bail bond and remain free at least until the first-degree sentence. At this point you might think "the title of this article must be a mistake", but ...I'm afraid that it is not so, not at all!
To make things a bit more clear, let's "go back" to the beginning and see what happens in real life if you are accused of a crime. Let's see how things can be drastically different than in the Western world.
The first authority called to "judge" upon the receiving of a crime-report is the police. No coroner, no investigating judge. The police will decide, for instance, if an autopsy is necessary and, more importantly, if the proves or the clues against the suspect of a crime are enough to arrest him, to transmit the case to the court and if it is possible to release him or her upon the payment of bail.
Should the police deny the bail, the "defendant" will be transferred to a remand awaiting the judgment. He/ she can, therefore, apply for a new release on bail directly to the court with uncertain results.
I don't know if you have ever had the chance to visit a remand. In my experience as a court interpreter and "volunteer upon request of the embassies", I often had such a privilege and I can tell you that they are not exactly holidays-resorts! To say the least, you would not enjoy being there.
Furthermore, not to scare you, rather warn you (a man forewarned is a man forearmed) you would better consider that there are a considerable number of crimes that do not foresee the possibility to be released on bail at all, regardless the "solidity" of the accusations.
The main criteria adopted to deem if a suspected-culprit can benefit of a release on bail are the possibilities of his/her escape, (obviously much higher if accused is a foreign national), the possibility of evidence-tampering and the alleged social dangerousness of the suspect. All crimes against the society, the governments (not only the Thai government), the state-institutions, etc. as, for instance, currency counterfeiting, credit cards forgery, to not mention lease-majesty, leave very little space to achieve a temporary release on bail. Furthermore, such kind of crimes is very seriously punished in Thailand.
Out of metaphor and just to clarify the concept, we can say that it would be easier to be released on bail for somebody accused of "attempted murder" rather than of one of the crimes above mentioned.
I suppose (and hope) that whatever we have written today will never regard our readers, but what happens if you are falsely or wrongly accused by someone? What about if you are the victim of a fraud or an error? How long does a trial will last?
Let me debunk a commonplace and dissipate any possible doubts: in a Thai court, there is no space for corruption. The Thai judges represent a laudable example of honesty and justice. It is not flattering, just a matter of the fact that I noticed and appreciated in my many years of acting as court-appointed interpreter and expert of the law.
As we said, confessing a crime, even if the proof is incontestable, will, in the vast majority of the cases entail, a reduction of the penalty in the measure of its half. Moreover, in case of "good behaviour", (intended in the full length of the expression), during his/her detention in prison, the inmate can obtain further drastic reductions of the jail-time thanks to the frequent pardons and amnesties promulgated in various occasions every year.
This peculiar aspect gives us an idea of the high consideration that the Thai Justice system in particular, and the Thai society in general, give to sincere repentance as to the respect of authorities and traditions.
It is always wise to seek the advice of a lawyer of ascertained competence, experience and honesty, before deciding which is the best line of defence to assume. However, we should always keep well in mind the above-exposed principle which can be considered a benchmark of the Thai criminal system.
Another commonplace that I would like to rid the world of is that, should the evidence be or appear incontestable, and should the defendant decide to plead guilty, he/she doesn't need a good lawyer. Nothing could be more wrong. A quick look at the Thai Penal Code should suffice to clarify this point. For most of the crimes, the "excursion of the penalty" (the difference between the minimal and the maximum penalty) is enormous. A good lawyer will present to the court the misdoings of a defending-culprit even if he/she has pleaded guilty in the best light to obtain maximum leniency and the minimum possible penalty.
Another big difference between the Thai and the western criminal systems is that the defence-lawyer in a Thai court will not routinely make a closing statement, no summing up. Roaring requests as "objection your honour" and scornful replies as "objection sustained" or "overruled" are clichés good for the movies, not for a Thai court. In Thailand, a skilled lawyer doesn't need to be a Perry Mason, he/she will, instead, pose the right questions to induce the court to judge his client most favourably.
As in the rest of the world, in Thailand, there are three degrees of judgement. In the first-degree, the court will physically interact with the parties while in second and third degrees (appeal and Supreme court) the judges will examine only written defence-briefs. As a consequence, in first-degree, a talented and sensitive lawyer, capable of inducing the court to feel empathy for the defendant, will undoubtedly help to obtain the maximum benefits for the client. Should foreign nationals be involved in the case, they should never forget that difficulties and ambiguities are always lurking in ambush when two so profoundly different cultures and languages meet: therefore the assistance of a competent interpreter, who goes to the root of the concepts is also, in most cases, of paramount importance.
On the other hand, in the next two degrees, where I repeat, only written defence-briefs are admitted, a different lawyer-proficiency is required: a peculiar capacity of exposing the evidence with effective "brevitas", accurately, but concisely getting to the point in the clearest and convincing manner.
We have so far analyzed the Thai criminal system from a defendant's point of view, but what happens if we are the victims rather than the authors of a crime? What if somebody cheats us? Or if we are the innocent injured parties of an accident?
If you wish to find out how to best protect yourself in Thailand, always in full respect of the law, don't miss our next article, the third part of this long journey through the maze of Thai law. Moreover, remember... "ignorantia legis non excusat"...it's no use to plead ignorance of the law, in Thailand as in the rest of the world.
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