Our Practice Areas
Leave a Message
Please fill in the form and we will contact you as soon as possible.
Criminal Law in Thailand
Facing a criminal case can be one of the most stressful and daunting experiences in a person’s life. Whether you are a victim, a suspect, or a defendant, the uncertainty and complexity of the legal system can feel overwhelming. At JIRAWAT & ASSOCIATES LAW OFFICE, we understand these challenges. Our team of expert lawyers is dedicated to providing profound expertise and experience in the Thai criminal justice system, guiding you and protecting your rights every step of the way.
This article is designed to offer a comprehensive overview of criminal law in Thailand, referencing the Thai Penal Code, the Criminal Procedure Code, and key Supreme Court precedents. Our goal is to provide you with a clear understanding of the landscape of criminal cases, the legal process, and the rights to which you are legally entitled.
Part I: Foundations of Thai Criminal Law
1. The Landscape of Criminal Offenses in Thailand
1.1 The Thai Penal Code: A Comprehensive Framework
The Thai Penal Code is the cornerstone of Thailand’s criminal law. Part 2, titled “Offences,” which spans Sections 107 to 366/4, systematically defines criminal acts. The law categorizes these offenses into 13 Titles based on the nature of the harm caused to legally protected rights or interests. This structure reflects the broad scope of criminal law, covering everything from offenses against the security of the Kingdom, public administration, and justice, to offenses that directly impact individuals, such as crimes against life and body, property, and liberty and reputation.
1.2 The Critical Distinction: Public vs. Compoundable Offenses
Understanding the difference between these two categories of offenses is absolutely crucial, as it determines the “gateway to justice” and directly impacts the entire legal strategy.
- Public Offenses (ความผิดอาญาแผ่นดิน): These are crimes considered to harm society as a whole. Consequently, the state, as the ultimate injured party, always has the authority to investigate and prosecute the offender, even if the direct victim does not wish to press charges. The police can initiate an investigation upon discovering the crime or upon an “accusation” filed by any person. Examples include murder, robbery, arson, and serious assault.
- Compoundable/Private Offenses (ความผิดต่อส่วนตัว): These are offenses that primarily affect a private individual. The initiation of legal proceedings depends entirely on the victim’s intent. If the victim chooses not to proceed, the state cannot intervene. The law explicitly states at the end of the relevant section which offenses are compoundable. Common examples include defamation, cheating and fraud, and misappropriation (embezzlement).
The decisive factors for compoundable offenses are a valid “complain” and a very short statute of limitations. If the victim fails to file a formal complaint with the police within three months from the day they became aware of both the offense and the identity of the offender, the case is prescribed under Section 96 of the Penal Code. This permanently extinguishes the right to pursue criminal action. In essence, the victim holds the key to initiating the justice process. Failure to use this key in time locks the door to criminal prosecution forever. Conversely, for an accused person, the first and most critical line of defense in a compoundable case is often procedural: was the complaint filed correctly and within the strict time limit?.
Feature | Compoundable Offense (ความผิดต่อส่วนตัว) | Public Offense (ความผิดอาญาแผ่นดิน) |
|---|---|---|
Initiation | Requires a formal "Complaint" (ร้องทุกข์) by the victim only. | Can be initiated by a victim's “Complaint,” a third-party “Accusation” (กล่าวโทษ), or by police discovery. |
Statute of Limitations | Strict 3-month period from knowing of the offense and the offender (Penal Code Sec. 96). | General, longer statutes of limitation based on the severity of the penalty (Penal Code Sec. 95). |
State's Power | Police/Prosecutor have no power to investigate or prosecute without a valid complaint. | Police/Prosecutor have the authority to act regardless of the victim's wishes. |
Withdrawal/Settlement | The victim can withdraw the complaint or settle at any time before the case is final, which terminates the proceedings. | Cannot be withdrawn or settled by the victim. The state prosecutes on behalf of the public interest. |
Example Offenses | Defamation (Sec. 326), Cheating & Fraud (Sec. 341), Misappropriation (Sec. 352). | Murder (Sec. 288), Robbery (Sec. 339), Assault (Sec. 295). |
Table 1 Key Differences Between Compoundable and Public Offenses
Part II: The Journey Through the Criminal Justice System
2. The Beginning of a Criminal Case: From Incident to Investigation
2.1 Initiating Proceedings: Complaint vs. Accusation
- Complaint (การร้องทุกข์): As defined in Section 2(7) of the Criminal Procedure Code, a complaint is an allegation made by a “victim” to an official, stating that an offense has been committed, with the intention of having the offender punished. This “intention” is critical. The Supreme Court has ruled that merely filing a police report for record-keeping purposes or to prevent the statute of limitations from expiring, without a clear intent to prosecute, does not constitute a valid legal complaint (see Dika Judgments 6644/2549 and 228/2544)
- Accusation (การกล่าวโทษ): As defined in Section 2(8), an accusation is an allegation made by a person who is “not the victim”. Any person who witnesses a “public offense” can file an accusation to trigger an official investigation
2.2 The Police Investigation and the Critical First 48 Hours
Once a complaint or accusation is filed, an inquiry officer (พนักงานสอบสวน) takes charge of gathering evidence, interviewing relevant parties, and compiling the case file. During this stage, the law provides a fundamental protection for the accused: the police may detain a suspect for a maximum of 48 hours from the time of their arrival at the police station. Any detention beyond this period requires a court order, a process known as “ฝากขัง” (request for temporary detention).
3. The Path to Court: Prosecution and Filing Charges
3.1 Prosecution by the State
This is the standard route for most criminal cases. Upon completing their investigation, the police submit the case file with their opinion to the Public Prosecutor (พนักงานอัยการ). The prosecutor then reviews all evidence and makes a final decision on whether to issue a prosecution or non-prosecution order.
3.2 Private Prosecution: The Victim’s Alternative Path
Section 28(2) of the Criminal Procedure Code grants the “victim” the right to file a criminal case directly with the court, bypassing the Public Prosecutor. While this path offers the victim greater control over the case, it also places the entire burden of gathering evidence and proving the offender’s guilt squarely on the victim’s shoulders.
4. The Court Process: Trial, Judgment, and Appeals
4.1 The Preliminary Hearing (ไต่สวนมูลฟ้อง)
For all privately prosecuted cases, a “preliminary hearing” is a mandatory first step. The court examines the initial evidence presented by the plaintiff (the victim) to determine if there is a prima facie case (คดีมีมูล) to proceed to a full trial. If the court finds the case lacks grounds, it will be dismissed at this stage.
4.2 Trial and Judgment
If the case has grounds (in a private prosecution) or is filed by the Public Prosecutor, the court will accept the case for trial. The trial in the Court of First Instance includes the arraignment, presentation of evidence by both prosecution and defense, witness testimony, closing arguments, and finally, the rendering of a judgment.
4.3 The Appeals Process
A party dissatisfied with the judgment of the Court of First Instance has the right to appeal to the Court of Appeals. If still dissatisfied, they may seek leave to appeal to the Supreme Court (ศาลฎีกา), which is the final court of appeal.
Part III: Understanding Your Rights and Status
5. The Rights of the Suspect and the Defendant
Thai law guarantees several fundamental rights to protect individuals accused of a crime. Knowing and asserting these rights is essential.
- Right to Remain Silent: You have the right to say nothing. Any statement you make can be used as evidence against you in court. Officials must inform you of this right before questioning begins. Your silence cannot be interpreted as an admission of guilt.
- Right to Legal Counsel: You have the right to consult a lawyer and have a lawyer present during any interrogation, from the moment of arrest. For serious offenses, if you cannot afford a lawyer, the state is obligated to provide one for you.
- Right to Bail (Temporary Release – การปล่อยชั่วคราว): Bail is a constitutional right intended to ensure your presence at trial while preserving your liberty. The court considers bail applications based on criteria in Section 108 of the Criminal Procedure Code, such as the severity of the charge, the evidence, flight risk, and potential for witness tampering. Bail can only be denied on specific legal grounds outlined in Section 108/1, such as a high probability the suspect will flee, tamper with evidence, or commit other dangerous acts. Bail security can be provided in various forms, including cash, land title deeds, or other assets, per Section 114.
- Other Fundamental Rights: You also have the right to be visited by and contact relatives, receive prompt medical care if you are ill, and the right to a speedy and fair trial.
6. The Role and Rights of the Victim
6.1 Who is a “Victim” (ผู้เสียหาย) under Thai Law?
The legal definition in Section 2(4) of the Criminal Procedure Code defines a “victim” as “a person who has suffered injury as a result of the commission of an offense, including a person having the power to act on his/her behalf,” such as the parents of a minor.
6.2 Expert Insight: The Critical Doctrine of the “De Jure Victim” (ผู้เสียหายโดยนิตินัย)
This is a paramount legal principle that is not written in any statute but has been developed by the Supreme Court over decades of jurisprudence. It is based on the equitable doctrine that “one must come to court with clean hands”.
The principle holds that to be granted the full rights of a victim under the law, a person must be a “de jure victim”—that is, someone who did not participate in, consent to, or wrongfully provoke the criminal act committed against them.
Losing the status of a “de jure victim” is not a minor technicality; it triggers a catastrophic “domino effect,” causing a complete collapse of the person’s legal rights within the criminal case:
- Loss of Right to Complain: In a compoundable offense, if you are not a de jure victim, your complaint is legally invalid. This means the police cannot investigate, and the prosecutor cannot file charges (see Dika Judgment 243/2528).
- Loss of Right to Private Prosecution: You lose the ability to file a criminal case on your own, for any type of offense.
- Loss of Right to Join as Co-Plaintiff: In a case prosecuted by the state, you cannot join as a co-plaintiff to assist the prosecutor (see Dika Judgment 1604-1605/2512).
- Loss of Right to Appeal: You have no standing to appeal the court’s verdict.
Examples from Supreme Court Precedents:
- Provocation (Sudden Passion): In Dika Judgment 10908/2556, the deceased had insulted and challenged the defendant, provoking him to act out of sudden passion (บันดาลโทสะ). The Supreme Court ruled that the deceased, having instigated the offense, was not a de jure victim. As a result, his mother had no legal standing to join the case as a co-plaintiff or claim compensation within the criminal proceedings.
- Mutual Combat: Parties who willingly engage in a fistfight are not considered de jure victims of assault against each other (see Dika Judgment 7003/2547).
- Involvement in Illegal Acts: A person who is cheated out of money in an illegal gambling game is not a de jure victim of fraud (see Dika Judgment 1913/2546).
6.3 Rights of a De Jure Victim
A person who qualifies as a de jure victim has significant legal rights, including the right to file a complaint, initiate a private prosecution, join a public prosecution as a co-plaintiff, and file a petition for civil restitution connected to the criminal case under Section 44/1 of the Criminal Procedure Code.
Part IV: Types of Criminal Offenses (per the Thai Penal Code, Part 2) and Common Offenses and Legal Defenses
7. Overview of Offenses under the Penal Code
A Closer Look at Common Criminal Charges
Our firm has extensive experience handling a wide range of criminal cases. Some of the most common charges include:
- Offenses Against Property: Such as theft, robbery, snatching, gang-robbery, cheating and fraud, misappropriation, and mischief.
- Offenses Against Life and Body: Including assault, assault causing grievous bodily harm, and offenses against life ranging from causing death by negligence and manslaughter to intentional murder.
- Offenses Against Reputation (Defamation):
- The elements of defamation under Penal Code Section 326 are: (1) making a factual imputation about another person (2) to a third party (3) in a manner likely to harm that person’s reputation, or expose them to hatred or contempt.
- However, Section 329 provides crucial exemptions. An act is not defamation if it is an opinion expressed in good faith to protect a legitimate interest in a fair and reasonable manner.
- A clear illustration is Dika Judgment 2542/2554. The court ruled that the defendant’s act of consulting with the village headman (an official) about the co-plaintiff’s conduct, which could harm the defendant’s family, was a good-faith expression to protect a legitimate interest under Section 329(1) and thus not defamation. However, when the defendant repeated the same allegations to an uninvolved third party, it was deemed to be done with malicious intent and therefore constituted defamation.
- Narcotics Offenses:
- Thai narcotics law underwent a major overhaul with the enactment of the “Prescribing Act for the Narcotics Code, B.E. 2564 (2021)” and the “Narcotics Code” itself. This new legislation repealed and consolidated numerous previous drug-related laws.Defending narcotics cases today requires a thorough understanding of this new legal framework.
Title/Category of Offense | Relevant Sections | Description & Common Scenarios |
|---|---|---|
Title 1: Offenses Against the Security of the Kingdom | Sec. 107-135 | Offenses against the King, Queen, Regent, and Heir-apparent; treason; acts hostile to the state. |
Title 1/1: Terrorism Offenses | Sec. 135/1-135/4 | Acts defined as terrorism, carrying severe penalties. |
Title 2: Offenses Against Public Administration | Sec. 136-166 | Insulting or obstructing officials, bribery, malfeasance in office. |
Title 3: Offenses Against Justice | Sec. 167-205 | Perjury, giving false information to officials, destroying evidence, contempt of court. |
Title 4: Offenses Relating to Religion | Sec. 206-208 | Insulting a religion, causing disturbance at a place of religious worship. |
Title 5: Offenses Against Public Peace | Sec. 209-216 | Being a member of a secret society or criminal association (Ang-Yi, Song Jone). |
Title 6: Offenses Causing Public Danger | Sec. 217-239 | Arson, causing an explosion, releasing pollutants. |
Title 7: Forgery and Alteration Offenses | Sec. 240-269 | Counterfeiting currency, forgery of documents, forgery of official seals. |
Title 8: Trade Offenses | Sec. 270-275 | Counterfeiting a trademark, deception in the sale of goods. |
Title 9: Sexual Offenses | Sec. 276-287 | Rape, indecent assault, procurement for prostitution. |
Title 10: Offenses Against Life and Body | Sec. 288-308 | Murder, manslaughter, assault, causing bodily harm. |
Title 11: Offenses Against Liberty and Reputation | Sec. 309-333 | False imprisonment, kidnapping, coercion, criminal defamation. |
Title 12: Offenses Against Property | Sec. 334-366 | Theft (Lak Sap), robbery (Ching Sap), snatching (Wing Rao Sap), embezzlement (Yak Yok), fraud (Chok Kong), receiving stolen property, mischief, trespass. |
Title 13: Offenses Relating to Corpses | Sec. 366/1-366/4 | Indecent acts towards a corpse, desecration of a corpse. |
Offenses Outside the Penal Code | Narcotics Act, Computer-related Crime Act, Firearms Act | Special cases governed by specific laws, such as drug offenses or cybercrimes, which have unique procedures and penalties. |
A Closer Look at Common Criminal Charges
Our firm has extensive experience handling a wide range of criminal cases. Some of the most common charges include:
- Offenses Against Property: Such as theft, robbery, snatching, gang-robbery, cheating and fraud, misappropriation, and mischief.
- Offenses Against Life and Body: Including assault, assault causing grievous bodily harm, and offenses against life ranging from causing death by negligence and manslaughter to intentional murder.
- Offenses Against Reputation (Defamation):
- The elements of defamation under Penal Code Section 326 are: (1) making a factual imputation about another person (2) to a third party (3) in a manner likely to harm that person’s reputation, or expose them to hatred or contempt.
- However, Section 329 provides crucial exemptions. An act is not defamation if it is an opinion expressed in good faith to protect a legitimate interest in a fair and reasonable manner.
- A clear illustration is Dika Judgment 2542/2554. The court ruled that the defendant’s act of consulting with the village headman (an official) about the co-plaintiff’s conduct, which could harm the defendant’s family, was a good-faith expression to protect a legitimate interest under Section 329(1) and thus not defamation. However, when the defendant repeated the same allegations to an uninvolved third party, it was deemed to be done with malicious intent and therefore constituted defamation.
- Narcotics Offenses:
- Thai narcotics law underwent a major overhaul with the enactment of the “Prescribing Act for the Narcotics Code, B.E. 2564 (2021)” and the “Narcotics Code” itself. This new legislation repealed and consolidated numerous previous drug-related laws.Defending narcotics cases today requires a thorough understanding of this new legal framework.
8. Building a Defense: Key Legal Arguments
Factual Defenses: This involves arguing the facts, such as proving the defendant was not at the scene of the crime (alibi), that it was a case of mistaken identity, or that the defendant’s actions did not meet all the required elements of the offense.
Beyond challenging the facts of a case, criminal law provides for legal justifications that can lead to an acquittal (“grounds for justification”) or a reduced sentence (“grounds for excuse”).
- Self-Defense (การป้องกันโดยชอบด้วยกฎหมาย) – Section 68:
- The principle allows a person to commit an act to defend their own or another’s rights from an imminent and unlawful danger, provided the act is “reasonably proportionate” (พอสมควรแก่เหตุ) to the threat. Such an act is not an offense.
- However, if the defensive act is excessive (e.g., using lethal force against a minor threat), it falls under “excessive self-defense” in Section 69. This is still an offense, but the court may impose a lesser punishment.
- Act of Necessity (การกระทำโดยจำเป็น) – Section 67:
- This is a “ground for excuse” that exempts the actor from punishment. It applies in two scenarios: (1) committing an offense under compulsion or duress that cannot be resisted, or (2) committing an offense to avoid an imminent danger that cannot otherwise be averted, provided the actor did not cause the danger themselves.
- Other Mitigating Factors: Other circumstances can lead to a reduced sentence, such as acting under extreme provocation (Bandaan Tosa, Section 72), being a minor (Sections 73-76), or providing useful information to the court (Section 78).
Part V: Conclusion and Legal Consultation
9. Why Expert Legal Representation is Non-Negotiable
As this overview demonstrates, the Thai criminal justice system is intricate and filled with critical details. From distinguishing offense types and adhering to strict deadlines to navigating complex, precedent-based doctrines like the “de jure victim” and raising sophisticated legal defenses, attempting to handle a criminal case without expert guidance is extremely high-risk.
At JIRAWAT & ASSOCIATES LAW OFFICE, we are committed to leveraging our expertise and experience to protect your rights and best interests at every stage of a criminal case. Whether you are a victim seeking to initiate proceedings or a defendant in need of a robust defense strategy, our team is ready to provide clear, honest, and effective legal counsel.
If you or someone you know is facing a criminal matter, do not hesitate to contact us for a confidential consultation.