The recent events surrounding the British national Andy Hall, Academic Dr. Wyn Ellis, and the online newspaper, Phuketwan, reflects a peculiar aspect of the Thai criminal system. Unlike criminal court systems in most Western countries, a private person in Thailand can initiate criminal prosecution if they are a victim of a crime.
In Thailand, people are able access to criminal justice system through two ways. The most common way is for a private citizen to file a complaint with the police. The police gathers evidences and submits the case to the public prosecutor. The public prosecutor determines whether to file formal charges after reviewing the evidence.
The second method is a private criminal prosecution. Under the private prosecution method, crime victims have the right to file a case against the accused perpetrator. In cases where the victim is seriously injured or dead, the spouse or heirs can file the lawsuit. Generally, a private prosecution is faster, more focused, and more efficient than a public prosecution because an attorney will assist in the investigation of the case to strengthen the victim’s charge.
Private prosecution of criminal cases helps to overcome several problems with the current criminal justice system. First, there are limits to the number of cases that a public prosecutor can handle. Private prosecutions alleviate the shortage of prosecutors within the public system.
Second, there are problems with undue influence which may make public prosecution of certain crimes or charges against certain individuals unlikely. Private prosecution of crimes allows those types of cases to move forward even if they become an embarrassment to high ranking officials or other powerful individuals.
And third, some crimes are just not a priority for public prosecutors. Once charged with a crime, prosecutors cannot allow the perpetrator to plea bargain to lesser charges to settle the case. So the prosecutor may be reluctant to file certain charges because they are not willing to see the case to the end. In these situations, an injured party can still move forward to seek punishment against their perpetrator.
However, the system of private prosecution also bring a host of problems. Allowing private criminal prosecution can alleviate the manpower shortage in the public prosecutor’s office but it increases the burden on the court system. The processing of cases in Thai criminal courts can already take over a year.
There is also the problem with duplicate charges against the accused. Andy Hall was acquitted of criminal defamation from a case filed by the attorney general office last year. However he is now being tried for the same facts through the computer crimes act by a private company. The fact that a public prosecution has been initiated or completed does not prejudice the victim’s right to bring a criminal action on the basis of same offence.
In addition, initiating a private prosecutorial action is generally limited to those who have the ability to fund private attorneys to file and prosecute these cases. Criminal legal prosecution can be very costly. There have been complaints that corporations and the wealthy have use private prosecution to silence critics. Criticizing the wealthy and powerful can open up individuals for a costly legal action and possible imprisonment.
The private prosecution system is a tool. It can be used to bring about justice when government officials refuse to prosecute. However, it can also be used to intimidate to prevent disclosure of information or critical opinions. It is generally up to the courts to distinguish between the justice and intimidation.
Mr. Robert R. Virasin is a licensed U.S. Attorney and managing director of Virasin & Partners. Mr. Yutthachai Sangsirisap is a licensed Thai Attorney at Virasin & Partners. They can be reached at firstname.lastname@example.org or at www.virasin.com.
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