A key aspect of private criminal prosecution in Thailand is the mandatory personal appearance of the parties—the plaintiff and the defendant—at certain stages of the proceedings. For foreigners involved in such cases, understanding these requirements is particularly important. This article explains in detail when personal appearance before the court is mandatory, when representation by counsel is sufficient, and what sanctions may apply for failure to appear.
Stage 1. Filing of the Complaint (ยื่นฟ้อง)
The process begins with the preparation and filing of a criminal complaint before the court of competent jurisdiction. At this initial stage, the personal presence of the plaintiff is not required. All procedural actions are carried out by the plaintiff’s Thai legal representative under a power of attorney. At this point, the defendant has not yet become an official party to the proceedings and is not notified of the case; therefore, the defendant’s presence is likewise not required.
- Action: The plaintiff’s representative files the complaint with the court.
- Plaintiff: Personal appearance is not required.
- Defendant: At this stage, the defendant is not yet an official party to the proceedings and is not notified. Personal appearance is not required.
Stage 2. Preliminary Examination (ไต่สวนมูลฟ้อง)
The next stage, and perhaps the most critical one for the plaintiff, is the preliminary examination. It is at this stage that the fate of the complaint is decided. The court hears the testimony of the plaintiff and the plaintiff’s witnesses to determine whether there are sufficient grounds for the case to proceed to trial.
As a general rule, the plaintiff’s personal appearance at this hearing is mandatory, as the plaintiff personally testifies regarding the factual circumstances of the case. The plaintiff’s representative, even if a professional lawyer, cannot testify regarding factual matters on the plaintiff’s behalf. Failure of the plaintiff to appear without a valid reason usually results in dismissal of the complaint or its termination without further consideration. The defendant still does not participate and is not notified at this stage.
- Action: The court determines whether the complaint contains sufficient grounds to initiate criminal proceedings. For this purpose, the court hears the plaintiff’s testimony.
- Plaintiff: Personal appearance is mandatory for testimony. Failure to appear results in dismissal of the complaint.
- Defendant: Personal appearance is not required. As a rule, the defendant does not participate in and is not notified of this hearing. The court decides the issue solely on the basis of the plaintiff’s evidence.
IF THE COURT ACCEPTS THE COMPLAINT FOR TRIAL (ประทับรับฟ้อง) — FROM THIS MOMENT THE CASE IS DEEMED TO HAVE BEEN FORMALLY INITIATED
Stage 3. Summoning the Defendant, Formal Charge, and Examination of the Defendant (สอบคำให้การจำเลย)
Once the court formally accepts the complaint for trial (ประทับรับฟ้อง), the case is deemed to have been initiated, and the defendant enters the proceedings.
The court serves the defendant with an official summons (หมายเรียก) together with a copy of the complaint. The summons specifies the date and time on which the defendant is required to appear before the court. This first appearance is mandatory.
On the appointed date, the court formally informs the defendant of the charges by reading the substance of the complaint and asks whether the defendant pleads guilty or not guilty. This procedure is known as the examination or questioning of the defendant (สอบคำให้การจำเลย). On the same day, the defendant may apply for bail (ประกันตัว), and the court will consider the application.
If the defendant has been properly served with a summons but fails to appear on the scheduled date without a valid reason (for example, supported by a medical certificate), the court will issue an arrest warrant (หมายจับ) to secure the defendant’s appearance. If bail had previously been posted (for example, during the police investigation stage), it will be forfeited.
- Action: The court serves the defendant with an official summons (หมายเรียก) together with a copy of the complaint, requiring appearance on a specified date. The court reads the charges and asks whether the defendant admits guilt.
- Plaintiff: Personal appearance is not required.
- Defendant: The defendant’s appearance is mandatory. On this day, the defendant must appear in court with legal counsel. This is also the stage at which bail (ประกันตัว) is considered. The defendant submits an application for release on bail pending trial.
Stage 4. Mediation and Settlement Discussions (การไกล่เกลี่ย)
The Thai judicial system actively encourages settlement between the parties. The court often invites the plaintiff and the defendant to engage in negotiations. The plaintiff’s personal presence at this stage is desirable, although the plaintiff’s representative may negotiate on the basis of clear instructions. The defendant’s personal participation is highly desirable, since only the defendant may agree to settlement terms.
- Action: The court may invite the parties to attempt to reach a settlement.
- Plaintiff: Personal appearance is desirable, but the representative may negotiate under previously agreed instructions.
- Defendant: Personal appearance is highly desirable, since only the defendant may make the final decision and agree to settlement terms. A representative cannot settle the case without the defendant’s direct consent.
Stage 5. Trial / Examination of Witnesses (สืบพยาน)
If settlement is not achieved, the case proceeds to a full trial involving examination of prosecution and defense witnesses. The defendant’s presence at all hearings is generally mandatory.
Failure of the defendant to appear without the court’s permission may result in revocation of bail and issuance of a new arrest warrant. The plaintiff’s presence may also again become necessary if the defense wishes to cross-examine the plaintiff.
- Action: The court examines prosecution and defense witnesses.
- Plaintiff: Personal appearance may be required for cross-examination by the defense.
- Defendant: Personal appearance is generally mandatory at all hearings, especially during examination of prosecution witnesses. Failure to appear at this stage without court permission may result in revocation of bail and issuance of an arrest warrant.
Stage 6. Judgment (คำพิพากษา)
The plaintiff’s personal appearance is not required at the pronouncement of judgment. However, the defendant’s appearance is strictly mandatory. If the defendant fails to appear on the appointed day, the court will immediately issue an arrest warrant and may pronounce judgment in the defendant’s absence. From that moment, the defendant will be considered a fugitive from justice. Any bail previously posted will be revoked and forfeited to the State.
- Action: The court pronounces judgment.
- Plaintiff: Personal appearance is not required.
Defendant: The defendant’s appearance is mandatory. - Arrest Warrant: If the defendant fails to appear for pronouncement of judgment, the court issues an arrest warrant and may pronounce judgment in the defendant’s absence. The time limit for appeal begins to run from the date of pronouncement, and the defendant will be considered a fugitive from justice. If the judgment is a conviction involving imprisonment, any bail previously posted will be revoked and forfeited.
Stage 7. Appeal Proceedings (อุทธรณ์ / ฎีกา)
If either party disagrees with the judgment of the court of first instance, an appeal may be filed with the Court of Appeal and subsequently with the Supreme Court. At these stages, personal appearance of the plaintiff and defendant is generally not required, since all proceedings are conducted by their legal representatives and are documentary in nature. An exception may apply where a convicted person is required to appear personally for the filing of a final appeal to the Supreme Court.
- Action: The parties challenge the decision before higher courts.
- Plaintiff and Defendant: Personal appearance is not required. All work is carried out by their legal representatives.
- Exception: For the filing of a final appeal before the Supreme Court, a convicted person is usually required to appear in person before the court.
Conclusion
Successful conduct of a private criminal prosecution in Thailand requires a clear understanding of procedural roles. For the plaintiff, the principal procedural hurdle and mandatory requirement is personal appearance at the preliminary examination to give testimony. For the defendant, procedural obligations begin once the court accepts the case for trial, and any subsequent failure to appear without a valid reason may result in immediate arrest. The role of legal counsel is invaluable for legal representation and case management, but counsel cannot substitute for the parties’ personal participation at critical stages prescribed by law.