TRIAL AND ADJUDICATION IN ABSENTIA TRIAL IN ABSENTIA FOR ABSCONDING DEFENDANTS

Abstract

One of the fundamental principles of criminal proceedings is that the trial, the taking of evidence, and the adjudication must be conducted openly and in the presence of the accused. At present, however, the right to be present during trial proceedings and the examination of witnesses has been subject to several statutory exceptions under the Thai Criminal Procedure Code, both at the pre-indictment and post-indictment stages. In particular, trials in absentia following the filing of charges are permitted under Sections 172 bis, 172 bis/1, and 172 bis/2 of the Criminal Procedure Code. Nevertheless, proceedings in absentia may only be conducted where the accused has first appeared before the court at the initial hearing so that the court may read and explain the indictment to the accused and inquire as to his or her plea. The principal rationale is to ensure that the accused is fully informed of the charges brought against him or her and is thereby afforded an opportunity to prepare an appropriate defence. Consequently, if the accused subsequently fails to appear before the court, the court may proceed with the trial and render judgment in absentia. Such conduct on the part of the accused in absconding from the proceedings is deemed to constitute a waiver of the right to be present during the public trial and examination of witnesses, as well as a waiver of other procedural rights afforded by law. This approach also serves to safeguard the rights and interests of the injured party. However, the application of these provisions is restricted in cases punishable by death and in cases where the accused was under eighteen years of age on the date the charge was filed with the court. In such circumstances, if the accused absconds, the court is precluded from conducting proceedings and rendering judgment in absentia. The resulting prejudice falls directly upon the injured party, particularly in cases involving claims for compensation or damages. In the author’s view, proceedings and judgments in absentia should be permissible in all categories of criminal cases, provided that the statutory requirements prescribed by law are satisfied. Defendants should not be permitted to exploit loopholes in the law by absconding during trial proceedings in order to cause the prosecution to become barred by prescription, thereby escaping criminal liability altogether.