Last week, we discussed the death penalty and the crimes that give rise to it. This week we'll talk about what happens when a court prescribes the death penalty.
If a trial court, called the court of first instance, imposes the death penalty on a defendant, he or she has an immediate right to appeal. The Appeal Court will then review the decision of the court of first instance and make its own decision. An appeal can also be made to review the decision of the Appeal Court, either by the accused or the prosecutor, to the Supreme Court of Thailand, which may or may not accept the case.
Petitions to the Appeal Court and the Supreme Court are reviewed on issues of both fact and law. This means the appeal judges can evaluate whether the accused did what he or she is alleged to have done. For example, if the only evidence that the defendant committed a crime is a police report saying that the accused was seen running from the scene of the crime, the appeal judges may want to review the matter.
Second, the judges review the decisions of the lower court(s) on issues of law. For example, let's say the accused committed an act with no intent to commit murder, but his or her actions resulted in a death. Let's say the accused was robbing a bank and he fired a shot in the air to frighten everyone. He didn't intend to kill anyone, but the bullet ricocheted and killed a customer. The lower court decided this constituted murder. The Appeal Court can look at the law and decide if, under applicable law, this really should be considered murder.
What happens if the defendant doesn't want to appeal a death sentence?
Section 245 of Thailand's Criminal Code requires the court of 1st instance to refer the case to the Appeal Court, even if the defendant doesn't want to appeal. Likewise, the Appeal Court's decision may then be appealed to the Supreme Court by either the prosecutor or the accused, even if neither appealed the decision of the court of 1st instance.
If, after all appeals are made and decided on, the death sentence is upheld, the court of the first instance must issue an imprisonment order to hand the defendant over to a commander of a prison. The order must also contain an execution order. The court must simultaneously begin the procedures for a royal pardon.
What happens next? Section 262 of the Criminal Code says that the condemned prisoner may apply for a royal pardon. The execution cannot be carried out until all procedural avenues for a royal pardon have been exhausted.
There are 2 kinds of royal pardons. First, there are individual applications allowed under the 2003 Ministerial Rules of the Justice Ministry Criteria and Execution Procedures. A prison official must tell the condemned person that he or she has the right to request a royal pardon and must help the condemned make the request, for example by making legal counsel available to prepare the papers. If the condemned person doesn't have the money for a lawyer a public defender will be appointed.
Alternatively, an interested person such as a relative can prepare this request.
The request must be submitted to the justice minister within 60 days of the final decision by the Appeal Court or the Supreme Court. The minister of justice must then pass on the request to His Majesty the King, with a recommendation as to whether the pardon should be granted. The Council of Ministers may also submit a recommendation on the issue.
It is then up to the discretion of His Majesty as to whether to grant or deny the pardon. There are no legal requirements to be followed at this point, but the condemned person cannot be executed while awaiting His Majesty's decision. Of course, His Majesty can commute the execution and reduce the sentence, for example, to life imprisonment. In fact, most death sentences in Thailand are commuted by this type of royal pardon.
The second kind of royal pardon is a general pardon, as provided for in sections 261 and 261 bis of the Criminal Code. On special occasions, His Majesty may commute the sentences of a group of prisoners. The members of such a group are those recommended to His Majesty by the Council of Ministers and do not apply individually. Drug offenders convicted after 2000 are not eligible for general pardons.
If the application for a royal pardon is turned down, there is no further appeal.
In Thailand state executions are carried out by lethal injection.
(source: Bangkok Post)