The Problems and Obstacles in Having the Defense Counsel in the Police Arrest Process According to the Criminal Procedure Code Section 7/1 : A Case Study in Chiang Rai Province
Abstract:
The arrest process is an important part of the Criminal Procedure Code that aims to bring the accused into the Criminal Judicial Process. The process must follow and be in accordance with the Criminal Procedure Code, Section 7/1 which states that, "The arrested or accused person(s) has the right to meet with their chosen defense counsel, and the defense counsel can present at the interview stage". Moreover, the Constitution of the Kingdom of Thailand B.E. 2560 (2017), Section 29 states that, "In a criminal case, it is presumed that the accused is innocent until proven guilty. Further, until such time that the accused has been found guilty by judgement in a criminal court, that person should not be treated as guilty. Their detention can be approved only when it is necessary to prevent him from escape." At present, the Constitution of the Kingdom of Thailand B.E. 2560 (2017) and the Criminal Procedure Code require the state to provide defense counsel for the accused. However, in reality, in the Thai Criminal Judicial Process, it has been found that the legal aid for the accused is still not able to proceed efficiently. The legal rights of the accused were not protected according to the spirit of the law. Moreover, the law does not provide any rule or duration of the arrested person's rights to consult with their defense counsel. There are no provisions in the arrest process requiring the state to provide the arrested person access to their defense counsel. As a result the accused is prevented from full opportunity to prepare and defend their case. Therefore, the potential solutions are as follows: 1) the Criminal Procedure Code, Section 7/1 must be amended to include the criteria and duration of granting the right(s) of arrested person to meet a defense counsel immediately upon arrest; 2) there should be a new provision requiring the state to appoint a counsel for the arrested person who is poor and cannot afford a counsel; and 3) where a criminal case carries a prison sentence of five years or more, being a severe penalty, affecting the life and freedom of the accused, defense counsel must be presented to refute the wrong allegation, to protect the accused's rights and liberties in accordance with the spirit and intention of the Constitution of the Kingdom of Thailand.