Issues Concerning the Victim’s Power to Institute Criminal Proceedings in Cases Where the Offender Is a Child or Juvenile

Abstract

          This article aims to examine issues concerning the victim’s power to institute criminal proceedings in cases where the offender Is a child or juvenile, with particular emphasis on the impact of such authority on the protection of the rights of children and juveniles, a matter of particular importance to the State.

          Section 28 of the Thai Criminal Procedure Code provides that public prosecutors and injured persons (victims) are entitled to institute criminal proceedings before the court without any conditions, whether the offence is an offence against the State or an offence against a private person. In cases where the offender is a child or juvenile, Section 99 of the Juvenile and Family Court and Juvenile and Family Case Procedure Act B.E. 2553 (2010) nevertheless allows the injured person to bring a case before the Juvenile and Family Court, provided that prior permission is obtained from the Director of the Juvenile Observation and Protection Centre.

          However, children and juveniles require special protection. Criminal proceedings against them should therefore be a measure of last resort, and the best interests of the child must be treated as a primary consideration. Allowing the injured person to file a case directly with the court may undermine the use of special measures in lieu of criminal prosecution at the pre‑charge stage. This constitutes an application of the law that is inconsistent with the legislative intent to prioritize special measures over criminal prosecution in order to rehabilitate child or juvenile offenders. Children and juveniles should be diverted from the mainstream criminal justice process as early as possible.

          Accordingly, this article proposes amending Section 99 to prohibit injured persons from instituting criminal proceedings before the Juvenile and Family Court in cases alleging that a child or juvenile has committed an offence, and to vest public prosecutors with the power to institute and conduct such proceedings instead. The proposed amendment aims to protect children and juveniles by giving them an opportunity to correct and modify their behavior, reintegrate as law‑abiding members of society, reduce reoffending, and consistency with the Convention on the Rights of the Child.