RIGHT TO RETRIAL

Abstract

This article examines the problems on the right to retrial, which is one of the important safeguards for trial in the absence of the accused (Trials in Absentia). The trial shall be conducted in the presence of the accused. However, trials in absentia can be permitted under very limited conditions. Trials in absentia are not per se incompatible with the right to a fair trial, provided the following safeguards are in place: (1) the accused must have notice of the proceedings (2) the accused must be legally represented in the proceedings and have effective assistance of counsel and (3) the accused should have the right to retrial or an ex novo trial in his or her presence. Because of this problem, this article applies a comparative study to examine how the international law, the judgement and the domestic law in other countries i.e. France, Germany and United States of America. From the comparative study, the article proposes individuals who were tried in absentia and who later appear before a court must, in all cases, be able to obtain the right to retrial on the merits of the charges, both law and fact, within the time of article 98 of the Criminal Code of Thailand, unless he or she accepts the judgement. If the court deems appropriate, it may order a retrial. The right to retrial not to preclude the right to revision under Resurrect Criminal Case for Reconsideration Act B.E. 2526.