INDIVIDUAL PROTECTION BY RESTRAINING ORDERS

บทคัดย่อ

This thesis aims to study legal issues in Thailand regarding a natural person’s rights and liberties’ protection measures against crime in which the offense has not yet been committed. In other words, protecting a person from committing an offense is the state’s duty as the rights and liberties of life and body is a fundamental right that the state gives its citizens. It is the state official’s positive obligation to use protection measures in order to protect a natural person against another person’s offense. The most effective measure that is used to control crime is criminal sentencing. When a person commits an illegal act, that person must be punished. Crime is controlled by the severity of criminal punishment. However, this method can only be used when the state takes control after the offense and the damages occurred. Some damages cannot be compensated by punishing the offender. Crime control or crime prevention should work to eliminate the risk or opportunity to commit a crime, to prevent the offense from occurring. Even though Thailand has restraining orders against crime before the offense occurs, its criteria and conditions are still lack of clarity and do not cover every aspect. Moreover, it is limited to only the public prosecutor who can request restraining orders, therefore, the injured party or the victim cannot request this right for themselves.  Furthermore, the restraining orders’ sanction is not stern enough to control a person’s action, resulting in the continuity of crime. This thesis uses comparative studies to compare the previously explain issue with other countries’ laws such as Western Australia and the United Kingdom, both counties which have their own crime prevention measure before the crime occurs. Given this information, this thesis aims to study and analyze the criteria and conditions of those measures in order to present these measures to Thailand. In the findings, both Western Australia and the United Kingdom give the injured party or the victim the right to request a restraining order whereas in Thailand, only the public prosecutor and court have that right. Western Australia’s criteria for a restraining order’s request are clearly defined as to which action can be used as a reason for the request, different from the UK where its criteria has broader definitions. It is the applicant’s duty to prove the damages and the harm that lead to the need for a restraining order to the court. In terms of the restraining orders’ sanction, restraining orders are not an order or a criminal punishment in both countries. However, if the restraining order has been disobeyed, it will be counted as a criminal offense and the defender will receive a penalty, the severity of the penalty depends on the severity of the act. Thailand should improve crime prevention measures’ criteria and conditions in which the offense has not yet occurred.