An Investigation of Using Discretion in Ordering Criminal Cases by Thai Public Prosecutors Compared with Foreign

Abstract

This paper describes results of a study to investigate a checking system for using discretion in ordering criminal cases as conducted by Thai public prosecutors compared to the practice done in foreign countries.

Results from the study revealed that use of discretion in ordering criminal cases by public prosecutors as government employees including the decisions made by attorney generals that were to be dismissed would be regarded as final. When the attorney general issues an order not to prosecute the case, it must be terminated according to that order while other agencies could not recheck for legitimacy of such decisions; people cannot participate in investigating the process as in foreign countries. For example, it is examined by the courts or public in Federal Republic of Germany, in Japan, the general public was able to participate in the legitimacy process by appointing a committee of representatives from public to look into the discretion issue even though there are no complaints from people suffered from the wrongdoing. This was to indirectly control the action taken by the public prosecutors. if unfairness action was taken, the committee could file their decision to the head of the prosecutors’ work. It could then be reconsidered for citing such an offense if the case was found to have sufficient evidence. This reflects the intention and needs of the people that might differ from the thoughts of those in the legal circle. Such practice was also seen as being supportive of the democratic process.

            The author therefore recommends ways to amend the Code of Criminal Procedure regarding investigation for using discretion in ordering criminal cases as conducted by prosecutors and attorney general, by introducing a system to review the discretion in citing offenses of foreign prosecutors as guideline for amending, revising or drafting of Thai legal system.