Legal Problem with Prosecutorial Discretion to Prosecute: Studying Decision not to Prosecute based on the Public Interest

Abstract

This research addressed: 1) the knowledge, understanding, concepts, and legality of prosecutorial discretion not to prosecute based on public interest in Thailand; 2) concepts, legal principles, regulations, and practices related to criminal proceedings concerning public interest in Thailand through an international comparative legal study; and 3) the analysis of problems associated with prosecutorial discretion not to prosecute based on public interest in Thailand under the Public Prosecutor Organization and Public Prosecutors Act B.E. 2553 (2010). Additionally, the Office of the Attorney General Regulations for ordering criminal cases not in the public interest or that will affect national safety, security, or significant national interests, B.E. 2554 (2011), the Code for Crown Prosecutors, and the Code of Criminal Procedure Act No. 131 of 1948 of Japan were examined, along with academic texts, research findings related to prosecutors in Thailand and overseas, and information from computer networks, using qualitative analysis.

The results indicated that: 1) Thailand utilizes the principle of opportunity and criteria for ordering non-prosecution that is not beneficial to the public, as outlined in Section 21 of the Public Prosecutor Organization and Public Prosecutors Act B.E. 2553 (2010), and the Office of the Attorney General Regulations for ordering criminal cases not in the public interest or that will affect national safety, security, or significant national interests, B.E. 2554 (2011); 2) public prosecutors exercise discretion in deciding not to prosecute based on public interest in Thailand and abroad, employing similar and different criteria depending on the social context and national criminal proceedings principles; and 3) Thailand faces problems due to the lack of clear regulations for prosecutorial discretion in the public interest, the concentration of the power of prosecutorial discretion not to prosecute solely with the Attorney General, and public concerns centered on the prosecution orders by the prosecutor rather than the effectiveness of public prosecutor orders or decisions.