THE STATUTES OF LIMITATIONS IN CRIMINAL PROSECUTIONS BY PUBLIC PROSECUTORS AND PRIVATE INDIVIDUALS

Abstract

Pursuant to Sections 26 and 27 of the Constitution of the Kingdom of Thailand B.E. 2560 (2017), such provisions guarantee the fundamental rights of all persons. Laws enacted by the State must therefore be enforced equally and uniformly upon all individuals. Consequently, Section 95 of the Penal Code must conform to the principles of the rule of law and equality before the law. In other words, persons vested with the authority to institute criminal proceedings, whether Public Prosecutors or injured persons acting as private prosecutors, must be subject to the same legal standards on an equal basis. A significant issue arises from the enforcement of Section 95 paragraph one of the Penal Code, which provides that: “In a criminal case, if prosecution is not instituted and the offender is not brought before the Court within the prescribed period … from the date of commission of the offence, the case shall be barred by prescription.” In practice, however, this provision has been applied differently between cases instituted by Public Prosecutors and those instituted by injured persons as private prosecutors. In cases where the Public Prosecutor is the plaintiff, the prescription period is suspended immediately upon the filing of the prosecution and the production of the accused before the Court. By contrast, in cases where the injured person acts as a private prosecutor, the prescription period is deemed suspended only after the Court has conducted a preliminary examination of the complaint and issued an order accepting the case for trial. Since the preliminary examination process generally requires a considerable period of time, such practice directly affects the rights of injured persons. Specifically, the period consumed by the preliminary examination continues to be counted as part of the prescription period, resulting in numerous cases becoming barred by prescription during the pendency of such examination, notwithstanding that the injured person had already instituted proceedings within the statutory period. This situation gives rise to inequality in the enforcement of the law. It is therefore appropriate that Section 95 of the Penal Code be amended so as to provide that, in cases instituted by private individuals, the prescription period shall be interrupted upon the filing of the complaint and the production of the offender before the Court, notwithstanding that the Court has not yet issued an order accepting the case for trial.