STATUTE OF LIMITATIONS ON CRIMINAL PROSECUTION: STUDY ON LEGAL AND FACTUAL OBSTACLE TO PROSECUTION

Abstract

This article examines the problems on legal and factual obstacles to prosecution affecting the statute of limitations (SOL) on criminal prosecution. Criminal prosecution under the law of Thailand for every offence always has an SOL. However, prosecution or complaint that cause
the limitation period to be interrupted may not always be carried out during the limitation period at all times due to issues potentially arising when certain legal provisions or procedures cause obstacles preventing initiation or continuity of prosecution or complaint. Some obstacles to prosecution may arise from facts appearing in the case or occurring later during the limitation period. Both types of obstacles to prosecution might prevent a prosecution or complaint from proceeding within the limitation period or reducing the limitation period to the point that proper preparation for prosecution or complaint becomes impossible. Addressing these issues, this article will study from the legal principle on the SOL and condition of person who cannot prosecute and applies
a comparative study with foreign laws especially laws in France, Germany, the United States of America and India, along with the study of Thailand’s SOL measures that have already been regulated
in order to analyze whether any obstacles exist to prosecution in criminal proceedings in Thailand and what SOL measures would be appropriate to result them. The analysis demonstrates that all four foreign countries establish criteria for obstacles to prosecution and SOL measures. The legislation is enacted in a way that both clearly specifies the facts that create obstacles and specifies general rules. However, law in Thailand offers SOL measures for obstacles to prosecution, tending to extend the SOL only when necessary through some specific laws limiting applicable case and obstacle types.
These rules do not generally apply to most criminal cases, unlike foreign laws. Therefore, the author proposes that the law of Thailand should add general rules on obstacles to prosecution to
the Thailand Criminal Code, the main determinant of SOL on criminal prosecution. Determining SOL measures for legal obstacles must vary according to definite or indefinite duration of obstacle,
and at what stage of the criminal proceeding such obstacles arise. SOL measures for factual obstacles should be set with the obstacle severity comparable to force majeure, so that those involved in prosecution or complaint must be careful to hasten proceedings and extend the limitation period only when necessary. An exception would be cases in which factual obstacles comparable to force majeure arise from an offender’s action by exploiting victim incompetence; in this case, it would be appropriate to establish SOL measures more favorable to the victim and sanctioning the offender.