THE PROBLEMS ABOUT NE BIS IN IDEM : IN THE CASE THAT THE NACC. ASSIGNS THE CORRUPTION CASE TO THE INQUIRY OFFICIAL TO PROCEED UNDER TNE CRIMINAL PROCEDURE LAW CODE

Abstract

       This thesis studied and analyzed the problem of ne bis in idem from National Anti-Corruption Commission (NACC) cases assigned for official inquiry by procedures under the Thailand Criminal Procedure Code, BE 2477 (1934; TCPC) according to the ne bis in idem legal principle and related theories. Data was gathered from details in legal texts, related documents, and academic work comparing legal corruption prosecutions in nations with similar legal systems as Thailand’s. The goal was to arrive at conclusions and recommendations for effective prosecution of  corruption cases while taking into account the rights of the prosecuted.

     The Act Supplementing the Constitution Relating to the Prevention and Suppression of Corruption B.E. 2561 (2018) (The New Anti-Corruption Law) stipulated that the NACC has powers and duties to conduct inquiries and decide on criminal offences in which a state official is accused of corruption or malfeasance in office, including consideration of "submitting matters within his duties and powers that are not a serious offense to the inquiry official to proceed under the TCPC." The law empowering the NACC to conduct a new inquiry or investigation in the event of disagreement with the result of an investigator’s performance report does not restrict exercising discretion or power to order that the case be prosecuted. Inquiries have the duty to proceed in accordance with the TCPC by submitting an opinion to the public prosecutor about considering prosecution. If the public prosecutor ultimately decides not to prosecute, according to section 147 of the TCPC, the provision states that ne bis in idem or double jeopardy applies.

     In addition, according to Section 55 (2) of the New Anti-Corruption Law, the NACC is prohibited from accepting, or invoking deliberation of, allegations against such person under other laws have been completed and lawfully conducted, and there is no reasonable cause to suspect that such proceedings were unjustly carried out. But according to section 66, the NACC has the power to prosecute new cases, even though the TCPC has already been implemented. This results in another case in which provisions of constitutional law contradict one another, contrary to the rule of law to avoid mutual contradiction. This principle of the Constitution of the Kingdom of Thailand aims to protect the security of legal provisions and protect individual rights and freedoms by legal enforcement.

     So, the New Anti-Corruption Law enabled the NACC to exercise disretion to conduct a new inquiry or investigation. There is no need to consider conditions and exceptions to prohibiting the ne bis in idem or human rights principles following the International Covenant on Civil and Political Rights and contrary to the rule of law in accordance with the principles of the Constitution of the Kingdom of Thailand. Therefore, it is appropriate to revise such legal provisions to meet criminal litigation standards for appropriate and fair criminal prosecutions.