The Review Mechanism of the Public Prosecutors’ Discretion in Making Non-Appeal Orders: The Case Study of the Criminal Procedure Code Section 145 and 145/1

Abstract

According to the Constitution of the Kingdom of Thailand B.E., 2560 Section 68 states that “The State should organise a management system of the justice process in every aspect to ensure efficiency, fairness, and non-discrimination and shall ensure that the people have
access to the justice process in a convenient and swift manner without delay and do not have to bear excessive expenses…”. Moreover, Section 258 (d) (1) (2) also provides that the National reform shall be carried out to at least achieve the Justice Process by ensuring that time limits
for the justice process at every stage are clearly specified so that justice is delivered to the people without delay, together with improving the system of a criminal inquiry by providing a proper check and balance between inquiry officials and public prosecutors. At present,
however, a judicial process in the review mechanism of the public prosecutor's discretion in making non-appeal orders to the Appeal Court or the Supreme Court, for instance, the process in the Criminal Procedure Code Section 145 and 145/1, are still not in accordance with the spirit of the Constitution, both in terms of the determining an organisation with authority to scrutinise and the delay in such scrutiny. As a result, the review process is inconsistent with the checks and balances principle. Furthermore, it also affects the rights and liberties of the defendant, especially in cases where the court dismissed the case yet ordered the detention of the defendant pending appeal, in order to wait for the delay related to the discretionary review of the prosecutor's non-appeal order. The defendant, subsequently, was imprisoned for longer than necessary. This thesis, therefore, studies and analyses the concepts and theories related to the prosecutor's discretion, discretion reviewing, and appeal order in criminal cases, together with the review mechanism of the public prosecutor's non-appeal discretion under foreign legislation, in order to provide the appropriate form and approach of a review mechanism of the prosecutors’ discretion in making non-appeal orders under the
Thai legal system.