The problematic period of prescriptions in criminal law: Study on retroactive criminal proceedings

Abstract

Retroactive periods of prescription in criminal law are still controversial in courts of justice, legislatures, and academia, due to differing institutional perspectives on periods of prescription characteristics, leading to different consequences of retroactive periods of prescription. In cases where periods of prescription are considered as substantive law, the law shall not apply if it has disadvantageous results for defendants. On the contrary, when periods of prescription are considered as procedural law, the law instantly applies to defendants in cases, whether the results are advantageous or not. Therefore, characterizing periods of prescription for substantive and procedural law in Thailand is essential for unifying periods of prescriptions law and avoiding confusion in future applications and legislation.

This article is based on documentary research through an international comparative legal analysis for defining periods of prescription by criminal law. Results can be divided into two sectors: 1) periods of prescription are substantive law prohibiting retroactivity, conform with a Thai Supreme Court ruling as well as in relevant court decisions in Hungary, Italy, and Portugal; 2) periods of prescription are procedural laws falling under the principle of the immediate effect of the law and the principle of acquired rights, concurring with Thai legal scholars and court judgments in France, Germany, the Netherlands, and the Czech Republic.

These findings imply that periods of prescription should be considered as procedural law, falling under the principle of immediate effect of the law. So, periods of prescription are beyond the scope of the rule of substantive law. This results in recent periods of prescription law having immediate effect and applying to cases occurring before the law came into effect. However, retroactive periods of prescription do not include cases precluded by prescription. Even cases which would not expire by periods of prescription under recent law would not be revived retroactively under the principle of acquired rights.

Therefore, rules for criminal prosecution should be established or current rules revised to conform with the aforementioned international standards. The rules should regulate that periods of prescription have immediate effect, except that periods of prescription expire on the effective date to cohere with, and unify, periods of prescription in the Thai legal system.