Adoption of Value-based Confiscation in Drug Case

Abstract

In this work, the research objective is to study the principles of the forfeiture of property on the basis of value confiscation and drug cases in Thailand. Measures for the forfeiture of property were considered criminal punishments. Importantly, they were influenced by the establishment of forfeiture measures based on the theory of punishment for interception or deterrence.

            The study revealed a penalty for confiscation under the theory of punishment for interception or deterrence. Considering legal measures, property confiscation is divided into 2 important systems: property-based confiscation and value-based confiscation. The property-based confiscation system had more restrictions on enforcing the offenders’ property greater than the value confiscation. In other words, the offender with value confiscation cannot avoid being confiscated by hidden or manipulative properties derived from the offense. Due to the confiscation enforcement of the property, according to the value, it could also be done with other assets of the offender. There was no limitation of the property specified in an indictment within the case or the property acquired from the commission of the offense. A study of foreign law revealed that the British case adopted the value confiscation system as an enforcement principle. It was stipulated in the Proceeds of Crime Act 2002. That was the measure of property confiscation by comparing it with the amount of money stated in the verdict as the forfeiture of the defendant. In addition, if it appeared to the court that the defendant had a criminal lifestyle, the court considered a presumption to transfer the property to the defendant within six years from the date of the commencement of the judgment to assess the “recoverable amount” of the defendant's criminal lifestyle as an additional measure. Since the measures taken in the suppression of the Narcotics Act B.E. 1991, Section 29 and the predicate offence according to the Anti-money Laundering Act B.E. 2542 of Thailand are still under the property-based confiscation system, forfeiting the property of drug cases is therefore with restrictions on enforcement. Hence, the value-based confiscation should be further adopted as a property forfeiture of drug cases.