The Process of Prosecuting and not Prosecuting in Customs Cases

Abstract

This article analyzes the process of waiving prosecutions and settling cases in customs cases under the Thai Customs Act B.E.2560 (2017). Section 252 of the Act provides that the accused may be guilty of certain offenses irrespective of a willful intention to commit such offense which in accordance with the principle of mala in se and mala prohibita as well as legal principles of the Thai Penal Code and Thailand Criminal Procedure Code (TCPC) applied in criminal investigations. Prosecution for customs offenses under the Act differs from prosecutions under other laws. The Director-General may decide to prosecute a person for violating the Act by filing a criminal proceeding with the court. However, Section 256 of the Act empowers the Director-General to waive prosecution. Additionally, Section 257 empowers the Case Settlement Committee to settle cases involving certain violations. In both situations, the case shall be deemed terminated under the provisions of the Criminal Procedure Code. The result is that in some special cases that investigation have been completed, but the special case investigation officer and the public  prosecutor had different opinions about the case due to using different principles for consideration. This problem may be resolved by giving the relevant customs agencies the power to prosecute cases themselves, or by  establishing a central agency or moderating committee to investigate and screen such cases in order to avoid harming the public interest and to achieving fairness and clear balance of power.