CRIMINAL JUSTICE RESPONSE TO CORRUPTION
IN THAILAND
Silawan Panom＊

I. INTRODUCTION
Corruption causes serious damage to the country in all aspects. Forms and methods of corruption arequite complicated and have both domestic and foreign connections as a result of advances in technology.
Every country has struggled with the problem of corruption. Therefore, the cooperation of international organizations has formed for the purpose of taking serious action against corruption. The United Nations
Convention Against Corruption 2003 (UNCAC) was born from the efforts of the international communitythat recognize the seriousness of the problem of corruption. The United Nations General Assembly isaware of the severity and danger of corruption, which has a huge impact on society and which isextremely dangerous for the stability and development of the country. UNCAC was adopted for thatreason. The measures prescribed in UNCAC are expected to solve the problem of corruption effectively, inorder to be an important mechanism in preventing and combating corruption and to set minimum
standards as guidelines for countries to use as a framework for policy formulation, enactment, and to assist
both the domestic and international levels.

II. THE UNITED NATIONS CONVENTION AGAINST CORRUPTION ANDDOMESTIC ANTI–CORRUPTION LAW
Thailand is a state party of the United Nations Convention Against Corruption 2003 (UNCAC) andratified the Convention on March 1, 2011, becoming effective on March 31, 2011. Currently, Thailand has
amended the Organic Act on Counter Corruption B.E. 2558 (2015) in accordance with UNCAC on
important issues, which is an international standard. In addition, the amendment is to provide effective
mechanisms for preventing and combating corruption in both the public and private sector. Importantamendments of the Organic Act on Counter Corruption are as follows:
A. The Periods of Prescription
The periods of prescription shall not run if the accused fled during the prosecution or court hearings,
including when the defendant fled after the conviction of final judgement. 1 This amendment is not an
extension of limitation periods in corruption cases, but it is the exception in case the offender escapes. The
previous law had already provided this; however, the new law was amended to cover all stages in criminal
proceedings such as procedures of fact finding, prosecution, court trial and after conviction.
B. Defining Offences for Legal Entities Associated with the Corrupt Officer
The new law provides for offences in such cases since entities are often beneficiaries of the bribes. The
amended provision states that entities are guilty if their employees or agents bribe, whether Thai or
foreign officials, and such kickbacks are made for the advantage of the company. In addition, entities
without sufficient internal control measures to prevent bribery are punishable by appropriate monetaryfines because a legal entity cannot be imprisoned. 2 Such penalty is a financial sanction through which thestate is compensated for the damage by the return of the company’s unlawful advantages to the state.

Inquiry Officer, Bureau of Public Sector Corruption Inquiry 1, Office of National Anti–Corruption Commission (ONACC).

＊

1 Organic Act on Counter Corruption B.E. 2542 (1999), Section 74/1, as amended by the Organic Act on Counter Corruption

B.E. 2558 (2015).

2 Organic Act on Counter Corruption B.E. 2542 (1999), Section 123/5 paragraph 2, as amended by the Organic Act on

Counter Corruption B.E. 2558 (2015).

152

161ST INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
C. Penalties for Bribery Offences
The new law defines imprisonment from five years to twenty years or life imprisonment, or capital
punishment and fine of one hundred thousand to four hundred thousand baht in cases of Thai government
officials, foreign government officials or officials of international organizations demanding, accepting or
agreeing to accept any benefit. 3 Nevertheless, the death penalty has already been imposed for such bribery
offences under the Penal Code, Section 149.4 The current provision establishes additional offences, foreign
government officials or officials of international organizations, and increasing fines.
D. Bribery Offences of Foreign Government Officials and International Organization Officials 5
According to the amended law, foreign public officials or officials of international organizations are
guilty if the official demands, accepts or agrees to accept for himself or another person property or any
other benefit to perform or not to perform his mission, whether such exercise or non-exercise of his
functions is wrongful or not, under the provisions of Section 123/2. The crime shall be punished as
mentioned in the previous section. Another offence is Section 123/3: whoever, being a foreign public official
or official of an international organization, exercises or does not exercise any of his functions in consideration of property or any other benefit which has been demanded, accepted or agreed to be accepted before
being appointed as an official in such post. The crime shall be punished with imprisonment of five totwenty years or life imprisonment and a fine of one hundred thousand to four hundred thousand baht.
These offences are established in accordance with UNCAC as well as to promote international cooperationin the prosecution of corruption under the Dual Criminality principle.
E. Value-Based Confiscation
Legislation has made forfeiture in corruption cases more efficient by covering the replacement property
that has been acquired due to a distribution, supply, transfer, or conversion of property, including untraceable assets. The court can determine the value of the property and order the payment or forfeiture ofother property equal in value.6
Thailand ratified UNCAC on March 1, 2011 and entered into force on March 31, 2011. Due to internal
political problems, there were delays in the implementation of domestic law to comply with the obligationsof the Convention. However, the government of Thailand made a serious attempt to resolve the problem inorder to amend the legislation consistently with UNCAC.

II. INTELLIGENCE AND INVESTIGATION IN CORRUPTION CASES
A. IntelligenceIntelligence is very important in order to gain information related to corruption allegations and otherserious crimes. Several kinds of covert investigation have been constituted to deal with severe crimes, forexample, the Narcotic Control Act B.E. 2519 (1976) as amended B.E.2545 (2002). A special provision under
Section 14 of the said Act authorizes competent officials to access information such as wiretapping.
However, it must follow reason and necessity:(1) There is a reasonable ground to believe that a narcotics offence has been or will be committed;(2) There is a reasonable ground to believe that information will be received relating to the commissionof a narcotics offence from the accessing of such information;
3 Organic Act on Counter Corruption B.E. 2542 (1999), Section 123/2, as amended by the Organic Act on Counter Corrup-

tion B.E. 2558 (2015).

4 Penal Code, B.E 2499 (1956), Section 149.

Whoever, being an official, member of the State Legislative Assembly, member of the Changed Assembly or member ofthe Municipal Assembly, wrongfully demands, accepts or agrees to accept for himself or the other person a property or any
other benefit for exercising or not exercising any of his functions, whether such exercise or non-exercise of his functions iswrongful or not, shall be punished with imprisonment of five to twenty years or imprisonment for life, and fine of two
thousand to forty thousand bath, or death.
5 Organic Act on Counter Corruption B.E. 2542 (1999), Section 123/2 - 123/3, as amended by the Organic Act on Counter
Corruption B.E. 2558 (2015).
6 Organic Act on Counter Corruption B.E. 2542 (1999), Section 123/6 – 123/8, as amended by the Organic Act on Counter
Corruption B.E. 2558 (2015).

153

RESOURCE MATERIAL SERIES No. 98(3) May not be used when another procedure is more suitable or effective.
Although the Organic Act on Counter Corruption does not authorize such extraordinary powers, those
who wish to provide information on corruption can notify directly the Office of the National Anti-Corruption Commission (NACC). Thailand has no whistle-blower protection law, but the informant is protected by
the Organic Act on Counter Corruption. Taking a person as a witness, as defined in the said, Act is aneffective instrument to encourage and strengthen anti-corruption. An alleged culprit or a person alleged tohave committed an offence with state officials, may be taken for the purpose of being a witness. A person
who was taken as a witness has to testify and to provide information or material of facts on the corruption
offence. The witness statement will be used as evidence, whereby the adjudication will take place on thebasis of such statement. If the NACC deems it advisable to take anyone as a witness, such person may not
be prosecuted for the offence in accordance with rules, procedures and conditions considered by the
NACC.7
One of the important measures under the Organic Act on Counter Corruption to strengthen corruption
prevention and suppression is to protect an accuser, injured person, a witness, or a whistle-blower thatprovides any information on corruption offences or unusual wealth. In such cases, the NACC may provide
measures to protect those persons. The NACC shall inform concerned agencies to provide measures toprotect those individuals who are witnesses, and they shall be provided protection under the law of
witness protection in criminal cases. Moreover, the alleged culprit or person alleged to have committed an
offence with a state official as a witness may be taken for the purpose of being a witness. This is aneffective instrument in suppression of corruption cases under this Act. 8
The witness protection procedures are under the Witness Protection Act B.E. 2546 (2003). There are
two types of witness protection: general measures9 and special measures.10 Both of these measures provide
protection in cases where there is reason to suspect that the witness would be in danger, and potential
harm exists from giving information to the authorities to prosecute offenders.
General measures are protection measures which may include arrangements for a safe place for awitness; change of name/family name, domicile, identification, and information that would reveal theidentity of the witness as appropriate; and the personal status of the witness and nature of the criminalcase. Special measures are as follows:(1) A new place of accommodation;(2) Daily living expenses for the witness or his/her dependents not exceeding 1 year, with extensions
as necessary for 3 months each time, not exceeding 2 years;(3) Coordination with the relevant agencies in order to change the first name, family name and information that may contribute to knowledge of the personal identity of the witness, including arrangements for a return to original status;(4) Action to help the witness have his/her own career, and training, education and other means ofproper living for his/her life;(5) Assistance or action on behalf of a witness for his/her lawful rights;(6) Arrangements for a bodyguard service for a necessary period of time;(7) Other actions to assist and support a witness with security as appropriate.

7 Organic Act on Counter Corruption B.E. 2542 (1999) (As amended), Section 103/6.

8 Organic Act on Counter Corruption B.E. 2542 (1999), Chapter 9/1, as amended by the Organic Act on Counter Corruption

B.E. 2558 (2015).

9 Witness Protection Act B.E. 2546 (2003), Section 6, Paragraph 3.
10 Witness Protection Act B.E. 2546 (2003), Section 10.

154

161ST INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
B. Investigation
Besides wiretapping, another effective measure is an undercover operation to obtain information about
the offence. NACC can arrest persons who committed offences relating to the submission of bids for government agencies. If hearing this evidence is helpful to do justice in a situation that might cause harm to
the rights of the people, the court is able to hear such evidence according to the Criminal Procedure Code(this issue will be discussed in the prosecution section).
Basically, the period to investigate corruption cases depends on the complexity of the case. The
problems in fact-finding procedure are a long period of time in each step of fact inquiry. Every procedurein NACC fact inquiry regards the rights of the alleged person, which is the essence of the Constitution of
the Kingdom of Thailand. Therefore, fact inquiry would be conducted strictly according to the procedure.

III. LITIGATION PROCESS OF CORRUPTION CASES
A. Prosecution
Thailand’s major agencies for preventing and combating corruption are the National Anti-Corruption
Commission (NACC) and the Public Sector Anti-Corruption Commission (PACC). This paper will mention
corruption cases investigated by NACC. When receiving reports from the NACC, the prosecutor willconsider whether or not the accused has committed an offence as defined in the Organic Act on Counter
Corruption. However, NACC has power to initiate the prosecution on its own motion. It can be said thatboth the Prosecutor-General and the NACC Commission has power to prosecute corruption cases.
Thai Criminal Procedure does not define the type of acceptable evidence or evidence that is prohibitedto bring to the trial. As for the principle of legal evidence, all kinds of evidence, whether physical evidence,
documentary evidence, witnesses, or expert witnesses, which can affirm that the defendant is guilty or
innocent, can be cited as evidence unless prohibited by law.11 One important provision is the Exclusionary
Rule: any evidence that occurs correctly but is obtained wrongfully, or provided by the information madeor received illegally, shall be excluded from the trial, unless the acceptance of evidence is beneficial tojustice rather than a disadvantage affecting the criminal justice system or fundamental human rights.12
This article is on the basis of two important public interests: the protection of rights and freedoms of
citizens (Due Process). The purpose is to maintain peace and order in society (Crime Control), so these are
exceptions to hearing evidence obtained illegally.
Standards of prosecution for public prosecutors are in Section 143 of Criminal Procedure Code.13 The
prosecutor’s decision to prosecute or not does not prove the guilt of the accused. This is the stage of investigation and there is sufficient evidence to prove guilt in court. The accused is guilty as charged or not
guilty as determined by the court. The law does not require a prosecutor to file a case when consideringthat the accused is guilty or not guilty.
About the prosecution rate for corruption cases, with regard to statistics for suppression of corruptionof NACC in the years 2007 – 2014, the total number of cases that have been conducted is 34,528 cases,
and the number of cases completed is 25,012 cases. These cases include allegations which do not establish
prima facie cases and cases that are filed with the public prosecutor. Additionally, cases at the Supreme
Court’s Criminal Division for Holders of Political Positions decided during the years 2007 - 2014, that wereannounced in the Royal Gazette are as follows:(1) offences of corruption, malfeasance in office or malfeasance in judicial office; 7 cases
11 Criminal Procedure Code B.E. 2477 (1934) (As Amended), Section 226.

12 Criminal Procedure Code B.E. 2477 (1934) (As Amended), Section 226/1 Paragraph 1.

13 Criminal Procedure Code B.E. 2477 (1934) (As Amended), Section 143.
		 (1) In the case where the non-prosecution opinion has been rendered and the public prosecutor agrees with such opinion,
he shall issue the non-prosecution order, but in the case where the public prosecutor disagrees with such opinion, he shallissue the prosecution order and inform the inquiry official to take the alleged offender to be prosecuted.
		 (2) In the case where the prosecution opinion has been rendered and the public prosecutor agrees with such opinion, heshall issue the prosecution order and bring the case against the alleged offender to the court, but in the case where thepublic prosecutor disagrees with such opinion, he shall issue the non-prosecution order.

155

RESOURCE MATERIAL SERIES No. 98(2) offences relating to submission of an account showing particulars of assets and liabilities; 54 cases(3) request for the property to devolve on the State; 2 cases
Although Thailand has no provision about plea bargaining, Thai courts have used plea bargaining for along period of time, for example, a plea-bargained confession about the penalty, as stated in Section 7814 of
the Penal Code and Section 17615 of the Criminal Procedure Code.
B. Trial Procedure
Criminal Prosecution in Thailand involves both an inquisitorial and adversary system. Inquiry officers16
and prosecutors17 seek evidence under the inquisitorial system, whereas Thai Court procedure is based on
the adversary system. On the contrary, corruption trials in the Supreme Court’s Criminal Division for
Holders of Political Positions and the Criminal Court are based on the inquisitorial system, where the judge
questions witnesses by themselves unlike at a general trial.
The estimated duration of adjudicating corruption cases in court does not take long due to the continuing trial. The delays in the proceedings of corruption cases is in the process of the initiating agencies.
There are a very large number of cases, and the complexity of each case is different. The countermeasureaddressing this problem are planning to investigate and collect the evidence effectively, and administrative
systems must be concise in order to shorten the time.
The standard of proof for conviction is beyond a reasonable doubt, which assures justice for the
defendant, according to the principles and provisions of the law as discussed above in.

IV. OTHER GOOD PRACTICES AND PROBLEMSOne of the significant cases concerning international cooperation in the prosecution of a major corruption case by the NACC is the former governor of the Tourism Authority of Thailand (TAT). The casebegan in the United States, involving investigation by the Federal Bureau of Investigation (FBI) and prosecution under the US Foreign Corrupt Practices Act against Mr. Gerald and Mrs. Patricia Green on chargesof giving bribes to Mrs. Juthamas Siriwan, former governor of TAT, in order to obtain the right toorganize the Bangkok Film Festival. Green was sentenced by the US Court for six months’ imprisonmentand house arrest for another six months and was required to pay restitution of US$ 250,000. Mrs.
Juthamas Siriwan and her daughter are currently being prosecuted by the courts of the two countries.
The achievement of this case is collaboration between the USA and Thailand on the details and information of the case.

14 Penal Code, B.E 2499 (1956), Section 78.

		 Whenever it appears that there exists an extenuating circumstance, whether or not there be an increase or reduction of
the punishment according to the provisions of this Code or the other law, the Court may, if it is suitable, reduce the punishment to be inflicted on the offender by not more than one-half.
		 Extenuating circumstances may include lack of intelligence, serious distress, previous good conduct, the repentance andthe efforts made by the offender to minimize the injurious consequence of the offence, voluntary surrender to an official, theinformation given or the Court for the benefit of the trial, or the other circumstance which the Court considers to be ofsimilar nature.
15 Criminal Procedure Code B.E. 2477 (1934) (As Amended), Section 176.
		 In the trial of a case, if the accused pleads guilty to the charge, the Court may give judgment without taking any further
evidence, provided that if the minimum punishment in the case where the accused pleads guilty to the charge is imprisonment from five years upwards or heavier, the Court must hear the witness for the prosecution until it is satisfied that theaccused is guilty.
		 In the case of several accused, and only some accused have pleaded guilty to the charge, the Court may, if it thinks fit,dispose of the case for those who refuse guilt in order that the prosecutor may institute the prosecution against suchaccused as another case within the period fixed by the Court.
16 Criminal Procedure Code B.E. 2477 (1934) (As Amended), Section 131.
		 The inquiry official shall gather all types of evidence as possible in order to know the facts and other circumstances concerning the offence alleged, and to find out who the offender is and prove his guilt or innocence.
17 Criminal Procedure Code B.E. 2477 (1934) (As Amended), Section 143 (n. 4).

156

161ST INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

V. EVALUATION AND RECOMMENDATIONSThe justice system to prosecute corruption in Thailand within the existing domestic legislation andamended law according to UNCAC has strengthened measures to combat corruption that will have apositive impact on the prosecution of corruption cases, which are complex and pose difficulties for the acquisition of evidence. Witnesses and co-perpetrators can provide information on corruption with confidence
that they will be protected. However, for the protection of the informant in good faith, criminal penalties
should be imposed, as well as civil remedies, for those who retaliate against witnesses or informants.

VI. CONCLUSION
Preventing and combating corruption requires effective legal provisions. Special measures as well as
the new provisions of the Organic Act on Counter Corruption comply with UNCAC. These measures andprocedures not only enhance the work of investigation and inspection of corruption cases, but also are
directly beneficial to those who took part in the anti-corruption efforts. Especially at present, corruption istaking place within the country, and it is a transnational crisis that has affected the world community.
Therefore, the major key to achieving successful outcomes in the fight against corruption is effective legislation and cooperation at the country and international levels.

157