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Criminal Case Mediation by Public Prosecutors – An Alternative Justice System

Mediation has accumulatively been chosen over other available means of dispute settlements. Previous mediation systems before the Regulations on Mediation by Public Prosecutors, B.E. 2555 (the “Regulation”) was issued did not impose any obligation upon the accountable prosecutor to notify the disputants in writing of their rights to the mediation process to be conducted by responsible prosecutor(s), but the disputants themselves shall initiate the mediation process through officers in charge. This Regulation has come into force since 1 July 2012, and it demands collaboration of the Department of People’s Rights Protection and Legal Aid (the “Department”).

The Regulation offers an alternative justice system in order to (1) lessen the numbers of cases in court (2) provide the disputants with a quick alternative dispute settlement method; therefore, justice is promptly served and (3) encourage conformity within the society. The prosecutor in charge of the case must instantly notify the Department or the Provincial Public Prosecutor Office to conduct mediation.

Types of Criminal Cases Which Can Benefit from This Regulation

(1)  Compoundable Offences excluding any case that falls into either one of the following
(1.1)  Cases that the alleged offender are either professional criminal or habitual offender
(1.2)  Cases which have been ceased by the accountable public prosecutor due to other causes
(2)  Non-compoundable Offences

Public prosecutor(s) has full discretion whether a certain case which constitutes non-compoundable offence shall enter into mediation. Facts in each case shall be scrutinized in terms of benefits that each disputant and the nation shall receive. However, only civil-dispute part of the criminal case can be settled under this Regulation. For example, for the offence against bodily harm which the state is the Injured Person, dispute on compensation arising from the wrongful act will be settle by the public prosecutor. Or in the offence of theft, the prosecutor will merely settle civil dispute caused by the stolen property. The conclusion of dispute shall be reported to the Attorney-General or the court. The mediation will impact upon the court’s discretion in relation to (1) severity of punishment or (2) whether the court will suspend the punishment, on the grounds that the injured person’s damage has partly been remedied through mediation.

Person(s) to Conduct Mediation

One or several public prosecutors in the Department, whom will be designated by the Department or the Provincial Public Prosecutor Office

The Procedure

The accountable public prosecutor, when having received the case from the inquiry official, must notify the Department or the Provincial Public Prosecutor Office, and within 5 days, shall notify both of the disputants (the injured person and the alleged offender) that the mediation shall take place within 15 days dated from the day the letter is issued. Mediation shall be conducted at the public prosecutor’s office or any other government offices consented by the public prosecutor.

During the mediation, the accountable public prosecutor shall proceed with the case, that is, to issue prosecution or non-prosecution orders, despite the mediation. Once an order is issued by the accountable public prosecutor, the mediator shall inquire the disputants whether they still attempt to continue the mediation, and the public prosecutor shall follow accordingly.

Remark: In the criminal procedure, generally, if the prosecutor issues a non-prosecution order, the right of the injured person to present to the court his case does not cease. However, such right of the injured person is extinguished once the mediation succeeds.

Rights of a Disputant

The written notification of mediation sent by the prosecutor to the disputants does not establish any obligation upon the disputants. On the other hands, this regulation assures the following rights of the disputants.

(1) To refuse to enter into mediation, even without reasonable grounds
(2) To postpone the mediation with reasonable grounds
(3) To be accompanied by 2 persons during the mediation (for each disputant)
(4) To be treated fairly and without prejudice

Other Rights and Obligations of a Public Prosecutor

(1) To clarify each disputant their rights according to this Regulation
(2) With both parties’ consent, to estimate the compensation and prescribe any condition which the public prosecutor sees appropriate
(3) To keep any negotiation, offer or exposition discussed confidential and to not render a decision as to which party is innocent or guilty
(4) To report the result of mediation to the Attorney-General or the court

Consequences of Mediation

Mediation Unaccomplished: The prosecutor terminates the mediation.

Mediation Accomplished: Both disputants are bound to the compromise agreement made during the mediation. Breach of such agreement constitutes a civil case and the other party can present such case to the civil court. Moreover, the right to present the same case to the criminal court shall terminate.

Remark: Accomplished mediation according to this Regulation ceases the injured person’s right to present the case to the criminal court. However, it is questionable whether the injured person’s right to claim compensation through the civil court remains intact. The answer to this question is negative, for a compromise agreement will invalidate the previous obligation and the parties are alternately bound to the compromise agreement instead.

By Rawat Chomsri, Partner and Nattaya Tantirangsri, Lawyer © July 2012
Khun Rawat can be reached at rawat@siampremier.co.th
Khun Nattaya can be reached at nattaya@siampremier.co.th