Unlawful Detention and Attorney General’s Discretion Regarding Prosecution
Police Sergeant Somboon, Head of Investigation Station, obtained information from a confidential source that Mr. Chob was engaged in the trafficking of narcotics. Upon encountering Mr. Chob at the Huamark Market, Police Sergeant Somboon presented himself to apprehend him and subsequently took Mr. Chob for interrogation, producing a detention record alleging the unlawful distribution of Category 1 narcotics under the relevant legislation. Mr. Chob denied the charges and was subsequently handed over to the investigating officers for a period of one day. Mr. Chien, the father of Mr. Chob, informed the police that Huamark Police Station had improperly detained Mr. Chob. Consequently, Huamark Police Station filed a petition with the court alleging unlawful detention.
The investigation record, as compiled by the investigating officers, was presented. The Office of the Attorney General issued a definitive order not to prosecute Mr. Chob, the defendant. Subsequently, Mr. Chob and his father requested compensation and other damages resulting from the unlawful detention. The Ministry of Justice was requested to determine the following:
Whether Mr. Chien, the father of Mr. Chob, could maintain his petition to the court that “the detention was unlawful,” and the reasons why.
2. To what extent, given that the Office of the Attorney General had issued a definitive order not to prosecute, and the evidence and opinion of the Attorney General regarding Mr. Chob, did Mr. Chob have the right to receive compensation and other damages?
3. Based on the provisions of the Constitution or not, did the actions of Mr. Chob constitute a violation of due process and lack of necessity that would have allowed Police Sergeant Somboon to apprehend Mr. Chob without a warrant, as stipulated in Section 237 of the Constitution of the Kingdom of Thailand, and the subsequent detention of Mr. Chien?
The Constitution of the Kingdom of Thailand, Section 240 (4 points), Section 241 (final paragraph), and Section 2, stipulates that when the Office of the Attorney General issues a definitive order not to prosecute, the defendant has the right to be informed of the summary and opinion of the investigating officers and prosecution officers, excluding the right to individual questioning of witnesses.
This case involves a situation where the Office of the Attorney General issued an order not to prosecute, rather than a judgment rendered by a court of final determination that the defendant is not guilty or that the defendant’s actions do not constitute a crime. This does not meet the conditions outlined in Section 246 of the Constitution of the Kingdom of Thailand, thereby entitling the defendant to compensation and expenses incurred during the unlawful detention.