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Anti-Corruption Risk Map – Thailand

By Wynn Pakdeejit, Peerapan Tungsuwan, Timothy Breier, Chaiporn Supvoranid (Baker McKenzie Bangkok)

Primary foreign anti-bribery legislation and enforcement agencies

Penal Code of Thailand

Enforcement agencies: Police bodies, Department of Special Investigation, Public Prosecutor, NCCC, PACC, General  Meeting of Supreme Court

Organic Act on Counter Corruption

Enforcement agencies: Police bodies, Department of Special Investigation, NCCC, Public Prosecutor, PACC, Office of the Auditor General, Cabinet, Senate

Act on Offenses Relating to Submission of Bids to Government Agencies

Enforcement agencies: Police bodies, Department of Special Investigation, NCCC, Public Prosecutor

Offenses

Penal Code of Thailand

The Penal Code of Thailand generally criminalizes the offering, acceptance or demand of property and other benefits to an official, to act or omit to act or to delay to act, contrary to the official’s functions.

The Penal Code specifically criminalizes: i) bribery of public officials, public prosecutors and judges; ii) soliciting or accepting gifts by public servants, public prosecutors and judges; iii.) malfeasance of public officials for property or benefit; and iv) malfeasance of public prosecutors and judges for property or benefit.

With respect to a private party offering property or a benefit to a public official, the Penal Code criminalizes such act: i) with respect to the giver, if the act is designed to induce a public official to act contrary to his functions; and ii) with respect to the receiver, if the act is contrary or in accordance with his function. In this regard, although the giver’s act is not specifically punishable, if it is made to induce a public official to act in accordance with his functions, it is nevertheless criminalized from the perspective of the public official.

Defenses

Defenses for bribery are prescribed in the regulations of the National Anti-Corruption Commission concerning criteria for a public official’s receipt of gifts or other benefits by moral obligation B.E. 2543, which establishes criteria for lawful receipt of hospitality expenses. In essence, hospitality expenses are not considered bribery, provided they fall under any of the following scenarios:

  • The hospitality is received from a relative of the receiver and the hospitality has proper value corresponding to the social status of the receiver.
  • The hospitality is received from another person who is not a relative of the receiver and the value of the hospitality does not exceed THB3,000 per occasion and per person.
  • The hospitality is received in a manner that such hospitality is given to many undesignated persons.

Organic Act on Counter Corruption

This act establishes the National Counter Corruption Commission or National Anti-Corruption Commission (NCCC or NACC). The NCCC is an independent agency with broad investigative powers to suppress corruption by state officials. The NCCC can conduct investigations of the assets of politicians or state officials where a person is suspected to have accumulated “unusual wealth.” Specific members of national and local governments, as well as their families, are required to file a declaration of assets before taking office and after leaving office.

Amendments to existing legislation in 2015 have expanded the scope of Thai anti-corruption laws to cover private bribery involving state officials, foreign state officials and international organization officials. The new legislation covers: (1) an official who demands or accepts a bribe; (2) a private party who accepts property or benefits to act as a middleman to induce an official to act improperly; and (3) a private party making a bribe, as well as a juristic entity with which the private party is related and for whose benefit a bribe has been made, if the juristic entity does not have appropriate internal control measures to prevent the offense.

Defenses

With respect to private bribery of state officials, foreign state officials or international organization officials, which is committed by a person related to, and for the benefit of, a juristic entity, if the juristic entity does not have “appropriate internal control measures to prevent such offense,” the juristic entity will be subject to fine of up to two times the damages incurred or benefits obtained. This suggests that a juristic entity will be able to limit or avoid liability for the offense by having in place appropriate internal control measures to prevent bribery of state officials, foreign state officials or international organization officials.

Act on Offenses Relating to Submission of Bids to Government Agencies

This act criminalizes collaboration to influence bid, bribery for bid, and fraud to gain bid. Submission of bids under the Act is defined as: the submission of an offer to be a person entitled to enter into a contract with government agencies relating to the purchase, contracting for works, exchange, lease disposal of property, acquisition of a concession or any other rights. The scope of application includes the Prime Minister, Minister, member of House of Representatives or Senate, political officials, local administrators or members of local assemblies, juristic entities, and individuals.

Penalties

Penal Code of Thailand

Penalties differ according to which criminal act is committed under the Penal Code (Titles II and III).

Penalties range from:

  • imprisonment not exceeding five years or fine not exceeding THB10,000, or both(bribing public official to act or refrain from acting (§ 144));
  • imprisonment from five to 20 years or imprisonment for life and a fine of THB2,000 to THB40,000 (abuse of public power through coercion/public official accepting benefit to act or not act before or after appointment (§§ 148, 149, and 150)); and
  • imprisonment not exceeding seven years and a fine note exceeding THB14,000 (person agrees to give benefit to official to wrongly do or not do any act (§ 167)).

Organic Act on Counter Corruption

With respect to private bribery of state officials, foreign state officials or international organization officials, penalties range from:

  • imprisonment not exceeding five years, or fine not exceeding THB100,000, or both, for bribery of an official by a private party; and
  • fine equal to, but not exceeding two times, the damages incurred or the benefits obtained, for bribery of an official by a private party who is related to, and has acted on behalf of, a juristic entity that does not have appropriate internal control measures to prevent the offense.

The court is also empowered to order the forfeiture of: (1) property used or possessed for use in the commission of an offense; (2) property or other tangible benefits obtained from commission of an offense or from acting as instigator, supporter, or person advertising or offering to the general public to commit the offense; (3) property or other tangible benefits obtained from the sale or disposal of property or benefit under (1) or (2); or (4) any other benefits arising from the benefit or property under (1), (2) or (3).

Act on Offenses Relating to Submission of Bids to Government Agencies

Penalties range from:

  • imprisonment from one to three years, or a fine equal to 50 percent of the highest bid by offenders or the value of the contract, whichever is higher (collaborate in the submission of bids to provide a benefit by avoiding fair competition, or preventing the offer of other goods or services, or taking advantage of government agencies (§ 4));
  • imprisonment from one to five years and a fine equal to 50 percent of the highest bid by offenders or the value of the contract, whichever is higher (provide money or benefits to induce a person to submit a bid at a high or low level, not to bid or to withdraw a bid (§ 5));
  • imprisonment from five to 10 years and fine equal to 50 percent of the highest bid by the offenders or the value of the contract, whichever is higher (compel a person, including by force or violence, to involuntarily participate or not participate in or withdraw submission of bids (§ 6));
  • imprisonment from one to five years and fine equal to 50 percent of the highest bid by the offenders or the value of the contract, whichever is higher (using deceitful means to deprive others of opportunity to make fair submission or to cause mistaken submission of bids (§ 7));
  • imprisonment from one to three years or fine equal to 50 percent of the highest bid by the offenders (dishonest submission of low or high bid (§ 8)).

Central Criminal Court for Corruption and Misconduct Cases

On 1 October 2016, the Central Criminal Court for Corruption and Misconduct Cases was established. This is a specialized court for prosecution of criminal corruption cases under existing legislation, except cases relating to politicians or political officials which are adjudicated by the Supreme Court’s Criminal Division for Persons Holding Political Positions.

Its jurisdiction includes:

  • Wrongful exercise of duties by a government official.
  • Money-laundering by government officials, offences related to bidding and joint ventures between private and government sectors, and other anti-corruption and malfeasance laws.
  • Individuals charged with demanding, receiving, accepting, or giving bribes and intimidating coercing, or using influence to force government officials to act or not to act, under the Criminal Code.
  • Individuals charged with deliberately refusing to declare assets, falsely declaring assets, or covering up assets that should have been declared.
  • Petitions to seize assets due to unusual wealth or increase in assets.
  • Individual co-offenders, instigators, or accomplices to offenses under its jurisdiction.
  • Other charges which arise from the same action as a charge under its jurisdiction.

Judges sitting in the new court must possess at least 10 years experience in the anti-corruption area.

The court has certain procedural powers beyond those of the criminal courts, including discretionary power to summon and examine witnesses who aren’t stated in the witness list, and a wider power to confiscate assets, including property or other benefits derived from corruption or misconduct, and even interest gained from those actions.

Appeals to the appellate courts follow the same procedure and conditions as general criminal cases, with the exception that the defendant must be present when filing any appeal, provided they are not being detained under the jurisdiction of the court.

Appeals to the Supreme Court are subject to prior approval from the Supreme Court, and the appellant must prove that there are good reasons for the Supreme Court to consider it.