MUTUAL LEGAL ASSISTANCE AND EXTRADITION IN THAILAND
Poonpol Ngearndee*

I. INTRODUCTION
Corruption, one of the serious crimes, has a wide range of devastating effects on thedevelopment of a country. Once the proceeds of corruption have been transferred abroad, thelimitations on state sovereignty to investigate and prosecute become obstacles topractitioners. Acknowledging the serious problem of grand corruption and the need for
improved mechanisms to combat its devastating effects, most countries have developed
arrays of tools that can be used to facilitate cooperation across borders in criminal matters.
The case becomes more complex because it touches upon the components ofinternational character or involves the matters of a state’s jurisdiction. When a crime has beencommitted in one country and the criminal has fled away to another country, there are
numerous practical and political factors that can impede cooperation. Also, if theinvestigation or prosecution is carried out in one country but the essential evidence or
witnesses exist in another country, how we can obtain such evidence or statements of such
witnesses is the question that needs to be answered. There still exist many problems, thedifficulties of which are beyond the capacity of a single state to deal with, especially under
the current situation. Every state must internationally cooperate with each other in theprevention and suppression. Assistance and coordination between states to combat the crime
can take many forms and is collectively known as “international cooperation.”
II. MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
A. Background and Evolution
Unlike that of European countries, mutual legal assistance in Thailand does not stemfrom extradition treaties. Before the promulgation of the Act on Mutual Assistance in
Criminal Matters B.E.2535 in 1992, there was no direct legislation to govern on this matter.
Any request of this kind was conducted in accordance with the “General principle ofinternational law” as clearly spelled out in Article 34 of the Civil Procedure Code, which isalso applicable in criminal cases by virtue of Article 15 of the Criminal Procedure Code.
Article 34 of the Civil Procedure Code provided that:
Where any proceeding is to be carried out wholly or in part though the medium ofor by request to the authorities in any foreign country, the Court shall, in theabsence of any international agreement or provision of law governing the matter,comply with the general principle of International Law.

*

Public Prosecutor, International Affairs Department, Office of the Attorney General, Thailand.

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“General principle of international laws” in this regard includes comity, reciprocity, and“rules of due process”, as are generally recognized between and among the sovereign states.
When assistance regarding criminal matters is requested, the request thereof shall be sent
though diplomatic channels and then referred to the Ministry of Foreign Affairs to provide its
opinion, which was a very time-consuming process.
Mutual legal assistance in its modern sense, which encompasses all criminal matters,
began after the coming into force of the Act of Mutual Assistance in Criminal Matters B.E.
2535, as well as the conclusion of many treaties regarding this matter.
B. Legal Basics
Thailand adopted the Act on Mutual Assistance in Criminal Matters B.E. 2535 in 1992.
This Act is the main legislation to be applied to all processes of providing and seeking
assistance upon receiving requests from foreign states or Thai agencies; however, if it isinconsistent with the terms or provisions used by the treaties concluded between Thailandand such foreign countries, the treaty shall prevail. Assistance in Thailand may be grantedeven if no treaty exists between Thailand and the requesting state, provided that such statecommits to assist Thailand in a reciprocal manner when requested.
1.

Agencies and Organizations Responsible for these Matters
In ordinary dealing, the request for assistance shall be submitted through diplomaticchannels. However, if a mutual assistance treaty between Thailand and the requesting stateis in force, commitments of reciprocity and submission through diplomatic channels will be
waived. The request for assistance in such a case as well as other communications shall bemade directly to the Attorney General, who is the Central Authority of mutual legal
assistance as prescribed by the law.
2.

Conditions and Requirements to Request MLA(i) Forms of AssistanceIn Thailand, forms of assistance are basically understood to include certain forms of theprocesses of criminal case handling, as well as other indefinite conduct under the scope ofthe stipulated indefinite description. According to section 4 of the Act on Mutual Assistancein Criminal Matters B.E. 2535, “assistance” means assistance regarding investigation,
inquiry, prosecution, forfeiture of property, and other proceedings relating to criminal
matters. Categorization of the forms of assistance can be further enlightened by the provisionof Section 12 of the same Act to cover the following:(a)Taking statements of persons, providing documents, articles and evidenceout of Court, serving documents, searches, seizure of documents or articles,
locating persons(b)Taking the testimony of persons and witnesses or adducing documents andevidence in court, and requesting forfeiture or seizure ofproperty(c)Transferring persons in custody for testimonial purposes(d)Initiating criminal proceedings- 149 -

It is quite clear from the above provision that the terms “other proceeding”, stipulated in
Section 4, is capable to accompany other forms of assistance in the treaties with othercountries.
(ii) Authorities and Officials
In Thailand, according, to the Act on Mutual Assistance in Criminal Matters B.E. 2535
as well as treaties concluded with various countries, the “Central Authority” is the “Attorney
General or, the person designated by him.” The Central Authority is the official who takes themost predominant role in requesting assistance. Apart from the general function as thecoordinator to receive the request for assistance from the requesting state and transmitting itto the Competent Authorities concerned, as well as to receive the request seeking assistancepresented by the agency of Thai Government and deliver it to the Requested State, anotherequal or more significant task entrusted to the Central Authority is to determine the legality
and eligibility of all requests and processes. In this context the Central Authority is also
authorized to interpret the rule or announcement for the implementation of the whole process.
Determination of the Central Authority in all matters regarding the grading and seekingof assistance will be final except in two situations: firstly, if it is overruled by the Prime
Minister, and secondly, if a request relates to the issues of national sovereignty or security,
crucial public interest, international relations, political offences or military offences, andwhere the Advisory Board has a dissenting view and the Prime Minister agrees with suchdissenting view.
(iii) Competent Authority
The Competent Authority includes those officials who actually carry out the function
conforming to the request for assistance as notified by the Central Authority.
In Thailand, the Competent Authority includes the following:(1) The Police Commission General: to deal with the request for initiating criminal
proceedings and taking statements of persons, providing documents, articles, and evidenceout of Court, serving documents, searches, seizures, and locating persons.
(2) The State Attorney Director General for Litigation to deal with the request for
initiating of criminal proceedings and taking the testimony of persons and witnesses,
adducing documents and evidence, as well as requesting for forfeiture or seizure of property
in the Court.
(3) The Director General of the Correctional Department to deal with the request fortransferring persons in custody for testimonial persons.
(iv) Double Criminality
The principle of double criminality requires that the conduct underlying the assistancerequested must also be a criminal offence punishable under the law of the requested state,otherwise such request must be refused. This position in Thailand seems to be a compromise
between the concept of protecting the innocent’s rights and liberty by the principle of double
criminality on one hand, and the spirit of cooperation between and among states to support
and control crime on the other hand.

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While the Act on MLA places the principle of “Double Criminality as a prerequisite for
granting assistance, there are many treaties concluded with foreign states such as the UnitedStates, Canada, the United Kingdom, of which the principle of double criminality is not
required.” On the contrary, all said treaties impose obligations on each Contracting Party toprovide assistance to the other Contracting Party even if the underlying conduct so requested
does not constitute a criminal offence in the requested state.
(v) Refusal of Requests
In Thailand the grounds for refusal are stipulated both in the Act on MLA as well as
various treaties concluded with foreign states. The Act on MLA article 9 stipulated thatassistance to a foreign state shall be subject to the following conditions:(1) Assistance may be provided even if no mutual assistance treaty exists between
Thailand and the Requesting State, provided that such state commits to assist Thailand in asimilar manner when requested;(2) The act on which the request is based must be an offence punishable under Thai laws
unless Thailand and the Requesting State have a mutual assistance treaty between them, andthe treaty specifies otherwise, provided, however, that assistance must be conformed to theprovisions of this Act;
(3) A request may be refused if it affects national sovereignty or security, or other crucial
public interest of Thailand, or is related to a political offence;(4) Assistance shall not be related to a military offence.
As regards mutual legal assistance treaties, the clause related to the refusal of a request isusually prescribed similarly, for example.
“The Requested State may refuse to execute a request to the extent that” (a) the request
would prejudice the sovereignty, security, or other essential public interest to the Requested
State: or (b) the request is related to a political offense.
C. Conclusion
The Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) of Thailand is thelaw providing assistance and seeking assistance regarding investigation, inquiry, prosecution,and forfeiture of assets if property and other proceedings relate to criminal matters to/from aforeign state. The Attorney General or the person designated by him is the Central Authorityof Thailand. One main function of the Central Authority is to consider and determine whether
to provide assistance to a requesting state; and whether to seek assistance from a foreign
government.
Assistance to a foreign state shall be subject to the following conditions:(i) Assistance may be provided even if no mutual assistance treaty exists between
Thailand and the requesting state, provided that such state commits to assist Thailand in asimilar manner when requested;- 151 -

(ii) The Act which is the cause of a request must be an offense punishable under Thailaws except when Thailand and the requesting state have a mutual assistance treaty thatspecifies otherwise;(iii) A request may be refused if it affects national sovereignty or security, or othercrucial public interest of Thailand, or relates to a political offense;(iv) Assistance shall not be related to a military offense.
States having mutual assistance treaties with Thailand shall submit their request forassistance directly to the Central Authority. States not having such treaties shall submit theirrequests through diplomatic channels.
III. EXTRADITION
A. Background and Evolution
As a civil law country, Thailand promulgated the Extradition Act B.E. 2551 in 2008,
which was adapted from the Extradition Act B.E. 2472 (1929). This Act is the fundamental
legislation for all extradition proceedings so far as it is consistent with the terms of any
Treaty, Convention or any Royal Proclamation issued in connection therewith. Thailand may
surrender to a foreign state the person accused or convicted of crime committed in thejurisdiction of that state even if no treaty exists, provided that by the laws of Thailand suchcrimes are punishable with imprisonment of no less than one year. In practice, however, adeclaration for reciprocal assistance, as well as certain requirements such as “double
criminality”, the principle of double jeopardy (ne bis in idem), must also be satisfied before
the request for extradition is accorded.
The request for extradition from a foreign state which does not have a treaty withThailand shall be sent through diplomatic channels, but the treaties usually contain provisions
on the procedure of cooperation, that a request may be sent directly through the Central
Authority, who is an exclusive center for extradition in the same way as the Central Authority
on mutual assistance in criminal matters. In Thailand, the Attorney General is the Central
Authority to expedite and facilitate enforcement of the incoming and outgoing requests for
extradition.
B. Legal Basics
By virtue of Section 18 of the Extradition Act, the preliminary investigation in court
must be made in accordance with the Criminal Procedure Code. In Thailand, there is an
option of provisional arrest that may involve a simplified request (basic facts, identifying
information) that can be completed and processed quickly. This provision is stipulated in
Section 14:
When there is an urgent necessity, the Requesting State may make a request forprovisional arrest and detention of the person sought. Such a request of theRequesting State having an extradition treaty with Thailand shall be transmitted to
the Central Authority. Where the Requesting State has no extradition treaty withThailand, it shall be transmitted though the diplomatic channels.

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C. Conditions and Requirements to Request Extradition
1. Extradition Offence
In Thailand, the Extradition Act B.E. 2551 does not directly specify the definition of
extraditable offences, while many treaties concluded between Thailand and foreign states do
so. According to Section 7 of the Extradition Act, which is applicable on a non-treaty basis,
it can be implied that the “extradition offences” according to Thai laws are such offences
punishable by death or with imprisonment of not less than one year: notwithstanding theprovision of extradition laws, treaties between Thailand and some foreign states wereconcluded upon the list of offences.
Not only the range of penalties of the offences that has to be taken into account, but also
the remaining period for its enforcement. Extradition will not be granted if the remaining
period for serving the penalty is less than six months, even if other elements to fulfill
extradition have been met.
2.

Reciprocity
The principle of reciprocity in extradition requires that the requested state, vice versa,
have the opportunity to request extradition for the same crime wherein the requesting state
would have to grant it. Reciprocity is considered to be a prerequisite claimed by the requested
state before extradition is accommodated in the case where no treaty with the requestingstates existed.
3.

Political Offences
For political Offences, as the exception for extradition, it has traditionally been acceptedthat states are entitled to decline to extradite a person on the basis that the request relates to a“political offence”. However this is not absolute, as this exception can be exempted when arequest involves violent crimes which are very dangerous and capable of carrying out serious
damage to lives and properties of innocent victims such as genocide, crimes against humanity
and war crimes.
In Thailand, the exception of political offences is stipulated in Section 9 but the
exception of political offences does not include the following crimes:(i) murder or willful crimes against the life or physical integrity of a Head of State or oneof the related parties or of a member of that family.
(ii) Offences under the treaty whereby Thailand is a party(iii) attempts, or coordination with the offender, to commit all said offences mentioned
above.
4. Military Offences
It is a recognized principle of Thai law that extradition is not available for militarycrimes which are not otherwise subject to criminal sanction. However, where the offence inquestion is an offence under military law and is also an extraditable offence under the nonmilitary, civilian laws, then extradition should not be refused.
5.

Extradition of Nationals
Thailand will not extradite Thai nationals. Refusal of an extradition request on thesegrounds is provided for both in the Extradition Act and often in treaties- 153 -

6.

Capital Punishment
Extradition may be refused where the offence for which extradition is being sought
carries the death penalty. Requested countries’ refusal of extradition requests based on capital
punishment, and their demands for assurances that the death penalty will not be imposed,
have been strongly protested by those countries that still retain capital punishment in theirsystems. In Thailand, national laws give authority to the executive branch to make thenecessary assurances that the death penalty will not be imposed or carried out in cases where
it otherwise is possible that the death penalty may be imposed (Extradition Act B.E.2551(2008) section 29).
7.

Evidentiary Tests
The Extradition Act requires that the Requesting State provide sufficient evidence of thealleged crime in support of its request for cooperation. Section 19 of the Act stipulated thatthe court shall order detention of the person sought for extradition when a prima facie casehas been established, indicating that such offence has been committed inside Thailand.
8.

Dual Criminality
In Thailand, the Extradition Act requires that the conduct constituting the extradition
offence be recognized as a criminal offence in both Thailand and the requesting state. This isreferred to the dual criminality principle which is now generally accepted that when the lawsof both states “appear to be directed to the same basic evil,” this is sufficient to establish dual
criminality. But there are many treaties between Thailand and other countries that do not
require dual criminality.
9.

Double Jeopardy
The principle of double jeopardy is part of the Extradition Act, Section 10, which
provides as follows: “The person sought for extradition shall not be liable to be tried or
punished again for an offence for which he has already been finally convicted or acquitted inaccordance with the laws by the Thai Court or the Requesting State Court.”
10. Speciality
The rule of speciality provides that the Requesting State must specify the offence oroffences for which it seeks the person’s return and that upon the subject’s return, theRequesting State shall only try that person for the offence covered in the request. The
following principle is in the Extradition Act, Section 11: “This rule of specialty will not bebarred if the requested state consents or the subsequent prosecution of a person who
voluntarily remains in Thailand more than 45 days after completion of the extradition process
or return to the Thailand.”C. Conclusion
The Extradition Act B.E. 2551 is the law providing for extradition. This includes, interalia, the nature and extent of the preparation required to understand the legal and procedural
framework, communication, and whether to seek a full order or provisional arrest of theperson.
(i) The Preparation of Requests
The extradition request must include the name of the person wanted for extradition,
along with a clear description of the conduct that constitutes the relevant offences andinformation about relevant law in the Requesting State. This information provided will assist- 154 -

the Requested State and the criminal justice agencies involved in the case in making theirdecisions.
(ii) Provide Sufficient Evidence
Thailand requires evidence to meet certain standards of proof, either to establish a prima
facie case or that an appropriate level of information has been included in the extradition
request.
(iii) Legal Basis for Requests
Extradition requests should clearly state the legal basis that the Requesting State isseeking to rely upon, such as an applicable treaty.
(iv) Assurances
It is good practice to anticipate and provide any assurances that may be necessary in theextradition request, for example that the person will not be sentenced to life imprisonment or
the death penalty.
(v) Language Requirement
The Extradition Act specifies that the request shall be made in Thai. Requesting Statesshould consider having not only the request itself translated in advance, but also any relevantlaws or other materials the Central Authority may need to consider, as part of deciding
whether to agree to extradite.
(vi) Transmitting Extradition Requests
In cases where there are treaties with Thailand, the requests for extradition are usuallytransmitted though the Central Authority; where no treaty exists, requests shall be transmitted
through diplomatic channels.
(vii) The Extradition Process
The Requesting State ought to make sure that any documents that are being provided as
evidence will comply with the formal requirements. When the extradition process is brought
before the court to determine if the conditions are met, then the person will be held in custodyor on bail to await surrender. The decision of the judge may be subject to appeal by the
person sought or the Public Prosecutor.
The extradition process can be simplified if the person, for whom extradition is sought,
waives his or her right to have an extradition hearing or consents to their surrender and returnto the Requesting State.

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APPENDIX 1
Treaties on Mutual Legal Assistance in Criminal Matters
Countries with which Thailand has Treaties on Mutual
Legal Assistance in Criminal Matters, and the days when the treaties
entered into force.
Countries

Signatory Date

1. U.S.A.
2. U.K.

19 March 1986
12 September
1994
3 October 1994
11 September
1997
20 May 1999

3. Canada
4. France
5. Norway

Place of
Signature
Bangkok
BangkokOttawaParis

21 June 2003
25 August 2003

Chiengmai
Seoul

22 September
2000
20 February 2005
6 April 2005

8 February 2004
26 February
2004
10. Sri Lanka
30 July 2004
11. Peru
3 October 2005
12. Belgium
12 November
2005
13. Australia
27 July 2006
14. Ukraine-

PhuketBangkok

7 June 2003
4 October 2009

Bangkok
Lima
Bangkok

3 October 2005
23 July 2010

Kuala Lumpur-

18 June 2009-

6. China
7. South
Korea
8. India
9. Poland

BergenDate of Entry
into force
10 June 1993
10 September
1997
3 October 1994
1 June 2000

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APPENDIX 2
Extradition Treaties
Countries with which Thailand has Treaties
Extradition, and the days when the treaties entered into force.
Countries
1. U.K.
2. Belgium
3. Indonesia
4. Philippines
5. U.S.A.
6. China
7. Cambodia
8. Bangladesh
9. Laos
10. South
Korea
11. Hong Kong
12. Australiaon

SignatoryDate
4 March 1911
14 January
1936
29 June 1976
16 March 1981
14 December
1983
26 August1993
6 May 1998
9 July 1998
5 March 1999
26 April 1999

Place of
Signature
Bangkok
Bangkok

Date of Entry intoForce
19 August 1912
14 January 1937

Bangkok
ManilaWashington
D.C.
Beijing

18 June 1980
7 December 1984
17 May 1991

Bangkok
Dhaka
BangkokSeoul

15 March 2001
1 March 2001
18 March 2001
31 March 2001

-

-

-

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7 March 1999

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS AND
COOPERATION IN THE FIGHT AGAINST CORRUPTION IN
THAILAND*

Kiaitisakdi Putphan

I. INTRODUCTION
Corruption in itself is probably the most difficult crime to investigate and prosecute due
to its clandestine nature. The offenders can be even more professional than the investigators,
and they are cautious to cover up any trail of their crimes by taking advantage of
sophisticated technology and cross-jurisdictional loopholes. The situation is especiallyfrustrating when tackling bribery offences as the lack of eyewitness and apparent crime scene
evidence poses daunting challenges for the investigators. Complicating matters further,enhanced methods of travel and communication make it even easier for criminals to shieldthemselves from justice by simply crossing national boundaries. For them, boundaries do notconstitute obstacles; on the contrary, these transnational elements render the detection andprosecution of corruption offences more difficult and allow criminals to conceal the evidence
and profits of their crimes. Mutual Legal Assistance (MLA) is thus an important mechanism
through which states may help each other in the fight against international criminality in theareas such as locating witnesses and suspects, tracing money trails, requesting crossjurisdictional searches and extradition, as well as conducting joint investigations.
Significant efforts by international organizations such as the United Nations Office on
Drugs and Crime (UNODC) have highlighted their continued commitment to root out
corruption and bribery by the means of international cooperation and asset recovery. For
example, Chapter IV on International Cooperation of the United Nations Convention Against
Corruption (UNCAC) explicitly encourages States Parties to cooperate in criminal mattersand to consider assisting each other in investigations of, and proceedings in, civil andadministrative matters relating to corruption, especially by mutual legal assistance.
Mutual Legal Assistance (MLA) is a formal process to obtain and provide assistance ingathering evidence for use in criminal cases, to transfer criminal proceedings to another stateor to execute foreign criminal sentences. In some instances, MLA can also be used to recoverproceeds of corruption.1 In addition, the informal cooperation directly from agency to agency
is another type of cooperation that could bring an achievement of assistance and cooperation.
Both MLA and informal cooperation are indispensable means of international cooperation infighting corruption.

*

Legal Officer, The Office of National Anti-Corruption Commission, Thailand.
Mutual Legal Assistance, Extradition and Recovery of Proceeds of Corruption, the ADB/OECD AntiCorruption Initiative for Asia and the Pacific.
1- 158 -

II. FORMAL CHANNELS OF INTERNATIONAL COOPERATION IN FIGHTINGCORRUPTION THROUGH MUTUAL LEGAL ASSISTANCE
Traditionally, there are two channels through which jurisdictions seek out international
cooperation in criminal matters. In other words, when an anti-corruption agency is in need ofassistance from a foreign jurisdiction, it will use one or more of the following legal bases
when sending its MLA requests to a foreign jurisdiction:
1.

Treaty-Based Cooperation• Multilateral conventions, treaties, or agreements include the UN Convention against
Corruption, the OCED Anti-bribery Convention and the ASEAN
Treaty on Mutual Legal Assistance in Criminal Matters• Bilateral Mutual Legal Assistance Treaties or “MLATs”. Bilateral agreements givecountries greater flexibility over the preferred scope and degree of cooperationcompared to multilateral conventions.

2.

Non-Treaty-Based Cooperation• A jurisdiction can seek assistance from a foreign jurisdiction through provisions in
the requested jurisdiction’s relevant domestic legislation on Mutual Legal Assistance.
For example, Thailand may grant assistance to a foreign jurisdiction even when notreaties, multilateral or bilateral, exist between Thailand and the requesting
jurisdiction, provided that the latter commits to assist Thailand in a similar manner
when requested, also known as the reciprocal principle.2
III. INFORMAL CHANNELS OF COOPERATION THROUGH ANTICORRUPTION AGENCIES: BACKGROUND OF THE NATIONAL ANTICORRUPTION COMMISSION (NACC)

The Thai political system includes three separate branches, namely the Executive branchheaded by the Prime Minister and the Cabinet; the Legislative Branch comprising the lower
and upper houses; and lastly the Judiciary Branch made up of courts of different levels. The
fourth branch is an independent organ established by the Constitution to check and balance
the government branches. These bodies include the National Anti Corruption Commission(NACC), the Auditor-General, the Ombudsman etc. To ensure their independence, theseagencies are not under the executive branch’s supervision and control.
The NACC is a law enforcement body charged with responsibilities of preventing andsuppressing public sector misconduct and corruption. It has broad duties and authorities,
which include inquiring into public sector corruption, examining the assets and liabilities ofpoliticians and high-level officials, inquiring into politicians and public officials suspected ofhaving accumulated unusual wealth (or illicit enrichment), as well as implementing
preventive anti-corruption measures in all social sectors. In addition, the NACC has thepower to investigate an individual or the private sector for corruption in cases where such

2

This principle is clearly specified in Section 9 or otherwise known as the “reciprocal clause” of Thailand’s Act
on Mutual Assistance in Criminal Matters.

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individuals or the private sector is involved in corrupt offences conducted by public officials.3
A. NACC: International Cooperation
With regard to international cooperation, the NACC is by law the designated authority inhandling all international anti-corruption matters related to Thailand as stipulated in section
19 (14) of the Organic Act on Anti Corruption (No.2) B.E. 2554 (2011). Additionally, in
March of 2011, Thailand became a State Party to the United Nations Convention against
Corruption. The NACC also maintains observer status at the meetings of the OECD AntiBribery Working Group. At the regional level, the NACC is an active member in several
forums including the ADB/OECD Anti-Corruption Initiative in Asia and the Pacific and soon. The NACC is also very keen on establishing direct agency-to-agency cooperation withinternational organizations and foreign law enforcement agencies. This strategy has
tremendously helped the NACC in overseas corruption investigations, which will be
described in the latter part of this paper.
B. The Thailand Anti-Corruption Agreements Coordination Center (TACC)The Thailand Anti-Corruption Agreements Coordination Center (TACC) was establishedfollowing Thailand’s ratification of UNCAC to comply with section 19 (14) of the Organic
Act on Anti Corruption (No.2) B.E. 2554 (2011). The center serves as a national focal unit
for inter-agency coordination of anti-corruption efforts in Thailand, particularly thosepertaining to corruption suppression/investigation and fulfillment of obligations under
UNCAC. The TACC also handles cross-border corruption cases involving Thai officials or
politicians. Even before our ratification of UNCAC in March this year, the NACC was
already handling several high-profile international corruption cases and has worked closelywith law enforcement agencies in Asia, the US and Europe. Since the numbers oftransnational corruption cases are expected to increase significantly in the near future, the
TACC is preparing itself by strategically entering into cooperative agreements with potential
foreign counterparts. For instance, the TACC has entered into agreements, or Memoranda ofUnderstanding, and has already been working with anti-corruption agencies in the Czech
Republic, Morocco and other prospective agencies on an ad hoc, informal basis forcorruption investigation and intelligence exchange.
The NACC, by the TACC, has been very active in establishing bilateral cooperative
agreements/MoUs with overseas counterparts. This move is in fact in part of the fulfillmentof Article 48 of the United Nations Convention Against Corruption, which strongly
encourages direct agency-to-agency cooperation against corruption. These bilateralagreements enable the NACC and other anti-corruption agencies to address transnational
corruption on a real-time basis and with maximum efficiency and effectiveness.
C. Limitations of Formal Channels of Cooperation
The formal channels of cooperation are not without the limitations and challenges. The
examples are as follows:• Negotiating a multilateral convention is often a complicated and time-consuming task
• Respecting the uniqueness of legal and political systems of individual jurisdictions.
32007 Constitution of Thailand and the Organic Act on Counter Corruption B.E. 2542 (1999), as amended by
No.3 B.E. 2554 (2011).

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• States Parties to international conventions, such as UNCAC, have different levels of
readiness and capacity in implementing obligations of the convention• Bilateral MLAT requires both the requesting and requested jurisdictions to strictly
observe the legal restrictions and procedures imposed on them.
• The lengthy procedures involved in executing a request can make the process
ineffective in urgent cases.
The transmission process involved in the execution of a request of assistance byDiplomatic Channels takes much time due to the fact that the request has to be transmitted
through several agencies. For the request from Thailand, in cases in which the NACC would
like to seek assistance from anti-corruption counterparts in foreign countries, the NACC has
to contact the Attorney General, which is the Central Authority in Thailand; the request willthen be forwarded from the Central Authority to the Thai Ministry of Foreign Affairs forfurther transmission to its destination. When the request has been successfully executed, thecounterpart agency will then reverse that same process to get the requested information backto us. The requests made through diplomatic channels usually take up nothing less than six
months to a year to execute.
And in the cases in which Thailand already has a Mutual Legal Assistance Treaty, or
MLAT, with its foreign counterpart, transmission can be made through the central authoritiesof each country without having to go through the ministries of foreign affairs. This reduces
the time needed to about 3 months or longer, but the legal formalities involved in MLAT
requests could still be time-consuming and less effective in urgent cases such as requests tofreeze illegal proceeds in a bank account.
D. Informal Channels of AssistanceConsidering the various limitations and challenges through formal procedures above,formal means of cooperation alone are not always sufficient to carry out effective
international cooperation. As such, jurisdictions which are in the process of amending theirdomestic legal framework should take advantage of informal channels of assistance.
Jurisdictions that already have an adequate legal framework in place can also benefit from theeffective use of informal channels of assistance, which should be regarded as a practicalmeans to not only supplement, but also to be taken together with the formal channels of
assistance.
The difference between formal and informal assistance principally focuses on the speedwith which cooperation may be provided and the purpose for which what is obtained is to be
used. Because informal assistance often involves direct agency-to-agency communication,legal formalities and procedures can be greatly reduced so long as the execution of such
requests does not contravene the national law of the requested jurisdiction. Now, this allows
requests of assistance to be executed in an expeditious manner. However, the information
obtained through the informal channels can, in most instances, only be used as operational
intelligence.

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E. Types of Informal Assistance
It is important for law enforcement agencies to recognize that not all types of assistanceneed to be requested through the formal channels. The first step to facilitating effective
informal assistance is to classify the types of assistance according to the level of coercivenessor level of force to be used in executing a request. To give an example, it would be lesscoercive, or practically non-coercive, if the request pertains to getting information frompublic records compared to a request that involves a search and seizure that requires a court
order.
Informal assistance should be sought at the initial stages of investigation when the
primary goal is to obtain intelligence and information, after which the requesting agency can
decide whether to proceed with formal assistance. Informal assistance should, at a minimum,
include non-coercive investigative actions such as:• Sharing with each other, spontaneously or upon request, information of relevance forpreliminary fact inquiry, detection, substantiation and prevention of corruption• Providing of public records, such as land registry documents, company documents,
information about directors and shareholders• Identifying or locating a suspect, fugitive or material witness believed to be in thejurisdiction of the Requested Party• Taking statements of voluntary witnesses• Conducting surveillance activities
IV. CASE STUDIES: THE EFFECTIVENESS OF INFORMAL ASSISTANCE IN
INTERNATIONAL COOPERATION ON ANTI-CORRUPTION
A. Thailand – United States (Greens’ case)
The case involves a Hollywood couple bribing a Thai senior tourism official to unfairly
obtain concession rights to organize an international film festival in Bangkok. Through theinformation provided to the NACC by the United States FBI and Department of Justice, the
NACC was able to initiate its own formal inquiry of the Thai public official. In Thailand’s
subsequent MLA request to the US Department of Justice, the constant communication we
had maintained with our counterpart before, during and after the submission our MLA
request, helped expedite its execution.
B. Thailand – Korea
The NACC sought the assistance of the Supreme Prosecutor’s Office of the Republic ofKorea in locating the whereabouts of a Thai national wanted in connection with a corruption
case in Thailand. Although the NACC had gathered from intelligence operations that thesuspect had escaped to South Korea, it was not certain the suspect was still in South Korea.
After close consultation with the South Korean prosecutors the NACC decided to first seek
informal assistance to verify the whereabouts of the suspect. Because it was a request for
informal assistance, the counterpart was able to execute the NACC’s request promptly withminimum legal formalities.

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V. CONCLUSION
As mentioned before, the corrupt perpetrators can be even more professional than theinvestigators, and they are not subject to any limitations in their cross-border operations.
Thus, it is important that countries should put their efforts towards attempting to increasecooperation and coordination in order to fight corruption more effectively. There is also aneed for collective action internationally and domestically with greater cooperation for bothformal and informal channels. Three recommendations to achieve this goal are as follows:Firstly, countries whose legal frameworks are inadequate in providing international
cooperation in anti-corruption should make the amendment of their legal framework a toppriority.
Secondly, the responsible official should explore and exhaust informal channels of
assistance before resorting to formal MLA. In addition, we have to keep in mind that theformal and informal channels of assistance are not exclusive. They can be used to support
each other and to create synergy to enable more effective and efficient international
cooperation
And lastly, countries should strive to develop cooperation mechanisms that would help
build and strengthen trust among international and domestic anti-corruption stakeholders
because trust, above all, is the most important factor in successful international cooperation.
This will not only enhance smooth cooperation but will also improve the standard of criminal
justice and the efficiency in law enforcement in the respective countries.

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MUTUAL LEGAL ASSISTANCE IN THAILAND
Jiraporn Burintaravanich*I. INTRODUCTION
The globalization and high technology of worldwide communication creates a number of
new opportunities for complicated and cross-border crimes. A single country is not able tofight against corruption, terrorism, transnational crimes, cybercrimes or white collar offences
alone, so it is necessary to obtain extensive cooperation from many countries worldwide(international cooperation) to prevent the fugitives from escaping the realm of justice, toretrieve evidence, such as bank statements and business records, and to keep pace with thechanging circumstances of our country.
Cooperation measures or assistance to other countries are investigations, inquiries,
prosecutions and judicial proceedings (in civil, criminal or administrative cases), including
extradition as well as an exchange of the information of crimes, e.g. evidence, bank data,business records etc. Informal cooperation or initial enquiry is conducted by the police
through the International Criminal Police Organization (ICPO or Interpol).1
Mutual Legal Assistance is the assistance on a formal legal basis, basically in thegathering and transmission of evidence by the authority of one country to an authority inanother in response to the request for assistance.
Mutual Legal Assistance in Thailand in this paper will be divided into three parts: firstly,
Mutual Assistance in Criminal Matters; secondly, Extradition; and thirdly, International
Cooperation by the National Anti-Corruption Commission (NACC).
II. MUTUAL ASSISTANCE IN CRIMINAL MATTERS
A. Responsible Agencies and Organizations
1. Public Sector, i.e. the Foreign Ministry, the Interior Ministry, the Justice Ministry andRoyal Thai Police.
2. Independent Agencies, i.e. the Office of the Attorney General and courts of justice.
B. Providing and Seeking Assistance
1. Treaty Basis
Thailand has currently concluded Mutual Assistance in Criminal Matters treaties with 14
countries.2 The countries concluding Mutual Assistance in Criminal Matters Treaties with*

Legal Officer, Bureau of Legal Affairs, Office of National Anti-Corruption Commission (ONACC).
Mostly for gathering and exchanging information on crimes.
2
The United States of America, the United Kingdom of Great Britain and Northern Ireland, the Kingdom of
Norway, Canada, French Republic, the People’s Republic of China, the Republic of Korea (South Korea), theRepublic of India, the Republic of Poland, the Republic of Sri Lanka, the Republic of Peru, the Kingdom of
Belgium, the Commonwealth of Australia, Ukraine.
1- 164 -

Thailand have to send the request to the Central Authority.3 On the other hand, the countries
which do not have Mutual Assistance in Criminal Matters Treaties with Thailand can send
the request through the normal diplomatic channels (or by letters rogatory) as the condition
that the non-treaty requesting country commits to assist Thailand in a similar manner whenrequested (reciprocity).
2.

Procedures(i) Requesting(a) Rendering assistance to a foreign state (incoming request)
The Requesting State has to send the request to the Thai authority (treaty based: directly toCentral Authority/non-treaty based: through diplomatic channels) with the requirements, e.g.
name of the authority of the Requesting State, matters, details or information, relevant laws
and purposes and necessities; furthermore, in case of forfeiture or seizure of property, thisrequires final court judgment or court order and description of the property and its location.
(b) Seeking assistance from a foreign state (outgoing request)
Thai agencies and organizations have to send the matter to the Central Authority with therequirements, e.g. name of the agency, matters, details or information, relevant laws,
purposes and necessities for seeking assistance.
(ii) Consideration
After the Central Authority has already considered and determined the request about thecomplement, 4 it will send the matter to the Board for an opinion. If the opinions of theCentral Authority and the Board dissent, the Central Authority has to send the case to thePrime Minister for ruling.
3.

The Offences(i) Classification of Offences Must be Punishable under Thai Law(ii) Severity of Offences
The other offences are provided by the Mutual assistance treaty between the Requestingstate and Thailand.
(iii) Grounds for Refusal
Thailand can refuse or be refused a request for assistance on the following grounds:(a) National sovereignty or security.
(b) Crucial public interests of Thailand.
(c) Related to a political offence.
(d) Related to a military offence.
C. Available Types of AssistanceThailand will provide for a full range of assistance to foreign States by:
3

The Attorney General or the person designated by him.
The request conforms to the forms, regulations, means and conditions defined by the Central Authority.
Furthermore, the request has followed the process correctly as well as accompanied by all appropriate
supporting documents.

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1. Inquiry and producing evidence
2. Providing documents and information in the possession of Government Agencies
3. Serving documents
4. Search and seizure
5. Transferring persons in custody for testimonial purpose
6. Locating persons
7. Initiating criminal proceedings upon request
8. Forfeiture or seizure of properties
II. EXTRADITION
A. Responsible Agencies and Organizations
1. Public Sector, e.g. the Foreign Ministry, the Interior Ministry, the Justice Ministry andRoyal Thai Police.
2. Independent Agencies, e.g. the Office of the Attorney General and courts of justice.
B. Conditions and Requirements of Request
1. Treaty Basis
Thailand has currently concluded extradition treaties with 14 countries 5 ; countries
concluding extradition treaties with Thailand have to send the request to the Central
Authority.6 Nevertheless, countries which do not have an extradition treaty with Thailand are
not banned from requesting in the latter extradition process. They can send the request
through normal diplomatic channels on the condition that the non-treaty requesting country
commits to extradite in a similar manner when requested (reciprocity).
2.

Procedure(i) Requesting(a) Rendering Extradition to a Foreign State (Incoming Requests)
The requesting state has to send the request to the Thai authority (treaty based: directly toCentral Authority/non-treaty based: through diplomatic channels) with the required details as
specified in the Regulation.
(b) Seeking Extradition from a Foreign State (Outgoing Requests)
The public prosecutors or Thai agencies and organizations can send the matter to theCentral Authority with the required details as specified in the Regulation.

5

The Commonwealth of Australia, the People’s Republic of Bangladesh, the Kingdom of Belgium, theKingdom of Cambodia, Canada, the People’s Republic of China, the Republic of Fiji, the Republic of Indonesia,
the Lao People’s Democratic Republic, Malaysia, the Republic of the Philippines, the Republic of Korea (South
Korea), the United Kingdom and the United States of America.
6
The Attorney General or the person designated by him.

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(ii) Consideration
When the request is submitted through the diplomatic channels, the Ministry of Foreign
Affairs has to consider and render an opinion that the request may or may not affectinternational relations. This opinion is forwarded to the Cabinet for consideration; if the
Cabinet concurs with the opinion of the Ministry of Foreign Affairs, the Ministry of Foreign
Affairs shall accordingly submit the matter to the Central Authority.
After the Central Authority received the completed request from the State that has an
extradition treaty with Thailand or the Ministry of Foreign Affairs (non-extradition treaty
with Thailand and request through diplomatic channels), the Central Authority will notify the
Public Prosecutor to petition the Court for issuing the arrest warrant.
3.

The Offences(i) Classification of Offences
The offences must be the same category of offences, or the offences are denominated by
the same terminology, in the Requesting State and Thailand (dual criminality). These
offences must be punishable by death, imprisonment, deprivation of liberty, or other form ofdetention for a period from one year upward.
(ii) Severity of Offences
The other offences with punishment by imprisonment or by deprivation of liberty andother forms less than one year may be requested for extradition, if related to the offence forwhich the extradition has been granted whether the request has been made at the same timewith the initial request or afterward.
(iii) Grounds for Refusal
Thailand can refuse or be refused the extradition request on the following grounds:(a) The request for extradition is contrary to the laws of Thailand or the request is notprocessed in accordance with the procedure, is not accompanied with proper
documents and evidence or is not executable under certain necessary conditions.
(b) Political crimes7 or military crimes.8(c) Nationality of the person sought for extradition: if that person is not a Thai national ora Requesting State national.
(d) Existence of the death penalty: the Thai Government has to give assurances of nonexecution on offences punishable with death according to the Thai law but not up to
the punishment of death according to the law of the Requested State.
(e) The person sought for extradition was tried and acquitted after a final decision by theThai Court or the Requesting State Court to served, pardon or amnesty is granted, the7

The offence of political character does not include the following:(1) Murdering, inflicting bodily injury or depriving liberty of the King, Queen or Heir Apparent;(2) Murdering, inflicting bodily injury or depriving liberty of Head of the State, government leader or
immediate family members of such person;(3) Committing an offence not regarded as a political offence for the purpose of extradition according
to the treaty to which Thailand is a party.
8
Military offence means specific military criminal offences and not ordinary criminal offences.

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statue of limitations has lapsed or there arises any other causes barring theproceedings against such person under the law of the Requesting State (double
jeopardy).
C. Available Types of Extradition
Thailand will extradite persons (arrested or witnesses) with relative documents andevidence after the request is submitted and considered by the Cabinet or the Central Authority.
III. INTERNATIONAL COOPERATION BY THE NATIONAL ANTI-CORRUPTIONCOMMISSION (NACC)
The National Anti-Corruption Commission (NACC) is the Constitutional Independent
Organization that responds to prevent and suppress corruption cases that involve State
officials.9
A. Powers and Duties
1. To inquire into facts and summarize cases along with an opinion in a submission to the
Senate for Removal from Office.
2. To inquire into facts and summarize cases along with an opinion to be referred to the
Attorney General for the purpose of prosecution before the Supreme Court ofJustice’s Criminal Division for Persons Holding Political Positions.
3. To inquire into and determine whether Persons Holding Political Positions and state
officials have become unusually wealthy and his or her assets shall be forfeited(devolve to the State).
4. To inquire and decide whether a person holding a political position or a State official
holding a position starting from a high-level executive or government official holding
a position starting from a division director has become unusually wealthy or has
committed an offence of corruption, malfeasance in office or malfeasance in judicial
office, or a related offence, including to take action against a State official or
government official holding a lower-level position who has jointly committed an
offence with the person holding such position or with a person holding a political
position, or who has committed an offence in such a manner that the NACC considers
an action appropriate as provided by the NACC.
5. To verify the accuracy and actual existence of, as well as changes in, assets andliabilities of Persons Holding a Political Position and State officials who submit the9State official means a person holding a political position, Government official or local official assuming a
position or having permanent salaries, official or person performing duties in a State enterprise or a State agency,
local administrator and member of a local assembly who is not a person holding a political position, official
under the law on local administration and shall include a member of a Board, Commission, Committee or of a
sub-committee, employee of a Government agency, State enterprise or State agency and person or group of
persons exercising or entrusted to exercise the State's administrative power in the performance of a particular act
under the law, whether established under the governmental bureaucratic channel or by a State enterprise or otherState undertaking.

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account showing particulars of assets and liabilities under Chapter 3, Inspection ofAssets and Liabilities.
6. To monitor and administer the morality and ethics of persons holding political
positions.
7. To take action relating to foreign affairs and become a center for international
cooperation for the benefit of counter corruption so as to be in conformity with theinternational legal obligations and agreements pertaining to counter corruption.
B. Available Types of AssistanceIn case of International Cooperation, the NACC is the national authority for exchange of
information about corruption and cooperation with other agencies or entities in both Thailand
and other countries. The NACC, by the Thailand Anti-Corruption Agreement andCoordination Center (TACC), handles cross-border corruption cases involving Thai officials
or politicians.
The cooperation between NACC and other countries is the informal channel thatparallels the formal channels of Mutual Legal Assistance by the Central Authority, and
NACC and other countries may or may not have treaties or Memoranda of Understanding.
Available types of informal assistance are:
1. Sharing with each other (spontaneously or upon request) information of relevance forpreliminary fact inquiry, detection, substantiation and prevention of corruption.
2. Providing public records, such as land registry documents, company documents,
information about directors and shareholders.
3. Identifying or locating a suspect, fugitive or material witness believed to be in thejurisdiction of the requested party.
4. Taking witness statements of voluntary witnesses.
5. Conducting surveillance activities.
IV. CONCLUSION
For Thailand, the operation of Mutual Legal Assistance via formal channels (treaty
based: directly to Central Authority/non-treaty based: through diplomatic channels) is thegeneral way of assistance in criminal cases as provided by law. In a corruption case, Thailand
has the National Anti-Corruption Commission (the Constitutional Independent Organization)
to suppress and prevent such cases and cooperate with agencies or authorities of othercountries through informal channels.
of assistanceassistance andand cooperationcooperation ofof the Thailand Anti-Corruption
The informal channels
channel of
Agreement and Coordination Center (TACC) is in line with the operation of the Central
Authority in the formal channels, but the pros of informal channels include shorting the timeof coordination, which means the request can pass through the agencies or authorities of theother countries immediately (furthermore, the agencies or authorities can send the evidence,such as public records or information identifying the domicile of the accused person etc.).

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Thus, Mutual Legal Assistance (Mutual Assistance in Criminal Matters and Extradition)in avariety
varietyofofchannels,
channels,via
viaformal
formalchannels
channels(treaty(treaty based:based: directly
directly toto Central Authority/nontreaty based: through diplomatic channels) and via informal channels (through the National
Anti-Corruption Commission, especially the Thailand Anti-Corruption Agreement andCoordination Center), is an efficient way to cooperate with Thailand and other countries forsuppression and prevention of complicated crimes and cross-border crimes, e.g. corruption,
terrorism, cybercrimes, white collar offences etc.
After Thailand ratified the United Nations Convention against Corruption B.E. 2546
(2003) and became a State Party since B.E. 2554 (2011), Thailand has an obligation to
implement UNCAC 2003 (chapters 3-5) by drafting and amending the three relevant laws, i.e.:
A. The Thai Penal Code
1. Adding the terms of “foreign public officials” and “officials of public internationalorganizations”.
2. Adding the criminalizing of offences towards public officials and the abuse offunctions or position relating to foreign public officials or officials of public
international organizations.
3. Adding the suspension of statutes of limitations periods in cases in which an offender
evaded prosecution overseas or having such statutes of limitation periods restart after
being back for prosecution.
B. The Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) by adding theprinciples of tracing, freezing, and confiscating of property transferred overseas
C. The Proceeds of Crime Act by focusing on measures to facilitate asset recovery
Thailand will have measures to handle cross-border crimes or transnational crimes toreach a goal of international cooperation, especially to prevent and suppress corruption whenthese three important draft Acts are enacted.
In addition, the National Anti-Corruption Commission looks forward to amending thelaw by adding the Thailand Anti-Corruption Agreement and Coordination Center as theCompetent Authority for the Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992),
and providing the power to the National Anti-Corruption Commission to give Mutual Legal
Assistance to other countries via formal and informal channels.
V. RELEVANT LAWS AND REGULATIONS ON MUTUAL LEGAL ASSISTANCE
A. The Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992)
B. Regulation of the Central Authority on Providing and Seeking Assistance in Criminal
Matters B.E. 2537 (1994)
C. The Organic Act on Counter Corruption B.E. 2542 (1999)
D. United Nations Convention against Corruption 2003

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E. Constitution of the Kingdom of Thailand B.E. 2550 (2007)
F. Extradition Act B.E. 2551 (2008)- 171 -