107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE THAI PROSECUTORS AND INTERNATIONAL
COOPERATION IN COMBATING TRANSNATIONAL CRIME
Dr. Kanit Nanakorn*
I. INTRODUCTION
For this issue, I will lecture on theprosecutors’ role in providing the mutual
legal assistance and then would move on
further to the extradition and the restraint
and forfeiture of proceeds of crime.
II. MUTUAL ASSISTANCE IN
LEGAL MATTERS
According to the Thailand-U.S. Treatyof 1986, which is the first of its kind inThailand, Central Authorities areestablished to have direct responsibility inproviding and requesting assistance incriminal matters in the two countries
without having to go through a diplomaticchannel. For Thailand, the Central
Authority in accordance with the MutualAssistance Act implementing the treaty isthe Attorney General through the Office ofInternational Affairs. The treaties on
Mutual Assistance in Criminal Matters
between Thailand and Canada, andbetween Thailand and Great Britain andNorthern Ireland also contain similar
provisions. One main function of theAttorney General on behalf of the Central
Authority is to be the coordinator inproviding assistance to a foreign state or
seeking assistance from a foreign state. All
diplomatic formalities are deliberately set
aside so as to facilitate and expedite theprocess of request consideration and also
to lessen excessive bureaucracy.
The reason why the Attorney General asa representative of the Prosecution Serviceof Thailand is nominated as the Central* Former Attorney General of Thailand; Professor ofLaw, Thammasat University, Thailand.

Authority, rather than other heads ofcriminal justice agencies (namely either theMinister of Interior or the Director-Generalof the Police Department, or the Supreme
Court President) is that the scope of thetypes of assistance as stipulated in theTreaties and the Mutual Assistance Act
corresponds with the current
responsibilities of the prosecutors under
the supervision of the Attorney General.
Such types of assistance include but are
not limited to the following:(1) taking the testimony and statementsof persons;(2) providing documents, records andevidence;(3) serving documents;(4) executing request for searches andseizures;(5) transferring persons in custody fortestimonial purposes;(6) locating persons;(7) initiating proceedings upon request;
and(8) initiating forfeiture proceedings.
To compare with the other duties ofprosecutors, even though prosecutors canneither initiate a criminal charge nor
investigate a case, if they receive the fileof inquiry submitted to them by the policeand find it incomplete, they still can direct
the police to conduct additional
investigation. After acquiring the complete
dossier, the prosecutors will then make adecision as to whether to initiate the court
proceedings. Structurally viewed,
prosecutors practically act as middlemenbetween the factions of the police and of
the court, defense counsel and corrections.
Wi t h i t s q u a s i - j u d i c i a l n a t u r e o f
responsibility plus such a unique role, the131

RESOURCE MATERIAL SERIES No. 53
Office of the Attorney General therefore
gains a superior position in coordinatingwith all criminal justice agencies as wellas other bodies involved. As a result, theAttorney General is deemed most wellsuited to perform as the Central Authority.
By virtue of the Mutual Assistance Act,
the Central Authority has the following
authority and functions:(1) to receive the request for assistancefrom the requesting State andtransmit it to the Competent
Authorities;(2) to receive the request seeking forassistance presented by the agencyof the Thai government and deliver
it to the requested State;(3) to consider and determine whether toprovide or seek assistance;(4) t o f o l l o w a n d e x p e d i t e t h eperformance of the Competent
Authorities in providing assistance toa foreign State for the purpose ofexpeditious conclusion;(5) t o i s s u e r e g u l a t i o n s a n dannouncement for theimplementation of the Mutual
Assistance Act; and(6) to carry out other acts necessary forthe success of providing or seeking
assistance under the Act.
Upon receipt of a request for assistancefrom a foreign State, the Central Authority
will take into account and determine
whether such request is eligible for theproviding of assistance under the Mutual
Assistance Act and has followed the process
correctly as well as accompanied by all
appropriate supporting documents. If so,
the Central Authority will submit the said
request to the Competent Authorities forfurther execution. However, if not, theCentral Authority will refuse to provide
assistance and notify the requesting Statethe reasons thereof, or indicate therequired conditions, or the causes ofimpossibility to execute the request. If the132

Central Authority is of the opinion that theexecution of the request may interfere with
the investigation, inquiry, prosecution orother criminal proceedings pending its
handling in Thailand, he may postpone theexecution or may execute it under certain
conditions set by him and notify therequesting State about that. A
determination of the Central Authority
with regard to the providing of assistancewill be final, unless otherwise altered by
the Prime Minister.
The providing of assistance will be
subject to the following conditions:(1) assistance may be provided eventhough there exists no mutual
assistance treaty between Thailand
and the requesting State, provided
that such State commits to assist
Thailand under the similar manner
when requested;(2) the conduct which is the basis for theassistance requested must be
punishable under Thai law unless
Thailand and the requesting country
have a mutual assistance treaty andthe treaty provides otherwise;(3) the request may be rejected if it willaffect national sovereignty, security
or other crucial public interests ofThailand, or relate to a politicaloffense; and(4) the providing of assistance will not
be concerned with a military offense.
The Central Authority will transmit therequest from a foreign State to thefollowing Competent Authorities forexecution:(1) requests for taking statement ofpersons, or providing documents,
articles and evidence out of court, orserving documents, or searching, orseizing documents and articles, or
locating persons will be forwarded tothe Director General of the Police
Department;

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS(2) requests for taking testimony ofpersons and witnesses, or adducing
documents and evidence in court will
be dispatched to the court;(3) requests for transferring persons incustody for testimonial purposes willbe transmitted to the Director
General of the Correctional
Department; and(4) requests for initiating criminal
proceedings will be conveyed to theDirector General of the Police
Department and the Chief Public
Prosecutor for Litigation.
Upon obtaining the said request, theCompetent Authorities will execute it and,after completion, submit a report together
with all documents and articles concernedto the Central Authority, who will thennotify the result thereof as well as deliver
such documents and articles to therequesting State.
It should be noted that with regard toassistance in forfeiting the fruits andinstrumentalities of crime located in
Thailand, after the court having
jurisdiction over the property is conveyed
the request, it is empowered to confiscate
the property if the final judgment from aforeign court allows such action and theproperty is forfeitable under Thai law. In
order to solve the problem concerning
jurisdiction and competence of the court,
the forfeiture is deemed effective, eventhough the cause of such forfeiture may nothappen in Thailand. A request for legal
assistance will normally be executed inaccordance with Thai law. Nonetheless, theThai government, with the spirit ofcooperation, aspires to follow the methodof execution specified in the request insofar
as it is not incompatible with domestic
laws.

III. EXTRADITION
The issue of prosecutors’ role inproviding extradition is another aspect ofinternational cooperation in criminalmatters.
As stated earlier, the Extradition Act isonly a general rule of extradition, and it
will be applicable unless the treaty to which
Thailand is a party provides otherwise.
The Act requires that the crime committed
be illegal and punishable under Thai law(double criminality rule); not be a politicaloffense; and the penalty for the offense
must be at least one year’s imprisonment.
The request for extradition must beaccompanied by:(1) in the case of a person having been
convicted of a crime, a dulyauthenticated copy of the judgmentof the court which tried him; and(2) in case of a person charged with acrime, a warrant of arrest issued by
the Competent Authorities of therequesting country, or a duly
authenticated copy thereof.
Regarding the process of providing
extradition, the request thereof, as opposedto the request for mutual legal assistance,
must be submitted through the diplomaticchannel. After that, unless the Thaigovernment decides otherwise, the request
together with the accompanying
documents will be transmitted to theMinistry of Interior, which may order theaccused to be arrested or may apply to thecourt for a warrant of arrest. Further, therequest and the accompanying documents
will be conveyed to the Office of theAttorney General which, under theextradition scheme, will be responsible forthe execution of the request by working
with the police and the court. The
prosecutors in the Office of International
Affairs will then demand of the court ofcompetent jurisdiction the warrant ofarrest. In the case that the accused has
been arrested, the prosecutors without

133

RESOURCE MATERIAL SERIES No. 53
unnecessary delay will bring the casebefore such court and a preliminary
investigation will be made in accordanceas far as possible with the Thai criminal
procedure law.
The court may order a remand from time
to time on the request of either party andfor good and sufficient reasons, but thecourt should not allow bail in these cases.
It is worth stressing that the prosecutors,
and representatives of the requested Thaigovernment, associate with the court
hearings merely to establish, by means ofwitness testimony or depositions, that:(1) the identity of the accused matcheswith the person wanted;(2) there is sufficient evidence against
him to commit him for trial, if theoffense had been committed inThailand; and(3) the offense is extraditable and is not
one of a political character.
Under the general extradition rule, theprosecutors are not required to prove up to
the extent that the accused ever committed
the offense as stated in the request. In
reverse, the accused is not permitted to
rebut the prosecutors’ affirmations except
upon the following points:(1) that he is not the person wanted;(2) that the offense is not extraditable
or is of a political character;(3) that his extradition is in fact being
asked for with a view to punishing
him for an offense of a politicalcharacter; and(4) his nationality.
If the court is satisfied with theestablishments, it will make an orderauthorizing the accused to be detained witha view to being surrendered. The accused
will not be sent out of Thailand for fifteendays and within that period, he is granted
a right to appeal to the Court of Appeals,
whose decision upon all questions both offact and of law will be final.
Notwithstanding, if the court is not134

satisfied with the evidence presented, itwill order the accused to be discharged atthe end of forty-eight hours after reading
its decision unless within that period theprosecutors notify the court of an intention
to appeal. The prosecutors likewise areentitled to file an appeal within fifteen days
and the court will order the accused to bedetained pending the hearing of suchappeal. If the accused has not beensurrendered within three months from thedate when the order of the court becomes
final or within such further time as thecourt for sufficient reason direct, theaccused will be set at liberty.
As the Extradition Act is only a generalrule of extradition, it will be applicable
unless the treaty to which Thailand is aparty provides otherwise. For this reason,
the practice on extradition in Thailand mayvary from one country to the others. For
instance, while the Extradition Act allows
the extradition of nationals, the treaties
with the United States, the Great Britain,
Indonesia, and the Philippines subject theextradition thereof to the discretion ofexecutive branch, the treaty with Belgium
explicitly prohibits it. Such phenomenonwill inevitably make extradition procedure
too complicated and difficult forpractitioners, including prosecutors.
Additionally, the Act is now obsolete inthat it lacks simplified extradition in cases
where the accused agrees to be extradited
without the extradition proceedings. Also,
handling requests through the diplomaticchannel is very time-consuming and a strictobedience to the principle of double
criminality is rather impractical for
Thailand, which still lacks a number oflegislation to combat transnational crime,for example an anti-money laundering law.
Thus, it is very likely that there will be
more extradition treaties in the future
because procedures adopted by negotiating
parties will normally be better and provide
more benefit to the parties than those foundin the Extradition Act. Realizing that, the107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Thai government has, in March 1997, setup the committee for the reform of theextradition law.
IV. ASSET FORFEITURE
According to the 1991 Act on Measures
for the Suppression of Narcotics Offense,
the Properties Examination Committee
has been established for the administrationof asset forfeiture procedure. TheCommittee consists of high-ranking
government officials involved in theprocess, including the Attorney General.
The Committee has the power to issue anorder for examination of the alleged
offender ’s property where there arereasonable grounds for suspicion that it is
the proceeds of a drug offense. In addition,
the Committee in such a situation also has
the power to make a seizure or restraining
order thereof. In carrying out the executionof the law, the Committee has appointed asub-committee called the Sub-Committee
Attached to the Properties Examination
Committee to take into consideration all
information and evidence in connection
with the property, to give opinion to theCommittee, and to supervise and control
the competent officials to carry out thedesignated task. Prosecutors are also
installed in this sub-committee.
I will give a brief overview on theforfeiture procedure under the Act. Whena significant drug trafficker is charged witha drug offense and becomes the alleged
offender, the Secretary of the Narcotics
Control Board (NCB), as a member and asecretary of the Committee, will take into
consideration whether there are reasonablegrounds for suspicion that any property of
the alleged offender is the proceeds of adrug offense. If yes, the Secretary-General
will propose examination by the SubCommittee which, if it agrees, will give its
opinion to the Committee for consideration.
The Committee will then make an orderfor examination of property. In addition, if

there are reasonable grounds to believethat the property of the alleged offender islikely to be transferred, removed orconcealed, the Committee will give aprovisional order for seizure or restraintof property.
The Committee will contemplate all
information, evidence and documents inconnect with the property from thecompetent officials and the owner ofproperty, if any, before making a decision
concerning the property. If the Committee
decides that such property is the proceedsof a drug offense, the seizure andrestraining order will be issued. Its
decision together with documents andevidence concerned will be submitted to theprosecutors. However if the Committee
decides otherwise, the property seized or
restrained temporarily will be returned tothe owner. When prosecution has been
instituted against the alleged offender, theprosecutors will, after agreeing with theCommittee that the property of the alleged
offender is believed to be the proceeds of adrug offense, make an application with thecourt for a confiscation order. If there arecircumstances that the defendant or theexaminee has carried on the commissionof an offense, it shall be presumed that theproperty possessed or derived by him
beyond the living status or his capability
for occupation is the proceeds of a drug
offense. In cases where there is a final nonprosecution order or where there is a final
judgment dismissing the charge against
the alleged offender or the accused, theproperty seized or restrained by theCommittee will be returned to thedefendant or the owner of property.
Since its first enforcement in April 1992
to the end of July 1997, there have been a
total of 365 alleged offenders whose
property has been examined by order of theCommittee, and the total value of property
temporarily seized or restrained isapproximately US$19.8 million. Out ofthese, there is property worth around135

RESOURCE MATERIAL SERIES No. 53
US$18.5 million of 236 alleged offenders
that the Committee considered to be theproceeds of drug offenses. Up to now, thecourt has passed judgment for theconfiscation of 13 cases, the total value of
which is around US$260,000.
Even though the asset forfeiture
measure is one of the most powerful tools
for fighting organized crime, its applicationin Thailand is still far from satisfactory.
First, the measure is only available in drugoffenses. Moreover, unlike the civil
forfeiture procedure of the United States,
the confiscation of property under the law
is conviction-based. This means that thegovernment needs to prove that the alleged
offender is guilty before the court will handdown the confiscation order. If the court
acquits the defendant, then the seizure orrestrait of property will terminate. Inaddition, the lack of understanding of thisnew concept of law among judicial officers
is also another important reason why suchmeasure has not been effectively utilized.
Lastly, Thailand still lacks an anti-money
laundering law to penalize those who assist
in the transfer or concealment of theproceeds of drug offenses. This has madeit more difficult for the government to trackdown the proceeds of crime that have beentransferred or concealed to avoid detection.
V. CONCLUSION
As international criminals, unlike law
enforcement officials, are not subject to any
limitations in their cross-border operations,
it is, therefore, vital that we join hands in
an attempt to increase cooperation andcoordination. As there is a rapid increasein transnational organized crime, there isa great need for a collective response by
the international community and greater
cooperation and coordination among
responsible officials in order to fight more
effectively. From my point of view, I am ofthe opinion that more international
training and conference among criminal

136

justice officials, like this UNAFEIInternational Training Course, should be
encouraged so that those who are in thesame career network will have an
opportunity to share experiences and to get
acquainted with each other and with thelegal system of other countries. This will
not only enhance smooth cooperation, butwill also improve the standard of criminal
justice and the efficiency in law
enforcement in the respective countries.