RESOURCE MATERIAL SERIES No. 57

EXTRADITION AND MUTUAL LEGAL ASSISTANCE
IN THAILAND
Sirisak Tiyapan*
I. INTRODUCTION
Traditional criminal justice usually
begins with the tracing of clues andgathering of evidence after the occurrenceof a crime, then to arresting of a suspect,putting him under custody, enquiring
witnesses and, unless the investigation isconducted by the prosecutor, to refering thecase to the prosecutor for screening andinstitution of prosecution or dropping it andletting the suspect go. In case ofprosecution, the prosecutor then resumes
his function in the court throughout thewhole process. However, when the casebecome more complex because it touches
upon the components of internationalized
character or involves the matters of astate’s jurisdiction, then the process
generally applicable to the domestic
criminal has justice may become impossible
or even fail on its entirety. This may beperceived, for instance, when a crime has
been committed in one country and thecriminal has fled away to another country.
How do we bring the offender back to standtrial and punishment? Of course, it would
be impossible for the country of the crime
scene to send its officers to arrest the
fugitive directly in the territory of anotherstate because it is against internationallaw. Also, if the investigation orprosecution is carried out in one country
but the essential evidence or witnesses
exist in another country: How do we obtainsuch evidence or statements of such
witnesses because then again theproceeding country could not send its
authorities to conduct an investigation or* Expert State Attorney, Legal Counsel Department,
Office of the Attorney General, Thailand

108

to collect evidence within the jurisdictionof another country.
The situation illustrated here is not
exhaustive. There still exists many aspects
and problems the difficulty of which isbeyond the capacity of a single state to deal
with, especially under the current situation
whereby many serious transnationalorganized crimes such as narcotics
trafficking, money laundering,transportation of illicit firearms, sexuality
exploitation of women and children,
computer fraud, financial crime, terrorism,and so on, have been spread all over theworld posing a great danger to every
country. The tendency of today’s crime islikely to continue and become even more
severe in the next millennium. To halt thetransnational criminality, states must
concretely coordinate with each other in theprevention and suppression of it.
Assistance and coordination between states
to tackle the crime can take many forms
and is collectively known as “international
cooperation.”
In broad sense, international
cooperation encompasses every kind ofactivity regarding crime and justice,namely; mutual legal assistance,
extradition, transfer of proceedings andprisoners, as well as technical cooperation.
However, since this paper is intended to
be used as the supporting document for thelecture to be given in the 114th UNAFEI
I n t e r n a t i o n a l S e n i o r S e m i n a r,
“International Cooperation to Combat
Transnational Organized Crime - with
Special Emphasis on Mutual Legal
Assistance and Extradition”, it will,
therefore, discuss and concentrate

114TH INTERNATIONAL TRAINING COURSE
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substantially only on the issues of mutual
legal assistance and extradition asemphasized. In this context, the experienceof Thailand in dealing with the cases, laws,
regulations, and practice will be taken as
the model for comparative study.
II. EXTRADITION IN GENERALOf all categories of international
cooperation, extradition is the mostconcrete and direct means to take back the
fugitive offender to stand trial and serve
sentence in the jurisdiction of the state
where he fled away. Extradition of today is
still based on different norms and practices,which is reflected by diverse national
legislation and treaties concluded between
countries. The reasons behind thisdiversity may be as one scholar1 point out
that “States still favor bilateral treaties andmake extradition a consequence of theirpolitical relations. Thus, politically friendly
countries reduce what government consider
to be barriers to extradition, while the same
countries increase these barriers in theirrelations with less friendly ones”. To takeinternational cooperation among states,
which has as its initial objective to copewith crime, as a means for acquiring
political interests as such is, of course,
against the spirit of crime prevention andsuppression. Extradition should be
regarded as a tool to prevent the fleeing
away of transnational criminals who
usually snatch the advantages from thelimits of law enforcement, which often end
at the border, as well as loopholes arisingfrom the different laws and practices
among nations to escape from justice.
Difference in norms and practices isunarguably the crucial cause of hindrance
and failure of effective extradition. Concern
has, therefore, been expressed intensively
at international forums as how to
1

Cherif Bassiouni, Preface of International Review
of Penal Law, Vol.62, Nos. 1-2, 1991, p.13

harmonize or compromise this kind ofdifferences.
To harmonize diversity, attempts havebeen made on several occasions either at
the global or regional level by internationalorganizations, associations, and NGOs.
This can be perceived, for instance, fromthe works of the United Nations,
Association Internationale De Droit Penal,
the Asia Crime Prevention Foundation or
ACPF, and UNAFEI.
One predominant effort in this regard is
the adoption of the United Nations Model
Treaty on Extradition in 1990, which has
been proposed revising later on by theIntergovernmental Expert Group Meetingon Extradition2. This Model treaty has asits main objective the suggestion of a
uniform guideline to facilitate treaty
conclusions between states. Recently, theissue of extradition has also been discussed
comprehensively during the drafting of theInternational Convention against
Transnational Organized Crime. According
to the draft convention, significance of
extradition in enhancing the effectivenessof criminal justice and law enforcement
mechanisms under an international setting
to combat transnational organized crime
has been recognized, thus, one provision
related to extradition will be specifically
included.3
III. EXTRADITION IN THAILAND
A. Legal Basis
As a civil law country, Thailand
promulgated the “Extradition Act B.E.
2472” in 1929. This act is the fundamental
2

Intergovernmental Group Meeting on Extradition
was held at Siracusa, Italy, from 10-13 December
1996
3 Draft United Nations Convention against
Transnational Organized Crime, Article 10, UN
documents A/AC. 254/4/Rev.2

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RESOURCE MATERIAL SERIES No. 57
legislation for all extradition proceedings
so far as it is not inconsistent with theterms of any Treaty, Convention, orAgreement with a foreign state, or any
Royal Proclamation issued in connectiont h e r e w i t h 4 . U n l i k e t h o s e “ Tr e a t yprerequisite countries,” Thailand may
surrender to a foreign state the person
accused or convicted of crimes committed
in the jurisdiction of that state even if there
exists no treaty, provided that by the lawsof Thailand such crimes are punishable
with imprisonment of not less than one
year5. In practice, however, a declaration
for the reciprocal assistance as well as
certain requirements such as “double
criminality”, principle of “ne bis in idem”,
and so forth, must also be satisfied before
the request for extradition is accorded.
The request for extradition from aforeign state, whether having concluded atreaty with Thailand or not, shall be sent
through diplomatic channels, since an
exclusive center for extradition like theCentral Authority of Mutual assistance in
Criminal Matters does not yet exist underThai laws. Nevertheless, a need to have theCentral Authority to expedite and facilitate
enforcement of the rapid increasing
requests for extradition has been addressed
quite often among agencies concerned. So
far, this idea has been reflected in newlegislation, which is under draft. Presently,
extradition is deemed to be commonly
handled by various authorities, namely: theMinistry of Foreign Affairs; the Royal
Police Organization, the Office of the
Attorney General; the Court; and theCorrectional Department.
Although there is still no clear-cut
indication whether extradition is anadministrative or judicial matter, thegeneral consensus among the authorities
4
5

Article 3 of the Extradition Act B.E. 2472
Article 4 of the Extradition Act B.E. 2472

110

concerned seems to be implied that it is adirect responsibility of the executive tosupervise the extradition process and tolook it proceeds on the right direction.
Thus, unless the Government decided
otherwise, the extradition request will betransmitted to the Ministry of Interior inorder that the Public Prosecutor may bringthe case before the Court6.
By virtue of Article 11 of the Extradition
Act, the preliminary investigation in the
Court must be made in accordance with theCriminal Procedure Code. And thissometime causes problems, in particularwith regard to the sufficiency of evidence,
because Article 14 of the Act authorizes the
Court to discharge the accused if it
determines that the evidence isinsufficient 7. The State Attorney8 who
handles extradition proceedings in the
Court has to be very careful about theadmissibility and sufficiency of evidences
adduced since the adequacy of evidence toinstitute “prima facie” for extradition in his
opinion might be “inadequate” for somejudges who might prefer higher assurance.
Being in use for more than sevendecades, the Extradition Act B.E. 2472 is
no longer able to cope with modern concepts
and the progress of contemporary
extradition. In particular, it is incapable to6

Article 8 of the Extradition Act B.E. 2472
Article 14 of the Extradition Act B.E. 2472 provides
that “if the Court is of opinion that the evidence isinsufficient it shall order the accused to bedischarged at the end of forty-eight hours after suchorder has been read, unless within this period the
Public Prosecutor notifies his intention to appeal.
The appeal must be flied within fifteen days andthe Court shall order the accused to be detained
pending the hearing of such appeal”.
8 The term “Public Prosecutor” has been replaced by
the term “State Attorney” since the public
Prosecution Department” has been changed to be
the Office of the Attorney General in 1991.
7

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
answer several questions arising from thedissenting interpretation amongauthorities concerned. Accordingly, theCabinet has on 1 April 1997, passed a
resolution setting up a Special Committee
to review and revise laws related to
extradition including the Extradition Act
B.E. 2472. This ad hoc committee ischaired by the Attorney General andconsists of the representatives from various
agencies concerned. It is expected that withthe overhaul of extradition legislation,
Thailand would be able to bring moreadvantageous and preferable system in thisregard to combat transnational organizedcrime in this new era.
B. Extraditable Offence
If the term “extraditable Offences” isbroadly interpreted as to cover all offences
the extradition of which is not refused
because of its nature, or excluded by thelimit of the list of offences as prescribed in
the treaties concluded between somestates, then the extraditable offence should
not include those offences which areagainst the principles of “double
criminality”, “ne bis in idem”, “politicaloffences”, as well as any offences beyond
the scope of the list.
In Thailand, the Extradition Act B.E.
2472 does not directly specify the definitionof extraditable offences, while manytreaties concluded between Thailand andforeign states do. Article 4 of theExtradition Act, which is applicable on the
non-treaty basis, can be implied that the“extraditable offences” according to Thailaws are such offences punishable withimprisonment of not less than one year.
Notwithstanding the provision of
extradition laws, treaties between
Thailand and some foreign states before
1983 were concluded upon the “list-ofoffences” approach9. The tendency to shift
from the “list-of-offences” approach washeralded for the first time in the treaty

signed with the United States of America
in 1983 where the minimum “one-year”
imprisonment basis was clearly spelled out
as the sole element to determine theextraditability of the offences. The“minimum penalty” principle as such has
been used as the model for negotiation oflater treaties between Thailand and foreignstates on several occasions.10 In draftng of
the new Act on Extradition, currently
under consideration of the Drafting
Committee, a one-year minimum
imprisonment is also adopted as the basis
for determining of “extraditable Offences.”
It is quite clear, therefore that at present
Thailand tends to follow the principle of“minimum penalty” rather than the “listof offences” approach. This perhaps
because the latter is viewed as less flexible
to cope with the dynamic emergence ofmodern and complex of nature crime of
today.
Not only the range of penalty of theoffence 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
penalty is less than six months even if otherelements to fulfill extraditability of therequested offence have been met. Thisextended “minimum penalty” principle isupheld in the treaty between Thailand andthe United States, and followed by thetreaty between Thailand and the People’s
Republic of China. In addition, extraditableoffences have been interpreted by the same
treaty as to cover the preparing, attempting
to commit, aiding or abetting, assisting,
9

The 1911 Extradition Treaty between Thailand andthe U.K., the 1937 Extradition Treaty between
Thailand and Belgium, the 1976 Extradition Treaty
between Thailand and Indonesia, the 1981
Extradition Treaty between Thailand and thePhilippines.
10 For example in the conclusion of treaty between
Thailand and the People’s Republic of China.

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RESOURCE MATERIAL SERIES No. 57
counseling or procuring the commission of,or being as accessory before or after the fact
to, an offence which is punishable under
the laws of both Contracting Parties byimprisonment or other forms of detention
for a period more than one year or by any
greater punishment.
Apart from the time clause, Thailand has
also adopted, as the determining basis of
the extraditable offences, the actual
conduct of the alleged offender rather thanthe categorization or the naming of suchconduct.11
C. Reciprocity
The principle of reciprocity in extradition
requires that the requested state would,
vice versa, have the opportunity of callingfor extradition for the same crime, wherein
the requesting state would have to grantit. 12 Reciprocity is usually taken as aprerequisite claimed by the requested state
before an extradition is accommodated in
the case where no treaty with therequesting state existed. However, it is notconsidered as absolute essential even withthe requested state adhering to the “treaty
non-prerequisite” principle. This isperhaps, as one scholar pointed out,
because “This prerequisite (reciprocity)
would be missing, if the crime underlying
the request for extradition were unknown
to the requested state or if it were notpunishable according to its laws due to thecriminal law defining this offence morenarrowly”13. It is definitely clear, therefore,that merely reciprocity alone could notinstitute a mandatory condition for therequested state to accommodate a request
for extradition from the requesting state.
11 Article 2 of theTreaty between Thailand and theUnited States.
“THE RULE OF SPECIALITY IN
E X T R A D I T I O N L AW ” b y T h e o V O G L E R ,International Review of Penal Law, Vol. 62, Nos. 12, 1991, p.234

Generally speaking, reciprocity may beconsidered as the complementary part ofthe common perception among jurists inthat extradition is a matter of choice of thestate to grant to each other an accord ofassistance rather than a mandatory
obligation unless they have some treaties
between them. The requested state chooses
to extradite a fugitive to the requestingstate, upon commitment of reciprocity,
because it trusts in the standard of justiceof the requesting state and, of course,
expects to receive a similar trust from therequesting state in return. Therefore,
reciprocity is a matter of reciprocal trustand commitment for that. In this sense,
reciprocity may have some binding effectupon the requesting state after an accord
for extradition has been granted becauseof reciprocity commitment. However, tocreate reciprocity is purely a matter ofstate’s option. A requested state may refuse
acceptance of reciprocity offered by arequesting state on whatever grounds
including the difference between legal
systems as occurred between the Common
Law and the Civil Law countries.
Thailand has no difficulty in giving or
receiving reciprocal trust in justice systemof other countries. In addition, no treaty isrequired as a prerequisite for extraditioneven with the requesting state of different
legal system. Article 4 of the Extradition
Act B.E. 2472 specifies that “The Royal
Siamese (Thai) Government may at its
discretion surrender to foreign States which
no extradition treaties exist persons accusedor convicted of crimes committed within thejurisdiction of such States, provided thatby the laws of Siam (Thailand) such crimes
are punishable with imprisonment not lessthan one year.”

12 S e e112

13 Cf. Schulz, Das schweiserische Auslieferungsrecht,

1953, p.313, as cited by Theo VOGLER, Id.

114TH INTERNATIONAL TRAINING COURSE
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In practice, reciprocity is required inaccompanied with other requisites such as“extraditability”, “double criminality”, and“non-political” nature of the offence.
Requests for extradition from requestingstates, which have no treaty with Thailand
must clearly express a commitment togrant extradition of fugitives required by
Thailand in similar manner whenrequested. So far Thailand has extradited
to numerous countries the fugitive
offenders, even no treaty concluded withThailand.
D. Representative Clause“Representative Clause” is understood
to be the countervail against the refusal
for extradition in order to narrow as muchas possible the avenue for the fugitive
offender to escape from justice andresponsibility of his crime. The principleof aut dedere aut judicare14 (either extraditeor prosecute) which is stemmed from theold injunction aut dedere aut punire 15(either extradite or punish) seems to be adecisive explanation for the“Representative Clause”.
Although the representative clause isconstrued as a right kit to counter therefusal of extradition and should be
encouraged in all likelihood, there are stillsome questions regarding the extent of its
scope, manner, and appropriateness ofvarious aspects concerned. Although the
U n i t e d N a t i o n s M o d e l Tr e a t y o n
Extradition seems to be silent in thism a t t e r, m a n y e n d e a v o r s a t t h einternational level have been made for
14 This is the terms proposed by Cherif Bassiouni ascited by Edward M. Wise in “EXTRADITION: THE
HYPOTHESIS OF A CIVITAS MAXIMA AND THE
MAXIM AUT DEDERE AUT JUDICARE”,
International Review of Penal law, vol.62.Nos.1-2,
1991, p.119
15 This is the terms used by H. Grotius as cited Id.,
p. 119many occasions.
One example in this context is the textof the “Representative Clause” proposed tobe considered in the Asia Crime Prevention
Foundation Group Meeting on “Extradition
and Mutual Assistance in Criminal
Matters” held in Kuala Lumpur, Malaysia,
from 27-31 May 1997. The text reads:“If the requested country refuses anextradition request from a requesting
country because of lack of a treaty, therequested country shall establish
jurisdiction over the case requested andrefer to the authorized criminal justiceagency (based on a request from therequesting country) subject tocompliance with other requirements.”
In some countries like Thailand, therefusal of extradition due to the lack of atreaty may not occur or is very rare, thesuggestion to establish jurisdiction over thecase underlying extradition request as wellas to refer the case to the authorizedcriminal justice agency is somehow aproblematic issue. Establishment ofjurisdiction over the alleged conduct may
be possible only if such a conduct contains
in its some elements of international crimewhereby every state is capable and willingto take action, otherwise it might bedetermined by the standard of “double
criminality” principle. The lack of suchcharacteristic will render theestablishment of jurisdiction over therequested offence difficult if not entirely
impossible.
Another example is the extradition
clause in the Draft Convention against
Transnational Organized Crime16 recently
proposed under the framework of theUnited Nations, which is currently underreview of the Ad Hoc Committee on the
Elaboration of a Convention against
Transnational Organized Crime. The text

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RESOURCE MATERIAL SERIES No. 57
is partly read as follows:“The State Party in the territory ofwhich the offender or the alleged
offender is found shall, in cases where
this Convention applies, if it does notextradite that person [for the purposeof prosecution], be obliged, upon requestof the State Party seeking extradition,
whether or not the offence wascommitted in its territory, to submit thecase without undue delay to its
competent authorities for the purpose ofprosecution, [subject to the condition ofd o u b l e c r i m i n a l i t y, ] t h r o u g hproceedings in accordance with the lawsof that State. Those authorities shalltake their decision in the same manneras in the case of any other offence of agrave nature under the law of that
State”The text proposed by the Draft
Convention against Transnational
Organized Crime has been developed a bit
clearer than that of the former example
since it expressly imposes the burden toprosecute upon the requested state if it
refuses to extradite the offender.
In Thailand the principle of “aut dedere
aut judicare” has not been included in the
Act on Extradition B.E. 2472, nor any
treaty. However, the issue has been
discussed considerably during the drafting
process of the new Extradition Act, which
resulted in the acceptance of the Drafting
Committee to include the principle of “autdedere aut judicare” in the new Act.
E. Political Offence
Political Offence as the exception for
extradition is said having been built on a
triple rationale, namely:

16 Article 10 clause 9(a), General Assembly document

A/AC. 254/4/Rev.2

114

1. The political argument: which meansthat states should remain neutral
toward political conflicts in otherstates, and, therefore, should not lose
neutrality by surrendering a fugitive tohis political opponents;
2. The moral argument: which is based on
the presumption that resistance tooppression of political persecution islegitimate and therefore the politicalcrime is justified;
3. The humanitarian argument: whichmeans that a political offender should
not be extradited to a state in which herisks an unfair trial.
The pragmatic problems usually occur
due to the lack of neither universal
definition of political offence nor the
standard norm of application. Each country
has to develop its own legal and political
criteria on the subject, thus, very varied
from the others. Furthermore, thecomplication seems to be on the increase
when the exception related to politicaloffence is enlarged to cover the ordinary
crime allegedly committed by politicalmotivation. However, the most disputableissue seems to fall within the question
whether it is appropriate, and if so, how tonarrow the scope of political and politicallymotivated offence in certain types of crime
which cause massive injury to lives orsafety of the innocent individual or the
public, such as hijacking, hostage taking,terrorism, etc..
This question seems to be reflected
clearly by the diverse concept between
those who favor the political offence
exception and those who do not; or as one
expert 17 called it the split between the“prosecution” and the “defense.”
For those who support the restriction ofpolitical offence exception, such conduct isviewed as the crime per se, and since itagainst public safety, no room should beaccorded to allow the offenders escape from

114TH INTERNATIONAL TRAINING COURSE
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trial and being punished in the requestingstate. In this regard, to list out certain actsand exclude them from the scope of politicaloffence, which is known as “per selimitation” or the “negative definition”, isextremely called for in international
pattern to suppress crime.
In contrast, the argument raised bythose who still firmly adhere to the
tradition political offence is substantiallyrelied on the humanitarian guarantee. For
them, the extradition should be refused in
all likelihood that a requested person will
be subjected to a biased trial or imminent
danger against his fundamental rights.
Thus, to list out offences under the “per selimitation” approach seems to be too risky
and unnecessary since the discretion
whether to extradite a fugitive or not canbe followed the normative limitations.
Position of Thailand in this regard seems
to be on the compromise. While theExtradition Act B.E. 2472, as well as thetreaties concluded between Thailand andthe United Kingdom, and Thailand andBelgium keep silent on the “negative
definition” of the political offence, the more
recent treaties between Thailand and somecountries such as the United States,
Indonesia, the Philippines, and the People’s
Republic of China, explicitly excluded “amurder or willful crime against the life or
physical integrity of a head of State or oneof the Connecting Parties or of a memberof that person family, including attempts
to commit such offence” from the scope ofpolitical offence exception.
The adoption of the “negative definition”
or “per se limitation” approach in Thailand
through the conclusion of treaties as suchis still very restricted and considered as an
17 Steven LUBET, “THE POLITICAL OFFENCEEXCEPTION”, International Review of Penal Law
Vol.64Nos. 1-21911,p.108

extraordinary exception under the current
practice. This is enlightened, for instance,by the refusal to accept a very broad list ofoffences proposed by the delegation of India
to be excluded from the course of politicaloffence during the negotiation ofExtradition Treaty between Thailand andIndia sometime ago. The reasons to refuse,according to the Thai delegation, were that:“most of the offences listed could beconsidered as normal offences, which fell
under the general rule of extraditableoffence and since there is still nouniversally accepted norm to determine
such offences as political in nature orconnected with politically motivatedcrime.” In addition, another ground for
Thailand to hesitate to adopt too wide
range of the “negative definition” perhaps
stemmed from the long implicit tradition
to treat extradition as the administrative
matter whereby the Government as theexecutive body has direct responsibility tosupervise a policy towards a requesting
foreign state, especially where theflexibility of Government’s discretion might
be lessened by the prior establishment ofcrime list.
However, since there is an international
concern about the increasing refusal of
extradition upon the excuse of politicaloffence in some categories of criminality,in particular those transnational organizedoffences, which are very dangerous andcapable of causing huge damage to lives
and properties of innocent victims all over
the world, the tendency to adopt “negative
definition” of the political offence isbecoming more and more recognized. To
respond to the internationally accepted
necessity in this regard, the Drafting
Committee of the new Act on Extradition,
therefore, unanimously agree to include in
the new Act a provision recognizing certain
conducts as the exception of politicaloffence, namely:

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RESOURCE MATERIAL SERIES No. 57(i) a murder or willful crime against
the life or physical integrity of a
Head of State or one of theConnecting parties or of a memberof that person family;(ii) offences under the treaty whereby
Thailand is a party:(iii) offences related to illicit traffickingof narcotics;(iv) attempts, or coordinate with theoffender to commit all said offences
mentioned above
F. Extradition of Nationals
Reasons for states to refuse extraditionof their nationals may be as one scholar
pointed out long time ago that:18(i) the fugitive ought not be withdrawn
from his national judges;(ii) the state owes its subjects theprotection of its laws;(iii) it is impossible to have complete
confidence in the justice meted out
by a foreign state, especially withregard to a foreigner; and(iv) it is disadvantageous to be tried ina foreign language, separated fromfriends, resources and character
witnesses.
To adhere too strictly to the nonextradition of nationals may impede thespirit of extradition with aimed at theattempt to narrow loopholes snatched by
the fugitive offender to escape from justice,particularly if the refusal to extradite is notin line with the rule of “aut dedere aut
judicare.” And even if the principle of “autdedere aut judicare” is applied to counter
18 Lord Cockburn in R.v. Wilson, 3 Q.B.D.42, 44(1877)

AS CITED BY Sharon A. WIIAMS in“ N AT I O N A L I T Y, D O U B L E J E O PA R D Y,
PRESCRIPTION , AND THE DEATH SENTENCE
AS BASES FOR REFUSING EXTRADITION”, inInternational Review of Penal Law, Vol. 62, Nos. 12, 1911, p. 260-261

116

the refusal of extradition, questions stillarise especially with regard to thepromptness and sufficiency of evidences of
the crime scene as well as enthusiasm of
the requested state to prosecute.
Lack of promptness and sufficiency ofevidences may be compensated by thechannel of Mutual Legal Assistance
between the requesting and the requested
state. Yet, lack of enthusiasm due to nonostensive interests to deal with crime
taking place in the jurisdiction of anothersovereignty is somewhat could not be
prevented to become the cause of worry of
the requesting state, no matter how highdegree the requesting state trusts in thesystem of the requested state.
Nevertheless, even more worry in thisregard may be the lack of jurisdiction of
the requested states to try the alleged
offender.
Although a suggestion has been madefor the states that refuse to extradite theirnationals to establish jurisdiction over the
alleged cases, it is not easy to do so in everycase. Most countries have alreadyestablished their criminal jurisdiction
according to their own ways of thinking,thus, might feel it extremely difficult toembrace a new alleged conduct that may
not be a crime at all in their views.
In Thailand, the position towards the
non-extradition of nationals seems to be notso obvious as that of some countries. The
Extradition Act B.E. 2472 specifies noclear-cut rule on the issue. Article 16 of the
Act provides that “In all cases in which the
Court is of opinion that the accused is a
Siamese subject...reference must be madeto the Ministry of Justice before making anorder for the release of the accused.” Someauthorities have interpreted this provisionthat the “Thai nationality” is a mandatory
factor to refuse extradition, and the Court,
after having referred the case to the114TH INTERNATIONAL TRAINING COURSE
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Ministry of Justice, shall release theaccused. However, other authorities havea dissenting view that “Thai nationality”
alone is not a mandatory factor to refuse
extradition, thus, the Court has no power
to release the person required on its own
motion. This provision, according to thedissenting view, requires the Court to refer
the case to the Ministry of Justice which isan executive agency because the actual
authority to determine whether toextradite a Thai national or not is theexecutive not the judiciary. The provision
is, therefore, considered as to forbid rather
than allow the Court to automaticallyrelease the fugitive.
In the context of the treaty, apart fromthe 1973 Extradition Treaty between
Thailand and Belgium where extraditionof national of the requested state is
explicitly forbidden, all other treaties
between Thailand and foreign countries do
not close the door for extradition ofnationals of the Contracting Parties.
In 1995, Thailand extradited a Thai
politician, who allegedly committed a crimeof narcotics trafficking, to stand trial in the
United States for the first time in history.
This deal was made upon the 1983
Extradition Treaty between Thailand andthe United States. Although Article 8 of thetreaty provides that neither Contracting
Party shall be bounded to extradite its own
nationals, other paragraphs are widely
open for each country to extradite its own
nationals if it thinks appropriate to do so.
In this case a strong opposition of the
defendant upon the basis of nationality led
to a hot controversy and debate among theauthorities concerned as to whether it ispossible and appropriate to extradite a
Thai citizen to stand trial under the foreignlaws and jurisdiction. However, since it was
impossible for Thailand to establish aretroactive jurisdiction over the person
requested for the crime allegedly

committed long before the entering into
force of specific legislation concerned,
extradition was, therefore, considered as
the best resolution to maintain the spiritof international cooperation and crime
suppression.
The most recent tendency of Thailand
in this regard may be perceived from theprovision related to extradition of Thainationals, proposed to be included in the
new Extradition Act pending drafting.
According to the proposed text, the request
for extradition of a Thai national to foreigncountry will be refused unless (1) the treaty
already concluded between Thailand andthe requesting country provides otherwise,(2) the fugitive give his consent to be
extradited, or (3) the Cabinet has aresolution approving extradition.
G. Capital Punishment
The call for abolition of capital
punishment or death penalty in various
regions19 is a contemporary phenomenon.
Strong push to abolish such kind ofconviction usually be correlated to theclaiming of human rights protection, andin turn reflected by the refusal to extradite
fugitive offenders to a requesting state
where they might be punished by death.
The requesting states that still apply
capital punishment often face with refusal,
or required by the requested states that
19 The first binding international instrument against

capital punishment is the “Sixth Additional Protocol
to the European Convention on Human rights.”
Another convention on the abolition of death
penalty was an additional protocol to the American
Convention on Human rights. In 1988 the General
Assembly of the United Nations adopted the textof a Second Optional Protocol to the International
Covenant on Civil and Political Rights which aimed
at the abolition of the death penalty. See“Extradition involving the possibility of the death
penalty” by Matthias WENTZEL in International
Review of Penal Laws, Vol. 62, Nos. 1-2, 1991, p.336

117

RESOURCE MATERIAL SERIES No. 57
have already abolished such penalty to givean assurance not to impose death penalty
upon the extradited person or at least not
to carry it out.
Refusal of extradition request upon thecitation of capital punishment or
requirement of an assurance not to impose
or carry out death penalty as such has beenstrongly protested by those countries thatstill retain capital punishment in theirsystems. For them, such practice not only
hampers the smooth flow of extradition
between states and thereby diminishes thespirit of international cooperation to
suppress crime, but may also be consideredas the effort to interfere with the judicial
discretion of the requesting state andthereby equal to the stepping over theborderline of justice sovereignty of anotherstate. According to the countries where
capital punishment still exists, there is stillno uniform rule on the issue of capital
punishment; therefore, every country is
free to establish national norm andstandard conforming to particular
historical background and tradition mostsuitable to the justice system of its own.
No state should be allowed to encroach
upon the border between nations.
Countries which strongly support theabolition of death penalty and usuallyrefuse to extradite a fugitive to therequested states that still apply capital
punishment, are mostly the European
countries. According to them, the protectionof fugitive offenders from facing justice ina requesting state for a crime related todeath penalty by refusing to extradite iscorresponding to human rights protection,
which must be maintained and universally
regarded as the absolute essential.
However, this perception has been severely
criticized by many other countries, as one
scholar indicated that: “From thecontemporary European perspective, thechoice may seem clear: the right of an118

individual to be extradited from Europe
must satisfy the minimum standards of theEuropean Human Rights Convention, aninternational instrument embodying
international standards. However, Europe
is not the globe, and a European consensus
concerning the rights of an accused is not a
global consensus.”20
From the point of view of those countries
which still retain capital punishment, it
might be necessary to have such penalty
to punish the most wicked criminal who
has committed the most severe crimewhereby other effort to correct orrehabilitate him is in despair. However, toestablish death penalty and to carry it out
are different matters. Let us take Thailand
for example, according to the Thai Penal
Code, the most severe penalty is death.21
In practice, the law has given to the Courta very wide range of discretion to reduce
penalty when the accused pledges guilty,
or if he/she deserves penalty mitigation due
to certain circumstances prescribed by thelaws. Thus, the death penalty may beminimized to life imprisonment, or lesssevere conviction. If the offender is ajuvenile, the Court has to automaticallyreduce penalty for him/her, and, therefore,
will never be punished with death. In
summary, it is possible to say that although
Thailand still upholds the death penalty,
the possibility to apply it is rather difficult.
With regard to the extradition request
where the death penalty is concerned, it
seems that Thailand is still reluctant tofollow the standard suggested by thosestates which against the said penalty,
although their requirement has begun to
be increasingly accepted at some degree forthe sake of compromise. Most treaties
20 D a n i e l

H . D E R B Y i n “ C O M PA R AT I V E
EXTRADITION STUDY SYSTEMS”, International
Review of Penal Law, Vol.62. Nos. 1-2, 1991, p. 59
21 Article 18 of the Thai Penal Code.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
concluded by Thailand do not explicitly
forbid extradition in the case where capital
punishment is concerned, and sometreaties even implicitly allow it. For
example, the Extradition Treaty between
Thailand and Belgium clearly prescribes,
in Section 2, the extraditable offences
which include in sub-section (11) the
offence of threat to cause bodily or property
harm where such offence is inflicted withdeath penalty or imprisonment, while thetreaty between Thailand and thePhilippines, Article 2, defines theextraditable offence as the offences listed
out in the treaty where such offences may
be imposed by death, imprisonment, or
deprivation of liberty at least one year.
A compromise to remove the stagnancy
of extradition involving capital punishment
has been firstly accepted by Thailand in1983 in the provision of Extradition Treaty
signed with the United States. According
to Article 6 of the Treaty, when the offence
for which extradition is sought ispunishable by death under the laws of theRequesting State and is not punishable bydeath under the laws of the Requested
State, the competent authority of theRequested State may refuse extradition
unless:(a) the offence is murder as defined
under the laws of the Requested
State; or(b) the competent authority of theRequesting State provides assurance
that it will recommend to thepardoning authority of theRequesting State that the death
penalty be commuted if it is imposed.
To exempt murder from the ambit ofrefusal in this regard may be deemed as a
new approach which could be applied also
for the compromise between the countries
which still uphold capital punishment andthe countries which do not, in the sensethat either side recognized the importanceof conception regarding death penalty ofthe other and try to seek a tolerable
solution mutually accepted. Likewise, thecountries holding capital punishment could
not insist the countries having no capital
punishment to extradite a fugitive to facedeath penalty except in certain offences
extremely crucial for the requesting states.
On the other hand, the countries having
no capital punishment have to retreat one
step from the confrontation line by granting
extradition only for such offences. The
requesting and the requested states may
consult each other what offences should belisted as extremely crucial.
To give assurance as to recommend to
the pardoning authorities to commute
death penalty is another approach toresolve problem. The assurance like this issomehow more lenient than thecommitment not to impose death penalty
or not to carry it out, because the only
commitment binding the requesting states
is to make a recommendation to thepardoning authorities not to guarantee theresult of which. This kind of resolution
seems to suit Thailand or those countries
having similar administration because thepardoning authorities is the King, who isthe most respectful person and soleauthority to grant pardon at his own will,
and nobody even the Government could
interfere with His Majesty’s discretion. In
practice, the Minister of Interior will be theauthority to make a recommendation to theKing, but the final decision is rested with
the King.
The most recent trend of Thailand is still
unclear. Although, during the drafting of a
new Act on extradition, a suggestion has
been made as to include in the new Act a
provision to automatically commute thedeath penalty imposed by the Court to life
imprisonment in corresponding to thecommitment of Thailand, as the requesting119

RESOURCE MATERIAL SERIES No. 57
state, not to carry out death penalty if so
required by the requested states who do
not impose death penalty on the underlying
conduct requested by Thailand, thissuggestion could not obtain unanimous
agreement and still under hot debate.
H. Prima Facie Requirement
Although the common view of states
seems to emphasis on the speedy andconvenient extradition as the ideal meansof international cooperation to return the
fugitive offenders back to face justice intheir own land, it is regrettable thatextradition still falls under some technicalbarriers. The “prima facie” requirement
or whatever conditions requiring therequesting state to comply with before theextradition is accommodated, areundoubtedly construed as technicalbarriers.
In most of the common law countries, the“prima facie” requirement is usuallyinterpreted relatively wide as to embody
both the sufficiency and admissibility of theevidences in extradition proceeding. And
this is somewhat astonishing to most civil
law countries. According to civil law
concept extradition wherever proceeded
should not be confused with the actual caseproceedings which requires the extreme
strictness of proof. The sole purpose of
extradition proceedings is whether or not
the alleged fugitive should be surrendered
to the requesting state, thus, very far fromwhether he is guilty or not. The requested
state should limit its content to a warrantof arrest issued by the competentauthorities of the requesting state, or anauthenticated copy of the judgment of thecourt and other supporting document as
enough to establish the committal for trialof the person needed and to extradite him/
her.
In Thailand, the standard ofrequirement to establish suitability to120

extradite is more flexible than that of thecommon law countries. According to Article
7 of the Extradition Act B.E. 2472, therequest for extradition must be
accompanied by a duly authenticated copyof the judgment of the Court which triedhim, or a warrant of arrest issued by theCompetent Authorities of the requestingstate, or a duly authenticated copy thereof,
and by such evidence as would justify thecommitment for trial of the accused, if thecrime has been committed in Thailand.
In this regard, various treaties concluded
between Thailand and foreign states
contain similar provisions.22
I. Simplified Procedure
Simplified procedure, the surrender of
person requested with the least or without
formal proceedings of extradition in thenormal course, is a practice adopted invarious regions.23 This approach is also
supported by the United Nations throughthe adoption of the United Nations Model
Treaty on Extradition. 24 Generally
speaking, rendition of a fugitive without
meeting the stringent requirements offormalities under extradition can takemany forms such as deportation, expulsion,
exclusion, or even abduction. However,
22 For example, Article 9(3) of the 1983 Treaty between

Thailand and the United States provides that “Arequest for extradition relating to a person who issought for prosecution also shall be accompaniedby:(a) A copy of the warrant of arrest issued by a judge
or other competent authorities of the Requesting
State;(b) Such evidence as, according to the laws of theRequested State, would justify that person’sarrest and committal for trial, including
evidence establishing that the person sought isthe person to whom the warrant of arrest refers”
23 For example, in Europe, U.S.A. , and Thailand.
24 General Assembly’s Resolution 45/116 of 14
December 1990.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
such measures are considered as purely
administrative and beyond the scope of
extradition. The simplified procedure inthis regard is emphasized on an extradition
in some extra form. The main objective ofsimplified procedure is aimed at the
shortening of process to expedite and grant
as much as possible the convenience in thesurrender of the required fugitive, thus, tocut down unnecessary formalities, as wellas to waive or mitigate in some degree thetest of eligibility of the case. The question
may arise here as; To what formalities or
requisites or tests should be waived or
mitigated and to what extent? Since thesimplified procedure, like the full process
extradition itself, still relies on the different
norms and practices of a particularcountries or groups of countries without auniform rules, the answer of the said
question may be varied from jurisdiction
to jurisdiction according to national value
and philosophy. Treaties concluded
between states as well as the United
Nations Model Treaty on Extradition 25
explicitly indicates the consent of theperson to be extradited as the key element
for the “simplified procedure” but rarely
mentions details of other conditions. Thisperhaps was because the simplified
procedure was viewed as the practicalmatter requiring negotiation and mutual
consent between the requesting and therequested states, thus, left out the details
for sake of flexibility. For, instance, Article
15 of the Extradition Treaty between
Thailand and the United States regarding“Simplified Procedure” provides that “if theperson sought irrevocably agrees in writing
to extradition after personally being advisedby the competent authority of his right toformal extradition proceedings and theprotection afforded by them, the Requested
State may grant extradition without formal
extradition proceedings.” This provision
does not prescribe clearly as to what arethose formalities which will be waived andwhat could not, but leaves it to thediscretion and consultation between theconcerned authorities of both Contracting
Parties on case by case basis. In practice,
the “formal proceedings” under this article
has been interpreted as to cover all stagesof criminal procedure including the judicial
trial, if the extradition is proceeded on thefull and formal basis. Thus, during the trialof the court, if the alleged accused agrees
to be extradited, the State Attorney will
apply for the cessation of the court
proceeding, and refer the case back to the
Ministry of Interior for the arrangementof rendition as soon as possible.
Simplified procedure for the informal
extradition like this one certainly
encourages the expedition and convenienceof extradition between states and should
be welcomed. Nevertheless, to achieve thetrue spirit of extradition through simplified
procedure, and in order to save time, therequested state might be required to waive
some scope of verification once used to be
extremely essential procedure forextradition such as the consideration of the“rule of speciality,” or the “extraditability”
of the offence, as well as the protection of
fugitive’s fundamental rights throughjudicial review, etc.. In addition, technicalrequirement for the formality of the request
for extradition and supporting documents
should be made more lenient by therequested state. And this may be theproblem deserves addressing anddiscussion to seek a common resolution forthe more effective extradition.

25 Article 6 of the United Nations Model Treaty on

Extradition provides that “The Requested State
may grant extradition after receipt of a request forprovisional arrest, provided that the person sought
explicitly consents before a competent authority.

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RESOURCE MATERIAL SERIES No. 57
IV. MUTUAL LEGAL ASSISTANCE
IN THAILAND
A. Background and Evolution
Unlike that of European countries,
mutual legal assistance in Thailand does
not stem from extradition treaty. Before
the promulgation of the “Act on Mutual
Assistance in Criminal Matters B.E. 2535”,
in 1992, although there were many
extradition treaties concluded between
Thailand and various foreign states suchas the United Kingdom, Belgium,
Malaysia, Indonesia, and the Philippines,
non of them mentioned about “otherjudicial assistance,” or “mutual legal
assistance” as known today. In addition,
there was also no direct legislation on thismatter. The request of this kind, if any, wasconducted in accordance with the “Generalprinciple of international law” as clearlyspelled out in Ariticle34 of the Civil
Procedure Code, which is also applicablein criminal case by virtue of Article 15 ofCriminal Procedure Code. Article 34 of the
Civil Procedure Code provides that:“Where any proceeding is to be carriedout wholly or in part through the mediumof or by request to the authorities in any
foreign country, the Court shall, in theabsence of any international agreement orprovision of law governing the matter,comply with the general principle ofInternational Law.”“General principle of international law”
in this regard includes comity, reciprocity,and “rules of due process” as generally
recognized between and among thesovereign states. When assistanceregarding the whole trial or part of it was
required, the request thereof shall be sent
through diplomatic channel, which was avery time consuming process. First of all,the Court in Thailand had to submit its
request to the Ministry of Justice; theMinistry of Justice would then refer such

122

request to the Ministry of Foreign Affairs.
The next step began by the Ministry ofForeign Affairs of Thailand sent the said
request of Thai Court to the Ministry ofForeign Affairs of the requested states
through the Thai Embassy attached to thatcountry. Upon receipt of the request, theMinistry of Foreign Affairs of the requested
state would refer the matter to the Courtof that country. After the request was
fulfilled or refused by the foreign Court, thematter would then sent back by the sameprocess.
Since the process for request and receiptof legal assistance as such was toocomplicated and delay, other efforts for the
more convenience and expedition wereincessantly developed. In 1951,Thailand
became the member of the “International
Police Organization”, or which is more
often referred to as “INTERPOL”, for the
purpose of information exchange andcooperation with other members in theprevention and suppression of crime. In
1978, Thailand concluded an agreement on
judicial cooperation in civil matter withIndonesia in order to establish a directcontact between the Courts of two
countries. Similar agreement was
concluded later on with France in 1983.
Nevertheless, cooperation under thescheme of INTERPOL is limited only
among the polices with the rigid purpose
only for information and technicalexchange not law enforcement, while
judicial cooperation agreement is limited
only for civil matters. The actual mutual
legal assistance according to the general
sense of today, which encompasses all
criminal matters, was begun after the
coming into force of the Act on Mutual
Assistance in Criminal Matters B.E. 2535,
as well as the conclusion of many treaties
regarding this matter.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
B. Legal Basis
Upon the realization of necessity tocooperate with other countries to cope withthe rising trend of transnational crime andcriminal organizations, Thailand adopted
the Act on Mutual Assistance in Criminal
Matters, B.E.2535, in 1992. This Act is themain legislation to be applied to allprocesses of providing and seeking
assistance upon the request from foreignstates or Thai agencies, in so far as it is
not inconsistent with the terms orprovisions used by the treaties concluded
between Thailand and such foreigncountries. In the case of contradiction, thetreaty will prevail. This may be perceived,for instance, from the provision of Section
9 (2) of the Act, which provides that:“Section 9: The providing of assistanceto a foreign state shall be subject to thefollowing conditions:(1) Assistance may be provided even
there exists no mutual assistancetreaty between Thailand and theRequesting State provided that suchstate commits to assist Thailand under
the similar manner when requested(2) The Act which is the cause of arequest must be an offence punishable
under Thai laws unless when Thailand
and The Requesting State have amutual assistance treaty between themand the treaty otherwise specifies....”
Apart from the Act on Mutual Assistancein Criminal Matters, B.E.2535, theCriminal Procedure Code and theConstitution also play crucial role in theactual performance because various
activities so requested such as the inquiry
and producing of evidence, search andseizure of articles, as well as the initiatingof proceedings must be carried out
conforming to the Criminal Procedure Codeand could not in one way or anothercontrary to the Constitution, which is thesupreme law of the country to guarantee
fundamental rights of the people.
Unlike that of treaty prerequisite states,
assistance in Thailand may be grantedeven there exists no treaty between
Thailand and the requesting state provided
that such state commits to assist Thailand
under the similar manner when requested.
This principle is clearly specified in Section
9 of the Act, and known as the “reciprocal
clause.” In ordinary dealing, the request
for assistance shall be submitted throughdiplomatic channel. 26 However, if themutual assistance treaty between Thailand
and the requesting state is in application,commitment for reciprocity and connection
through diplomatic channel will be waived.
The request for assistance in such a caseas 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.27
Normally, the process of requesting andgranting of the assistance will follow the
Act except where there is a treaty and thetreaty provides otherwise, then the treaty
will prevail. However, this does not meanthat the treaty is automatically applied
since the legislation in Thailand follows the“Dual System”, which means no treaty or
agreement concluded with foreigncountries by the Government is selfexecuting but needed to be legitimized or
adopted by the National Assembly before
coming effective. To this extent, a
supporting act for each particular
extradition treaty or agreement must be
enacted to support its legality. So far
Thailand has already concluded mutual
26

Section 10 of the Act on Mutual Assistance in
Criminal Matters B.E. 2535.
27 Section 6 of the Act on Mutual Assistance in
Criminal Matters B.E. 2535 provides that “TheCentral Authority shall be the Attorney General or
the person designated by him”

123

RESOURCE MATERIAL SERIES No. 57
legal assistance treaties with the UnitedStates, United Kingdom, Canada, Norway,
and recently with France.

objective of mutual legal assistance likethis also seems to be rather abstract, thus,
difficult to be given a definite demarcation.

C. Objective
Perhaps the most distinct indication of
the objective for the establishment ofmutual legal assistance in Thailand isperceived from the explanation of thenecessity to promulgate the Act on Mutual
Assistance in Criminal Matters, B.E. 2535
during the introduction of its draft to the
National Assembly in 1992. The text ofsuch explanation reads: “The reason toenact this Act (Act on Mutual Assistance in
Criminal Matters B.E. 2535) is because thecrime of today has been committed under
the network of criminal organizations inmany countries whereby criminal justice ofeach country alone could not efficiently
prevent and suppress. Prevention andsuppression of the said crime has to rely tointernational cooperation. To uphold suchcooperation, it is necessary and appropriate
to enact this Act.” This explanation was
further enlightened later on in the prefaceof “Laws Related to the Execution of Work
under the Act on Mutual Assistance in
Criminal Matters, B.E.2535”28 to the effectthat certain categories of criminality havebeen mentioned as transnational crime,
namely: economic or white collar crime,
computer crime, crime committed in theindustrial world, environmental crime, as
well as drug trafficking and narcotics
crime.

Another way to indicate the objective of
mutual legal assistance is by the practical
viewpoint. In this regard, the more precise
objective of the mutual legal assistance
may be identified on one hand as to seekor request assistance from other countries,
and on the other hand to grant or render
it. This is the most explicit thing provided
in all mutual legal assistance legislationand treaties as the main objective. Let us
take Thailand for example. The Act on
Mutual Assistance in Criminal Matters,
B.E. 2535 embraces in its content both themeasures to grant assistance to foreign
requesting states and to seek assistancefrom foreign states,29 in particular Section
7 of the Act specifies very clear about this
twofold function of the Central Authority.

The said indication might be somewhat
arousing open-ended discussion, although
it might be more or less similar to that ofmany countries, because the objective or
reason to grant assistance to a foreign stateis purely a state’s option rather thanobligation. Besides, the description of theD. Forms of Assistance
Generally speaking, forms of assistanceunder the framework of mutual legal
assistance legislation of various countries
as well as those specified in treaties
concluded between them are more or lesssimilar, although the terms or wordingused may be different. This is not too
difficult to understand since thefundamental reason for requesting andrendering of assistance is to facilitate
criminal proceedings in the requestingstate. In broad sense, proceedings ofcriminal cases can be interpreted as tocover all steps of the deal such as tracingof clues and evidence, investigation,
inquiry of witnesses, prosecution, taking
testimony of the witness, etc. Criminal
proceedings under any system are similarly
relied to these processes. Assistancerequested or rendered in order to facilitate
criminal proceedings as such is, therefore,

28 Handbook of the Office of the Attorney General,

Thailand, “Rung Silp Printing Co. ,Ltd”., Bangkok,
First Edition, September 1995.

124

29 Section 9 to Section 14, and Section 36 to Section

41 of the Act.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
based on the same set of activities orgenerally referred to as “forms ofassistance.”
In Thailand, forms of assistance arebasically understood as to include certain
forms of the processes of criminal cases
handling, as well as other indefinite
conducts under the scope of the stipulated
open-ended 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 assistanceis further enlightened by the provision ofSection 12 of the same Act to cover thefollowing:(i) Taking statement of persons,providing documents, articles, andevidence out of Court, serving
documents, searches, seizure of
documents or articles, locating
persons;(ii) Taking the testimony of persons andwitnesses, adducing document andevidence in the Court, forfeiture or
seizure of properties;(iii) Transferring persons in custody fortestimonial purposes;(iv) Initiating criminal proceedings.
It is quite clear from the above provisionthat the terms “other proceedings”
stipulated in Section 4 is possible to beinterpreted as to cover forfeiture or seizureof properties, transferring persons incustody for testimonial purposes, as wellas initiating of criminal proceedings,
however, such interpretation is not
exhaustive. For some legal scholar, the said
terms is intentionally made relatively
flexible and open-ended, so it is capable toencompass other forms of assistance in the
future.

E. Authorities and Officials♦ Central Authority
In the past, mutual legal assistance
between countries was a time consuming
matters and rather complicated. Seeking
for and providing of assistance wasconducted only through diplomatic channel
or Letters Rogatory because there was noother means for a direct contact. To avoid
delay and minimize unnecessary
formalities, the concept of having “Central
Authority” to be the center for sending andreceiving requests as well as taking a direct
responsibility of mutual legal assistancematter was, therefore, initially included inmost of the treaties concluded by theUnited States. Advantages of having the“Central Authority” have become more andmore recognized in the international level.
This is testified, for example, from theUnited Nations Model Treaty on Mutual
Assistance in Criminal Matters, article 3,
whereby the designation of an authority or
authorities through which requests for the
purposes of mutual assistance should bemade is suggested.
In Thailand, the “Central Authority,”
according to the Act on Mutual Assistancein Criminal Matters, B.E. 2535, as well as
treaties concluded with various countries,
is theAttorney General or, the person
designated by him.30
The Central Authority is the official who
take the most predominant role andresponsibility in the process of granting
and requesting assistance. Apart fromgeneral function as the coordinator toreceive the request for assistance form therequesting state and transmit it to theCompetent Authorities concerned, as wellas to receive the request seeking assistancepresented by the agency of Thai
30 Section 6 of the Act on Mutual Assistance in

Criminal Matters, B.E. 2535.

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RESOURCE MATERIAL SERIES No. 57
Government and deliver it to the Requested
State, other equal or more significant task
entrusted to the Central authority is todetermine the legality and eligibility of all
requests and processes. In this context heis also authorized to rule down regulations
or announcement for the implementationof the whole process.31
Determination of the Central Authority
in all manners regarding the granting andseeking assistance will be final except in
two situations. First, if it is overruled by
the Prime Minister, and second, if it isrelated to the issues of national sovereignty
or security, crucial public interests,
international relation, political offence, or
military offence, and where the Advisory
Board, set up under Section 8 of the Act on
Mutual Assistance in Criminal Matters,
B.E.2535, has a dissenting view and thePrime Minister agree with the dissenting
view.
♦ Competent Authorities
The Competent Authorities are those
officials who actually carry out functions
conforming to the request for assistance as
notified by the Central Authority. Thus,
Competent Authorities in general sense are
the officials of the requested state having
authority and functions related to eachparticular form of assistance requested
such as the investigation authorities, thedetective units, the prosecution, etc.
In Thailand, the Competent Authorities
are the following:(1) The Police Commissioner General: todeal with the request for initiating of
criminal proceedings and taking
statement of persons, providing
documents, articles, and evidence outof Court, serving documents,
31 Section 7 of the Act on Mutual Assistance in

Criminal Matters, B.E. 2535.

126

searches, seizures, and locating
persons;(2) The State Attorney Director Generalfor Litigation: to deal with therequest for initiating of criminal
proceedings and taking the testimonyof persons and witnesses, adducing
document and evidence, as well as
requesting for forfeiture or seizure ofproperties in the Court;(3) T h e D i r e c t o r G e n e r a l o f t h eCorrectional Department: to deal
with the request for transferring
persons in custody for testimonial
purpose.
♦ Advisory Board
To assist the Central Authority indealing with some sensitive issues related
to the national sovereignty or security,
crucial public interests, international
relation, political or military offence, anAdvisory Board (the Board) comprising
representatives from agencies concerned,
namely; the Ministry of Defense; theMinistry of Foreign Affairs; the Ministryof Interior; the Ministry of Justice; theOffice of the Attorney General; and otherfour distinguished peoples is establishedunder Section 8 of the Act on Mutual
Assistance in Criminal Matters, B.E. 2535.
In case of dissent between the Central
Authority and the Board, the matter will
be referred to the Prime Minister for his
ruling.
F. Double Criminality
Requirement of “double criminality” inmutual legal assistance is one of thedebatable issues. The principle of double
criminality requires that the conduct
underlying the assistance requested mustalso be a criminal offence punishable under
the laws of the requested state, otherwise
such request may be refused. Obstacle ofthis kind, which is also a crucial hindrance
to extradition, normally stems from the114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
divergent philosophy and conception under
different legal system, which results
eventually in the difference in substantive
criminal law. States of different laws
usually hesitate to render assistance for the
conduct that does not institute a criminal
offence in their jurisdiction for fear of
unnecessary encroachment upon thefundamental rights and liberty of person,
as well as the incapability to claim for the
return reciprocity. Difficulty arising fromthis principle becomes even more severe
nowadays when states have to include in
their laws some innovative concept to copewith the modern crime. Even now, treaties
on mutual assistance between some states,
as well as the United Nations Model Treaty
on Mutual Assistance in Criminal Mattersstill uphold the claiming of “double
criminality” as justified for the refusal ofassistance. However, since verifying of“double criminality” to institute eligibilityof the request is a complicated and time
consuming matter because each componentof the crime and offence under the laws of
the requested state must be identified out
from the alleged conduct before thecompliance with the request is permitted,
but fighting against crime could not be
waited for too long, alleviation or waivingof the strictness in application of “double
criminality” approach has become
increasingly called for at present. This isperceived from the recent conclusion ofmutual assistance treaties between the
United States and some countries
including Thailand whereby the obligation
to cooperate with the other Contracting
Party prevails the requirement of double
criminality. Even more striking example,
is the motivation under the United Nations
framework in the drafting of International
Convention against Transnational
Organized Crime where the refusal of
granting assistance within the ambit ofmutual legal assistance upon the assertionof “double criminality” will not be allowed,
unless such grant will bring about somecoercive measures.
Position of Thailand in this regard seems
to be on the compromise between theconcept of retaining innocent’s rights andliberty on one hand, and spirit ofcooperation between and among states tosuppress and control crime on the otherhand. While the Act on Mutual Assistancein Criminal Matters, B.E.2535 places theprinciple of “double criminality” as aprerequisite for granting assistance,
treaties concluded with the United States,
Canada, United Kingdom do not requireit. On the contrary, all said treaties impose
obligation on each Contracting Party toprovide assistance to the Other
Contracting Party even the underlying
conducts so requested does not constitutea crime or an offence in the requested state.
G. Refusal of Request
Generally speaking, states arecompetent to refuse granting assistancerequested by other states on whateverreasons since there is no hard and fast rule
under international law to force them torender it, unless they are bound byagreements or treaties. The requested state
does not have to grant assistance, unless
it so should because it thinks appropriate
to do so for the reason of comity orreciprocity between countries. Refusal inthis context may be made either upon theassertion of technical or non-technicalgrounds. Technical grounds for the refusal
in this regard are those explicitly
prescribed as “grounds for refusal” innational legislation, international
instruments, or treaties on mutual legal
assistance concluded between states. Nontechnical grounds in this light are thosebeyond the scope of what specified by law
or treaty, for example, refusal upon thepolitical reasons.
As regards the non compliance with therequest, the “Refusal of Assistance” clauseas mentioned in the United Nations Model127

RESOURCE MATERIAL SERIES No. 57
Treaty on Mutual Legal Assistance, and“Limitations on Compliance” as used bysome treaties, denote the same concept topreserve as State’s absolute discretion not
to grant assistance in some matters oroccasions which are sensitive to them.
Apart from certain grounds such as theassistance requested is beyond the scopeof treaty or agreement, or contrary to theelements of “double criminality”, “ne bis inidem”, and “conflict of jurisdiction”, othergrounds often asserted by sovereign states
for refusal of giving cooperation are thepreservation of national sovereignty,
security or crucial public interests, and the
avoidance of political offence or military
offence.
In Thailand similar grounds for refusal
are stipulated both in the Act on Mutual
Assistance in Criminal Matters, B.E. 2535
as well as various treaties concluded withforeign states.
Within the framework of the Act on
Mutual Assistance in Criminal
Matters,B.E. 2535, Section 9 provides that:“Section 9: The providing of assistanceto a foreign state shall be subject to thefollowing conditions:(1) Assistance may be provided even there
exists no mutual assistance treaty
between Thailand and the Requesting
State provided that such statecommits to assist Thailand under thesimilar manner when requested;(2) The act which is a cause of the request
must be an offence punishable underThai laws unless when Thailand andthe Requesting State have a mutual
assistance treaty between them andthe treaty otherwise specifies
provided, however, that the assistancemust be conformed to the provision ofthis Act;

128(3) A request may be refused if it shallaffect national sovereignty or security,
or other crucial public interests ofThailand, or relate to a politicaloffence;(4) The provision of assistance shall not
be related to a military offence.”
As regards mutual legal assistancetreaties, the clause related to the refusalof request usually prescribed similarly. For
instance, Article 2 of the “Treaty Between
Thailand And Canada on Mutual
Assistance in Criminal Matters” concluded
in 1994, partly provides that:“The Requested State may refuse to
execute a request if it considers that:(a) the request would prejudice thesovereignty, security or otheressential public interest of theRequested State or the safety of any
person; or(b) the request relates to a politicaloffence.”114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
V. ADDITIONAL DATAAPPENDIX I
A. Countries having Extradition Treaties with Thailand up to October
1999.
Number1
2
3
4
5
6Countries
The United Kingdom
The United States
BelgiumIndonesia
The Philippines
People’s Republic of China

7

Malaysia

8
9
10

Fiji
CanadaAustralia

Date of Signing
4 March 1911
14 December 1983
14 October 1937
29 June 1976
16 March 1981
26 August 1993
Succession ofThai-United
Kingdom Treaty.
"""

B. Countries having no Extradition Treaty but commit to follow
Reciprocal Principle
Number1
2
3
4
5Countries
FranceItaly
NorwayGermanAustria

C. Countries having signed Extradition Treaties but has not yet
ratified them.
Number1
2
3
4

Countries
Cambodia
Bangladesh
Laos
Republic of Korea
Source: Ministry of Foreign Affairs.

129

RESOURCE MATERIAL SERIES No. 57
APPENDIX II
A. Countries having Mutual Legal Assistance Treaties With Thailand
upto October 1999.
Number1
2
3

Countries
The United States
CanadaThe United Kingdom

Date of Signing
19 March 1986
3 October 1994
12 September 1994

B. Country having singed Mutual Assistance Treaties but has not yet
ratified it.
♦ France

C. Country having negotiated Mutual Assistance Treaty. and pending
the signing of it.
♦ Norway
APPENDIX III
A. States requesting Extradition from Thailand.

Requesting States
Australia
Austria
Belgium
CanadaFranceGerman
Malaysia
NorwayUnited Kingdom
United States

130

Number of
Cases During
1996-1997
1
1
1
1
2
1
14

Number of
Cases in 1988
Up to October
1
1
3
1
1
1
4

Total
2
2
2
2
3
1
2
1
1
15

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
B. States requested by Thailand for Extradition.
Requested States
Australia
CanadaGermanMalysia
Italy
People’s Republic of
China
United Kingdom
United States

Number of
Cases during
1997-1998
1
1
1

Number of
Cases in 1998
Upto October
1
1
1
-

1
-

1

Total
1
1
1
1
1
1
1
1

APPENDIX IV
A. Countries Requesting Assistance from Thailand during January
1996-October 1999.
Countries

Austria
Belgium
CanadaDenmark
FranceFinlandGermanIndia
IcelandJapan
Laos
Lithuania
PolandRussiaSwedenSingapore
South Africa
Switzerland
TaiwanUnited Kingdom
United States

Number ofcases requested
during
1996-1997
5
10
1
2
9
1
1
2
1
2
1
5
1
5
8

Number of cases
requested during
January 1998October 1998
3
3
1
2
8
2
3
1
1
1
6
1
1
1
3
1
5
9

Total

8
13
1
3
10
2
12
2
1
1
1
1
8
2
5
1
1
3
1
10
17

131

RESOURCE MATERIAL SERIES No. 57
B. Foreign countries from which Thailand requested assistance.
During January 1996-October 1998.
Countries

Austria
Australia
CanadaFranceGermanGreeceJapan
People’s Republic of China
Pakistan
Singapore
Switzerland
United States

132

Number of
Cases requested
During
1996-1997
2
1
1
1
1
1

Number of Cases
requested In 1998,
up to October

Total

4
1
2
1
-

2
4
2
2
2
1
1
1

1
3

1
4
1

1
4
1
4