Transcript United Nations Crime Prevention and Criminal Justice Programme

EXTRADITION
by Sanchai Krungkanjana
1
Source of Laws
Extradition
Act A.C.2008
Treaties
International
Laws
In case there is the conflict between the
Act and the Treaties, the Treaties shall
prevail.(Section 4)
2
Purpose
The Thai Government may consider to extradite
person


For the purpose of prosecution or
For enforcing a sentence already imposed on such
person
3
Definition




“Requesting State” means country, territory or
international organization that requests extradition from
Thailand
“Requested State” means country, territory or international
organization that Thailand request extradition from
Central Authority means the Attorney General or the
person designated by the Attorney General having power
and duty to coordinate the extradition for the Requesting
State and the request for extradition to Thailand including
other concerned activities
Competent Authority” means public prosecutor,
corrections official, administrative or police official or
other official having power and duty in the execution of
extradition of each own part as notified by the Central
Authority
4
(Principle Bases for
Extradition)
 Double Criminality
 Extraditable Offense
 Double Jeopardy
 Rule of Specialty
 Rule of Reciprocity
 Nationality
 Refugee, Human Rights and Non-Discrimination
 (Political or Military Character
 Conviction based on Trial in Absentia
5
(Double Criminality)
Conduct
Base
Offense Base
Thailand uses “conduct base” as the basis for
considering “Double Criminality Rule.”
6
The Exception of Double
Criminality Rule
Some Treaty, i.e.Thai-US.Treaty considers
conspiracy to commit crime as extraditable
offense even though Thailand does not have the
conspiracy offense.
7
(The Example of Double
Criminality Case)
 The
Fact of the Case
• The accused with other accomplices
participated in trafficking in credit card
information and stolen credit card number. He
also got involved in buying stolen credit card
information. His activities have been done via
Internet and international transaction.
8
The Example of Double
Criminality Case-continued
 The
•
•
•
•
offence which the U.S. charged
conspiracy to reach unauthorized access device
trafficking in unauthorized access devices
possession of unauthorized access devices
aggravated identity theft
9
The Example of Double
Criminality Rule
Thai
Offense
• Illegally access computer data, illegally eavesdrop a
third party’s computer, illegally change or amend a
third party’s computer according to Computer Crime
Act, Section 7, 8, 9, 12)
• Counterfeit Credit Card, import, export, use or possess
the counterfeited credit card according to Penal Code
269/1, 269/3, 269/4 and 269/7
• Conduct the Credit Business without Permission
according to the Act on the Conduct of Credit Business,
Section 9 and 43
10
The Example of the Case
 The
Fact of the Case
• Mr.A communicates with Mr.B via Internet by
proposing to sell child-naked porn movie which
Mr.A produced. After Mr.B agreed to buy,
Mr.A sent the pictures via Internet. The
incident occurred in England and after that
Mr.A came to Thailand.)
11
The Example of the Casecontinued
The
offence for which extradition
is requested by Great Britain
• Produce Child Porn Movie
• Possession of Child Porn Movie
12
The Example of the Casecontinued

Thai Offence
• Import to a computer data of a pornographic nature that is publicly
accessible and disseminate that computer data
• the offense of forcing, coercing, using, persuading, instigating,
supporting or letting the child to act or do any thing in decent
manner no matter for the benefit or whatever reason)
• The offense of making, producing, possessing, circulating any
document, printed matter or any other thing which is obscene and
trading such things
13
Extraditable Offence





The offense occurs in the jurisdiction of the requesting state
An offense to be extraditable must be a criminal one that both the law of the Requesting State
and Thailand establish it to be a criminal offense having punishment by imprisonment or
deprivation of liberty from one year upward
The commission of other offences with punishment or deprivation of liberty in other forms less
than one year may be the basis for requesting extradition if it relates to the offence for which the
extradition has been granted whether the request has been made at the same time with the initial
request or afterward
The statue of limitation has not expired.
Thai-Lao extradition treaty
• detention more than one year
• Extradition shall be granted only if a period of at least six months in the sentence remains to
be served.
14
Remark
Some
convention, i.e., Convention
on Anti-trafficking in Narcotics
specifies that some offenses, i.e.,
money laundering offense is
extraditable offense.
15
Double Jeopardy
(extradition will not be granted if the person
claimed has already been tried and discharged or
punished in Thailand or the requesting country
for the crime for which his extradition is
required)
16
Double Jeopardy(Section10)
 The
requested person has been tried by Thai
court or the court of the requested country
for the same conduct as that sought for
extradition.
 There is the final decision acquitting such
person or convicting such person whose
punishment has been served.
 There is a pardon or amnesty
17
Rule of Specialty
The requested person will not be detained,
tried or punished in other offence which has
not been requested for extradition or sent to
the third country.
18
Rule of Specialty
Section11

Confinement for proceedings or punishment of the
extradited person from the Requested State to Thailand in
other offence committed prior to executing extradition and
surrender of such person from the Requested State to
Thailand further to the third State can not be carried out
except for the following matters:
• Such person has travelled out of the Kingdom of
Thailand after extradition and voluntarily returned to it
• Such person has not travelled out of Thailand within 45
days after the date of the final release or
• The Requested State consents
19
Rule of Reciprocity
 Section
9 The Thai Government may
consider surrendering a person for
prosecution or serving
punishment…pursuant to the request as
follows:
• (2) Where there is no extradition treaty between
them, when the Requesting State expresses
definitely that the extradition will be granted in
the same manner upon requested
20
Nationality
Some country will not extradite its national
Section 12 of Thai Extradition Act permit
extraditing Thai nationals if the treaty permits,
the requested person consents, or reciprocity
proposed by the requesting country exists
21
Extradition of Thai National
•
Cabinet Resolution dated March 4, 1997
1. Whether or not the treaty permits to do so
2. The extradition request must be rejected if the
Thai court have jurisdiction over the case.
22
Extradition of Thai National
3. The extradition request must be adjourned if the requested person is being
conducted other criminal case in Thailand.
4. If the extradition request does not fall within aforementioned clause2 or 3, the
Ministry of Foreign Affairs shall consider the extradition request on behalf of
the government.
23
Extradition of Thai National
5. After getting the extradition request, the Ministry of Foreign Affairs shall
send the request to the Attorney General for consideration, if the OAG deems
that the request fall within No.2 or 3, the OAG shall notify the MFA in order to
notify the requesting country.
24
•
Cabinet Resolution dated October 26, 1999, rectifying clause 2 of the former
Cabinet Resolution
Where the offense on which the request is based falls under the jurisdiction
of Thai court, the extradition request should be considered in case by case
basis by considering on the basis of mutuality, the efficiency to suppress the
international crimes within the framework of existing bilateral treaty as
well as the right and freedom, justice and interest of such Thai national.
25
Principle of Asylum
The
Principle of Asylum exists
in the 1951 Refuge Convention
and its 1967 Protocol becoming
the customary international law
to protect the asylum seeker
from political persecution
26
The Principle of Human Rights
Protection
 The
Principe of Human Rights Protection
exists in Convention against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment and The
International Covenant on Civil and
Political Rights to which Thailand is the
party. The first one protect the person from
being extradited to the country in which he
or she is prone to be tortured. The second
one protect the person from being extradited
to the country where he will in prejudice be
taken away of life or be punished or treated
with torturing, or degrading, inhuman or
cruel conduct.)
27
The Principle of NonDiscrimination
The
Extradition request may be
rejected where its competent
authorities have substantial reason to
believe that the request would facilitate
the prosecution or punishment of a
person on account of his or her race,
gender, religion, nationality or political
views, or would cause prejudice for
any of those reasons to the person
concerned by the request.
28
Principle of NonDiscrimination
Appeared
in UN Model Treaty on
Extradition
Appeared in International
Covenant on Civil and Political
Rights to which Thailand is a party
29
Denial of Extradition on ground
of Political Offense
Purely Political Offense, The conduct is labelled as a crime because the interest sought
to be protected is the sovereign or public order, i.e., Treason, Sedition and Espionage
 Relative Political Offense: A crime committed inspired by political motive which also
affect the private person or property
 Normally the extradition will not be given in case the offense for which extradition is
sought is the political offense or related to politics. Thai-US Extradition uses the phase
“political offense” or “the extradition is requested for political purpose

30
The Political Offense
 The political-reasoned denial is being limited in use
• some treaties do not include a murder or assault on the head of the
state or the member of person’s family
• some treaties or conventions do not include terrorism as the
political offense. Some extradition treaty, i.e., Thailand vs. Republic
of Korea does not include international crimes, genocide and
abduction.
31
 Extradition
Act Section 9 para. 2 stipulates that
the offence of political character does not
include
• Murdering, inflicting bodily injury or
depriving liberty of the King, Queen or Heir
Apparent;
• Murdering, inflicting bodily injury or
depriving liberty of Head of the State,
government leader or immediate family
members of such person;
• Committing of offence not regarded as
political offence for the purpose of
extradition according to the treaty to which
Thailand is a party.
32
Military Offence
Specific
military
regulation,i.e., desertion
Not
ordinary criminal
offense
33
Trial in Absentia
 Normally
the Requested country will not reject the
extradition in case of Trial in Absentia
 Except it is apparent that it is disadvantage of the
fugitive
 Thai-Cambodia Treaty
• The judgment has been rendered in absentia;
– Without sufficient notice of the trial to the convicted person
and
– Without the opportunity for the convicted person to arrange for
his or her defense and to have the case retried in his or her
presence
34
Court of the Requested Country has
Jurisdiction over the Offense



The Requested Country may refuse to extradite.
Not stipulated in Thai Extradition Act
Stipulated in Some Treaties
• Not stipulated in Thai-England and Thai-Belgium Treaties
• Thai-Indonesia; may refuse if the authorities of the requested state
are proceeding the case
• Thai-Philippines and Korea; May refuse if the Court has
jurisdiction over the case.
• Thai-U.S. and Bangladesh; May refuse if have jurisdiction but
must proceed the case
• Thai-China, Cambodia and Laos; May refuse if have jurisdiction
but must proceed the case or may refuse if the authorities is
proceeding the case
35
( Channel of Transmission)
 (Diplomatic Channel)
If there is a treaty, through the Attorney
General
36
The Process when the Ministry
of Foreign Affairs get the
request(Section 13)
– The MFA on behalf of the government will hand the request to the Office of the
Attorney General to request the court to issue the arrest warrant
– If the MFA deems it may affect the international relation or any other reason deemed
impropriate to proceed, it shall present the request to the cabinet.
– The cabinet may order as deem appropriate but if agree to extradite, the MFA shall
send the request to the OAG to proceed to the court to issue the arrest warrant.
37
The Process after the
Attorney General get the
Request(Section 14)
 If
deem appropriate to proceed, the Attorney
General shall request the court to issue the
arrest warrant
 If deem that the request is not processed in
accordance with the procedure or accompanied
with improper documents and evidence or
need to be executed in certain condition, the
OG shall notify the requesting country
 If deem it may affect the prosecution or any
other criminal proceedings against such person
in Thailand, the AG may defer or carry out the
request by imposing necessary conditions.
38
The Process after the
Attorney General get the
Request (continued)
 If
the request has not passed the MFA, the
AG shall notify the MFA to give opinion.
 In case the AG deems that it may affect the
international relation or any other reason
not to proceed or not eligible for execution
under this Act, the AG shall notify the
requesting country or the MFA for further
action as the case may be.
39
Remark
Section
17 stipulates that
If appropriate the MFA may
propose some fact or opinion about
the international cooperation to the
AG before proposing to the court
for consideration
The court may summon the MFA
to clarify for consideration.
40
Execution of Extradition
Request(continued)
 After the court issue the arrest warrant, the OAG shall notify and send
the arrest warrant to the police. After the arrest, the arrested person
will be sent to the OAG to request to the court to detain him or her.
 Remark:There is no certain limited time to detain him or her before
sending him or her to the court.
41
Document and Evidence for
Execution of Extradition
Be in accordance with the Ministerial regulation
 The request has to be done in writing and attached
with document and evidence as well as details about
the case, the law on which the offence is based
• In case request is for the prosecution, the arrest
warrant and the evidence showing the prima facie
has to be attached.
• In case request is for serving the sentence, the copy
of the judgment and a statement showing the
sentence left to be served have to be attached.
 Any documents sent to the court have to be translated
into Thai and certified

42
The Chart of the Execution
of Inbound Extradition
Request
Ministry of Foreign Affairs(The Cabinet)  The Attorney
GeneralThe Criminal Court issues the arrest warrant 
The Public Prosecutor receives the arrest warrant The
Police receives the arrest warrant and arrest the fugitive 
The Public Prosecutor receives the fugitive  The Public
Prosecutor brings the fugitive to the court to be detained 
The Public Prosecutor files the motion to the court  The
court proceedings The court dismisses the case or
issue an order to detain the fugitive for extradition  The
parties appeal or makes a reply

43
Concurrent Extradition
Section 26 (Except the Cabinet otherwise determines, the
central authority shall consider the following matter to
grant the extradition to one of the requesting state)
• Whether or not the treaty exists
• The place of incident
• The gravity of offence having impact on the Requesting
State and scale of punishment
• Sequence of Request received from the Requesting
State
• Nationality of the offender
• Interests and readiness of the proceedings
• Other reasons on international relations according to the
opinion of the Ministry of Foreign Affairs
44
Urgent Necessity
(Section 15)
 In
urgent circumstances, the Requesting State may
make a request for provisional arrest and detention.
(The request shall be in accordance with the
regulation stipulated by the Central Authority
 Some treaties provide the channel for an urgent
situation, i.e, Thai-Republic of Korea uses the post
or telegraph or other means in writing, Thai-Lao
and Thai-Bangladesh use Interpol as the means of
communication
45
Urgent Necessity (continued)
 The
Formal Request Have to be Filed to
The Court within 60 Days or No More Than
90 Days as Extended by the Court
 If the fugitive is released due to the failure
to send the formal request within the
specific date, the requesting country is
prohibited to send an urgent request again,
but is permitted in the case of formal
request
46
Extradition Proceedings
 After
arresting the fugitive, the public prosecutor
shall bring the case to the court as soon as possible
 The
Court shall conduct the hearing continuously
 The
Criminal Procedure Code shall, mutatis
mutandis, be applied to confinement of the person
sought and conduct of the extradition proceedings
not otherwise provided by this Act
 Where
there is the petition for a provisional
release, the Court shall inquire whether the Public
Prosecutor has any objection whatever.
 The
court has to ask whether or not the fugitive
have the lawyer and the Criminal Procedure Code
shall be applied mutatis mutandis
47
The Matter to be
Considered by the Court
 The
arrested person is the one whose extradition is
sought
 not
a Thai national or a Thai national but
extraditable under the rule in Section 12: Treaty,
Consent, Reciprocity
 The
case is prima facie for accepting the
accusation for consideration if such offense is
committed inside the Kingdom or regarded by the
law to be committed inside the Kingdom
 The
offence sought for extradition is extraditable
under this Act and not the one of political
character or specifically military offence.
48
The Process after the Court
Proceedings




If deems that the evidence is not sufficient, the court shall
make an order of release and proceed with the release at
the end of 72hours from the reading of such order.
Within such time period, the public prosecutor notify the
intention to appeal, such person shall be detained pending
the appeal, which shall be lodged within 30 days from the
day the day the Court reading the order of release
The person against whom the Courts makes an order of
detention shall be prohibited from surrender before
completion of 30 days from the day the court make the
order. The Public Prosecutor may ask the court to defer the
surrender but have to petition within 90 days counting
from the day the Court making the final order of detention
for surrender.
If such person is not surrendered within 90days or within
specific time the Court permit since the date the Court
makes the final order, the fugitive shall be released.
49
Appeal
Appeal should be done within 30days
since the date of reading the judgment.
The order of the Appellate Court shall
be final.
50
Surrender
 Must be done within 90days or specific period as court permit since the
date of the final court decision (Section 22)
 The treaties may provide otherwise, i.e., Thai-Lao Treaty provide that
if the requesting country does not accept the person sought within 15
days, the Requesting Party shall be considered as renouncing the
request.
51
Surrender of the Fugitive

Where the Requesting State does not undertake to remove the
person sought within the specified period without reasonable
cause, if it afterwards seeks the extradition of such person for
the same offence, the extradition shall be refused(Section 23)

Where the fugitive is being prosecuted or serving the sentence
for other offence in Thailand, the Thai Government may(Section
24)
• Surrender such person to the Requesting Stateอ
• Deferring to surrender such person until completing the
proceedings or until such person has served the punishment
according to the judgment in whole or in part
• Surrender provisionally to the Requesting State for
prosecution with condition that once the fugitive has been
sent back to Thailand, he or she may be surrendered again to
the Requesting State for serving punishment according to the
judgment.
52
Simplified Extradition
(Section 27)
 After
arresting the fugitive, the police shall ask
whether or not he consents to be extradited..
 If he or she consents, the consents should be done
in writing according to the form stipulated by the
Central Authority.
 The Public Prosecutor shall bring him to the court
by filing a petition for examining such consent
promptly.
 If the Court is of the opinion that he or she
voluntarily consent, it shall make an order
detaining such person for extradition.
 Consent given before the Court may not be
revoked
 If the fugitive revokes his consent before the
Court, the Court shall order detaining such person
for carrying out the extradition proceedings.
53
Simplified Procedure
(Section 28)
 If
the person sought expresses the consent to
surrender during the proceeding, the court shall
suspend the hearing and make the order detaining
him or her for carrying out an extradition.
Simplified procedure appeared in Treaty
between Thai-US, Thai-Korea, Thai-China
54
Extradition not Permitted
(Section 25)
 If
the Extradition is not permitted, Section
25 requires the Central Authority to notify
the Competent Authority for furthering
criminal action against such person sought
for extradition.
55
Extradition Request from Abroad
Criminal Procedure Code Section 141 Stipulates
that if the Public Prosecutor issues the
Prosecution Order, the Action should be
Arranged in order to get the Accused. If the
Accused resides outside the Country, the Public
Prosecutor have to manage to get him or her
extradited.
56
Extradition Request from Abroad
(continued)

Public Prosecutor or such agency wishing him or her to be
extradited have to request to the central authority

If the Central Authority deems appropriate, He or She shall
forward the matter to the Public Prosecutor for furthering
the request(except the cabinet is of the opinion otherwise).

The Extradition Request and accompanying documents
shall be in accordance with the regulation as stipulated by
the Central Authority.

The determination of the Central Authority shall be final
except the Cabinet passes resolution otherwise.

The Central Authority shall request through diplomatic
channel in case no treaty.

The Central Authority shall request from abroad in
accordance with the treaty in case there is treaty.
57
The Authority of the Public Prosecutor
(Section 31)
 Search
for facts and collect evidence
 Take statement of persons
 Make
an order summoning any person to give
statement to them
 Carry out other matters as deemed appropriate
 Notification
may also be made to competent
authorities or other State official to carry out
any matters for the benefit of extradition
 Such
order shall be deemed a lawful
requisition of the Public Prosecutor under the
Penal Code
58
 Making the Request of Extradition should concern
– Laws, Rules, Regulation and the Procedure of the Requested
country
– If the treaty exists, the request should be in line with the treaty
59
 Should concern the arrest warrant, the language, the office who request the
extradition, the address and identities as well as the photograph of the
fugitive
 The evidence must be sufficient to be proven by the foreign court to satisfy
the standard of proof stipulated in the law of such requested country
60
The Obstacle of Requesting the
Extradition from abroad
 The
statute of limitation
 The level of evidence to satisfy the standard
of proof of such requested country
 Legal requirement of each country, i.e.,
some country need the treaty as the
requirement for extradition. Some countries
is not admitted by Thai government as the
country. The problem of double criminality
or extraditable offense
 Punishment of death
61
The Offense on which the
Request in Based is Punishable
with Death (Section 29)

Where Thailand request extradition on the offence
punishable with death according to Thai law but not
up to the punishment of death according to the law of
the Requested State and it is of necessity for the
Government to give assurances of non-execution,
negotiation for the settlement on giving such
assurances shall consequently be carried out

In this respect, the Government, if the Court gives a
death sentence, shall proceed in accordance with the
provision of the law for the requirement of execution
according to the judgment by means of life
imprisonment in lieu of death. The reduction of such
punishment shall not be granted in whatever grounds
except for the pardon.
62
(Disguised Extradition)
Deportation
Exclusion
Repatriation
Denaturalization
63
The Treaties on Extradition between the
Kingdom of Thailand and other Countries
 The United Kingdom
 The People Republic of China
 The Kingdom
 The Kingdom of Cambodia
of Belgium
 The Republic of Indonesia
 The Republic of Philippines
 The United States of America
 The People’s Republic of
Bangladesh
 The Lao People’s Democratic
Republic
 The Republic of Korea
64
International Affairs Department
The Office of the Attorney General
(Rachadapisek Building), Rachadapisek Road,
Bangkok 10900, Thailand
Tel. 02-515-4656
Fax. 02-515-4654
e-mail : [email protected]
65
Thank you for your kind attention
International Affairs Department
Office of the Attorney General
66