Gathering evidence in
foreign jurisdictions has proved to provide a number of obstacles primarily
due to differences in law enforcement systems.32
In furtherance of their goals, the United States uses a number of techniques
to facilitate the collection and admissibility of evidence from abroad. One
of the primary techniques used is the Mutual Legal Assistance Agreement (MLAT).
Prior to the use of MLAT’s,
the United States had to rely on the process of Letters Rogatory for obtaining
of evidence from abroad. However this process was considered time consuming
and cumbersome.33 When the United States first
began considering the use of MLAT’s, they looked to Western Europe, where
most evidentiary requests are governed by the European Convention on Mutual
Assistance ion Criminal Matters.34 The first
US MLAT was negotiated with Switzerland in 1973, prompted by concerns that
organized criminals were exploiting Swiss secrecy laws to hide illegally obtained
assets.35
The Thai-US
MLAT, signed on March 19, 1986, and entering into force on June 10, 199336,
attempts to provide a flexible framework to allow joint law enforcement, and
evidence and witness transferal between the two nations. Pursuant to the treaty,
each contracting State has an obligation to provide assistance in: a) taking
statements and testimony, b) providing documents, records, or evidence, c)
serving documents, d) executing requests for search and seizures, e) transferring
persons in custody for testimonial purposes, f) locating persons, initiating
proceedings upon request, and g) assisting in forfeiture proceedings.37
Thus the treaty provides the framework for one government to effectively make
use of the other’s police forces in carrying out its objectives. In contradistinction
to the Thai-US Extradition treaty, the MLAT has no requirement of dual criminality,
i.e., assistance, pursuant to the treaty, shall be provided whether or not
the acts which are the subject of the investigation are prohibited by the
law of the requested State.
The Thai-US. Extradition
Treaty
In the United States,
extradition38 capabilities rely primarily
upon bilateral treaties and make little use of international treaties.39
Some authorities assert that the United States is the world leader in the
negotiation of bilateral law enforcement treaties. There are many reasons
for this, the most obvious of which is that the United States, unlike many
other common law and civil law countries, lacks domestic legislation authorizing
extradition in the absence of a treaty.40
One of the
greatest frustrations to the United States efforts to prosecute violators
of its laws living abroad has been the refusal of most governments to extradite
their own citizens. There are two views on the question of extradition of
one’s own nationals, one representing the approach of common law nations,
and the other reflecting the attitude of civil law states. This situation
has sometimes resulted in the US taking unilateral action to abduct fugitives
from a foreign country.41 The common law nations,
emphasizing the strict territoriality of the crime freely extradite their
nationals42, while the civil law states, emphasizing
a citizen’s right to be protected in his homeland, and the exigencies of trial
before a foreign court steadfastly deny extradition.43
Thailand, in general accord
with its civil law heritage, is reluctant to extradite its nationals. The
applicable legislation, in the absence of a treaty, reserves the right of
the Thai government to refuse extradition, based on its duty to protect its
citizens, concerns regarding a fair hearing, abroad, humanitarian concerns,
and issues of sovereignty.44
The United
States has devoted increasing energy to the re-negotiation of outdated extradition
treaties.45 Thailand’s original extradition
treaty with the United States dates back to December 30,1922. The current
extradition treaty between the United States and Thailand was signed on December
14,1983, and entered into force on May 17,1991.46
The US-Thai
treaty allows for non-extradition of a requested state’s own nationals in
certain exceptional cases, such as political and military offenses,47
and also provides that a state may refuse to extradite a person for an offense
which was committed in whole or in part within its territory. The Treaty does
however include a vicarious prosecution clause that requires the State that
refuses extradition to proceed against that person according to its own laws.48
Although many of the US’s
older extradition treaties included lists of offenses for which extradition
was available, the more recent treaties usually provide extradition based
solely upon the existence of dual criminality or combine such a provision
with a far more extensive list of offenses. The Thai-US Treaty, rather than
enumerating specific offenses, states in general terms that an offense will
be extraditable if it is punishable under the laws of both Contracting parties
by imprisonment or other form of detention for a period of more than one year
or by any greater punishment.49 This provision
thus broadens the array of extraditable offenses, and also embodies the dual
criminality requirement, i.e., the offense must be a crime under the law of
both States.50
The new generation of
US bilateral extradition treaties are more likely to include provisions that
authorize extradition even when the violation of law was committed outside
the territory of the requesting state. The US-Thai treaty follows this trend,
and includes this expanded jurisdictional provision, stating that the Treaty
will apply to persons committing offenses outside the territory of the requesting
state.
The Law of Joint Venture
Conflicts of law enforcement
procedures often arise in joint drug enforcement operations. The DEA’s operations
are limited by both the laws of the host state, and the laws of the United
States as well. United States law currently affords American citizens overseas
most of the constitutional safeguards to which they are entitled within the
United States.51 The protections of the Fourth
Amendment and the exclusionary rule apply only to evidence gathered overseas
by United States agents acting unilaterally or in a “joint venture” with foreign
officials.52 However, these same protections
do not apply to evidence collected by foreign police acting on their own.
53Nor do these United States Constitutional
protections apply to nonresident aliens abroad.54
------------------------------------------------------------------------------------------------
Potential Conflicts Between
United States and Thai Criminal Law Procedure
Many investigative techniques
employed by the DEA in the United States are considered illegal elsewhere.
55United States Drug Enforcement Agents typically
recruit informants by arresting those involved in the illicit drug business,
and then make offers to either reduce to drop charges in return for the accused
cooperation. These tactics are often simply impractical to duplicate in countries
without the resources of the US for an extensive Witness Protection Program.
US law enforcement agencies are able to protect their informants and cooperating
witnesses and their families by relocating them to different areas of the
country and giving them new identities.
One of the key areas of
conflict with Thai law is the liberal use of plea bargaining performed by
both police officials and government prosecutors in the United States. It
is standard practice for police and prosecutors in the United States to offer
non-prosecution, a reduction in charges, and immunity from prosecution in
exchange for cooperation with the police, or for testimony against other defendants.
Frequently, persons arrested by the police agencies become cooperating witnesses
on a professional basis, getting paid for their cooperation, in addition to
being free from prosecution. This differs from the Thai practice.
Thailand’s Rules of Criminal
Procedure prohibit the introduction of evidence that has been obtained pursuant
to threat, deception, or pursuant to a ..56
This statute has the effect of barring any plea agreements with defendants.
Even without a plea agreement, Thai Courts are reluctant to accept the testimony
of one defendant against another.57 In cases
where a witness was involved in the alleged crime, but was not charged, testimony
is allowed provided there are special circumstances, including other corroborative
evidence; and even in these cases, the witness’s testimony is deemed to have
little evidentiary weight. 58 However the
testimony of a cooperating witness, i.e., a witness who has participated in
a criminal venture with the knowledge and consent of the police, in order
to aid an investigation, has been deemed admissible. 59
The Thai Court also presents
a different view as to the use of audio tapes as evidence against an accused
from that of United States Courts. In general, audio tapes are considered
a second-class form of evidence, and must be corroborated by other evidence
before they are considered credible by the Trial Court.60
Additionally, the installation of listening devices in people’s homes or on
their telephones may be restricted by the Thai Constitution, which protects
the people’s right to privacy61 and the right
to freedom of communication.62 In most civil
law countries, the use of undercover operations, as well as various forms
of electronic surveillance (other than phone taps, which are legal in most
European states) are illegal.63
Conclusion
The laws in many countries,
including Thailand, are changing in response to DEA lobbying activities.64
In the 1997 International Narcotics Control Strategy Report, the United States
praised Thailand for carrying out drug control policies and programs, extraditing
Thai citizens, assisting in convicting a high ranking army officer in US courts,
and for “very good cooperation at all levels.”65
Although most governments
are currently in the process of enacting as many bases for criminal jurisdiction
as possible, the United States seems to be the most effective in demanding
the foreign recognition of its claims to extraterritorial jurisdiction.66
The United States has the greatest global apparatus of international law enforcement,
diplomatic, and intelligence resources. Most foreign governments are susceptible
to United States pressures which can include domestic law enforcement actions,
and economic sanctions.
The United States law
enforcement activity in Thailand has been extensive and effective. Although
the extradition and mutual legal assistance treaties between the United States
and Thailand are bilateral, and afford each country equal rights, the law
enforcement activity has been primarily unilateral, with the United States
spending a disproportionate amount of resources in law enforcement activities
in Thailand. The extradition treaty reflects the common law approach, i.e.,
requiring extradition of one’s own nationals based on the territorial principle,
or the “effects” doctrine. Although the treaty allows Thailand to refuse extradition
of its own nationals so long as it vicariously prosecutes them in the Thai
courts, this provision has not been carried out in practice. With United States
law enforcement agents maintaining a sizable presence in Thailand, working
in conjunction with Thai authorities, and providing training and support,
Thailand has been compelled to adapt its law enforcement practices to those
of the United States. Nevertheless, areas of conflict in practice and procedure
still exist. The assistance that Thailand receives from the US may entail
some degree of infringement of Thailand’s sovereignty and the compromise of
certain aspects of its legal heritage.
Footnote
32) Nadelmann,
supra note 1, at 57
33) See Jones, International Judicial Assistance: Procedural
Chaos and a Program for Reform, 62 Yale L.J. 515, 554 (1953).
34) European Convention on Mutual assistance in Criminal Matters,
Apr. 20, 1959, Europ. T.S. No. 30; see also Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters, Mar 17, 1978, Europ.
T.S. No. 99.
35) Treaty on Mutual Assistance in Criminal Matters, May 25,
1973, United States-Switzerland 27 U.S.T. 2019, T.I.A.S. No . 8302 For an
analysis of the treaty negotiation process, see Nadelmann, Negotiations
in Criminal Law Assistance Treaties, 33 AM. J. COMP. L. 467, 470-81 (1985)
; see also Ellis & Pisani, The Unite States Treaties on Mutual
Assistance in Criminal Matters, in 2 INTERNATIONAL CRIMINAL LAW; PROCEDURE
151 (M. Bassiouni ed. 1986).
36) Extradition Treaty, US-Thai supra note 29.
37) Treaty between the Government of the Kingdom of Thailand
and the Government of the United States of America on Mutual Assistance in
Criminal Matters, supra, Note 28, arts. 1, 2
38) The classic definition of extradition is found in Terlinden
v. Ames, 184 US 270, 289 (1902): Extradition may be sufficiently defined to
be the surrender by one nation to another of an individual accused or convicted
of an offence outside of its own territory, and within the territorial jurisdiction
of the other, which being competent to try and punish him, demands the surrender.
See also Ortega v. Kansas City, Kan., 875 F.2d 1497, 199-1500 (10th Cir. 1989)
39) Nadlemann, supra Note 1 at 65
40) Id. at 65
41) Pursuant to the Ker-Frisbie rule, under certain circumstances,
the United states may abduct fugitives from a foreign country without first
obtaining the foreign state’s consent. See Ker v. Illinois, 119 US 436, 7
S.Ct 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 US 519, 72 S.Ct. 509,
96 L.Ed. 541 (1952) However, if the United States has an extradition treaty
with the foreign country, it is necessary either to obtain the foreign state’s
cooperation or consent prior to apprehension, or for the foreign state not
to protest the apprehension. See United States v. Verdugo-Urquidez, 939 F.2d
1341 (9th Cir. 1991).
42) SHEARER, EXTRADITION IN INTERNATIONAL LAW 42 at 102(1971).
43) Id. at 118
44) Prarachabanyat song poo rai kam dan (The Statute Concerning
Extradition in the Thai Kingdom (B.E. 2472) arts 2.3-2.5, states that: “If
there is no treaty or bilateral convention or contract, Thailand is not bound
to extradite its citizens to a requesting country based on the following considerations:
2.2. A nation
has a duty to protect its citizens, and look after their well-being, and extradition
may violate that duty;
2.3. There
is concern that the extradited Thai national may not receive a fair hearing,
particularly if the requesting country is an enemy of Thailand, or there is
a political dispute between Thailand and that country.
2.4. Extradition
of one’s own nationals violates the principle that citizens have a right to
live in their own country, and may indirectly amount to banishment from one’s
own homeland
2.5 The
extradition of one’s own nationals is an affront too the sovereignty of the
nation. “
45) Evans, The New Extradition Treaties of the United
States, 59 AM. J. INT’L. L. 351, 352 (1965)
46) Extradition Treaty, US -Thail. supra Note 29.
47) Extradition Treaty US-Thai supra note 29 at art.
3.
48) Id. at art. 4
49) Id. at art. 2
50) Id. at art. I
51) See Reid v. Covert, 354 US 1, 16, 77 S.Ct. 1222,
1230 (1957).
52) See Powell v. Zuckert, 366 F.2d 634 (D.C. Cir.
1996) In interpreting to what degree US police officials may participate with
foreign police officials without engaging in a joint venture, United States
Courts have accepted situations wherein foreign officials with no prior knowledge
of any investigation or misconduct, and acting solely upon request by the
United States for assistance, initiated a foreign search and seizure. see
United States v. Molina-Chacon, 690 F.Supp 1235, (ED Pa. 1986), later proceeding
817 F.2d 201(CA2 NY). Other examples of activity by United States agents which
did not rise to the level of a “joint venture” with foreign officials, and
thus not been subject to United States Constitutional Restraints, have included
communication of information by American Drug Enforcement agents, and the
DEA’s physical presence at the site of the search while videotaping the search
by foreign officials. See United States v. Behety, 32 F3d 503, 8 FLW Fed C
672 (11th Cir. 1994).
53) See, e.g. Rosado v. Civiletti, 621 F.2d. 1179,
1189 (2d Cir.), cert denied, 449 US 856 (1980); Stonehill v. United
States, 405 F.2d 738, 743 (9th Cir. 1968), cert denied, 395 US 960
(1969).
54) See United States v. Verdugo-Urquidez, 494 US 259
(1990).
55) Nadelmann, supra Note 1 at 49.
56) Pramooan Gotmai Wittipicharanakwam Aya, B.E. 2477 (Code
of Criminal Procedure of 2477), art. 226, (Thail.)
57) See Ayagan jot Hong Raenlit (Attorney General v.
Hong Raenlit), San Dika (Supreme Court) No. 2099/2497 (Thail). In this case
for receiving stolen goods, the testimony of one defendant against another
was deemed inadmissible, and since there was no other sufficient evidence,
the conviction was reversed.
58) See Ayagan jot Dam Padetdaskorn la puak (Attorney
General v. Dam Padetdaskorn, et. al)., San Dika (Supreme Court) No. 3611 /2528
(Thail). In this prosecution for attempted murder, the testimony of two witnesses
who claimed they had previously been solicited by the defendant to commit
a murder, but had been unable to successfully accomplish the murder, was deemed
admissible against the defendant regarding a separate attempt murder. However,
the Court stated that the testimony had little evidentiary weight, and was
admissible only because there was other corroborative evidence.
59) See Ayagan jot Sawang Jerakul la puak (Attorney
General v. Sawang Jerakul, et. al.), San Dika (Supreme Court) No. 715/2520
(Thail). This case involved trafficking in prohibited weapons. The Defendant
was charged with transportation of a prohibited weapon in his van, with the
intention of selling it in the North. The testimony of a witness cooperating
with the police, who posed as an employee of the defendant was allowed in
Court.
60) Ayagan jot Chaiprada Nopakorn (Attorney General vs. Chaiprada
Nopakorn) Thai Supreme Court Decision 1123/2509. In this case audio tapes
were deemed credible evidence by the Court against the accused because there
were six separate tape recordings, amounting to over one hour of audio tape.
The Court found that under such circumstances it would be unlikely that someone
would be able imitate the Defendant’s voice for such a long period of time.
61) Constitution of Thailand, supra, note 10 at chap
3, sec. 34 (2540).
62) Id. at chap. 3, sec. 37.
63) Nadelmann supra Note 1at 49.
64) "For instance even as many law enforcement agencies
introduce “buy and bust” undercover operations into their drug enforcement
practice, most continue to resist the “sell and bust” operations now employed
by the DEA, as well as the “deep undercover operations undertaken by the FBI."
Nadelmann, supra Note 1 at 50-51.
65) Thailand Praised in US report, Bangkok Post, March
2, 1997 .
66) Nadelmann, supra Note 1 at 42.
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