Legal Measures Against Transnational Organized Crime Experience Of Thailand KHAMPREE KAOCHAROEN
Introduction
I am honored to have the opportunity and privilege of meeting and sharing ideas and insights with distinguished participants from the Asia-Pacific Region. I would like to thank Mr. MINORU SHIKITA, the President of ACPF, for inviting me to participate in this important gathering. I would like to share and discuss with you some of the experiences I have had dealing with transnational crime.
The Problems
As we are all aware, law enforcement generally ends at national border. Criminality, however, is not so limited. At present, it tends to be of transnational character because this would allow the felons to take advantage of different legal systems and practices. Crime of this nature is generally committed by criminal organizations and usually referred to as transnational organized crime. There has been in recent years the increase in the organized criminal activities on trafficking in human beings, exploitation of women and children, drug trafficking, trafficking of firearms as well as some new dimensions of criminality such as computer crime and crime related to financial institutions. In Thailand, for instance, we have faced during these few years serious crimes such as drugs particularly amphetamine, trafficking of women and children for sexual exploitation as well as white-collar crime committed by executives of the banks and financial institutions which caused the loss of over thousand million baht.
We realized from our experience that it was very difficult for us without cooperation from other countries to control and suppress these transnational crimes. We, therefore, decided that if we were going to try and deal effectively with these crimes, we had to cooperate with our counterparts in other countries so that we could attack the international scope of the problem.
Legal Measures to Deal with the Problems
I now would like to give you some of the measures we have in or have just introduced into our legal system with a view to effectively confronting with these problems. While some of these tools are not new, others have just either been passed and not yet come into force or are currently under overhauling. For the sake of convenience, I would list the legal measures and then give you some of their important aspects. These tools are:
5. The Extradition Act B.E. 2472
1. The Conspiracy Offense
We have introduced in recent years the offense of criminal conspiracy into several pieces of legislation enacted to deal with crimes usually committed by organization such as drug trafficking, trafficking in women and children for prostitution, and money laundering. Essentially, the principle of criminal conspiracy is that a person is guilty of an offense of conspiracy if he conspires with another to commit an offense. The crime of conspiracy is deemed to have been committed upon an agreement of two or more persons to commit an offense. An actual underlying crime commission--the commission of an offense agreed to perpetrate?is not required for criminal conspiracy liability. Therefore, the use of conspiracy offense enables law enforcement officials to proceed against all individuals participating in the operation/plan/scheme regardless of their role or position in the offense as long as each individual is aware of and agree to the basic aim/purpose of the operation/plan/scheme. This is particularly important in the context of criminal organization where individual members usually:
For example, in the Act on Measures for the Suppression of Offender in an Offense relating to Narcotics B.E. 2534, section 8 makes it an offense with imprisonment for a term not less than five years or to a fine not exceeding fifty thousand baht or both if two or more persons agree to commit an offense relating to narcotics. A penalty for an offense relating to narcotics will be imposed if there has been actual commission of a narcotics offense because of the conspiracy. As well in the Prevention and Suppression of Money Laundering Act B.E. 2542, section 9 makes it an offense with half of the penalty provided for the offense of money laundering if two or more persons conspire to commit such an offense. The conspirators must receive the penalty for the offense of money laundering if such an offense has actually been committed as a result of conspiracy. Similarly, in the Act on Measure for the Prevention and Suppression of the Trafficking in Women and Children B. E. 2540, section 7 imposes a penalty of five year imprisonment or fine not more than ten thousand baht or both for conspiracy among two or more persons to commit an offense against women and children. A penalty for an offense against women and children will be imposed if such an offense has actually been committed as a result of conspiracy.
We have not yet had enough experience in making use of the conspiracy offense in Thailand. However, we believe that law enforcement against criminal organizations will be more effective if we can impose criminal liability upon all those involved in the organizations through the conspiracy offense.
2. The Extension of Criminal Jurisdiction
We all agree that criminal organizations usually operate trans-nationally. Successful prosecution against a local counterpart of the foreign syndicates is not likely to have much impact on the organizations. We have found from our experience in the fight against drug trafficking that if we cannot proceed against its foreign syndicates criminally in our country, they will be more likely to continue their drug trafficking operation in our country. It is necessary that those foreign syndicates be subject to local prosecution as well. Thus, it is to this end that the criminal jurisdiction must be at least extended beyond the territorial jurisdiction.
With respect to drug trafficking, section 5 of the Act on Measures for the Suppression of Offenders in an Offense Relating to Narcotics, B.E. 2534 takes the position that a person who commits an offense relating to narcotics outside the Kingdom shall be punished in the Kingdom if
1. the offender or one of his conspirators is Thai or has a place of residence in Thailand; or
2. the offender is an alien and has taken the action with the intent to commit an offense in the Kingdom, or the Royal Thai Government is an injured person; or
3. the offender is an alien whose action is considered an offense in the state where the offense has been committed under its jurisdiction, and if that person appears in the Kingdom and is not extradited in accordance with the Extradition Act
Similar conditions have been taken to apply in the case of money laundering under section 6 of the Prevention and Suppression of Money Laundering B.E. 2542. As well, in case of women and children trafficking for prostitution, section 9 of the Prevention and Suppression of Prostitution Act B.E. 2539 makes it an offense for any person to procures, seduces, or takes away any person for prostitution even with his/her consent. It is punishable notwithstanding whether the acts constituting such an offense have been committed within or outside the Kingdom of Thailand. Furthermore, we extended the criminal jurisdiction to cover the offenses of human trafficking for gratifying sexual purposes of another person under sections 283 and 284 of the Penal Code even if such offenses have been completely committed outside the Kingdom of Thailand.
3. Money Laundering Law
Most criminal organizations engage in illegal activities to obtain large amount of money. These organizations generally engage in money laundering to cover up the illegal origin of this money in order to be able to enjoy the fruits of their criminal activities. Thus, one of the best ways to combat organized crime syndicates is to use the money laundering law to target all those involved in unlawfully transferring or concealing the proceeds from criminal activities of organized syndicates.
We have the Anti-Money Laundering in Thailand. Section 5 of the Prevention and Suppression of Money Laundering Act B.E. 2542 makes it an offense for any person to:
1. transfer, receive the transfer, or changes the form of properties related to an offense, for the purpose of concealing or covering up the sources of those properties, or for the purpose of assisting other persons before, while or after the commission of the offense so that the offenders can avoid the penalty or receive lesser penalty for the predicate offense; or
2. take any actions in order to cover up or disguise the true nature, the manner of obtaining, the location, sale, transfer, and the obtaining of any right in the property related to an offense.
Under this law, the “predicate offenses” include narcotics offenses, sexual offenses, offenses relating to trafficking in women and children, and prostitution, offenses relating to cheating and fraud on the public, offenses of misappropriation or cheating and fraud under the laws governing commercial banks, finance business, securities companies and credit foncier, offenses of corruption, offenses of extortion or blackmail committed by organized crime or its members, and offenses of custom evasion.
You will see that the law defines money laundering broadly. Any measure or step taken to convert the proceeds from the illegal activities--predicate offenses--to seemingly lawful resources is considered money laundering. The money laundering law is a very important tool in the battle against organized crimes because it allows law enforcement authorities to arrest, charge, and convict any person whose action in transferring or concealing the proceeds of illegal activities would help the organized crimes to flourish and continue in operation. Therefore, if we have a complete and effective money laundering law, we will be able to seriously cut off the channels by which the organized crimes use in order to retain the money from their illegal activities.
The concern of the criminals that their illegal proceeds may be confiscated is a major factor motivating them to launder such proceeds. Therefore, the money laundering law is not perfect without effective confiscation system. In Thailand, we can proceed for the confiscation of the proceeds of crime either criminally or civilly. Before the enactment of the money laundering law, confiscation of the proceeds from drug trafficking can only be criminally processed.
Under the Act on Measures for the Suppression of Narcotics Offenses, 1991, the Property Examination Commission (PEC) has been established for the administration of asset confiscation process. It has the power to issue an order for examination of the property of the accused as well as an order for seizure and restraint where any reasonable ground for suspecting that such property is the proceeds of narcotics offenses exists. When a drug trafficker is accused of a narcotics offense, the Secretary of the Narcotic Control Board will determine whether any reasonable ground for suspecting that any property of the accused is the proceeds of such offense exists. If yes, the Secretary will propose his opinion of property examination to the PEC for consideration. The PEC, if it agrees, will then make an order for examination of property. If any reasonable ground for suspecting that the property of the accused is likely to be transferred, removed, or concealed, the PEC will make a provisional order for seizing or restraining such property. If the PEC finds that such property is the proceeds of the offense, it will forward its decision, documents and any other evidence concerned to the prosecutor; otherwise the property temporarily seized or restrained will be terminated and thus returned to the owner. When the prosecution is instituted against the accused, the prosecutor will, after finding that the property of the accused is the proceeds of such narcotics offense, apply for a confiscation order from the court. It should be noted that if there is a final non-prosecution order or the accused is acquitted by a final judgment, the property seized or restrained will be returned to him or to the owner of such property. This means that the system of asset confiscation under the Act on Measures for the Suppression of Narcotics Offenses, B.E. 2534 is conviction-based.
Unlike the Act on Measures for the Suppression of Narcotics Offenses, 2534, the Prevention and Suppression of Money Laundering Act B.E. 2542 has a system of asset forfeiture where conviction is not a pre-requisite. It is commonly referred to as “Civil Asset Forfeiture.” According to this law, the “Business Transaction Committee” (BTC) has been set up and designated to be responsible for asset forfeiture administration. If, in examining the reports and data on business transactions, a probable cause exists as to the transfer, distribution, movement, covering up or hiding of any property related to an offense, the BTC is authorized to take control of or freeze such property for a period not more than ninety days. If, after the examination, there is evidence to believe that any property is one which is related to an offense, the Secretary- General of the Office of the money Laundering Control must forward the case to the public prosecutor to consider filing to the court a petition for the government to take ownership of such property. When the public prosecutor files the petition to the court, the court must place at the court a notice and publish this notice in the newspaper in order that any individual who may claim ownership or have a vested interest in the property can file a petition to the court before the court issues an order. Any individual claiming ownership of the property of which the public prosecutor has filed a petition for the government to take ownership may file with the court before the court issues such an order a petition showing that:
1. he is the true owner of the property and this property is not related to an offense; or
2. he has received the transfer of the property honestly and with compensation, or he has acquired the property honestly, morally, or by charity…..
If, after considering the petition of the public prosecutor, the court finds that the property in the petition is related to an offense and the petition of the claimant for ownership through 1. or 2. has no merit, the court will order the ownership of the property to the government.
The procedure in having the property related to an offense forfeited under this law is not to be understood as a criminal one. The law expressly provides that the petition for such property forfeiture has to be filed with the Civil Court and the Civil Procedure Code shall be applied. This means that the law considers the proceeding not as in personam but in rem one --that is, the action is not against the person but the property itself. As a result, the public prosecutor can file a petition for the forfeiture of property related to an offense even if a person involved has not yet been accused of or charged with such an offense or he has been acquitted in an offense charged in the court of criminal jurisdiction. Furthermore, due to the civil characterization of the process, the public prosecutor needs not offer the proof beyond reasonable doubts but only on the balance of probabilities that the property is related to an offense in order to have the court order the forfeiture of such property. This aspect, of course, is very important particularly when the illegal proceeds are laundered through a series of excessively complicated transactions with the involvement of a lot of persons or transnational criminal organizations.
I have talked quite a bit about the confiscation/forfeiture of the property related to an offense under both the Act on Measures for the Suppression of Narcotics Offenses, B.E. 2534 and the Prevention and Suppression of Money Laundering Act B.E. 2542. I now would like to give you the definition of the term “property related to an offense” under both laws.
Under the Act on Measures for the Suppression of Narcotics Offenses, B.E. 2534, the term “property connected with the commission of an offense” means money or property obtained through the commission of an offense relating to narcotics, and shall include money or property which are obtained by using such money or property to purchase or by causing in any manner whatsoever to transform such money or property irrespective of the number of such transformation and whether or not such money or property will be in the possession of, or transferred to or apparently evidenced on the register as belonging to other persons.
Under the Prevention and Suppression of Money Laundering Act B.E. 2542, the term “property related to an offense” includes:
1. money or properties derived from a predicate offense, or from supporting or assisting in the commission of a predicate offense;
2. money or properties derived from the sale, distribution, or transfer in any manner the money or properties in 1; or
3. fruits of the money and properties in 1. and 2.,
notwithstanding how many times the properties in 1., 2., or 3. have been sold, distributed, transferred, or changed form, or have been found in whosever ownership, or have been transferred to whomever, or have been shown registered or recorded under whosever ownership.
It is quite clear that we have a very broad definition of property subject to confiscation/forfeiture. We define it broadly because we need to extend the confiscation/forfeiture to cover not only immediate fruits of crimes but also those which may have been converted, transferred or concealed in one way or another.
4. Mutual Legal Assistance in Criminal Matters
This is also a very important tool in cases involving transnational criminal syndicates. It allows investigators and prosecutors to obtain evidence such as bank records, credit card or other financial records, telephone records from foreign countries. It is one of the best ways of obtaining foreign evidence in a form that will be admissible in court.
Under the Act on Mutual Legal Assistance in Criminal matters B.E. 2535, assistance may take many forms such as collecting evidence, providing documents, conducting examination of witnesses in court, processing the confiscation/forfeiture of asset, transfer of proceeding, and initiating criminal cases.
The Attorney General is the Central Authority under this Act. His duties include the duties:
1. to receive the request for assistance from the requesting state and transmit it to the Competent Authorities;
2. to receive the request seeking for assistance presented by the agency of the Thai government and deliver it to the requested state;
3. to consider and determine whether to provide or seek for assistance;…..
The request for assistance from the country having mutual assistance treaty with Thailand shall be submitted directly to the Central Authority while the request from those who have no such treaty shall be submitted through diplomatic channel. Affirmation of reciprocity is the prerequisite for execution of the request from non-treaty requesting states. In general, the request for assistance should include:
1. a summary of the facts and procedural history of the case or investigation
2. a statement of the offenses involved in the case or investigation
3. a statement of the evidence or assistance requested and a statement how the evidence or assistance relates to the case or investigation.
Other information may be required depending on the nature of assistance requested.
Once the Central Authority determines that assistance requested is in the proper form, the request will be forwarded to the Competent Authority which may be the National Police Chief, the Director-General of the Criminal Litigation Department of the Office of the Attorney General, or the Director-General of the Department of Correction depending on the type of assistance sought. The result of the execution of assistance in the form admissible in the requesting state will be forwarded to the Central Authority which will submit it back to the requesting state either directly or through diplomatic channel.
5. Extradition
Extradition is a process by which the criminal fugitive is surrendered for trial or serving sentences in a country of crime scene. Without extradition, the trial of the offender in the requesting state cannot proceed for it is a general rule that the offender must be present in the court for criminal trial. It is one of the most important legal mechanisms in the context of transnational crime where it is quite often that there is a need to bring the offender who has fled away back to justice in the country of crime scene.
Extradition in Thailand is conducted on dual basis, that is either to comply with the Extradition Act B.E. 2472 or the provisions of the treaty. Unlike those “treaty-prerequisite countries”, Thailand can extradite the fugitive to the requesting state even the requesting state has no treaty with Thailand. The extradition in this case is based on the reciprocity commitment from such state.
Under the Extradition Act B.E. 2472, extradition may not be granted unless the crime upon which such request is based is illegal and punishable at least imprisonment for one year by Thai laws and is not a political offense. The request for extradition, furthermore, must be accompanied by:
(2) in case of a person charged with a crime, a warrant of arrest issued by the Competent Authorities of the requesting country, or a duly authenticated copy thereof
The request for extradition, together with accompanying documents, must be processed through diplomatic channel. Such a request thus must be first submitted to the Ministry of Foreign Affairs, which, unless the Thai government decides otherwise, will transmit it to the Ministry of Interior for the arrest of the accused or for application for an arrest warrant from the court. The Ministry of Interior will then convey the request to the Office of the Attorney General in order that the prosecutors will apply for a warrant of arrest from the court of competent jurisdiction or will bring the case before such court if the accused has already been arrested.
It should be understood at this point that the prosecutor does not need to prove that the accused has committed the offense stated in the request but is required to satisfy the court only that:
(2) there would have been sufficient evidence to detain him for trial, if the offense had been committed in Thailand;
The accused, conversely, is not permitted to defend his case on any other ground except the followings:
If such conditions are established and no ground for denial of extradition exists, the court will order the accused to be detained for extradition. However, such extradition cannot be carried out unless a fifteen-day period allowed for an appeal has expired. If the evidence does not support the required establishments, the court will order the accused to be discharged at the end of forty-eight hours after its judgment unless the prosecutor informs the court of the intention to appeal. An appeal must likewise be filed within fifteen days and the accused must be detained pending the hearing of such appeal. The judgment of the Court of Appeals both on factual and legal issues is final. In any event, the accused will be released if not surrendered within three months from the date when the order of the court becomes final or within such further time as the court direct for sufficient reason.
It should be noted that the Extradition Act B.E. 2472 has been in use for nearly 70 years. The Act is considered obsolete in some respects with the development of modern concepts and practices in extradition. The revised Extradition law is under drafting by the Drafting Commission appointed by the Cabinet and chaired by the Attorney General.
Conclusion
Undeniably, this passing decade has witnessed the significant increase in transnational organized crimes. I think as well that they will continue to increase significantly in the next decade due to advancement in communication and transportation technology and substantial expansion of trade liberalization around the globe. And this, of course, is unacceptable to the world community. Unless effective measures both at national and international levels against these criminal organizations have been taken, transnational organized crimes in the next decade will not be likely to diminish. We in Thailand have implemented some of legal measures in recent years to cope with the problems of transnational organized crimes. We believe that these measures will be sufficiently effective to combat these criminal organizations. However, what is certainly most important in the fight against these crimes is cooperation and coordination among law enforcement authorities of every country concerned. By sharing information and ideas, and by working closely together, we can limit, narrow or perhaps nail down these international crime syndicates.
Thank you for your time and attention.