Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992)

 

   Section 1  This Act shall be called the Act on Mutual Assistance in Criminal Matters B.E. 2535.

   Section 2  This Act shall come into force after ninety days upon its publication in the Government Gazette.

   Section 3  This Act shall replace all other laws, regulations, rules, decrees, and any other announcements already provided for in or inconsistent with this Act.

   Section 4  In this Act:

   “Assistance” means assistance regarding investigation, inquiry, prosecution, forfeiture of property and other proceedings relating to criminal matters;

   “Requesting State” means the state seeking assistance from the Requested State;

   “Requested State” means the state receiving the request seeking assistance from the Requesting State;

   “Central Authority” means the person having authority and function to be the coordinator in providing assistance to a foreign state or in seeking assistance from a foreign state under this Act;

   “Competent Authority” means the official having authority and function in rendering assistance to a foreign state in response to a request sent to him from the Central Authority under this Act.

   Section 5  The Prime Minister shall be the guardian of this Act and shall have the authority to issue Ministerial Regulations necessary for the implementation of this Act.

   Ministerial Regulations shall become effective upon publication in the Government Gazette.

 

CHAPTER 1

CENTRAL AUTHORITY

   Section 6  The Central Authority shall be the Attorney General or the person designated by him.

   Section 7  The Central Authority shall have the following authority and function:

   (1) To receive the request seeking assistance from the Requesting State and transmit it to the Competent Authority;

   (2) To receive the request seeking assistance presented by the agency of the Royal Thai Government and deliver it to the Requested State;

  (3) To consider and determine whether to provide or seek assistance;

  (4) To follow and expedite the performance of the Competent Authority in providing assistance to a foreign state for the purpose of expeditious conclusion;

  (5) To issue regulations or announcements for the implementation of this Act;

  (6) To carry out any other acts necessary for the success of providing or seeking assistance under this Act.

  Section 8  There shall exist a board comprising representatives from the Ministry of Defence, the Ministry of Foreign Affairs, the Ministry of Interior, the Ministry of Justice, the Office of the Attorney General, as well as not more than four of other distinguished persons designated by the Prime Minister and one public prosecutor designated by the Board as its Secretary. The Board shall provide opinion to assist the Central Authority in consideration and determination of providing assistance to, or seeking assistance from foreign states where such matter may affect national sovereignty or security, crucial public interests, international relation, or relate to a political or military offence.

  When assistance is sought under Section 10 or Section 36 and the process under Section 11 has already been completed, the Central Authority shall promptly refer the matter to the Board for its opinion unless the Board has resolution otherwise.

  If there is a dissent between the opinion of the Board and the determination of the Central Authority, the latter shall refer the case to the Prime Minister for his ruling in accordance with Section 11 paragraph five or Section 38 paragraph two as the case may be.

 

CHAPTER 2

PROVIDING OF AND SEEKING FOR ASSISTANCE

 

PART 1

General Provisions 

  Section 9  Assistance to a foreign state shall be subject to the following conditions:

   (1) Assistance may be provided even if there exists no mutual assistance treaty between Thailand and the Requesting State, providing that such state commits to assist Thailand under the similar manner when requested;

   (2) The act on which the request is based must be an offence punishable under Thai laws unless when Thailand and the Requesting State have a mutual assistance treaty between them and the treaty otherwise specifies, providing, however, that assistance must be conformed to the provisions of this Act;

   (3) A request may be refused if it affects national sovereignty or security, or other crucial public interests of Thailand, or relates to a political offence;

   (4) Assistance shall not be related to a military offence.

   Section 10  The state having a mutual assistance treaty with Thailand shall submit its request for assistance directly to the Central Authority. The state having no such treaty shall submit its request through a diplomatic channel.

   A request for assistance shall be made in conformity with the forms, regulations, means and conditions set by the Central Authority.

   Section 11  Upon the receipt of the request for assistance from a foreign state, the Central Authority shall consider and determine whether such request is eligible for assistance under this Act, has gone through the correct procedure, and is accompanied by all appropriate supporting documents.

   If such request is eligible for assistance, has gone through the correct procedure, and is accompanied by all appropriate supporting documents, the Central Authority shall transmit it to the Competent Authority for further actions.

   If such request is not eligible for assistance or assistance is subject to some essential conditions, or if it has not been correctly processed or is not accompanied by all appropriate supporting documents, the Central Authority shall inform the Requesting State of the refusal and its reasons or shall indicate to the Requesting State the essential conditions or the causes of being unable to execute the request.

   If the Central Authority is of the view that the execution of a request may interfere with the investigation, inquiry, prosecution, or other criminal proceedings pending in Thailand, he may postpone the execution of the said request or may execute it under certain conditions and notify the Requesting State accordingly.

   A determination of the Central Authority with regard to assistance shall be final, unless the Prime Minister otherwise alters.

   Section 12  The Central Authority shall transmit the request for assistance from a foreign state to the following Competent Authority for execution :

   (1) The request for taking statement of persons, providing documents, articles, and evidence out of Court, serving documents, searching, seizing documents or articles, and locating persons shall be transmitted to the Director General of the Police Department;

   (2) The request for taking the testimony of persons and witnesses or adducing document and evidence in the Court, and the request for forfeiture or seizure of property shall be transmitted to the Chief Public Prosecutor for Litigation;

   (3) The request for transferring persons in custody for testimonial purposes shall be transmitted to the Director General of the Corrections Department,

   (4) The request for initiating criminal proceedings shall be transmitted to the Director General of the Police Department and the Chief Public Prosecutor for Litigation.

   Section 13  Upon the receipt of the request for assistance from the Central Authority, the Competent Authority shall execute such request and, after completion, submit a report together with all documents and articles concerned to the Central Authority.

   In case of impediment or impossibility to execute the request, the Competent Authority shall report to the Central Authority the causes thereof.

   Section 14  When the Competent Authority has executed a request and reported the result of such execution to the Central Authority, the Central Authority shall deliver all documents and articles concerned to the Requesting State.

 

PART 2

Inquiry and Producing Evidence

   Section 15  Upon the receipt of the request for assistance from a foreign state in taking statement of persons or gathering evidence located in Thailand at the stage of inquiry, the Competent Authority shall direct an inquiry official to execute such request.

   The Inquiry Official shall have the power to take statement of persons or to gather evidence as requested under paragraph one and, if necessary, to search and seize any documents or articles in accordance with rules, means, and conditions set forth in the Criminal Procedure Code.

   When the Inquiry Official has finished taking statement of persons or gathering evidence, he shall report and deliver all evidence derived therefrom to the Competent Authority.

   Section 16  If the mutual assistance treaty between Thailand and the Requesting State requires a document to be authenticated, the Competent Authority shall have the power to instruct the person in charge of keeping the said document to attest it in accordance with the forms and means specified in the treaty or as defined by the Central Authority.

   Section 17  Upon the receipt of the request for assistance from a foreign state to take evidence in Thai Court, the Competent Authority shall direct the public prosecutor to execute such request.

   The Public Prosecutor shall have the power to apply to the Court having jurisdiction over the domicile or residence of the person who will be the witnesses or who possess or keeps the documents or other evidence for taking such evidence. The Court shall have the power to proceed in accordance with the provisions in the Criminal Procedure Code.

   After the completion of evidence taking, the Public Prosecutor shall apply to the Court for the record of testimony of witnesses including other evidence to be sent to the Competent Authority for further actions.

 

PART 3

Provision of Documents and Information in the Possession of Government Agencies

   Section 18  Upon the receipt of the request for assistance from a foreign state to provide documents or information in the possession of the agencies of the Royal Thai Government, the Central Authority shall transmit the request to the agency having such documents or information in its possession, and the said agency shall submit the said documents or information to the Central Authority.

   Section 19  If the documents or information sought under Section 18 should not be published, and the agency possessing such documents or information considers it impossible to disclose, or the said documents or information should not be disclosed or may be disclosed under certain conditions, the said agency shall inform the Central Authority of the causes thereof or the conditions for the disclosure of such documents or information.

   Section 20  In providing documents according to the request for assistance from a foreign state under this part, the official in charge of keeping such documents shall attest them, in accordance with the forms and means set by the Central Authority unless the treaty specifies otherwise, in which case the provisions of the treaty shall apply.

 

PART 4

Serving Documents

   Section 21  Upon the receipt of the request for assistance from a foreign state to serve legal document, the Competent Authority shall execute such request and report the result thereof to the Central Authority.

   If the legal document to be served under the request calls for the appearance of a person before an official or the Court in the Requesting State, the Competent Authority shall serve the said document upon the recipient for a reasonable time prior to the scheduled appearance.

   The result of serving documents shall be reported in accordance with the forms and means set by the Central Authority unless the treaty specifies otherwise, in which case the provisions of the treaty shall apply.

   Section 22  The provisions regarding penalty in case of non-compliance with the order of the official or of the Court shall not be applied to the person served with a legal document calling for his appearance before an official or the Court in the Requesting State, if he is not a national of such state.

 

PART 5

Search and Seizure

   Section 23  Upon the receipt of the request for assistance from a foreign state to search or seize and deliver an article, the Competent Authority shall have the power to issue a search warrant, conduct search and seizure of the article, if there is a reasonable ground to do so under the law.

   Section 24  The provisions of the Criminal Procedure Code relating to search shall be applied, mutatis mutandis, to search and seizure in Section 23.

   Section 25  The Competent Authority conducting search and seizure of an article in response to the request for assistance shall make a certificate of its custody, identity, and integrity of its condition, and shall deliver the said article together with the certificate thereof to the Central Authority for further actions.

   The certificate thereof shall be made in form and manner set by the Central Authority.

 

PART 6

Transferring Persons in Custody for Testimonial Purposes

   Section 26  Upon the receipt of the request from a foreign state for assistance in transferring a person kept in custody in Thailand to testify as a witness in the Requesting State, or in transferring a person kept in custody in the Requesting State to testify as a witness in Thailand, if the Central Authority considers that such transfer is necessary and the said person consents thereto, he shall direct the Competent Authority to transfer the said person to the Requesting State or to take him from the Requesting State to Thailand.

   The transfer and taking of the person in paragraph one shall be carried out in accordance with the rules, means and conditions set forth in the Ministerial Regulations.

   Section 27  The period during which a person transferred to testify as a witness in a foreign state is under the custody of the Requesting State shall be deemed the period of his custody in Thailand.

   Section 28  The Competent Authority shall have the power to keep in custody the person transferred from a foreign state for testimonial purpose throughout the period of his presence in Thailand, and shall make a report to the Central Authority when the said person finishes his testimony.

   Section 29  Upon the receipt of the report from the Competent Authority under Section 28, the Central Authority shall promptly return the transferred person to the Requesting State.

 

PART 7

Locating Persons

   Section 30  Upon the receipt of the request for assistance from a foreign state to locate a person believed to be in Thailand and required by the Requesting State for the purposes of investigation, inquiry, prosecution or other criminal proceedings, the Competent Authority shall proceed to locate the said person and inform the result thereof to the Central Authority.

 

PART 8

Initiating Proceedings upon Request

   Section 31  Upon the receipt of the request for assistance from a foreign state competent to initiate a criminal proceeding but wishes the same to be initiated in Thailand, the Central Authority, if the case is subject to the jurisdiction of Thai Court, shall consider whether it is appropriate to initiate the criminal proceeding as requested. If so, he shall direct the Competent Authority to proceed in accordance with the provisions in the Criminal Procedure Code and shall direct the said Competent Authority to report to him the result thereof.

 

PART 9

Forfeiture or Seizure of Property

   Section 32  Upon the receipt of the request for assistance from a foreign state to forfeit or seize property located in Thailand, the Competent Authority shall apply to the Court having jurisdiction over the location of the property for the judgment of its forfeiture or the order of its seizure.

   The Competent Authority in paragraph one shall, if it is necessary, conduct an inquiry or authorize any inquiry official to conduct an inquiry on his behalf.

   Section 33  The property specified in a request from a foreign state may be forfeited by the judgment of the Court if there is a final forfeiture judgment of a foreign Court and it is forfeitable under Thai laws.

   Where the foreign Court has made a pre-judgment order seizing the property or made a forfeiture order against it but the order is not yet final, the Court, if it thinks fit, may make an order seizing it if it is seizable under Thai laws.

   The Court shall have the power to order the forfeiture or seizure of property under this section, even if the offence giving rise to forfeiture or seizure may not have taken place in the Kingdom.

   Section 34  The inquiry, the filing of motion, the trial, the adjudication, and the making of an order in relation to the forfeiture or seizure of the said property shall be, mutatis mutandis, governed by the provisions related to forfeiture of property set forth in the Criminal Procedure Code and the Penal Code.

   Section 35  The property forfeited by the judgment of the Court under this part shall be vested in the State, but the Court may give a judgment for rendering it useless or for its destruction.

 

PART 10

Seeking Assistance

   Section 36  An agency wishing to seek assistance from a foreign state shall present the matter to the Central Authority.

   Section 37  A request for assistance from a foreign state and all documents to be sent therewith shall be made in accordance with forms, rules, means, and conditions set by the Central Authority.

   Section 38  The Central Authority shall consider whether it is appropriate to request assistance from a foreign state, taking into account regulations, details, facts and supporting documents, and shall then notify the requesting agency of his determination.

   A determination of the Central Authority with regard to the request for assistance shall be final unless the Prime Minister directs otherwise.

   Section 39  The requesting agency shall comply with the commitment of Thailand towards the Requested State regarding the use of information or evidence for the purposes specified in the request.

   The requesting agency shall also comply with the commitment of Thailand towards the Requested State regarding the confidentiality of the requested information or evidence unless such information or evidence is necessary for a public trial of the case arising from the investigation, inquiry, prosecution or other criminal proceedings in connection with the criminal case specified in the request.

   Section 40  A person coming to Thailand for the purpose of giving statement or testimony in accordance with this Act shall not be served with summons for any case against him, be detained, or be subject to any other restriction of personal liberty by reason of any acts which preceded his departure from the Requested State.

   The right in paragraph one shall cease when the person, having had the opportunity to leave Thailand within fifteen days after notification from the agency that his presence was no longer required, nonetheless continues staying in Thailand, or voluntarily makes a return after having left Thailand.

   Section 41  All evidence and documents obtained under this Act shall be admissible according to law.

 

CHAPTER 3

COSTS

   Section 42  All costs related to the provision of assistance to a foreign state and the request for assistance from a foreign state shall be governed by rules, means, and conditions set forth in the Ministerial Regulations.

Ministerial Regulation B.E. 2537 (1994) Issued under the Act on the Mutual Assistance in Criminal Matters

B.E. 2535 (1992)

 

By virtue of the powers conferred by Section 5 and Section 26 paragraph two of the Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992), the Prime Minister hereby issues this Ministerial Regulation as follows:

 

CHAPTER I

TRANSFERRING OF PERSONS IN CUSTODY IN THAILAND TO TESTIFY IN THE REQUESTING STATE

   Article 1  When the Central Authority receives the request from a foreign state for assistance in transferring a person kept in custody in Thailand to testify in the Requesting State :

   (1) If the Central Authority or the Prime Minister, as the case maybe, gives a final decision that the execution of the request is necessary and such request is eligible for providing assistance, as well as is processed in accordance with regulation provided by law and is accompanied by all appropriate and accurate supporting documents required by relevant regulations, when there is no ground to postpone or cease such execution, the Central Authority shall notify such decision and shall transmit the request together with all accompanied documents to the following authorities to inquire for the consent of the person kept in custody.

   (a) If such person is kept in custody under supervision of the Department of Corrections, the request shall be transmitted to the Director-General of the Department of Corrections for execution.

   (b) If such person is kept in custody under supervision of other authority, the request shall be transmitted to the Director-General of the Department of Corrections for notifying the Head of such authority, who shall carry on further execution and shall report the result thereof to the Director-General of the Department of Corrections.

   The inquiry shall be made using the “Form CA 1” attached to this Ministerial Regulation.

   In transmitting the request and related documents according to Article (1), the Central Authority shall clearly and accurately clarify all relevant fact, as well as the rights and duties of the person kept in custody according to the law, treaty, or commitment made towards Thailand by the Requesting State.

   (2) If the Central Authority or the Prime Minister gives the final decision that the execution of the request is unnecessary, or the request is not eligible for providing assistance, or the assistance may be granted but subject to some required conditions, or the request is not processed in accordance with the procedure regulated by law or is not accompanied by accurate and appropriate supporting documents, or there is any reason that the execution of request must be postponed or ceased, the Central Authority shall inform the Requesting State of the refusal of assistance with the reason thereof, or the necessary condition required for granting the assistance, or the impediment.

   Article 2  When the person kept in custody gives a consent to be transferred to testify in the Requesting State but thereafter desires to revoke such consent, he may submit his revocation in writing, prior to his departure from Thailand, to the Director-General of the Department of Corrections or the Head of other authority in charge of his custody, as the case may be. If the revocation is made towards the Head of other authority, such Head of other authority shall promptly inform the matters to the Director-General of the Department of Corrections.

   If there is any expense arising from the transferring process prior to the revocation of consent under paragraph one and thus Thailand or the Competent Authority is bound to be responsible for, then the person who revokes his consent shall be responsible for such expense.

   Article 3  The Director-General of the Department of Corrections shall expeditiously notify the result of the inquiry for consent as stated in Article 1(1), and shall return the request together with the “Inquiry Form for Consent” and all relevant documents to the Central Authority.

   In case where the person kept in custody gives his consent to be transferred for testimonial purposes but revokes his consent thereafter pursuant to Article 2 paragraph one, the Director-General of the Department of Corrections shall promptly inform the Central Authority thereof.

   Article 4  Upon the receipt of a notification pursuant to Article 3, the Central Authority shall proceed as follows:

   (1) If the person kept in custody gives no consent or revokes the consent to be transferred, the Central Authority shall notify the Requesting State of the refusal of assistance together with the reason thereof;

   (2) If the person kept in custody gives a consent to be transferred for testimonial purpose, the Central Authority shall notify the Requesting State of the acceptance to provide assistance, as well as notify and transmit to the Director-General of the Department of Corrections of the request, Inquiry Form for Consent, and all relevant documents for transferring the said person to the Requesting State.

   Article 5  Upon the receipt of a notification from the Central Authority for transferring a person kept in custody to testify in the Requesting State, the Director-General of the Department of Corrections shall proceed as follows:

   (1) If the person is kept in custody under supervision of the Department of Corrections, the Director-General of the Department of Corrections shall transfer such person to the Requesting State.

   (2) If the person is kept in custody under supervision of other authority, the Director-General of the Department of Corrections shall notify the Heads of the said authority to transfer such person to the Department of Corrections for further proceeding.

   Article 6  While the Director-General of the Department of Corrections or the Head of other authority in which the person who gives a consent to testify in a foreign state being kept in custody, as the case maybe, still proceeds with procedure according to Article 5, if such person revokes his consent pursuant to Article 2 paragraph one prior to his departure from Thailand, the Director-General of the Department of Corrections shall promptly inform the Central Authority, who shall then inform the Requesting State of the refusal to provide assistance together with reason thereof.

   Article 7  Upon the receipt of a notification from the Requesting State to return the person transferred to testify in the Requesting State pursuant to Article 5 to Thailand, the Central Authority shall notify the Director-General of the Department of Corrections to arrange the admission of the transferred person.

   If the said person is kept in custody under supervision of the other authority according to Article 5(2), the Director-General of the Department of Corrections shall transfer that person to the said other authority after admitting him from the Requesting State.

   Article 8  Regarding the transfer or return of the transferred person according to Article 5 or 7, the Central Authority shall coordinate with the Requesting State, the Director-General of the Department of Corrections, or the Heads of other Competent Authority in order to arrange the transfer, place, travel document, period of time, officer in charge or any necessary fact required for the transfer or return of the said person according to Article 5 or 7.

   After the execution of transfer or return of the person kept in custody pursuant to Article 5 or 7, the Director-General of the Department of Corrections shall expeditiously inform the Central Authority.

 

CHAPTER 2

ADMISSION OF PERSONS KEPT IN CUSTODY IN THE REQUESTING STATE TO TESTIFY IN THAILAND 

   Article 9  Upon the receipt of a request from a foreign state for assistance in transferring a person kept in custody in the Requesting State to testify in Thailand,

    (1) If the Central Authority or the Prime Minister gives a final decision that the execution of the request is necessary and such request is eligible for providing assistance, as well as is processed in accordance with regulation provided by law and is accompanied by all appropriate and accurate supporting documents required, the Central Authority shall proceed as follows :

     (a) inform the Requesting State of the acceptance to provide assistance;

     (b) notify the Director-General of the Department of Corrections to admit such person; and

     (c) notify the Executive Director of the Office of Criminal Litigation to advise the competent public prosecutor to conduct the testimony.

    (2) If the Central Authority or the Prime Minister has the final determination that the request is unnecessary or is not eligible for providing assistance, or the assistance may be granted but subject to some required conditions, or the request is not processed in accordance with procedure regulated by law or is not accompanied by accurate and appropriate supporting documents, the Central Authority shall inform the Requesting State of the refusal of assistance together with reasons thereof, or the necessary condition required for granting the assistance, or impediment.

   Article 10  In admitting the person to testify in Thailand pursuant to Article 9, the Director-General of the Department of Corrections shall have the power to detain that person in prison or detention place of the Department. However, if the said person is a juvenile, he shall be transferred to the Juvenile Observation Center pursuant to the Act on Setting up of the Juvenile and Family Court and the Procedure.

   In the presence of a special circumstance that the detention under paragraph one is inappropriate or a treaty otherwise specifically provided, or if the Requesting State requests to agree otherwise, the Central Authority may notify the Director-General of the Department of Corrections of the matter in order to transfer such person to be detained in a more appropriate place.

   Article 11  When the person kept in custody completes his testimony, the public prosecutor in charge thereof shall expeditiously inform the Executive Director of the Office of Criminal Litigation, the Director-General of the Department of Corrections, and the Central Authority to arrange the return of that person.

   If it is necessary to return the said person to the Requesting State prior to the completion of his testimony, the Central Authority shall notify the Director-General of the Department of Corrections to promptly arrange the return.

   Article 12  The admission of person kept in custody in the Requesting State to testify in Thailand and the return of such person shall be governed by Article 8, mutatis mutandis.

CHAPTER 3

MISCELLANEOUS 

   Article 13  For the purpose to implement this Ministerial Regulation, the Director-General of the Department of Corrections or the Heads of other Competent Authority shall have authority to regulate the procedure related to the transfer or admission of the person kept in custody and all other matters concerned thereto.

   The Central Authority shall be informed of those regulations in paragraph one.

   Article 14  For the purpose of expeditious and effective transfer or admission of persons kept in custody pursuant to Article 26 of the Act on Mutual Assistance in Criminal Matters, other authorities involved shall assist the Director-General of the Department of Corrections or the Heads of the authorities in charge of the said transfer or admission.

   Article 15  If there exists any problem as regards the implementation of this Ministerial Regulation, the Director-General of the Department of Corrections or the Heads of other authorities involved shall inform the Central Authority who shall resolve the problem and then report the result thereof to the Prime Minister.

 

Issued on the 8th day of February, B.E. 2537 (1994)

(Mr. Chuan Leekpai) Prime Minister