Based on our experience across the years handling high complex extradition cases in Thailand by our criminal lawyers in Bangkok at H&P, we have observed that there are several common misunderstandings among some legal concepts such as deportation and extradition, ways to oppose extraditions from foreign countries and the extradition procedure itself in Thailand.
Under Thai Law, extradition is a process in which the public prosecutor files a complaint with the court to return the offender to the requesting country takes place entirely through judicial proceedings. This is different from deportation, which is handled by the immigration authorities and does not involve any court proceeding.
A common misconception is that some people believe the extradition process allows presenting new evidence to prove the innocence of the accused. However, this is not always the case. The extradition process is, in fact, a matter of international cooperation and mutual assistance between countries in transferring an alleged offender to the requesting state.
Therefore, the court only has the authority to order detention and consider the following grounds for extraditing the offender in accordance with the Extradition Act:
(1) The person arrested is the individual requested for extradition and is not a Thai national, or is a Thai national but falls within the criteria allowing extradition under Section 12.
(2) There is probable cause to proceed with prosecution, if the offense was committed within the Kingdom or is deemed by law to have been committed within the Kingdom.
(3) The offense forming the basis for the extradition request is one that qualifies for extradition under this Act and is not a political or military offense in nature.
If the court finds that the evidence under the above paragraph is insufficient, it shall issue an order for release, and the person shall be released once a period of seventy-two hours has passed from the reading of the release order.
The offense committed under list number (2) must be the same offense on which the requesting country bases its extradition request.
In the practical experience of our Bangkok law firm opposing extraditions in Thailand, in the past we have used different grounds such as A) risk of death penalty if Thailand proceed to extradite a foreign national B) Several mistakes regarding the identity of the client in documents provided by the foreign country C) Severe irregularities in the detention and interrogation process of the client arrested by the Thai police with cooperation of a foreign government.
Difference between Deportation and Extradition under Thai Law
Both deportation and extradition share a similarity in that they involve the removal of a foreign national who has committed an offense from the country. However, there are several key differences between the two, and they are considered separate legal procedures.
Deportation
Deportation is the act of expelling a foreigner from the country based on grounds such as illegal entry, committing serious offenses in the country of residence, or posing a threat to public safety. In most cases in Thailand, deportation usually occurs when the individual violates immigration laws, such as overstaying a visa or breaching visa conditions.
Extradition
Extradition is a legal process whereby one country (the requesting country) requests another country (the requested country) to surrender a person accused of a criminal offense to face trial or serve a sentence in the requesting country. The offense must be recognized as a crime in both countries (dual criminality), and the requesting country must provide sufficient evidence. Extradition typically applies to serious crimes, such as murder, fraud, or drug trafficking.
As mentioned earlier, both processes share the goal of removing offenders from a country, but they differ in that deportation involves expelling a foreigner who has violated the host country’s laws, whereas extradition occurs when one country requests the surrender of an offender to face punishment in that requesting country.
In practical, our law firm in Thailand and our criminal lawyers in Bangkok have found cases where a foreign government hides the grounds of an extradition under Interpol notices by using a deportation process which is more effective and straight forward by for example: revoking a passport of a foreign national.
Legal ground of death penalty for Thai courts not to cooperate in extraditions
This principle is a human rights principle based on international law, such as Article 6 of the ICCPR, which concerns the death penalty. Some State Parties to this treaty directly apply the principle as domestic law without first going through the internal legislative process.
Article 6 of International Covenant on Civil and Political Rights
1-Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2-In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
However, since Thailand’s legal system follows the Civil Law system, it primarily relies on written laws enacted through the legislative process. Therefore, the extradition process must comply with the Extradition Act B.E. 2551 (2008).
Under the Extradition Act B.E. 2551 (2008), the authority to exercise discretion in approving the submission of an extradition request lies with the Central Authority, which is the Attorney General of Thailand or a person authorized by the Attorney General. Sections 7 and 9 of the said Act set forth the principles regarding the acceptance of extradition requests as follows:
Section 7 of the Extradition Act B.E. 2551 (2008)
An offense eligible for extradition must be a criminal offense under the laws of both the requesting country and Thai law, and must be punishable by the death penalty, imprisonment, or other forms of deprivation of liberty for a term of at least one year. This applies regardless of whether the offense falls under the same category or bears the same name in both countries.
A criminal offense punishable by imprisonment or other forms of deprivation of liberty for less than one year may also be subject to an extradition request if it is connected to an offense that qualifies for extradition under the request, whether such request is made at the same time as the original request or subsequently.
Section 9 of the Extradition Act B.E. 2551 (2008)
The Thai government may consider extraditing a person for prosecution or to serve a sentence pursuant to a court judgment for a criminal offense under the jurisdiction of the requesting country, upon request, in the following cases:
(1) The offense qualifies for extradition and is not prohibited under Thai law, nor is it a political offense or a military offense;
(2) In the absence of an extradition treaty, when the requesting country expressly declares that it will reciprocate by extraditing offenders to Thailand upon Thailand’s request.
The court, as a judicial organization, only has the authority to consider extradition requests submitted by the Attorney General or a person authorized by the Attorney General. The principles for considering such requests follow the provisions of the Act; however, there is no stipulation granting the court discretion to refuse extradition in cases where the requesting country prescribes the death penalty as the punishment.
However, according to Section 14 (4) of the said Act, in cases where the Attorney General or a person authorized by the Attorney General considers that the request to extradite may affect international relations, or there are other reasons that make it inappropriate to proceed, or deems that the request does not fall within the criteria for action under this Act, the Central Authority shall notify the requesting country or the Ministry of Foreign Affairs, as the case may be, for further action.
Thus, this demonstrates that the authority to reject an extradition request on behalf of the Thai state does not lie with the court, but rests solely with the Attorney General or a person authorized by the Attorney General. The said provision is not mandatory but is a matter of discretion. As previously mentioned, international treaties do not bind Thailand to comply with any treaty regarding the refusal to extradite in cases involving the death penalty.
Based on our legal experience handling extradition cases in Thailand, each case is completely different and requires a dedicated team of international lawyers (Thai and foreign legal professionals) to be able to assess the nature and particularities of the case and prepare a robust legal defense based on principles of Thai Law and International Law.
If you require lawyer assistance in an extradition case in Thailand, please contact our litigation lawyers at [email protected]
