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, 1993(36),
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, extradition(38)
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 nationals (42),
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)
