Thailand Law Journal 2011 Fall Issue 2 Volume 14

In order to meet the objective in reducing transnational organized crime, the Palermo Convention imposes several obligations. State parties must:

• Criminalize money laundering;⁴⁶
• Adopt other legal and administrative measures to regulate financial activities in such a way as to make concealing unlawful proceeds more difficult, to facilitate the detection, investigation and prosecution of money-laundering, and to provide international assistance or co-operation in; appropriate cases;⁴⁷ and

• Confiscate and dispose of money or property which is either proceeds of crime or has been used in crime. Provisions for international cooperation in seizure and forfeiture cases are included in their laws.⁴⁸

            3. Obligation in respect of defining the predicate offences

The applicability of anti-money laundering laws depends upon the predicate offences. Consequently, if the drafters of the Palermo Convention wanted to harmonize the scope of member states' anti-money laundering laws, they also had to include an obligation to define predicate offences broadly to similar crimes.

Article 6 of the Palermo Convention provides in relevant part:

            2. For purposes of implementing or applying paragraph 1 of this article:

            (a) Each State Party shall seek to apply paragraph 1 of this article to the widest range of predicate offences;
            (b) Each State Party shall include as predicate offences all serious crime as defined in article 2 of this Convention and the established in accordance with article 5, 8 and 23 of this Convention. In the case of State Parties whose legislation sets out a list of specific predicate offences, they shall, at a minimum, include in such list a comprehensive specific predicate offences associated with organized criminal groups;....⁴⁹
           
Pursuant to this provision, the state parties to the Palermo Convention must adopt one of two policies.

Fist, the state parties can include all of the following as predicate offences:

            1. All serious crime. Article 2 (b) of the Palermo Convention defines serious crime as "conduct constituting an offences punishable by a maximum deprivation of liberty of at least four years or a more serious penalty";

            2. Offences in respect of the participation in an organized criminal group. Article 2 (a) of the Palermo Convention defines organized criminal group as "a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefits";

            3. Offences in respect of corruption. Article 8 of the Palermo Convention defines criminalization of corruption as "when committed intentionally: (a) The promise, offering or giving to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties; (b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties..."; and

            4. Offences in respect of obstruction of justice. Article 23 of the Palermo Convention defines obstruction of justice as "...when committed intentionally: (a) The use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences covered by this Convention; (b) The use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official in relation to the commission of offences covered by this Convention".

Second, if their anti-money laundering statues set out a list of specific predicate offences, the state parties can opt to add the offences associated with organized criminal groups as the predicate offences into that list rather than include the above four categories of offenses.⁵⁰

C. Thailand and the Palermo Convention

The transnational organized crime in Thailand can be characterized as follows:

• "Devising labors: Some specialists, such as lawyers and accountants, have become involved in these activities [, such as money laundering,] so that the criminals can use their expertise to technically conceal proceed derived from an illegal source."⁵¹
• "Committing several crimes: The transnational criminals prefer to commit many crimes at the same time that are jointly organized by criminal groups of both local and foreign origin. The cooperation and coordination network will be used to support their group activities as well."⁵²

• "Maximizing profits: The main purpose of any transnational organized crime is to maximize profits. Mostly money or benefits derived from illegal activities will be laundered in order to conceal their illegal source of funds."⁵³

Thailand has participated in the Palermo Convention by sending delegations to observe the convention drafting proceedings several times. In addition, when it was completed, Thailand joined the first group of signatory countries.⁵⁴ Thailand signed the Palermo Convention and its two Protocols on December 13, 2000 but, at present, Thailand has not ratified the Palermo Convention.⁵⁵

Becoming a member to the Palermo Convention will likely provide Thailand with the following benefits. First, Thailand will receive cooperation from other member states⁵⁶, for example, extradition, the sharing of intelligence, and confiscation of the illegal proceeds of transnational organized crimes. Thailand also will benefit from mutual legal assistance, such as taking evidence or statements from persons and effecting service of judicial documents.⁵⁷ This will help Thailand suppress and prevent transnational organized crime more efficiently and effectively.⁵⁸ It will also benefit Thailand's international reputation by showing its sincere commitment to combating transnational organized crime.⁵⁹ Finally, the Palermo Convention's requirement of criminalization of transnational organized crime helps urge Thailand to have the law that specifically addresses transnational organized crime and will be the tool which helps enforcement officials fight transnational organized crime.⁶⁰

The Office of the Attorney of Thailand was designated as the focal point for the substantive preparation of the ratification of the Palermo Convention.⁶¹ To compete its tasks, the committee appointed by the Office of the Attorney has finished a draft law, entitled "Prevention and Suppression of Transnational Organized Crimes", (PSTOC).⁶² It is believed that Thailand will be ready for ratification in the near future.⁶³