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A THAI CASE OF EXTRADITION: POLITICAL EXPEDIENCY AND MERCYBy Alexander Shytov(1) 1. INTRODUCTION
The term ‘extradition” comes from two Latin words: ex: "from" and traditio: "to hand over." Extradition is defined as the surrender, according to the provisions of a treaty, agreement, or statute, by one state of an alleged criminal to another state, the latter state having charged and being competent to try and punish the alleged criminal(2). Extradition becomes increasingly common practice in international relations. This article looks at one of the cases of extradition in Thailand which has certain extraordinary characteristics. It was a case of Eric Franklin Rosser, a former celebrity, a tragic figure who was poisoned by the venom of pornography and was made an enemy of the US Government. This was a political case since the US Administration wanted a high profile case to win the conservative votes. On the other hand there were some circumstances in favour of showing mercy to the man, the circumstances which were left by a Thai court unheeded. THE FACTS OF THE CASE AND ITS OUTCOME: Monday. Judge Sanchai Limtaibool from the Bangkok criminal court said there was "enough evidence" to warrant granting the US request. Mr Rosser has 15 days to appeal against the order, but Thai officials said that he would not do so. The extradition will come as a relief to the Thai authorities, who in recent years have been trying to clean up the country's image as a haven for paedophiles by taking action against the leading figures in child sex rings. Mr Rosser, originally from Syracuse, New York, was arrested in Thailand in February 2000 on charges of lewd behaviour and possession of hundreds of explicit images of children with intent to distribute them globally. Thai police say he skipped bail two months later and escaped on fake passports, spending 18 months on the run in Europe and Asia. He also lost weight and had plastic surgery to change his facial appearance, the police allege. In his absence, he was indicted in the US in March 2000 on six counts relating to the making and distribution of child pornography - one video reportedly shows him having sex with an 11-year-old girl. He faces 20 years in prison for each of the charges against him. In December 2000, he also became the first child pornography suspect to be placed on the FBI's Most Wanted List - alongside men such as Saudi dissident Osama Bin Laden and former Taleban leader Mullah Mohammed Omar. Mr Rosser was finally re-arrested by Thai police in August last year as he attempted to re-enter the country on a false British passport, Reuters news agency reported. He had reportedly come back to visit his Thai wife and child. Mr Rosser, a pianist who once played with the rock star John Mellencamp, once taught the piano to children of wealthy Thai families. At the time of his initial arrest, he denied allegations that he ran an operation sending child pornography around the world. But in an extraordinary confession, he admitted involvement in some sexual acts with children. He pleaded for sympathy, saying he was a child masquerading in a man's body.” Even though report speaks about the offender having sex with a child, legal documents in this case use the term of being involved in sexually explicit conduct with a minor, rather than a sexual intercourse with a minor. These are two different legal offences. The first is a less grave crime that the second. This and also the fact that Rosser was sentenced on different counts rather than aggravated sexual abuse of a child, indirectly indicates that the sexual abuse of a child he confessed did not take severe forms. A researcher, however, cannot deduce from the indictment and the news report how grave was the form of child sexual abuse. In October 2003, a US District Court in Indiana sentenced Eric Rosser to more than 16 years of imprisonment, after the defendant pleaded guilty to producing, distributing and receiving child pornography, and also to sexual exploitation of children. Sexual exploitation of children with the purpose of producing pornography is punished by Section 2251, Ch. 110 of the Federal Code, 'Sexual Exploitation and other Abuse of Children,' by imprisonment up to 20 years and not less than 10 years. Section 2252, Ch. 110 of the Federal Code, 'Sexual Exploitation and other Abuse of Children,' imposes criminal sanction for sending, distributing and knowingly receiving child pornography by imprisonment up to 15 years(4). He was also fined at the amount of 20,000 dollars(5). It is a noteworthy fact that the defendant was not indicted for child sexual abuse. One reason for that might be that the US federal law is applicable only when the engagement into sex with a minor involves the element of crossing interstate borders(6). If such element cannot be established, then a state criminal law should be applicable. It seems that in this case it was easier for the prosecution to establish the intent in abusing children with the knowledge that the images of such abuse would be transported across a state border as required by Section 2251 and Section 2252, than to prove the fact of child sexual abuse. Whatever was the true reason, Mr. Rosser was not accused in sexual abuse of the child mentioned in the BBC report. LEGAL NATURE OF EXTRADITION: Extradition represents a complex legal relationship which involves at least two countries and at least one suspect or a convicted person. In this relationship, one state asks another state to deliver the person involved and who is within the jurisdiction of the second state, to the competent authorities of the first state. The first state, which asks for extradition, is called in international law a requesting state, and the second state is called a requesting state. There are many bilateral agreements on extradition the content of which varies significantly. It appears that international law on extradition is purely contractual in nature, and unless there is a treaty between the states there is no any legal obligation to extradite. There is also national legislation which regulates the process of extradition. In Thailand, there is the Act of Extradition passed in 2472 of Buddhist era (1929)(7). This legislation is generally subject to the international agreements on extradition. Legal capacity to enter into contractual obligations in international law depends on the idea of sovereignty. According to this idea, a state has all powers and authority to prosecute and to bring to justice any person situated in its territory and accused of crime. There are, of course, important constraints on the state according to international human rights law. However, as long as the requirements of due process and procedural fairness are observed, the states have full power and authority in prosecuting suspected criminals. The idea of sovereignty also presupposes that no any other state can exercise its power and authority within the territory of another sovereign state, unless there is consent given by another state. In history, there are, nevertheless, examples when one state using its intelligence secret services would kidnap a suspect residing in another state and bring that person to face prosecution in its own borders. This is done, particularly, in political crime proceedings, because many states are unwilling to extradite persons accused in political crimes. Thus, legal nature of extradition is contractual. Law of the treaties applies to it. Contractual obligations to extradite are limited not only by the consent of the parties to the agreement, but also by human rights law. Because international law have seen recently an explosion of human rights law it is likely that in the future the states will be increasingly bound by human rights considerations. These considerations can be clearly seen in leading international legal instruments on extradition. US -THAI EXTRADITION TREATY: Further, the US-Thai treaty contains two types of reasons which can bar extradition. One type of reasons contains so called mandatory grounds for refusal of extradition. If those reasons are present the requested state is obliged to deny the request. The treaty, or example, excludes political and military offences out of the scope of the treaty (Article 3). It also obliges the requested states not to extradite if it is established that the motives for the extradition request are purely political. Extradition treaties, including the US-Thai Treaty, include universal principles of justice in criminal proceedings that a person cannot be brought to trial more than once for the same crime whether he was convicted or acquitted. There is a second type of reasons under which the requested state is allowed to refuse to extradite. These are called discretionary or optional grounds for refusal of extradition. Extradition can be denied on the basis of nationality when a person whose extradition is sought is a national of the requested state, providing that the requested state submits the case to its competent authorities for prosecution(9). It can be also denied when the offense for which extradition is requested was committed in the territory of the requested State provided that the requested State proceeds against the person sought, when the person sought is being or has been proceeded against in the requested State for the same offense(10). Article 6 is very interesting because it represents a slight linguistic but significant substantive departure from internationally recognized rules of extradition. It states: “When the offense for which extradition is sought is punishable by death under the laws of the Requesting State and is not punishable by death under the laws of the Requested State, the competent authority of the Requested State may refuse extradition unless: (a) the offense is murder as defined under the laws of the Requested State; or (b) the competent authority of the Requesting State provides assurances that it will recommend to the pardoning authority of the Requesting State that the death penalty be commuted if it is imposed.” The slight difference is contained in the conjunction ‘or’. This conjunction means that the murder offence even followed by death penalty in the requesting state, but which is not punishable in the same way in the requested state, cannot be covered by this discretionary reason for refusal of extradition. In international practice the conjunction “or” would be replaced in relation to all offences by the reason contained in paragraph ‘b’. It appears, that in the US-Thai treaty paragraph ‘b’ does not necessarily apply to the offence of murder. In such well known international agreements as the European Convention on Extradition (Article 11) or UN Model Treaty on Extradition (Article 4), a murder offence is not exempted from the general reason specified in paragraph ‘b’ of the US-Thai Treaty. Article 14 incorporates into the Treaty the internationally recognized rule of specialty. This article provides that a person extradited under the Treaty may not be prosecuted or punished for an offense other than that for which extradition has been granted. The Treaty is retroactive, in the sense that it applies to offenses committed before as well as after its entry into force. (1)
The author of this article is a Russian lawyer who holds a Doctorate
degree in law from the Russian Academy of Public Administration in Moscow,
MLitt and PhD in law from St Andrews and Glasgow universities in Scotland.
He is currently a full time lecturer at law school in Chiang Mai University,
Thailand. For the comments he can be contacted at: School of Law, Faculty
of Social Sciences, Chiang Mai University. Chiang Mai. 50200 Thailand;
e-mail: shytov@yahoo.com |
Originally
Published in The Chulalongkorn Law Journal (January 2006) |
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