Current Topics of Japanese Law (Criminal Law)

TREATY BETWEEN JAPAN AND THE KINGDOM OF THAILAND ON THE TRANFER OF SENTENCED PERSONS AND ON CO-OPERATION IN THE ENFORCEMENT OF SENTENCES

Associate Professor Kazutoshi SUGIMOTO
(Research Staff, Faculty of Law)
(on 19 March 2012)


     On August 28, 2010, the “Treaty between Japan and the Kingdom of Thailand on the Transfer of Sentenced Persons and on Co-operation in the Enforcement of Sentences” (hereinafter referred to as the “Japan-Thailand Treaty”) went into effect. This Treaty was made between Japan and the Kingdom of Thailand and prescribed the procedures for the transfer to the home countries of Japanese and Thai nationals who were convicted of a crime and sentenced to a term of imprisonment in the other Party’s country.

     In June 2003, Japan joined the Convention on the Transfer of Sentenced Persons that was prepared by the Council of Europe and went into effect in 1985 (hereinafter referred to as the “CE Convention”). Prior to that, the Act on the Transnational Transfer of Sentenced Persons as the law necessary for enforcement of the said Convention was approved and entered into force (June 2002). Consequently, it became possible to transfer convicted Japanese nationals to Japan and convicted non-Japanese nationals to their home countries between Japan and the signatories to the CE Convention. However, the Kingdom of Thailand did not have a policy to be a signatory to the CE Convention ; consequently, it was necessary to enter into a bilateral treaty on the transfer of persons convicted of a crime between Japan and the Kingdom of Thailand. The Kingdom of Thailand submitted such a request in 2005, and after the subsequent negotiations, the Japan-Thailand Treaty was signed by both parties.

     As a result, Japan and the Kingdom of Thailand can respectively request that the other Party (transferring State) transfer convicted nationals who had been sentenced in the other Party’s country to the requesting Party’s country (receiving State). Most of the requirements for the transfer stipulated by this Treaty are the same as the requirements prescribed in the CE Convention. For example, the offense of which the person was convicted must be considered a crime by both signatories (double criminality), and the convicted person must agree to the transfer, and so on.

     However, the Japan-Thailand Treaty stipulates certain requirements that are not found in the CE Convention as mentioned below. For example, in the Japan-Thailand Treaty, the condition that "the sentenced person has served in the transferring State any minimum period of imprisonment stipulated by the law of the transferring State" is required (Japan-Thailand Treaty Article 3 (d)). When the Kingdom of Thailand is the transferring State, the request for transfer of a person who was convicted of an offense "against the internal or external security of the state," "against the Head of State or a member of his family," or "against the legislation protecting national art treasures" shall be refused (Japan-Thailand Treaty Article 4 (a)). In addition, as opposed to the CE Convention that allows both the transferring State and the receiving State to request the transfer, the procedure for the transfer under the Japan-Thailand Treaty commences only at the request of the receiving State to the transferring State (Japan-Thailand Treaty Article 5 paragraph 3). Furthermore, in the Japan-Thailand Treaty, "the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State" in principle (Japan-Thailand Treaty Article 7 paragraph 2), while the CE Convention provides also the procedures for the receiving State to sentence the person again and convert the punishment.

     For the provisions of the Treaty and other details, please refer to the website of the Ministry of Foreign Affairs.