Foreigners who travel to or reside in Thailand may face the risk of becoming suspects or defendants in criminal cases. This can cause significant concern, particularly because the legal process in Thailand may differ from the laws with which they are familiar.
In Thailand, based on the experience of our criminal lawyers at Herrera and Partners H&P, we have identified numerous misconceptions about the bail process for foreigners. To clarify these legal errors, our litigation lawyers in Bangkok have prepared a brief overview of the bail process in criminal proceedings in Thailand.
As a first logical step, in addition to contacting their respective embassy, foreigners should engage a lawyer to assist with the bail process or the submission of a petition for temporary release. It goes without saying that not all lawyers in Thailand have experience in criminal proceedings involving foreigners, so the lawyers you intend to engage, must have proven experience in criminal defense against private prosecutions and the public prosecutor’s office.
Under Thai criminal procedure, once a person becomes a suspect or defendant, they are entitled to apply for temporary release (bail) as a matter of right.
A request for temporary release may be submitted to the inquiry official, the public prosecutor, or the court, depending on the stage of the proceedings. Bail applications may also be made at all court levels, including the Court of First Instance, the Court of Appeal, and the Supreme Court.
The granting of temporary release is subject to the discretion of the inquiry official, public prosecutor, or the court. Consideration is based on various factors under Section 108 of the Criminal Procedure Code, including the severity of the offense, the strength of the evidence, the circumstances of the case, the reliability of the applicant or surety, the likelihood of flight, the potential danger or damage arising from release, and the risk of interference with evidence.
In practice, suspects or defendants are generally required to provide security to ensure that they will not abscond and will appear in court as scheduled.
The types and amounts of security are determined in accordance with Section 110 of the Criminal Procedure Code. There are three types of security recognized by law: (1) cash, (2) other assets such as vehicles or property that can be appraised, and (3) a personal surety supported by assets.
As foreigners are not Thai nationals and may be more difficult for authorities to locate compared to Thai citizens, they are typically required to deposit their passport as part of the bail conditions, together with the financial security. This serves as assurance that they will not leave the country and will comply with court appearances.
Additionally, the suspect or defendant must provide their current and accurate residential address as registered with the immigration authorities, so that the court is informed of their whereabouts.
If a suspect or defendant absconds after being granted temporary release, the court will issue an arrest warrant and may order the forfeiture of the bail. The absconding will also negatively affect any future applications for temporary release.
However, a suspect or defendant may apply for temporary permission to leave the country if there are compelling reasons, such as the need to receive ongoing medical treatment for a serious illness.
In such cases, the foreigner must provide supporting evidence demonstrating that there is no intention to abscond and that they will return to continue the legal proceedings. The court may also require additional security.
The decision to grant or deny such permission rests with the court, which will consider the reasons provided, the supporting evidence, and the seriousness of the charges or offenses. Based on the experience of our litigation practice in Thailand, it is key to strengthen the grounds used for bail to make the judge understand that the risk of escape from Thai justice is not substantial.
However, the suspect or defendant may apply for temporary permission to leave the country in exceptional circumstances, such as the need for ongoing medical treatment.
If the court grants permission, the individual must return to Thailand to continue the legal proceedings; otherwise, the court may issue an arrest warrant, which may also result in the issuance of an Interpol Red Notice.
If you need assistance with bail for a foreigner in Thailand, please contact our lawyers specialized in criminal law at our Bangkok law office at info@herrera-partners.com
