Being arrested in any jurisdiction can be a horrendous experience. For a foreigner in Thailand, this is especially so. The language and cultural differences can be particularly challenging. That being said, the rights of the accused here are much like the rights of an accused person in most Western countries. The right to contact a friend or relative and notify them of the situation, the right to remain silent, the right to medical attention and the right to an attorney. I once met a criminal lawyer from Florida who had printed on the back of his business card: You have the right to remain silent, use it!
While you don’t have a specific right to notify your embassy the arresting agency will usually allow you contact. If contact is refused, you should ask a friend to contact your embassy on your behalf. Note that embassies and consulates cannot provide you with legal aid or advice but will generally supply you with a list of law firms and notify your family (if requested) of your situation. Some embassies will also help your family to send funds and or essentials to be given to you in the place where you are incarcerated. Most embassies also send a staff member to prisons at set intervals to check on the welfare of their respective nationals.
Following arrest, the police may hold a suspect for up to 48 hours while the crime alleged is investigated. After the first 48 hours the police must take the suspect before a magistrate and request (and likely be granted) a 12-day detention continuation. This may continue for an additional seven detention periods then a suspect must be charged or released.
Bail may be set by the judge. Bail amounts are suggested in the criminal code but this is just a guideline. Once a charge is made, the suspect is entitled to a hearing in front of a magistrate to determine whether enough evidence exists to proceed to trial. If a trial is ordered the suspect, now the defendant, must post bail with the court to remain free during the trial process.
Trials are much like trials under common law. The burden of proof is on the prosecution. Guilt must be proven beyond a “reasonable doubt” in order to obtain a conviction. The defendant need not give testimony and in fact is not even required to put on any defence at all. In theory, cases are to be held in front of a panel of three judges. In practice one judge hears the case, and records notes and observations into a Dictaphone which is then transcribed by a court clerk. The case is discussed by the presiding judge and the two other judges (who weren’t present) and the defendant returns at a later date and is given the decision. If convicted the result can mean fines, incarceration and, if committed by a foreigner, most likely deportation.
Crimes in Thailand, as in most jurisdictions, are categorised as crimes against persons, property, peace and tranquillity, and crimes against the state. Special crimes, such as narcotics, are dealt with under bodies of law other than the penal code. At present, the right to appeal a conviction is automatic but there are discussions about changing the law to permit an appeal only in cases where a procedural or legal error is alleged to have occurred.
There are regional prisons in various parts of Thailand. Most foreigners convicted in or around the capital are housed in Bangkok’s Klong Prem Prison. Contrary to common belief, except for absolute boredom and food inedible to most foreign palates, prisoners are rarely mistreated. We did know of a British man incarcerated in Phuket who complained that prisoners must keep their heads below the guards’ religious amulets. For a 188cm farang this was particularly difficult.
If arrested, most attorneys (us included) recommend that the arrestee remain silent and submit a statement only after it’s been reviewed by an attorney competent in English to make sure the statement is translated as intended by the arrestee. If you’ve been the victim of crime or have been accused of committing a criminal act and wish more information, feel free to contact the Legal Center at info@legalthai.com. n
