Thai Law Insights

Foreign Defendants' Bail in Thai Criminal Courts and Implications on Travelling Businesspeople

Nawain Mansai

The Thai Criminal Court hears two types of cases: (1) cases in which Defendants are accused of criminal conduct by public prosecutors, and (2) cases in which the Court accepts the prosecution of a criminal case arising from a civil lawsuit filed by a Plaintiff. In either type, one of the first courses of action for Defendants is to apply for a provisional release pending trial to avoid being detained or, what is more commonly known as posting bail. Essentially, the Court will allow the temporary release of Defendants during trial because the core principle of Thai criminal proceedings is that Defendants are "innocent until proven guilty," as stated in the Constitution of the Kingdom of Thailand of 2007, Section 39. Limitations on bail are detailed in the Section 108/1 of the Criminal Procedure Code and require the Court to withhold the release of Defendants if there is reason to believe that the Defendant will escape, tamper with evidence, or otherwise cause any difficulties.

In considering a Defendant's request for bail, the Court will rule whether the Defendant is "allowed" or "not allowed" to be released temporarily. If bail is granted, the Court may impose conditions on the Defendant's release that may prevent his escape, such as requiring that the Defendant give his address or report to the Court within a time set by the Court, in accordance with Rule 8 of the Official Practice for Judicial Judges governing Provisional Release of 2005.

When the Defendant is a foreigner, the Court will usually grant a temporary release only on the condition that the Defendant is prohibited from leaving Thailand and is required to deposit his passport with the Court in order to prevent the Defendant from fleeing, although the Court will waive these conditions on occasion. The Court will determine the appropriate action and take into consideration whether Defendant is accused of an offense that constitutes a felony or involves drugs. A Court Order will then be sent to the Immigration Bureau. However, if the foreign Defendant is a businessperson or investor in a business in Thailand, the Defendant may be entitled to permission from the Court to depart from Thailand due to the demands of such a profession. Foreign Defendants who are businesspersons may need to manage businesses in different countries and are required to request permission from the Court each time they plan to travel outside of Thailand. Such a requirement is not conducive to business, as freedom of travel is necessary to remain competitive and seize opportunities in international markets.

Normally, the Thai Criminal Court requires the foreign Defendant's presence during his/her trial as a protection of the Defendant's rights to due process under the applicable Thai provisions. However, such trials may be conducted in a foreign Defendant's absence if it would be impracticable for the Defendant to remain in Thailand due to business needs abroad. Trials are conducted in the Thai language, which foreign Directors often do not understand, so the necessity of their presence in the Court is minimal. In the absence of foreign Defendants, their legal counsel's representation in Court should be adequate to guarantee the Defendants' right to due process.

As Thai law now stands, trials in the absence of foreign Defendants may be allowed, but permission is granted subject to the absolute discretion of the judge. Controversy has arisen over whether judges have used that discretion arbitrarily. Therefore, jurists have urged the Thai Parliament to enact specific provisions defining when trials may be conducted in the absence of foreign Defendants.

It is time for the Thai legislature to take a business perspective in considering laws regulating the provisional release of foreigners and conducting trials in their absence.