Criminal law in Thailand Part XIV - Wrongful arrest and how to get released

By James Finch and Nilobon Tangprasit

What happens if you are wrongfully detained and the police won't release you? For example, suppose you were arrested on suspicion of a serious crime, drug trafficking, for instance? And let's say the reason for this was that you were mistaken for a foreigner looking, to a Thai police officer, something like you.

ILLUSTRATION: NATTAYA SRISAWANG

Here's how this could happen. Let's assume for the purpose of this fictitious example that the police are told by a reliable informant that a known drug distributor will be at a meeting at one of Bangkok's best hotels. The description of the distributor given to the police is that of a foreign man of about your height and build. You happen to be an architect and were at a meeting in one of the hotel's conference rooms discussing a project in the South with the developer. You also happen to be walking through the lobby to the door when the police enter the hotel.

Here's how the arrest goes wrong. One of the officers is sure you are the suspect. He cuffs you and hustles you into a police car and has you driven to the police station. The real suspect, seeing something is wrong at the hotel, escapes.

When you get to the station you are uncuffed and put in a room. You pull out a copy of your passport and demand to know why you are being held. When no one says much, you call someone in your office who then calls the police captain on duty.

But the police are uncertain. You do match the description of the suspect, and, though you are claiming you have nothing to do with any crime, there's nobody else who fits the general description of the suspect around. And the police don't want to let an important suspect slip through their fingers.

Things drag on and a couple of days go by. Somebody from your office has been to visit you and talked to the police, but they simply say you can't be released until you're cleared as a suspect. You've called your spouse, who has called your embassy. The embassy has advised your spouse to get a lawyer and given your spouse a list of them to call. She calls and meets with one of them.

What will the lawyer do?

Well, first the lawyer will go to the police station where you are being held and try to get you released. But what if this doesn't work, for the same reasons the police wouldn't release you mentioned above?

Section 90 of the Thai Criminal Procedure Code provides that any of the following people may file a petition with a local court to release a someone being detained:

- The person detained;

- the Public Prosecutor;

- an inquiry official, such as a police officer in charge of the case;

- a jailer or person in charge of a detention facility, or;

- the spouse, relative or other person acting for the benefit of the person detained.

The lawyer, "acting for the benefit of the person detained", could therefore file this petition directly with the court.

In Bangkok, the court with which the petition would be filed would depend on which of the criminal courts had jurisdiction over the area where the detention was made. For example, if the arrest was made in the Sathon area, the competent court would probably be the Bangkok South Criminal Court. If the detention were in the Bang Khun Thian, the competent court would likely be the Thonburi Criminal Court. If the detention were outside of Bangkok, the competent court would be the provincial court having jurisdiction over the area in which the detention took place.

The judge must immediately review the petition. The review can be ex parte - without the police present. If the judge decides the petition is proper, the judge will immediately order the police to bring you before the judge to justify the detainment. If the judge isn't satisfied that you were properly detained, you will be released.

In this case, for example, the judge might look at the petition and see that you - a foreigner working in Thailand as an architect - was suspected of being a drug king-pin with a different name. Because of the discrepancy in names between you and the suspect, the judge would then ask the police to bring you before him or her. Through an interpreter the judge might verify your name by looking at your passport and work permit. The judge could order your release then and there.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com.
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