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FUCHU, TOKYO, JAPAN December/1987 RESOURCE MATERIAL SERIES No. 32

115682- U.S. Department of Justice 115696 National Institute of Justice

This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the ofiicial position or policies of the National Institute of Justice.

Permission to reproduce this copyrighted material has been granted by UNAFEI

to the National Criminal Justice Reference Service (NCJRS).

Further reproduction outside of the NCJRS system requires permis­ sion of the copyright owner.

NCJRS

ftlJ 15 Rec~

UNAFEI

"FUCHU, Tokyo, Japan Deeember'/1987 Hideo Utsuro Director United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) 1-26 Harumicho, Fuchu, Tokyo, Japan

ISBN4-87033-000-8 IIS~82-

CONTENTS

Introductory Note by Hideo Utsuro ...... 5

Part I: Material Produced during the 74th International Seminar on Ad­ vancement of Fair and Humane Treatment of Offenders and Vic­ tims in Criminal Justice Administration

SECTION 1: EXPERTS' PAPERS

INew Developments in Victim and Witness Protection in lihe United States /1 S b [( .3 by B. I. George, Ir ...... 11 [The Prosecuti?n System in the Federal Republic of Germany by Karl-Heznz Kunert ...... 28 liS f, If ~I (Protection of Human Rights at the Stage of Treatment I/..s (p 8.5 by Nor Shahid b. Mohd. Nor ...... 35 [international Co-operation, Trailling and Research by Yolande Diallo ...... 55 1/ S k 8.h

SECTiON 2: PARTICIPANTS' PAPERS

The Protection of Rights of Offenders and ,f _Victims of Crime in Fiji . by Nazhat Shameen Khan ...... 69 II S' b 8' 7 Advancement of Fair and Humane Treatment of Offenders [ and Victims in Criminal Justice Administration by A. M. M. Nasrullah Khan ...... 81 lIS688 · The Protection and Assistance of Victims of Crime in Malaysia t by Mohd Sedek bin Haji Mohd Ali ...... SECTION 3: REPORT OF THE SEMINAR

Session 1: Protection of Human Rights at the Stages of . Investigation, Detention, Arrest and Trial ...... 101 Session 2: Protection of Human Rights of Offenders at the Stage of Treatment ...... , 104 Session 3: Protection of and Assistance to Victims of Crime ...... , 11,0 Session 4: International Co-operation, Training and Research...... 114 Part II: Mdlerial Produced during the 75th International Training Course on Non-institutional Treatment of Offenders: Its Role and Im­ provement for More Effective Programmes

SECTION 1: EXPERTS' PAPERS

[New Kinds of Non-Custodial Measures - The British Experience - by John Eryl, Hall Williams ...... 121 J1>6 9 / [Non-Instituti?~a1.Treatment of Offenders in Thailand by Atthanztl Dlsatha-Amnars ...... 135

SECTION 2: PARTICIPANTS' PAPERS

J t Sf; ~ 2- [Non-Institution~ Treatment of Offenders in Hong Kong by Walter Wm-wah Wong ...... 158 J j J ~ 1.3 [ Non-Institutional Treatment of Offenders in Thailand by Vitaya Suriyawong ...... 164 /1 S ~ ~ VI rThe Probation System: Philippine Setting by [bra D. Ondi ...... 170 J l

SECTION 3: REPORT OF THE COURSE

J /.s G,{t; I First Draft o~ Pr?posed U~ited Nations Standard Minimum Rules for the Non-InstItutIonal TreaLment of Offenders ...... 179

Part III: Materials Produced during Other UNAFEI Activities

Report of the Asian and the Pacific Region International Experts Meeting on Protection of Human Rights in Criminal Justice ..... 217

;-'----- Introductory Note

The editor is pleased to present No. 32 in the Resource Material Series including materials from the 74th International Seminar and the 75th International Training Course. Part I contains materials produced during the 74th International Seminar on Advancement of Fair and Humane Treatment of Offenders and Victims in Criminal Justice Administration which began on 9 Febmary and ended on 14 March 1987. Section 1 of Part I consists of papers contributed by four visiting ex­ perts. Mr. B.J. George, Jr., Professor of Law, New York Law School, U.S.A., in his paper entitled, "New Developments in Victim and Witness Protection in the United States," describes the recent developments in victim and witness protection through the introduction of new federal legislation and state statutes. Mr. Karl-Heinz Kunert, Head of the Department of Criminal Justice, Ministry of Justice, Dusseldorf, the Federal Republic of Germany, in his paper entitled "The Prosecution System in the Federal Republic of Ger­ many," dwells on his country's prosecution system which is characterized by the principle of compulsory prosecution and a trend toward the lenient treatment of offenders. Mr. Nor Shahid bin Mohd. Nor, Director of Prisons, Head of Security and Regime, Prisons Headquarters, Kaj ang, Malaysia, in his paper entitled "Protection of Human Rights at the Stage of Treatment," addresses a num­ ber of problems plaguing the criminal justice administration system and introduces the attempts made by the prisons administration to preserve and protect human rights at the stage of treatment. Dr. Yolande DiaUo, Principal Human Rights Officer, Secretary of the Sub-Commi~sion on Prevention of Discrimination and Protection of Minori­ ties, United Nations Centre for Human Rights, Geneva, in her paper, "Inter­ national Co-operation, Training and Research," presents the cmcial aspects of the implementation of international instruments protecting human rights, the roles of the United Nations and other international agencies in the protection of rights of offenders and victims, and training and research. Section 2 contains papers submitted by three participants of the 74th International Seminar, and Section 3 contains the Report of the Seminar. Part II presents materials produced during the 75th International Train­ ing Course on Non-Institutional Treatme~t of Offenders. Its Role and Im­ provement for More Effective Programmes. The Course commenced on 20 April and was concluded on 20 June 1987. Section 1 of Part II consists of papers presented by two visiting experts. Mr. John Eryl Hall Williams, Professor of Criminology with Special Reference to Penology, the London School of Economics and Political Science, United Kingdom, in his paper, "New Kinds of Non-Custodial ------,

Measures - The British Experience -," reviews in detail the new kinds of non-institutional treatment methods for offenders in England and Wales, and provides valuable guidelines for future developments. Mr. AtthanHi Disatha-Ammu:i, Judge, Secretary-General of the Office of the Judicial Affairs, Ministry of Justice, Thailand, in his paper entitled "Non-Institutional Treatment of Offenders in Thailand," focuses on the function of the Central Probation Office, Office of the Judicial Affairs, Ministry of Justice. He also describes the role of the Juvenile Court and the Department of Corrections, Ministry of Interior, in his country. Section 2 contains four papers written by participants of the 75th International Training Course, and Section 3 contains the Report of the Course which presents the First Draft of Proposed United Nations Standard Minimum Rules for the Non-Institutional Treatment of Offenders. These draft lUles offer a good statement of general principles and practices in the non-institutional treatment of offenders, and incorporate the minimum circumstances that should be accepted as suitable by the United Nations. The first draft will constitute the theme for further discussion by the par­ ticipants of a future Seminar Course at UNAFEI. The results of the contri­ butions and recommendations of participants in such future courses will enable UNAFEI to fonnulate a final version of the rules to be transmitted to the United Nations for further consideration. Part III presents materials produced during other UNAFEI activities which contain the report of the Asia and Pacific Region International Ex­ perts Meeting on Protection of Human Rights in Criminal Justice held at UNAFEI on 17 February 1987. On the occasion of the 74th International Seminar, in which many distinguished participants and visiting experts with eminent careers participated, UNAFEI convened this Meeting. Its partici­ pants reviewed the current circumstances affecting the protection of human rights in criminal justice in the Asia and Pacific region and then explored more effective measures to promote the protection of human rights of of­ fenders as well as: victims of crime. The Meeting also was designed to achieve the ambitious goal of providing the first institutional response from the Asia and Pacific region to the recently adopted actions and recommendations of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from 26 August to 6 September 1985. Many participants submitted papers of quality and substance to the Institute during both the 74th and 75th International Courses, and it is deeply regretted that limitations of space precluded the publication of all papers received. The editor would like to add that, owing to lack of time, necessary editorial changes had to be made without referring the manuscripts back to their authors. The editor requests the indulgence and understanding of this necessity which was required to meet editorial deadlines. In concluding the introductory note, the editor would like to express his gratitude to those who so willingly contributed to the publication of this volume by attending to the typing, printing and proofreading, and by assist­ ing in various other ways. December 1987

Hideo Utsuro Editor Director of UNAFEI PART I

Material Produced during the 74th International Seminar on Advancement of Fair and Humane Treatment of Offenders and Victims in Criminal Justice Administration l

/1 S ~,5-3

SECTION 1: EXPERTS' PAPERS

"-'\ New Developments in Victim and Witness Protection in the United States

by B. J. George, Jr. *

The protection of victims and witnesses, a court may require its return to its owner at least in a formal way, is in most of its or someone designated by its owner. (2) If aspects a relatively recent development in the property cannot be returned at all or in the United States. However, as will be substantially unimpaired condition, the touched lip on in the following pages, new court may require payment of an amount federal legislation has addressed a number equal to the greater of either the value of of important issues, and state statutes also the property at the time of its damage, loss are increasingly encountered. Thus, what or destruction or the value at the date of haG been called the "criminal injustice sentencing, less any residual value in the system" 1 may, one hopes, be phased out property if it is returned.9 (3) If bodily of existence in the next few years, at least injury has been caused, a restitution order as far as the formal law is concerned. can cover the amount necessary for treat­ ment or therapy, occupational therapy and Restitution from Convicted Offenders rehabilitation, and lost income. (4) If the criminal act causing physical injury also The oldest response to victims' needs resulted in the victim's death, a court order' has been the judicial order of restitution or may extend beyond ante-mortem expenses reparation as a condition of probation or to include funeral and related expenses; parole.2 Although American law, unlike such restitution will be paid to the victim's the law in some Roman law countries, has estate. never recognized the right of private indi­ In any of these instances, restitution viduals to participate in criminal prosecu­ will not be ordered paid to the victim to tions for the purpose of financial recovery, whatever extent the victim has already re­ when American states carne to recognize ceived or will receive compensation, but suspended sentences and probation, judges the order of restitution can benefit a third be~an to include an obligation to pa)4 les­ party who provided the oriGinal compensa­ titution as a probation condition; a num­ tion. Amounts paid in compensation to ber of jurisdictions enacted this expressly victims also should be set off against later into law.3 damages recovered in any federal civil pro­ The principal current federal legislation ceeding and in any state proceeding where appeared in the federal Victim and Witness state law provides for the offset. 10 The Protection Act of 1982,4 augmented by sentencing court may set a time schedule the Comprehensive Crime Control Act of for payment of restitution, but must fix 1984.5 Federal courts may order restitu­ the maximum time for completion of the tion in federal criminal cases6 and in restitution payment at the end of the pro­ setting probation on a felony conviction bation period (if probation has been or­ must order either a tIne, restitution or dered), the expiration of five years after a community service work (or some or all of sentence of imprisonment has been serv­ those alternatives). 7 ed,ll or within five years from the date of An order may include several alternative sentencing if neither of the other alterna­ remedies:8 (1) If property has been taken, tives applies. If the sentencing court does not allow an extended period for payment, restitution must be paid immediately. Res­ *Professor of Law, New York Law School, United States of America titution also becomes a condition of pa- 11 EXPERTS' PAPERS

role following imprisonment. punishment and deterrence may a A restitution order may be enforced in court imprison a probationer who the same manner as a judgment in a civil has made sufficient good faith ef­ action, by either the United States or by forts to pay. the victim named in the court order to re­ Thus, although Bearden had been sum· ceive restitution. If restitution has been set marily and unfairly dealt with, other de­ as a condition of probation or parole, and fendants, although without funds, might be payment is not forthcoming, revocation of imprisoned if no alternative sanction were release may be ordered after an evaluation available to vindicate a government's inter­ of the defendant's employment status, ear­ est in enforcing its criminal law policy. On ning ability, financial resources, the will­ tins basis, it would appear tllat the federal fulness of the failure to pay, and any other restitution statute, as well as its state special circumstances having a bearing on counterparts, are constitutional on their the defendant's default. face, if fairly applied in individual cases. The latter point raises the question of The remaining constitutional dinlension the ccmstitutional implications of an im­ of restitution provisions has to do with the position of iinprisonment on one who has procedures through which the amount of I not paid a fine or restitution. The United restitution is determined.Is lhe federal States Supreme Court addressed that mat­ statuteI6 appears to meet due process ter in Bearden v. Georgia. 12 In Bearden, a requiremen ts: first offender was placed on probation and 1. The sentencing court, in deciding required to pay a fine and restitution with­ whether to order restitution, must ! in four months. He managed the first in­ consider the amount of loss suffered ; stallment, but lost his job and defaulted by a victim as a result of the offense, 1 .. m the second payment. Despite the fact the defendant's financial resources, that he had informed the court of his financial needs and earning ability, plight and of his ongoing efforts to find the defendant's dependents, and any new employment, the court revoked pro­ other factors the court believes ap­ bation and sentenced him to imprison­ propriate. ment. The Supreme Court found the pro­ 2. The court may direct the probation cedure unconstitutional. However, it service to obtain needed background seemed to abandon the equal protection information and transmit it to the basis of some' of its earlier decisions dis­ court in a report separate from the allowing the substitution of imprisonment presentence report. for a fine when a defendant was indi­ 3. The sentencing court must disclose gent,13 selecting in its stead a due process the presentence data bearing on re­ analysis. stitution to both the defendant and The Court set forth guidelines for de­ the government attorney. termining whether probation can be re­ 4. Disputes over the proper amount or voked because of a failure to pay a fine or form of restitution mnst be resolved make restitution: 14 by the court after any necessary 1. If a probationer wilfully fails to pay hearing, with the burden of persua­ or to make good faith efforts to ac­ sion being the preponderance or quire the necessary fina!!cial re­ greater weight of the evidence. The sources, a court may revoke proba­ government bears the burden of es­ tion based on nonpayment. tablishing the amount of loss sustain­ 2. If, despite good faith efforts to pay, ed by the victim as a result of the of­ a probationer fails to do so the court fense, while the defendant must should consider alternative measures demonstrate his or her financial re­ of punishment other than imprison­ sources, needs and dependents. Bur­ ment. dens of persuasion on other matters 3. Only if alternative measures are in­ can be allocated by the court as jus­ adequate to meet a state's interest in tice requires. 12 NEW DEVELOPMENTS

5. A Grimina1 conviction for an offense One concern relates to the scope of giving rise to a claim to restitution criminal activity giving rise to claims for estops the defendant from denying compensation. Generally, only crimes the essential allegations of that of­ which cause death or bodily injury support fense in any fecleral civil action and a claim; property damage is not covered, in any state civil proceeding to the probably because the cost of compensation extent state law recognizes the estop­ for property loss would be more than such pel. programs could underwrite. Two other procedural details are of A second is the assignment within go­ practical significance in tlus context. One is venunent of the responsibility to receive that the Federal Rules of Criminal Proce­ and process claims. The standard allocation f dure17 now require a presentence report of the power to adjudicate claims is to a 1 to include information concenling any special administrative board or agency and hann, including fillancial, social, psycho­ not to the courts, although the actions of logical and physical harm done to or loss such bodies are subject to judicial review suffered by any victim, as well as any other under an administrative procedures act like i information bearing on the restitution any other agency rUling. needs of any victim of an offense. The sec­ A third is the delimitation of eligibility , ond is that a new federal provision 18 to apply. The New York statute23 is re­ I allows a sentencing court to require a de­ presentative as it sets forth seven categories fendant convicted of fraud or other inten­ of eligible applicants: tionally deceptive practices to give reason­ 1. Victims of violent crimes. able notice, in a form approved by the 2. A surviving spouse or dependent child court, to victims of the offense19 so that of a victim of a violent crime who they may pursue any mode of redress (in­ died as a result of that crime. cluding restitution) they wish. 3. Any other legal dependent of a de­ ceased victim of a violent crime. Victim Compensation Legislation 4. A "good Samaritan" injured or killed while trying to prevent a violent Restitution ancillary to a criminal con­ crime or apprehend a violent of­ viction is one way of aiding victims, but is fender. not the only way. An alternative, as yet 5. A surviving spouse or dependent little explored in the United States and child of a "good Smr.ddtan" killed probably not destined to flourish, granted under the circumstances described contemporary public attitudes toward in 4. crime and criminals, is a mediation service 6. A person legally dependent for sup­ for victims and criminals, as a consequence port on a slain "good Samalitan". of which there may be restitution or com­ 7. A person injured or killed while aid­ pensation.2o The device may be a useful ing a law enforcement officer in the mlcillary to screening and diversion,21 but performance of duties or fire per­ has little or no utility in the setting of sonnel who are at the time being postconviction remedies. obstructed in the performance of The most significant alternative for vic­ their duties. tims, however, is under legislation allowing There are, however, significant exclu­ them to obtain compensation from a pub­ sions from the classes of those otherwise licly-admitustered fund.22 These statutes eligible, particularly offenders, accomplices have appeared within the past twenty and family members of either. The defini­ years, and are now to be found ill at least tion of a "family member" can be sweep­ forty-two American jurisdictions, including ing: a person within the third degree of the federal. There are a number of policy consanguinity or affinity with an offender issues which legislatures have tried to re­ or accomplice, any person maintaining a solve, although not uniformly throughout sexual relationship with such a person, or the United States. any person living within the same house- 13 EXPERTS' PAPERS ho1d. 24 Without some allowance for relief medical expenses flowing from criminal against these strictures, however, a com­ activity.27 pensation system can work unjustly by Federal legislation in 198428 took a disallowing compensation for, by way of significant step toward aiding victim com­ illustration, a dependent child criminalized pensation plans. Under the statute, a Crime by a parent. 25 Some statutes also allow a Victims Fund has been created into which denial or reduction of an award if a victim certain deposits are made. One source is a contributed to his or her own injury or special assessment on convicted federal death - a comparative negligence doctrine defendants of $25 on individual misde­ strayed from its usual habitat. meanants, $100 on other (essentially cor­ A fourth policy concern is over the res­ porate) misdemeanants, $50 on individual idence status of a claimant. Most state leg­ felons and $200 on other felons. 29 islation requires that a victim be a resident A second is a special forfeiture of the of th~ state, in addition to basing his or her collateral profits of a crime of physical claim on a crime committed within that violence, in the fcrm of proceeds from a state. T.bJs, however, is questionable policy. contract for the sale or literary and enter­ Granted the pervasiveness of victim com­ tainment rights to the depiction of the pensation legislation in the United States, crime, or expressions of the defendant's victims resident in other states shouM be opinions or thOUgllts about that crime.30 allowed to maintain claims in the state of Forfeited sums are held in escrow for flve injury, at least as long as there is reci­ years for the satisfaction of judgments ob­ procity in the legislation of tl].e stage of a tained by victims against a defendant or for claimant's residence. the payment of a federal fine and costs of A fifth relates to procedural prerequi­ providing defense counsel; if a sum remains sites. Compensation legislation usually re­ after that time, the court that entered the quires prompt reports of crimes, a rela­ judgment of forfeiture will direct the dis­ tively swift commencement of the com­ position to be made. This embodies a fed­ pensation claim proceeding and perhaps a eral use of the so-called "Son of Sam" showing of exhaustion of other modes of statutes31 that are widely in force and redress (although that should not include that have been upheld as constitutional.32 litigation, granted the relatively brief The third source is the proceeds of for­ period within which admiuistrative action feited appearance bonds, bail bonds and must be commenced). collateral posted to secure release,33 while A sixth is the nature of the injuries for the final source is fines paid by defendants which compensation may be sought. Usu­ convicted for all but a handful of specific­ ally, actual expenses reasonably incurred ally exempted offenses.34 because of bodily injury or death, loss of The primary object of expenditures income resulting directly from bodily in­ from the fund is support of state victim jury, pecuniary loss to dependents of slain compensation grants, in an amount not to victims, and other actual expenses gen­ exceed thirty-five percent of compensation erated by death or injury are included. awards made during the year preceding a Limited emergency benefits may· be avail­ federal block grant.35 However, to be able. 26 However, the legislation may eligible, state programs must offer com­ impose minimum loss requirements, so that pensation for medical expenses (including anyone experiencing less than that amount mental health counseling), lost wages and cannot apply. That can narrow the size of funeral expenses, and must compensate the class of potential claimants, since many victims of exclusively federal crimes com­ do not experience grave enough injury to mitted in the state, in the same manner as 36 meet the threshold requirement. At the victims of state crimes. Depending 011 other extreme, maximum recoveries are the size of the fund, this should promote generally quite limited - $10,000 to uniformity in, as well as extension of, state $15,000 is the common upper limit, al­ victim compensation programs. though· New York imposes no limit on 14 NEW DEVELOPMENTS

Assistance for Victims and Witnesses Beyond that, if the direct loss suffered by victims is compounded by repeated ex­ Matters of restitution and reparation pense and inconvenience caused by the aside, victims of and witnesses to crimes justice system and not by criminal de­ usually have been treated with a callous­ fendants, victims and witnesses can become ness from which criminal defendants are alienated and hostile, and can impede a just exempt. That has been particularly true of determination of criminal cases.42 Con­ victims of rape and other violent sexual cerns of titis nature are beginning to be re­ climes,37 although changes in substantive cognized in judicial decisions as important law38 and ancillary procedural and evi­ to the effective administration of criminal dentiary rules39 in recent years have re­ justice.43 duced considerably the marked disparity Some problems can be met through im­ between the treatment of rape victims and proved judicial administration.44 Judicial that accorded other crime victims and wit­ training emphasizing the needs and legal nesses. interests of crime victims and witnesses is The complaints voiced by victims and important, because many judges have been witnesses take a number of forms.4o One is insensitive to such concerns. Judges can a lack of a voice in decisions whether to institute a system according to which wit­ prosecute or settle criminal cases. A second nesses are "on call," that is, present where is a general failure on the part of police and they can be reached by telephone shortly prosecutors to keep them apprised of the before they will be required to appear, and progress of a case after it has been com­ thus spared tile extreme inconvenience of menced. A third is the inconvenience of spending long hours (and sometimes days) going to court, perhaps only to fInd that waiting for the case to be called concerning the case has been adjourned, coupled with which they will testify. Court calendars unreimbursed expenses like transportation should make effIcient use of both mornings or parking fees, child care charges, and loss and afternoons, thus identifying more pre­ of income only minimally offset by witness cisely the time segment in which individual fees (if they are paid at all). If adjourn­ cases will be reached. Separate, well­ ments or continuances are granted freely at appointed waiting rooms should be pro­ the request of the parties, these inconve­ vided for defense and prosecution witnes­ niences can be multiplied several-fold. A ses. In ruling on requests for adjournments fourth relates to the physical surroundings or continuances, judges should listen to the in which witnesses must wait, which fre­ concerns of victims and witnesses just as quently are inadequate and dirty, and open attentively as they do those of counsel and to passers-by who can include friends and defendants. Moreover, victims have as great relatives of defendants. Finally, when wit­ an interest as the government in seeing thut nesses take the witness stand, often they criminal prosecutions are swiftly disposed are treated as if they were the defendants of. Courts should allow victims and at least or suspects, and rarely is their status as in­ one member of their families to be present dispensable participants in criminal justice in the courtroom even though all of them administration acknowledged by the may be called as witnesses.45 If a victim's courts. property has been impounded for use as Does a failure to respond to these con­ prosecution evidence, courts should invoke cerns damage the admip.istration of crimin­ their discretion to have it photographed for al justice? Clearly it does. In the United the record and order it returned to the vic­ States, an estimated eighty-seven percent tim. Courts Can prepare and distribute of all crimes come to the attention of the handbooks on the court process for the police because victims or witnesses report benefit of all \vitnesses including victims. them.41 If the consequences of reporting They can promote, perhaps in cooperation are unpleasant and inconvenient, citizens with police authorities, a' "hotline" simply will not report many crimes and through which victims and witnesses may offenders will go "unwhipped of justice." obtain the information they need, as well 151 EXPERTS' PAPERS as information services from which victims ed to the owner within ten days after and witnesses can learn the current status being taken into official custody. of criminal prosecutions. It might be pos­ 7. To be provided with appropriate em­ sible, as well, to provide court-related or ployer intercession services to en­ community-based counseling or supportive sure that employers of victims and services for victims and witnesses.46 All witnesses of crime will cooperate these devices, and many more, may require with the;dminal justice system and no authorizing legislation and thus can be thus minimize an employee's loss of achieved through local initiative. pay and other benefits resulting from Several states, however, have gone be­ court appearances. yond these administrative responses to leg­ 8. To have access to immediate medical islate a so-called "victims' bill of rights,,;4 7 assistance and not to be detained for some of these statutes have drawn heavily an unreasonable length of time by a from an American Bar Association model law enforcement agency before hav­ statute.48 The Washington statute49 is re­ ing such assistance administered.50 presentative. It requires officials to make a 9. To accord to family members of "reasonable effort" to assure that victims homicide victims the rights covered and witnesses have the following "rights": in 1 through 4, 6 and 7. 1. To be informed by local law enforce­ Wisconsin adds a right to a speedy dis­ ment agencies or the prosecuting at­ position of the criminal case in which vic­ torney of the final disposition of the tims or witnesses are to testify, in order to case in which the victim or witness is minimize the "length of time they must involved. endure the stress of their responsibilities in 2. To be notified that a court proceed­ connection with the matter."Sl On oc­ ing to which they have been sub­ casion, legislation authorizing local assist­ poenaed will not occur as scheduled, ance centers for victims and witnesses is to in order to save the person an un­ be encountered.52 necessary trip to court. There has been advocacy of a revival 3. To receive protection from harm and from English common law of the right of threats of harm arising out of coop­ private prosecution, as a means of assuring eration with law enforcement and that the voices of victims will be heard in prosecution authorities, and to be the criminal justice system.S3 It is un­ provided with information about the likely, however, that such a system will be level of protection available. adopted, granted the two-centuries-old 4. To be informed of the procedure to American tradition of public prosecution be followed to apply for and receive only; in many states, a constitutional witness fees to which they are en­ amendment probably would be required to titled. enable a system of private prosecutions to 5. To be provided, whenever practical, a be instituted. Nevertheless, some states secure waiting area during court pro­ have begun to require prosecuting officials ceedings that does not require them to listen to the views of victims concerning to be in close proximity to defen­ the disposition of criminal cases by dis­ dants and families or friends of de­ missal, guilty plea or trial. 54 This is a pre .. fendants. adjudication counterpart to the require­ 6. To have stolen or other personal pro­ ment, already discussed, that victims be perty expeditiously returned by law allowed to express opinions and supply enforcement agencies when no long­ information when data bearing on sen­ er needed as evidence. If feasible, all tencing are gathered. 55 One may surmise, such property, except weapons, cur­ though, that to allow semiformal input by rency, contraband, property subject crime victims will be as far as the American to evid~ntiary analysis and property criminal justice system is likely to go dur­ the ownership of which is disputed, ing the foreseeable future. should be photographed and return- The federal crime victims fund men- 16 NEW DEVELOPMENTS tioned earlier56 should contribute to the ter, destroy, mutilate or conceal an object development of programs of this nature, with intent to impair the object's integrity because it provides that whatever monies or availability for use in an official pro­ are not used for victim compensation ceeding; (c) evade legal process summoning grants are to be available to assist states in the person to appear as a witness or to providing services to victims of crime, par­ produce a record, document or other ob­ ticularly victims of domestic violence and ject in an official proceeding; or (d) be ab­ sexual assault. 57 Services include crisis sent from an official proceeding to which intervention, emergency transportation to the person has been summoned by legal court, short-term child care services, tem­ process; or (3) hinder, delay or prevent the porary housing and security measures, as­ communication to a federal law enforce­ sistance in participating in criminal pro­ ment officer67 or judge of information ceeding, and payment for forensic rape ex­ relating to federal crimes or violations of aminations.58 Five percent of the fund can conditions of probation, parole or pre­ be devoted to the development of similar adjudication release. The punishment pre­ federal programs.59 How ample the fund­ scribed is a maximum fine of $250,000, ing under the statute will prove to be has ten years' imprisonment or both.68 yet to be determined, but Congress at least The federal law likewise prohibits the has placed its imprimatur on the desirabil­ intentional harassment of another person ity of such programs. that hinders, delays, prevents or dissuades any person from (1) attending or testifying Protection against Witness in an official proceeding;69 (2) reporting a Tampering and Intimidation federal offense or violation of release con­ ditions to a federal law enforcement officer The intimidation of witnesses, which or judge; (3) arresting or seeking to arrest can range from minor harassment like another person in connection '.'lith a fed­ random telephone calls or cruising in cars eral offense; or (4) causing a federal crim­ or on motorcycles in front of a victim's or inal prosecution or a probation or parole witness's house, through physical injury to revocation proceeding from being sought death, is a major problem, particularly in or instituted, or assisting in such a prose­ gang- or organized crime-related cases.60 cution or proceeding. The punishment for Traditional criminal statutes prohibiting th.at offense is a maximum fine of $25,000, the tampering with witnesses or obstruc­ one year's imprisonment or both.70 tion of justice seem inadequate to cope A third federal crime forbids the inflic­ 61 with the prob1em. Therefore, legislative tion of bodily injury 71 or damage to attention increasingly is being paid to new tangible property of another (or threats or . definitions of crime and sanctions against attempts to do so) with the intent to re­ those who have intimidated or may in­ taliate against any person for (1) attend­ timidate victims and witnesses. ance as a witness or party at an official Congress addressed the problem com­ proceeding, or testimony given or any re­ prehensively in 1982 in the federal Victim cord, document or other object produced and Witness Protection Act.62 Expanded by a witness in an official proceeding; or criminal legis1ation63 punishes anyone who (2) any information relating to a federal knowingly uses intimidation or physical offense or revocation of conditional release 64 force against another person, who given to a federa11aw enforcement officer. threatens another person or attempts to do The punishment is a fine of not more than so, or who engages in misleading con­ $250,000, ten years' imprisonment or duct65 toward another person, with the both.72 intent to (1) influence the testimony of These criminal provisions may be more any person in an official proceeding;66 (2) comprehensive than earlier federal legisla­ cause or induce any person to (a) withhold tion, but hardly constitute an innovation. testimony or a record, document or other The real expansion of federal law to pro­ object from an official proceeding, (b) a1- tect victims and witnesses came in a com- 17 EXPERTS' PAPERS panion provision 73 that allows a federal "will obstruct or attempt to obstruct jus­ district court, on application of a United tice, or threaten, injure, or intimidate, or States Attorney or oth~r government coun­ attempt to threaten, injure, or intimidate, a sel, to issue a temporary restraining order prospective witness or jurOr.,,79 Detention (TRO) or injunction prohibiting harass­ orders have been issued by federal courts ment 74 of an identified victim or witness rather frequently since the new statute in a federal criminal case. The applicant went into effect in October, 1984, most attorney must advance specific facts in af­ usually to protect victims and witnesses in fidavits or a verified complaint to establish organized crime cases. The constitution­ reasonable grounds to believe that harass­ ality of pre adjudication detention of de­ ment will occur, or that the federal crime fendants, whose future appearance in court of tampering or retaliation will be commit­ is in no doubt, has been sustained.80 Pre­ ted. 75 A TRO may issue without written ventive or protective detention clearly can or oral notice to the adverse party or that serve to protect federal victims and wit­ party's attorney if the court finds, on writ­ nesses; approval in the Salerno decision ten certification of facts by the applicant of the constitutionality of such measures government attorney, that notice should almost certainly will encourage adoption not be required and that there is a reason­ by state legislatures of counterpart statutes able probability the government will pre­ where state constitutional language allows. vail on the merits. A TRO is valid for a maximum of ten The Federal Witness Protection Program days, but can be extended on the basis of cause shown for up to an additional ten For over a decade, the United States days, or longer if the adverse party agrees. Department of Justice has implemented a An expedited adversary hearing must be federal witness relocation and protection held after the TRO has been issued, after system, in which endangered witnesses can which the district court can issue a protec­ be relocated, given new identities, and pro­ tive order prohibiting the harassment of a vided with subsidies.sl Because a number victim or witness. 76 A protective order of problems had been encountered in the must set forth the underlying reasons, be administration of the program, Congress specific in its terms, and describe in rea­ instituted in 1984 comprehensive legisla­ sonable details the act or acts to be re­ tion covering the practice.S2 strained. A maximum period of three Under the new statute, the Attorney years' duration for protective orders is General has authority to protect potential established by law, but the government witnesses by relocating them and their within ninety days before an order is to families, in connection with an official expire can initiate proceedings to obtain proceeding concerning organized criminal a new protective order, based on the same activity or other serious offenses, if he de­ shOwing required to secure an original termines ,hat a crime of violence, obstruc­ order. The federal legislation has been used tion of justice or a similar state or local frequently by federal prosecutors, and offense directed at a witness is "likely to seemingly has served as a pattern for be committed."s3 Relocation of family counterpart legislation in some states. members is based on the same likelihood of An indirect measure of victim and wit­ danger to them. As an aid to state lawen­ ness protection has been achieved through forcement, the Attorney General can order the recognition in federal law 77 of pre­ protection for state or local witnesses on ventive detention of a person under charges the same grounds, if the federal govern­ of a crime of violence, an offense punish­ ment is reimbursed the cost. The statute able by life imprisonment or death, certain recognizes that serious offenses with no serious controlled substances crimes, or as organizt!d crime connection nevertheless a recidivist,78 if a shOWing is made that the can generate intimidating or retaliatory ac­ defendant's release will pose either a seri­ tions, and that retaliation is possible a­ ous risk that the defendant will flee or gainst family members as well as a witness 18 NEW DEVELOPMENTS personally. a protected witness. The revised federal law Protective measures embrace any action addresses several of these problems. Thus, necessary to safeguard the health, safety if a witness receives subsistence payments and welfare of a witness or family member after relocation, but is subject to a court and can continue as long as necessary to order for payment of family support, the maintain the protection.84 This might be a government is to deduct and pay over the very brief protection for a few days at the decreed amounts.S7 In the memorandum situs of an official proceeding, but could be of understanding which he or she is re­ for a lengthy time. In the latter event, the quired to execute with the Department of statute contemplates such measures as (1) Justice, a protected individual must agree documentation to enable a person to es­ to comply with legal obligations and civil tablish a new identity or otherwise achieve judgments against him or her and to des­ protection; (2) housing; (3) transportation ignate another person to serve as agent for of household and other personal property service of process, and must submit a to a new residence; (4) a subsidy for living sworn statement covering all outstanding expenses; (5) assistance in obtaining em­ oLligations, including those concerning ployment; (6) other services necessary to child custody and visitation.B8 assist the individual in becoming self-sus­ If a protected person is named as a civil taining; and (7) a refusal to disclose the defendant, the Attorney General is to person's location or new identity if there is make a reasonable effort to transmit the danger that disclosure would endanger the process commencing the action to the civil protected individual and work to the det­ defendant/protected person and notify the riment of the witness protection program civil plaintiff whether process has been to a greater extent than it would benefit served, If the protected individual has not the public and the person requesting dis­ made reasonable efforts to comply \vith a closure. civil judgment entered against him or her, The latter, however, pinpoints what had the Attorney General, after considering the been a problem under the original protec­ danger it may pose to the protected per­ tion program, namely, the fact that many son/civil defendant, may honor the request protected witnesses committed new crimes of the person holding the judgment to dis­ within the jurisdiction of local law en­ close the identity and location of the civil forcement officials and courts, but could defendant. However, the recipient is not to not be identified and proceeded against make any further disclosure of that infor­ because of federal efforts to maintain con­ mation unless it is essential to a recovery 1l9 fidentiality. The new statute specifically under the civil judgment. recognizes the Attorney General's author­ The matter of child custody is addressed ity to disclose to state or local law en­ from different aspects. In deciding whether forcement officials at their request, or to to place a witness under protection, the do so pursuant to a court order, a pro­ Attorney General is to consider whether tected witness's identity, location, criminal such protection may substantially infringe records and fingerprints, if the individual is upon the relationship between a child who under investigation or charged with a fel­ will be relocated with the protected wit­ ony or any crime of violence. 8s As a fur­ ness and a parent who will not be relo­ 90 ther measure to prevent a witness protec­ cated. The Attorney General is specif­ tion arrangement from becoming a haven ically admonished not to relocate a child if for criminals, the Attorney General, before a person other than the protected witness authorizing protective measures, is requir­ has legal custody.91 If the relocated ed to assess in writing the risks and bene­ witness has custody but the other parent fits inherent in a protective measure, in­ has visitation rights, the Attorney General cluding the danger of further criminal acts is to obtain copies of all orders and evalu­ by the protected individual.86 ate whether the protected parent with Relocation likewise has interfered with custody must obtain a modification ofthe the claims and rights of family members of visitation order before relocation can be 19 EXPERTS' PAPERS implemented.92 After protective reloca­ cumstances and needs of victims and wit­ tion, the Attorney General must notify the nesses in those nations. Should legislative nonrelocated parent or other person with revision appear desirable, however, perhaps court-approved visitation rights that the the content of modern American statutes child is under protection, that the person's may provide a pattern for the requisite visitation rights under state court order are laws and administrative regulations. not affected, that the Department of Jus­ tice will pay all reasonable costs of trans­ portation and security necessary for visits, NOTES and that the Department will ensure that visits are conducted in a secure manner at a 1. See Turpen, The Criminal Injustice secure location.93 System: An Overview of the Oklahoma Detailed legislative regulation of the Victims' Bill of Rights, 17 Tulsa L.J. federal witness protection program is a 253,254 (1981). needed and welcome development. It is 2. See generally Harland, Monetary possible that some states will develop Remedies for the Victims of Q'ime: counterpart legislation. However, granted Assessing the Role of the Q'iminal the expense inherent in establishing and Courts, 30 U.C.L.A.L. Rev. 52 (1982) administering programs of that nature, it [hereinafter cited as Harland] . probably will prove more cost-effective for 3. Not all courts recognized an inherent states to contract with the United States power in the judiciary to order resti­ Department of Justice for the accom­ tution; from the outset, some required modation within the federal witness pro­ specific legislative authorization. See tection program of their key endangered id. at 57--58. witnesses. 4. P.L. No. 97-291 (Oct. 12, 1982), § 5(a), adding a new 18 U.S.C. § 3579 Conclusion (1982) [hereinafter cited as VWPAJ. See generally Project, Congress Opens The need of victims and witnesses for a Pandora's Box - TIle Restitution protection and assistance is not new; it has Provisions of the Victim and Witness existed for generations and exists today. Protection Act of 1982, 52 Fordham However, in less complicated times, local L. Rev. 507 (1984). The statute has officials and family members usually could been upheld as constitutional, usually afford the necessary protections for haras­ against assertions that restitution is sed or endangered witnesses, and a slower civil in character and that judicial pace of life usually meant that the incon­ assessment of restitution amounts vio­ venience of being a witness was not exces­ lates the seventh amendment guaran­ sive. With the advent of urbanization and tee of jury trial in civil matters. See the rise of mobile local gangs and interstate e.g., United States v. Brown, 744 F. and internMional organized crime groups, 2d 905, 908-11 (2d Cir.), cert. deni­ victims and witnesses have become endan­ ed, 469 U.S. 1089 (1984); United gered species in great need of protection States v. Satterfield, 743 F.2d 827, and assistance. The largely statutory mea­ 836-39 (11th Cir. 1984). Objections sures developed in the United States to aid based on due process and equal protec­ them, although not yet as comprehensive tion have been equally unsuccessfu1. and prevalent as they ought to be, certainly United States v. Satterfield, supra, have wrought marked improvements in the 743 F.2d at 839-43. status of victims and witnesses as indis­ 5. P.L. No. 98-473,98 Stat. 1976 (Oct. pensable components of the American 12, 1984). criminal justice system. Whether other na­ 6. 18 U.S.C.A. § 3556 (Supp. 1987) tions require some or all of these sorts of (added by the Comprehensive Crime legislation can be determined only through Control Act of 1984, § 212[a] [2], an assessment of the contemporary cir- P.L. No. 98-473, 98 Stat. 1976 [ap- 20 NEW DEVELOPMENTS proved Oct. 12, 1984] [hereinafter tution and manner of performance). cited as CCCA] ). State law may allow restitution Without a specific condition in an orders against adjudicated juvenile de­ order of probation, a requirement of linquents. See, e.g., I.S.H. V. State, restitution is invalid. United States v. 455 So.2d 1143 (Fla. nist. Ct. App. Elkin, 731 F.2d 1005 (2d Cif. 1984). 1984), approved, 472 So.2d. 737 (Fla. For representative federal cases 1985). Payments received from the awarding restitution, see United States state under an AFDC program for care v. Barringer, 712 F.2d 60 (4th Cir. of a minor delinquent's infant are not 1983), cert. denied, 105 S. Ct. 97 to be considered in determining her (1984); United States V. Hendey, 585 financial ability to pay. M.P. V. State, F. Supp. 458 (D. Colo. 1984); United 443 So.2d 482 (Fla. Dist. Ct. App. States V. McLaughlin, 512 F. Supp. 1984 ). 907 (D. Md. 1981). Cf. United States 7. 18 U.S.C.A. § 3563(a)(2), (b)(2), V. Missouri Valley Const. Co., 741 (3), (13) (Supp. 1987) (added by F.2d 1542 (8th Cir. 1984) (court in­ CCCA, supra note 6, § 212 [aJ [2]). If valida ted a consensual condition of a plea agreement is silent on the matter probation, in lieu of a fine, that the of restitution, entry of a restitution defendant corporation would con­ order does not violate the agreement. tribute $1.4 million to a university See, e.g., United States v. Koenig, for use either to endow a professor­ 813 F.2d 1044 (9th Cir. 1987); United ship in ethics or to construct an addi­ States v. MischIef, 787 F.2d 240 (7th tion to an engineering building and CiI. 1986); United States v. Pivirotto, establish in it a permanent program 775 F.2d 82 (3d Cir. 1985); cf. Pol­ of seminars on ethics in business and lock v. Bryson, 450 So.2d 1183 (Fla. engineering) . Dist. ct. App. 1984) (defendant who The loss reflected in restitution accepted condition as part of guilty orders may have been inflicted in­ plea bargain was estopped to attack directly. See United States v. Richard, legality of condition); Doherty v. 738 F.2d 1120 (lOth Cir. 1984). State, 448 So. 2d 624 (Fla. Dist. Ct. Restitution can be imposed on co­ App.), review denied, 458 So.2d 272 defendants in different amounts, based (1984) (same); People v. Culp, 127 Ill. on ability to pay. United States V. App. 3d 916, 468 N.E.2d 1328 (1984) Anglian, 784 F.2d 765 (6th CiL), cert. (restitution could not be ordered if denied, 107 S. Ct. 148 (1986); United defendant did not agree to that as part States V. Wyzynski, 581 F. Supp. 1550 of plea bargain). (E.D. Pa. 1984). 8. Id. § 3663 (renumbered by CCCA, Under both federal and state law, supra note 6, § 212[a] [1], from § sentences and probation conditions 3579 added by VWP A). The govern­ mandating payment ofrestitution must ment bears the burden of persuasion rest on specific findings of liability and on the amount of restitution. See, e.g., amount. See, e.g., United States v. Ser­ United States v. Bales, 813 F.2d 1289, hant, 740 F.2d 548 (7th Cir. 1984); 1298 (4th cir. 1987). People V. Canseco, 689 P.2d 673 (Colo. 9. The amount determined in a restitu­ App. 1984) (court could not order re­ tion order need bear no affirmative stitution to one who had not been relationship to amounts specified in named as a victim in the counts of an counts of an indictment bearing on indictment); People V. Chacon, 125 Ill. guilt, see, e.g., United States v. Pivi­ App. 3d 649, 466 N.E.2d 374 (1984) rotto, 775 F. 2d 82 (3d Cir. 1985), or (record supported award of restitution to the amount of personal benefIt an in amount fIxed by court); Walker V. offender realized through the crime, State, 467 N.E.2d 1248 (Ind. App. United States v. Anglian, 784 F.2d 1984) (court must fix amount of resti- 765 (6th Cir.), cert. denied, 107 S. Ct. 21 EXPERTS' PAPERS

148 (1986). Restitution may be order­ N.W.2d 359 (Wis. App. 1982) (court ed paid to a corporation or other pri­ must ii1quire into financial ability). vate legal entity, United States v. In United States V. Koenig, 813 Shackleford, 777 F.2d 1141 (6th Cir. F.2d 1044 (9th Cir. 1987), the court 1985), cert. denied sub nom. Brooks v. rejected a defendant's claim that a res­ United States, 106 S. Ct.1981 (1986); titution order requiring him to pay 65 United States v. Durham, 755 F.2d percent of his salary in restitution up 511 (6th Cir. 1985), a local unit of to a maximum of five million dollars government, United States v. Ruffen, was not improper and unduly harsh; 780 F.2d 1493 (9th Cir. 1986)(coun­ the order allowed the defendant to try social services agency), or the fede­ contribute to his family's support. ty social services agency), or the fed­ 15. See generally Note, Victim Restitu­ eral government, United States v. tion in the Criminal Process: A Proce­ 1984). dural Analysis, 97 Harv. L. Rev. 931 10. The amount ordered cannot exceed (1984); Note, Restitution in the Crimi­ the actual loss incurred by the person nal Process: Procedures for Fixing the or entity to whom restitution is to be Offender's Liability, 93 Yale L.J. 505 paid. See, e.g., United States v. Hill, (1984). 798 F.2d 402 (10th Cir. 1986); United 16. 18 U.S.C. § 3664 (renumbered by States v. Serhant, 740 F.2d 548 (7th CCCA, supra note 6, § 212[a] [1], Cir. 1984); Robinson v. State, 169 Ga. from the former § 3580). App. 763, 315 S.E.2d 277 (1984). The provision, discussed in the text 11. On the validity of the provision re­ below at (5), invoking collateral estop­ quiring payment of restitution within pel against defendants in later federal five years after release from imprison­ and state civil litigation, does not con­ ment, see United States v. Richard, vert the sentencing hearing into a civil 738 F.2d 1120 (10th Cir. 1984). action covered by the right to jury 12. 461 U.S. 660 (1983). trial. See United States v. Satterfield, 13. Tate v. Short, 401 U.S. 395 (1971); 743 F .2d 827, 833 -43 (1Ith Cir. Williams v. Illinois, 399 U.S. 235 1984); United States V. Brown, 587 F. (1970). SuPp. 1005 (B.D. Pa. 1984). Similar 14. 461 U.S. at 672-73. See also United rulings appear in state litigation. See, States v. Brown, 744 F.2d 905, 911 e.g., Cannon v. State, 246 Ga. 754, (2d Cir.), cert. denied, 469 U.S. 1089 272 S.E.2d 709 (1980). (1984) (Bearden controls); United 17. Fed. R. Crim. P. 32(c)(2)(D) (as States v. Ruffen, 780 F.2d 1493 (9th amended by CCCA, supra note 6, § Cir. 1986) (Bearden controls); People 215[a]). See Note, Victim Impact v. Eads, 123 Ill. App.3d 113, 462 Statements and Restitution: Making N.E.2d 819 (1984) (claimed error in the Punishment Fit the Crime, 50 court's failure to inquire into defend­ Brooklyn L. Rev. 301, 304-10 ant's ability to pay was waived through (1984). a failure to object at the sentencing The Supreme Court ruled that the hearing); Sales v. State, 464 N.E.2d use of a victim impact statement dur­ 1336 (Ind. App. 1984) (court must ing the death-penalty phase of the trial inquire into defendant's ability to pay of a capital case was unconstitutional, before ordering restitution); State v. because it could improperly divert a Harrison, 351 N.W.2d 526 (Iowa jury's attention away from the defen­ 1984) (trial court had to inquire into dant and the crime, would be difficult ability to pay restitution); State v. or impossible for the defendant to Storrs, 351 N.W.2d 520 (Iowa 1984) rebut without a similar shift in focus, (trial court found defendant to have and might serve to inflame the jury sufficient assets to pay restitution); against the defendant; the Court State V. Pope, 107 Wis.2d 726, 321 thought S: '"J!1 use inconsistent with the 22 NEW DEVELOPMENTS

reasoned decision making required in defendants cannot call the attention of capital cases. Booth v. Maryland, 107 jurors to pending compensation claims S. Ct. 2529 (1987). That does not af­ in an effort to attack a victim/wit­ fect the propriety of the use of such ness's credibility. Lyons v. State, 384 statements in noncapital cases. See, So.2d 982 (Fla. Dist. Ct. App. 1980). e.g., United States v. Bales, 813 F.2d There is no constitutional require­ 1289 (4th Cir. 1987); United States v. ment that claims be honored for in­ Serhant, 740 F.2d 548 (7th Cir. juries incurred before the effective 1984). date of a compensation law, if the 18. 18 U.S.C.A. § 3555 (Supp. 1987) statute does not specify retroactivity. (added by CCCA, supra note 6, § Gillespie v. State, 619 S.W.2d 128 211 [a] [2]). (Tenn. App. 1981) (appeal denied, id). 19. The notice may be given by mail or For litigation under a retroactive law, through advertising. The court should see Bruner v. Kops, 105 Wis.2d 614, consider the costs involved in advertis­ 314 N.W.2d 892 (Wis. App. 1981). ing in relation to the loss caused by the 23. N.Y. Exec. Law § 624(1)(b) (Mc­ crime, and is not to requIre a defendant Kinney 1982). to bear publicity costs beyond 24. Id. § 621(4). On questions of af­ $20,000.Id. fmity, etc., see, e.g., Ocasio v. Bureau 20. See Zehr & Umbreit, Victim Offend­ of Crimes Compensation Div., 408 So. er Reconciliation: An Incarceration 2d 751 (Fla. Dist. Ct. App. 1982) ("af­ Substitutes?, 46 Fed. Prob. 63 (1982). finity" does not include spousal rela­ 21. See George, Screening, Diversion and tionship) Mediation in the United States, 29 N. 25. Exclusion of a claim on behalf of a Y.L. Seh. L. Rev. 1,28-29 (1984); 54 two-year old daughter of a mother R. In1'l D.P. 995, 1004 (1984); Har­ murdered by the father did not in­ land, supra note 2, at 68. fringe the child's fourteenth amend­ 22. See generally Anderson & Woodard, ment equal protection rights. Hollis v. Victim and Witness Assistance: New State, 468 N.E.2d 553 (Ind. App. State Laws and the System's Response, 1984). See also Clark & Webster, supra 68 Judicature 221, 223-26 (1985) note 19, at 760-61. [hereinafter cited as Anderson & 26. N.Y. Exec. Law § 630 (McKinney Woodard] ; Clark & Webster, Indiana's 1982). Claims based on injury before Victim Compensation Act: A Com­ death do not survive the death of the parative Perspective, 14 Indiana L. Rev. victim. Matter of Bryziec v. Zweibel, 751 (1981) [hereinafter cited as Clark 74 A.D.2d 9, 426 N.Y.S.2d 616 & Webster]; Friedsam, Legis/ative (1980). Assistance to Victims of Crime: The 27. N.Y. Exec. Law § 631(2) (McKinney Florida Crimes Compensation Act, 11 1982). Fla. St. U.L. Rev. 859 (1984); Note, 28. CCCA, supra note 6, § 1401. Forgotten Victims: The Missouri Solu­ 29. 18 U.S.C.A. § 3013 (Supp. 1987). tion, 50 U.M.K.C.L. Rev. 533 (1982); The statute appears to apply to each Note, State Appellate Court Interpre­ count of a multiple-count indictment, tations of Victim Compensation Sta­ which could escalate the amounts con­ tutes, 10 New Eng. J. on Crim. & Civ. siderably in many federal criminal Confmement 87 (1984) [hereinafter cases. cited as Appellate Interpretations]; Some states have similar provisions. Note, The 1981 Oklahoma Crime See, e.g., N.Y. Penal Law § 60.35(1), Victim Compensation Act, 17 Tulsa (2) (McKinney 1975). Claims of hard­ L.J. 260 (1981). ship can be made after an incarcerated Administrative compensation pro­ defendant has been released and ef­ ceedings are totally separate from a forts are made to collect an unpaid related criminal prosecution, so that surcharge, bu t not before release. Peo- 23 EXPERTS' PAPERS

pIe v. West, 124 Misc.2d 622, 477 N. 40. See generally Anderson & Woodard, Y.S.2d 276 (County Ct., 1984). supra note 22, at 228, 229-31; Hud­ 30.18 U.S.C.A. §§ 3671-3672 (Supp. son, The Crime Victim and the Crim­ 1987). inal Justice System: Time for a Change, 11 Pepperdine L. Rev. 23, 31. See Appellate Interpretations, supra 28-36 (1984) [hereinafter cited as note 22, at 114-15. The name stems Hudson]; Kelly, Victims' Perceptions from the 1977 trial of David Ber­ of Criminal Justice, 11 Pepperdine L. kowitz for murders committed in Rev. 15 (1984); Note, State Legisla­ New York City, he claimed that his tion in Aid of Victims and Witnesses spiritual father, "Sam," had ordered of Crime, 10 J. Legis. 394, 395-97 the acts. He had signed lucrative con­ (1983) [herei1ll\fter cited as State Leg­ tracts for publication of his memoirs. islation Note]. The New York legislature responded 41. See Kelly, Victims of Crime. What by authorizing forfeiture of contract Do Victims Want? Why Should Thei, Concerns be Considered?, 23 Judges J. proceeds for purposes of victim com­ No.2, pp. 4, 52 (Spring 1984), pensation. N.Y. Exec. Law § 632-a 42. [d. (McKinney 1982). 43. For example, in Morris v. Slappy, 32. See generally Note, Publication 461 U.S. 1 (1983), the Supreme Court Rights Agreements in Sensational castigated a panel of the Ninth Circuit Criminal Cases: A Response to the Court of Appeals for having instituted Problem, 68 Cornell L. Rev. 686 a requirement of a "meaningful rela­ (1983). tionship" between a. defendant and 33. CCCA, supra note 6, § 1402(b)(3) defense counsel, because in doing so it (referring to 18 U.S.C.A. § 3146 "wholly failed to take into account the interest of the victim of these [Supp. 1987]). crimes in not undergoing the ordeal of 34. Id. § 1402(b)(1). yet a third trial," particularly "when 35. Id. § l404(a). the crime is one calling for public testi­ 36. [d. § 1403(b). States cannot use mony about a humiliating and degrad­ federal funds to supplant state funds ing experience such as was involved otherwise available for victim com­ here." [d. at 14. pensation. [d. . 44. See generally Herrington, Victims of 37. See Gittler, Expanding the Role oj Crime: What the Government Can Do, the Victim in a Criminal Action, 11 23 Judges J. No.2, pp. 18-20 (Spring Pepperdine L. Rev. 11 7, 118-25 1984). (1984) [hereinafter cited as Gittler]; 45. This would require a departure from Kelly Delivering Legal Services to the tradition of "invoking the rule ," Victi:ns: An Evaluation and Prescrip­ according to which all witnesses but tion, 9 Just. Sys. J. 62 (1984). the tradition of "invoking the rule," 38. For example, eliminating traditi?nal be sequestered from the courtroom requirements that a woman mamfest at least until they have testified and "utmost resistance" to rape but not been excused. to other crimes, replacing traditional 46. Detailed suggestions of these sorts rape and sodomy statutes with a uni­ were made in ABA Criminal Justice fied sexual assault statute covering all Section Committee on Victims, Re­ forms of sexually aggressive conduct, ducing Victim/Witness Intimidation: and the recognition of marital rape. A Package 29-32 (1980) [hereinafter 39. For example, the elimination of spe­ cial corroboration requirements in cited as ABA Victim/Witness Report] . See also ABA Criminal Justice Sec­ rape cases not found in relation to tion, Bar Leadership on Victim Wit­ other crimes, the repudiation of the ness Assistance 39-44 (I980). "Lord Hale instruction" that rape 47. See State Legislation Note, supra charges are easily made but disproved only with difficulty, and so-called note 40, at 404-06. "rape shield" laws forbidding cross­ 48. See ABA Victim/Witness Report, examination of a rape victim about supra note 46, at 6-12. 49. Wash. Rev. Code Ann. § 7.69.030 unrelated sexual activities. 24 NEW DEVELOPMENTS

(West SuPp. 1985). See also N.Y. Ex­ trick, scheme or device with intent to ec. Law § 642 (McKinney 1982); mislead. Okla. Stat. Ann. tit. 19, § 215.33 66. Defined in id. § 1515(1) as a pro­ (West Supp. 1985). ceeding before a federal judge, court, 50. However, the statute allows a law en­ magistrate, bankruptcy judge or grand forcement officer to accompany the jury, a proceeding before Congress, or individual to a medical facility if nec­ a proceeding before a federal agency essary to question the person about authorized by law to conduct the par­ the criminal incident, if that does ticular proceeding. not hinder the receipt of medical as­ 67. Defined in id. § 1515(4) to include a sistance. Wash. Rev. Code Ann. § probation or pretriafseryices officer. 7.69.030(8) (West Supp. 1985). 68. [d. § 1512(a). The statute replaced 51. Wis. Stat. Ann. § 950.04(9) (West the earlier legislation dealing with 0 b­ 1982). There is also a special supple­ struction of justice, 18 U.S.C. § 1503 mentary list of rights benefiting child (1982), so that the latter provision no victims and witnesses.Id. § 950.55 longer can be utilized in intimidation 52. E.g., Cal. Penal Code § § 13835- cases. United States v. Hernandez, 13835.9 (West 1982). 730 F.2d 895,899 (2d Cir. 1984). 53. See GUtler, supra note 37, at 150- 69. The statute creates an affirmative 63. defense, which a defendant must es­ 54. See, e.g., N.Y. Exec. Law § 642(1) tablish by the preponderance of the (McKinney 1982) (but the failure to evidence, that the conduct was lawful consult cannot be grounds for delay­ and was motivated exclusively to en­ ing proceedings against a defendant courage, induce or cause the other and cannot affect the validity of a person to testify truthfully. 18 U.S. conviction, judgment or order). C.A. § 1512(c)(Supp. 1987). 55. See supra notes 17-18 and accom­ 70. Id. § 1512(b). Congress declared ex­ panying text. traterritorial federal jurisdiction over 56. See supra notes 28-36 and accom- the two crimes, id. § 1515(f), which panying text. means that the tampering activity can 57. CCCA, supra note 6, § l404(a). take place outside the territorial or 58. Id. § 1404(d). special maritime and other jurisdiction 59. Id. § l404(c). of the United States. 60. See generally Graham Witness In­ 71. Defined in id. § 1515(5) as (a) a cut, timidation, 12 Fla. St. L. Rev, 239, abrasion, bruise, burn or disfigure­ 240-45 (1984). ment; (b) physical pain; (c) illness; 61. See Hudson, supra note 40, at (d) impairment of the function of a 53-55. bodily member, organ or mental fa­ 62. VWP A, supra note 4. See general­ culty, or (e) any other injury to the ly Jeffries, The New Federal Witness body, no matter how temporary. Tampering Statute, 22 Am. Crim. L. 72. !d. § 1513(a). Extraterritorial juris­ Rev. 1 (1984); Note, Defining Witness diction is provided for the offense. Id Tampering Under 18 U.S. C. Section § 15l3(b). 1512, 86 Column. L. Rev. 1417 73. Id. § 1514. (1986). 74. Defined in this context as a course of 63. 18 U.S.c. § 1512 (1982). Some or conduct directed at a specific person all of the acts alleged must have been that (a) causes substantial emotional committed within the federal district distress in such person; and (b) 'serves where trial occurs. United States v. no legitimate purpose. Id. § 1514( c) Moore, 582 F. Supp. 1575 (D.D.C. (1). "Course of conduct" means "a 1984). series of acts over a period of time, 64. Defined in 18 U.S.C.A. § 1515(2) however short, indicating a continuity {Supp. 1987) to include confinement. of purpose." Id. § 1514(c)(2). 65. Defined in id. § 1515(3) to include 75. Id. § 1514(a)(l). However, this can­ knowingly made false statements, not include an offense consisting of knowingly omitted information, forg­ misleading conduct alone. Id. ed or altered statements, misleading 76. The adverse party has the right to specimens, maps, etc., and use of present evidence and cross-ex:amine

25 EXPERTS' PAPERS

government withesses. ld- § 1514(b) tion or parole order, it can be enforc­ (2). ed by the Attorney General as if it 77. CCCA, supra note 6, § § 202-203 were a federal civil judgment, with a­ (entitled the Bail Reform Act of mounts so recovered to be distributed 1984). to victims identified in the state court 78. The statute covers a federal defen- order.ld. § 3522(d). dant charged with any felony if he or The failure to prevent protected wit­ she has two or more prior felony con­ nesses from committing new crimes victions which qualify under any of the does not give rise to liability under first three alternatives. 18 U.S.C.A. the Federal Tort Claims Act. Berg­ § 3142(f)(1)(D) (Supp. 1987). mann v. United States, 689 F.2d 789 79. ld. § 3142(f)(2)(B). (8th Cir. 1982). 80. United States v. Salerno, 107 S. Ct. 86. 18 U.S.C.A. § 3521(c) (Supp. 1987). 2095 (1987). Among other things, a protected per­ 81. The basis for the program was a pro­ son must agree not to commit any vision in the Organized Crime Control crime.ld. § 352l(d)(1)(B). Act of 1970. See H.R. Rep. No. 98- 87. fd. § 3521(b)(2). 767 Part 1, 98th Cong., 2d Sess., May 88. ld. § 3521(d)(1)(D), (F), (G). 15, 1984, on the United States Mar­ 89. ld. § 3523(a). Procedures for han­ shals Service and Witness Security Re­ dling civil matters, including appoint­ form Act of 1984 (H.R. 4249), at 11. ment of a guardian for purposes of The predecessor legislation had enforcing a judgment, are detailed in been sustained as constitutional. ld. § 3523(b). United States v. Wilson, 565 F. Supp. A civil plaintiff whose efforts to en­ 1416 (S.D.N.Y. 1983). force a judgment agaimt a protected 82. CCCA, supra note 6, § 1208 (en­ witness fail, cannot sue the govern­ titled the Witness Security Reform Act ment for the amount under a theory of 1984). of taking property without just com­ 83. 18 U.S.C.A. § 3521(a)(l) (Supp. pensation. Melo··Tone Vending v. Unit­ 1987). This includes authority to es­ ed States, 666 F.2d 687 (1st Cir. tablish "safe sites" in new or existing 1981). buildings without the usual require­ 90. 18 U.S.C.A. § 352l{c) (Supp. 1987). ments of competitive bidding, etc. on 91. ld. § 3524(a). public construction projects. ld. § 92. ld. § 3524(b). 3521(b)(1)(H). 93. ld. § 3524(c). Because of federal If a state has a witness relocation court of appeals decisions, Franz v. program based on administrative prac­ United States, 707 F.2d 582 (D.C. Cir. tice and a witness rejects protection, 1983); Ruffalo v. Civiletti, 702 F.2d he or she cannot claim privilege or 710 (8th Cir. 1983); Leonhard v. assert any other legal basis to refuse to United States. 633 F. 2d 599 (2d Cir. testify when called. People v. Gumbs, 1980), cert. denied, 451 U.S. 908 124 Misc.2d 564, 478 N,Y.S.2d 513 (1981), the United States Marshals (Sup. Ct., 1984). Service in fact notifies nonrelocated 84. 18 U.S.C.A. § 3521(b)(l) (Supp. persons having visitation rights of the 1987). proposed relocation before rather 85. ld. § 3521(b)(1 )(G). It is a federal than after relocation. U.S. Dep't of felony, punishable by a fine of $5,000, Justice, Handbook on the Compre­ imprisonment for five years, or both hensive Crime Control Act and Other for anyone knowingly to make un­ Criminal Statutes Enacted by the 98th authorized disclosure of the informa­ Congress 167-68 (1984). tion obtained from the Attorney Gen­ The Government is not obligated to eral.ld. § 3521 (b)(3). pay for more than twelve visits a year, A protected witness can be placed cumulating to not more than thirty under probation or parole supervision days, but can augment that allocation in connection with a state criminal in "extraordinary circumstances." 18 matter if the state consents to federal U.S.C.A. § 3524(c) (Supp. 1987). If supervision. ld. § 3522(a). If restitu­ visits not required by court order are tion is a condition to the state proba- frustrated by the protected witness,

26 NEW DEVELOPMENTS the nonrelocated parent can obtain a a protected person is dissatisfied with federal district court order authorizing an order, the Attorney General can amended rights to custody or visita­ bring an action on his or her behalf for tion. Id. § 3524(f). Elaborate provi­ modification of the order. Id. § sions are made for the litigation of 3524(e). In all these instances, the fed­ issues arising from state custody and eral government is responsible for visitation decrees. Id. § 3524(d). It litigation costs. Id. § 3524(h)(1).

27 The Prosecution System in the Federal Republic of Germany

By Karl-Heinz Kunert*

The prosecution system in the Federal dure. Legislation in these matters is up to Republic of Germany is characterised by the federation. The eleven states have the principle of compulsory prosecution about 4,000 prosecutors, the federation but also by a growing tendency to refrain has about 50 federal prosecutors. The from prosecuting in cases of minor guilt structure of the prosecutorial offices in the and in certain other cases. The second federation and in the states is bureau­ tendency is, beside other effects which it cratic and hierarchical. Prosecutors are has, also a contribution to the lenient mostly fully trained lawyers, appointed by treatment of offenders. the federal or state ministers of justice, and Before plunging into the depths and the holding life tenure after some training legal intricacies of the prosecution system years. in the FRG, I shall first outline the outer As to my role in the system: I come framework in which the system works, 1 from the most populous of the states - secondly, I shall draw a rough sketch of the North-Rhine-Westphalia. You may forget historical conditions on which it is based. the name but let me mention that it com­ 1) The FRG is a federative state, rough­ prises almost one-third of the total popula­ ly comparable in its constitutional struc­ tion of the federation and that the federal ture to the USA. Each of its eleven states capital, Bonn, lies in that state, so that has its own judiciary and its own prosec­ what happens in Bonn is dealt with by its utorial staff that is loosely attached to the prosecutors, with the exceptions that I judiciary court but by no means a part of have mentioned. In the ministry of justice the respective state criminal court. The of that state, I am the head of the criminal federation as such has its own federal crim­ justice bureau. The fUnction of this depart­ inal court and its own prosecutorial staff. ment is to gUide and supervise, in the The federal criminal court .is the nation­ minister's name and under his polit­ wide supreme appellate court for criminal ical responsibility, and within the legal cases. Insofar, the federal prosecutors are framework, the prosecutorial staff and to attached to the federal criminal court and take part in the preparation of federal legis­ act before it. In state crime cases, for in­ lation in criminal matters. stance in cases of espionage, high treason 2) In addition to these organizational re­ or terrorism, they are moreover attached to marks, a few historical remarks seem ap­ and act before the high courts of the states propriate. 2 They will unobtrusively lead to which function as trial courts in these some more systematic remarks .. German matters. All other criminal cases are dealt law - and this is a feature that stems from with by state prosecutors and state courts. its Roman, medieval and ecclesiastical ori­ All criminal courts and all prosecutors fol­ gins - has for several centuries taken the Iowan identical substantive criminal law view that criminal sanctions are imposed and an identical code of criminal proee- for public rather than private purposes, such as revenge or recompensation, and that, therefore, it is the state and, with a * Professor Dr. Director-General, Criminal Justice few exceptions, only the state, that should Bureau, Ministry of Justice, Land have the power to conduct the proceedings Nordrhein -Westfalen, that lead to these sanctions. For centuries, Federal Republic of Germany this power was focused on the judge alone. 28 PROSECUTION SYSTEM IN FRG

It was the judge's task to gather and scruti­ avoid these difficulties by the distribu tion nize first suspicions, to follow them up and of the functions of attack and defence to pursue this process to the point of final among two separate and partisan persons adjudication and sentencing. This was cal­ and by reducing the judge to the role of led the inquisitorial system. Now, in the tlle neutral umpire. middle of the 19th century, under the in­ Now, back to our public prosecutor as fluence of the English and via the French he stands today and to the distinctive fea­ legal system that had earlier adopted some tures of his function: His work is guided by of the English traits, the criminal process, two fundamental principles: while still remaining strictly a public or 1. his monopoly over the preferring of state affair, was divided or bifurcated, as it criminal charges, were, into two separate branches: the first 2. the rule of compulsory prosecution, stage of the proceedings, that of investigat­ or the celebrated principle of legal­ ing the facts and of instituting a formal ity, charge, or accusation, was entrusted to the tlle second of which is the more distinctive newly-established office of the state prose­ one. I shall now explain these principles in cutor. The court was restricted to the sec­ greater detail: ond stage, that of taking formal proofs, of adjudicating and of sentencing, thereby 1. Monopoly over the Preferring of the being barred from the initiative to institute Criminal Charges criminal proceedings itself, as it had done This principle is set forth in two sec­ before. The idea was to create a balance of tions of the Code of Criminal Procedure powers between court and prosecutor and that read as follows: to strengthen the impartiality of the § 151: The covening of a judicial inves­ court's adjudicative work. tigation (meaning primarily the com­ On the other hand, the prosecutor was mencement of a trial) is conditioned upon to be prevented from becoming a blood­ tlle preferring of a formal charge. hound who could and would concentrate §152 I: The public prosecutor is re­ all his might on running down and haras­ sponsible for preferring the official charge. sing the offender. Therefore the prosecutor The first section means that the court was, and indeed still is, required to gather cannot take proofs and adjudicate until a not only inculpating but also exculpating preliminary investigation has been carried evidence. Further, he was given the right out by the prosecutor that culminates in a and tlle duty to appeal to a higher court formal, written criminal charge. The sec­ not only against the accused in the case of ond section makes the preferring of this his acquittal but also on behalf of the ac­ formal charge the sale responsibility of the cused if there was reason to believe that public prosecutor, thus barring others, not the lower court had erred to the detriment only the court but also the police or the of the latter. The prosecutor thus was to be victim, from doing so. There are, it is true, tlle "watchman of the law," a model of a few exceptions from this monopoly of the impartiality and of evenhandedness who is public prosecutor on behalf of the victim still proud to be called the "most objective but tlley can be disregarded, all the more authority in the world." This is perhaps a so since when the victim may exceptionally superhuman task if you consider that it is prefer the charge, the prosecutor has the he after all who has to set forth the prima rigllt to step in, pick up the case and make facie case against the accused by raising the it his own. formal charge against him. By the way, tllis superhuman burden is, in our system, also 2. The Principle of Legality or the Rule of laid on the shoulders of the judge who has, Compulsory Prosecution Set Forth in § at the same time, to conduct the trial and 152 C.C.P. to perform the task of impartial adjudica­ The public prosecutor is required to tion, to be his own umpire, so to speak. take action against all prosecutable of­ The Anglo-American legal system tries to fences, to the extent that there is a suf- 29 EXPERTS' PAPERS ficient factual basis. pervision is of a purely professional nature. Should the prosecutor intentionally This may become or merely seem to be­ violate his obligation to prosecute or, vice come different where the ministerial con­ versa, not to prosecute and to dismiss the trol sets in. , case instead, he commits a crime himself. 3 Both prosecutorial offices are subordi­ This is regarded as the strongest safeguard nated to the ministry of justice. The min­ of the principle of legality. Though this ister is a political officer and a member of criminal liability of the prosecutor is only the state or federal government and is, in very seldom brought to bear in practice his turn, politically responsible to the state (and in cases where he failed to prosecute or federal parliament. The ministers of jus­ rather than in cases where he falsely pro­ tice are by law endowed with the power secuted) it works as an effective deterrent. and the duty to supervise all prosecutorial On the other hand, and what is perhaps offices below them and to give orders to even more important, it shields the prose­ that effect. They do both largely through cutor from pressure and undue influence their officials who are not political but that might be exercised by his superiors professional officers. The justice ministers and ultimately by the government to and their officials are bound by the same whom he is responsible as a public official. laws and, eventually, the same criminalli­ Before I can explain this very important abilities that rule the work of the prose­ aspect in greater detail I have to describe cutors below. In other words, they are also the hierarchical structure that characterizes governed by the principle of legality and its the proseutorial oftlce:4 Each of the safeguards that I have mentioned. Now it is roughly 90 prosecutorial offices in the in the nature of things that there is often a FRG and the federal prosecutorial office certain amount of discretion in answering are organized after a bureaucratic fa­ the question whether the factual basis is shion, with a chief prosecutor at the head sufficient for a formal charge or not. And of the office. In the states - not in the questions of law are also often far from federal system - there is moreover a suo simple and unequivocal among lawyers. It pervisory prosecutorial office that has to is through these gaps - and hopefully only see to it that the functions of the lower through them! - that a minister of justice office are carried out properly. The juris­ or a government may try to exert political diction of these higher offices comprises pressure on the prosecutor. This could be­ between one and ten lower offices. Again, come dangerous for a flawless functioning they have each a chief at their head. From of the rule of law - if the principle of le­ these offices orders can be given to and gality had not been invented! At this point must be obeyed by the lower offices. Or­ it displays its real worth as a means of re­ ders may refer either to the factual basis sisting political pressure from above: the of a case and its evaluation (sufficient prosecutor who, for instance, as ordered by grounds for a charge or not?) or to the le­ one of his superiors to prosecute or not to gal evaluation, or both. Accordingly, the prosecute against his own will can pOint order may be to dismiss the case or to pre­ out that the order is against the principle fer a charge, according to the evaluation of of legality and therefore against the law, the higher office. 5 Citizens who are not and that the superior giving the order is content with the lower office's decision himself criminally liable. This is a very may put in a formal or an informal com­ strong weapon in the hands of the prose­ plaint, depending on whether they have a cutors against pressure from above and personal interest in the case. 6 These are particularly against political pressure. This strong safeguards against prosecutorial weapon greatly limits the possibilities of malpractice, since no prosecutor wants undue influence. In other words: though at successful citizen complaints on his per­ first glance the rule of compulsory prose­ sonal record: they will impair his career cution or the principle of legality seems to chances, for promotion is on a meritocratic limit the power of the public prosecutor, it basis. So far, the built-in control and su- is really a fundamental protection for 30 PROSECUTION SYSTEM IN FRG himself and, what is more, for the due What I have so far told you about the process of law, since it shields the r.arrying fundamental nature of the rule of compul­ out of his duties from improper inter­ sory prosecution or the principle of legality ference. 7 needs some qualifications. Broadly speak­ This description, in abstract terms, may ing, the rule applies in all its vigour only to create the impression that there is a gigan­ more serious violations and notably to all tic machinery of supervision and control felonies, whereas for misdemeanours and working day and night to control every for petty infractions it has been eroded by move of the prosecutor working in the a great number of exceptions. Some ex­ front line. But this is not so. ceptions have even been introduced where In the first place, the manpower and serious crime is concerned. thereby the means of control of the higher First I will deal with the exception for supervisory office and of the ministry are misdemeanours and petty misdemeanours. naturally limited. Their control and super­ Violations of the lowest order in this cate­ vision must therefore be restricted to cases gory,10 such as traffic violations and cer­ of greater importance. This implies that the tain violations of economic regulations, are duty of the lower offices is to report on no longer considered as criminal offences such cases so that control can be brought at all and were therefore eliminated from into effect.8 In the second place, it is most­ the criminal statute books and from the ly not by orders that the built-in control is criminal procedure. Instead, these petty exercised but by professional argumenta­ infractions are dealt with by administra­ tion and persuasion in the course of which tive agencies such as the police. 11 The the controller convinces rather than bullies procedure is informal, the sanction is a the controlled - and vice versa, for that purely monetary one. Here, the rule of matter. Thus, head-on collision cases be­ compulsory prosecution does not apply at tween the prosecutor and his superiors and all. If the violator pays up the so-called particularly those at the ministerial level penance money, the order imposing it be­ happen very rarely. I myself have not seen comes final. If he chooses to contest the more than half a dozen of the latter type order, the case is transferred to the lower in my life-time. criminal court. The prosecutor's role in the The chief realm of the justice ministries court proceedings is only marginal. By this is not the given specific case but the pro­ method of de-criminalisation a vast load pounding of general rules, since the con· has been taken off the shoulders of the ju­ trolling power implies also a rule-making diciary staff and the prosecutors. power. These general rules which are rather Misdemeanours of the next highest ord­ numerous concern the criminal procedure. er that are nevertheless considered as The most important of them are uniform criminal and that carry criminal sanctions, not only in the sense that they regulate the chiefly fines, are ordinarily dealt with ac­ everyday work in one separate state but in cording to the rule of compulsory prosecu­ the sense that they are co-ordinated be­ tion but in a rather simplified type of pro­ tween the ministries of justice in all states ceedings: the prosecutor moves in the local and in the federation, and are put into ef­ court for the issuance of a so-called penal fect simultaneously and synchronically. 9 order,12 by which fines and the suspension By these uniform rules an attempt is made of a driver's license and the like can be to equalize the administration of justice by imposed, but not imprisonment. The court, the prosecutors and thereby to render it after a summary review of the fIles, issues more just. It is thought to be intolerable, the order in writing, without holding a for instance, that the principles according trial. It becomes final if not contested, to which penal orders (of which I shall otherwise the case goes to court and is speak of later) are moved for by the pro· dealt with as if a formal charge had been secutors vary from state to state. Instead it made, and a trial is held, with the prose­ is deemed preferable that these principles cutor taking full part in the proceedings. be unified at least to a certain extent. About one sixth of all cases that the pros-

31 EXPERTS' PAPERS ecutors handle is dealt with in this cursory criminal procedure makes a special provi­ fashion that spares the offender the hard­ sion by which the prosecutor is authorized ships of a public trial and is therefore ano­ to neglect that public interest, if the of­ ther contribution to leniency towards of­ fender fenders. III compensates the victim, So far the exception from the general .. volunteers to make a payment to a pattern is merely a procedural one and has charitable organization, nothing to do with the question of com­ .. or restores property. 13 pulsory prosecution. But it is in this group Such conditional non-prosecution (which of cases that the code of criminal proce­ bears a certain resemblance to probation in dure provides for the most important and substantive criminal law) has been widely most numerous exceptions from that rule. criticized because it does constitute a form It does so by setting forth an explicit of plea-bargaining that is theoretically ab­ counterprinciple, namely that of discre­ horred in our legal system. But to make use tionarY non-prosecution or the principle of of this method of flexible response to expediency or advisability. This principle crime of minor dimensions is absolutely has steadily expanded over the last years, necessary out of sheer self-defence of the and it governs now about 10%, in juvenile criminal administration system, for it cases even about 30% of all cases. The would otherwise fall to pieces. For these underlying philosophy is this: reasons, the ministries of justice have, over The rapid growth of mdictable mis­ the recent years, encouraged their prose­ demeanours in the statute books and the cutors to make use of these code provisions rapid increase of reported cases owing to granting discretionary non-prosecution, be more police and citizen control brings an it with or without payments to charitable ever-increasing number of citizens within organizations etc. to eliminate the public the reach of the criminal law and of the interest in prosecuting. Tile nation-wide stigma of criminalisation. On the other uniform rules give some broad outlines, the hand, most of the citizens concerned will state regulations that have so far been ad­ respond not only to criminal sanctions ditionally propounded vary in their gener­ proper but also to a mere criminal proce­ osity and their broadmindedness. Let me dure that they are made objects of. Finally, stress again the fact that the ministries have if the rule of compulsory prosecution were the pertinent rule-making authority in this strictly applied also to all minor cases of field only because the code itself consti­ crime, tl1e prosecutors and the criminal tutes exceptions from the rule of compul­ courts would soon be swamped and flood­ sory prosecution insofar. The ministerial ed by their case-loads, and there would be rules are nothing but binding interpreta­ no resources left for fighting more serious tions of the broad and very abstract code crimes such as white-collar crime, terrorism provisions" Their intention is to bring it and serious violations of environmental about through these practices, by lighten­ regulations. Therefore, according to § 153 ing the load of the prosecutor in cases of C.C.P, the prosecutor may refrain from lesser crime, that the rule of compulsory prosecuting with the consent of the court prosecution in cases of serious crime is not competent to try the case or, in minor frustrated or perhaps even anniliilated for cases, even without that consent of the want of resources. And let me stress it once court, if the guilt of the actor would be more that all these practices are in accord­ regarded as minor, and if there is no public ance with the law. interest in prosecuting. What I have described is, Lrl the net re­ In some cases, all these considerations sult, not much different from what is done may apply, particularly that of minor guilt in other parts of the world, though it may rendering prosecution unnecessary, and yet be given different names and labels such as there may be a public interest in prosecut­ "diversion strategies" or the like. What is ing left, albeit for reasons of deterrence or perhaps interesting in our system is that it of atonement. For these cases, the code of is a system, since it tries to give these di- 32 PROSECUTION SYSTEM IN FRG version strategies a recognizable shape by meaning that offenders of terroristic crimes the legislature and by ministerial rule­ should go unprosecuted if they report their making. The intention of this shaping is to accomplices to the criminal authorities. make the practices less arbitrary than they Similar provisions have been introduced in would otherwise be. Quoting from my fa­ North Ireland and in Italy where terrorism vourite author William Shakespeare, I'd say is rampant. The government of the FRG that "though tlus be madness, yet tllere's had prepared a draft bill to introduce such method in't." legislation but was unable to get enough In addition to the exceptions from the votes for it in the federal parliament. The rule of compulsory prosecution that I have counter-argument that finally won over discussed so far, applicable to cases of was that tlus would have been crossing the minor guilt, there are some others, far less border-line between what is tolerable and frequent in their application, yet more what is intolerable as far as possible excep­ important in nature, since they apply also tions from the rule of compulsory pros­ to cases of felonies and of grave misde­ ecution are concerned. I do not mean to meanours. Suffice it to mention the most discuss this question of internal German distinctive of these exceptions: politics here in greater detail. But the mat­ a) The prosecutor is given discretion ter deserves mentioning, since you can see not to prosecute, if the pUnishment to that the principle of legality or the rule of which the prosecution may eventually lead compulsory prosecution is not :m academic is negligible compared with a punislunent affair or an affair for nice legal distinctions imposed or anticipated against the accused for criminal lawyers in public lectures. On for another act or for a severable part of an the contrary, it is still a vivid and vigorous act. 14 principle that serves to separate the spirits - Tlus is also a device to reduce the of law-makers. In this case, it separated the length of court proceedings - falcons from the doves in the plulosophy b) The prosecutor may refrain from of fighting terrorism. I did not intend to prosecuting in cases where the offender is separate this audience, which I thank for going to be extradited. IS their patience in reading, into followers c) Offences committed without the and opponents of the principle of legality. boundaries of the FRG and to which, I wanted to point out how a living legal nevertheless, German substantive law ap­ system tries to canalize and regulate pros­ plies, may go unprosecuted if prosecution ecutorial powers and duties in a hopefully is considered to be against the public inter­ efficient manner. est. These cases must be submitted to the ministry and are subject to orders given from there. It is easy to discern the aspect NOTES of political expediency in cases of that sort. The rule applies, for instance, in cases 1. The framework is set by the Statute where the offence was committed in concerning the Courts (Gerichtsverfas­ Eastern Germany; it touches the sensitive sungsgesetz, hereinafter called GVG) spot of West German-East German rela­ that deals also with the organisation tions and needs delicate handling. 16 of the prosecutorial offices. For this, d) Similar considerations apply in state see GVG, Titel X. crimes proper. Here it is chiefly the feaeral 2. For a more detailed description, see prosecutorial office and the federal min­ Eberhand Schmidt, Einflihrung in die ister of justice who take action, or rather Geschichte der deutschen Strafrechtsp­ non-action, for here, too, prosecution is flege, 3rd ed. 1965, p. 331 ff. discretionary. 17 3. Criminal Code (Strafgesetzbuch), § § Late in 1986, we had a very hot public 258, 258 a, 336, 344 debate over the question of whether a new 4. GVG, § § 144 ff. exception be introduced for what is called 5. For a more detailed explanation of crown's witnesses in cases of terrorism, the hierarchical structure implying 33 EXPERTS' PAPERS

the right of supervision by the super­ 1976). Criticism was based on the intending prosecutoria1 office (Gen­ contention that the public prosecutor era1staatsanwaltschaft) and the res­ must be as independent as the judge. pective, i.e. federal or state, ministry But this view was rejected by the Su­ of justice, see Kunert, Festschrift fUr preme Court (Bundesverfassungs­ Rudolf Wassermann, 1985, p. 915- gericht), see BVerfGE 32, p. 199 ff., 925. on the grounds that the prosecutorial 6. Code of Criminal Procedure (Straf­ power is part of the executive branch prozessordnung, hereinafter called of government. See also, Federal StPO), § § 171 ff. Court (Bundesgerichtshof), BGHSt 24, 7. There are tendencies to do away with p. 170. . the supervisory power, be it a) of su­ 8. This duty is expressed in the Ordi­ periors altogether, b) of the ministries nances Concerning the Duty to Re­ of justice only. For criticism of the port (Anordnungen uber die Bericht­ first type, see, for instance, Roxin, spflichten in Strafsachen), issued by Rechtsstellung und Zukunftsaufgaben the various ministries of justice at the der Staatsanwa1tschaft, DRiZ 1969, federal and state level. p.385 ff.; Moderne Staatsanwalts­ 9. Ordinance Concerning Criminal Proce­ chaft, Denkschrift der Gewerkschaft dure (Richtlinien fUr das Straf- und Offen mche Dienste, Trasnport und Bussge1dverfahren). Verkehr (OTV), 1975. For criticism of 10. Called Ordnungswidrigkeiten. the latter type, see Richter und Staats­ 11. For details; see, Statute Concerning anwalt in Nordrhein- Westfalen, Infor­ Petty Infractions (Gesets uber Ord­ mationsb1att Nr.2/1987, p. 2 ff. A nungswidrigkeiten). compromise was attempted in the pre­ 12. Called Strafbefehl, see StPO, § § 407 liminary draft of a revision of the ff. GVG, submitted by the Federal Min­ 13. StPO, § 153 a. istry of Justice in 1976, but dismissed 14. StPO, § § 154, 154a. in the meantime (See, Referentenent­ 15. StPO, § l54b. wurf eines Gesetzes zur Anderung des 16. StPO, § 153c. Rechts der Staatsanwaltschaft, Stand 17. StPO, § 153d.

34 Protection of Human Rights at the Stage of Treatment

by Nor Shahid b. Mohd. Nor*

Introduction Much has been said and talked about them and yet one may still be left wondering There is generally a misconception of what they are. prisons, as even the people at large are still The Constitutions or the legal codes of deeply rooted in their thinking that prisons practically every state in the world today are merely places of punishment and it give at least formal recognition to the therefore follows that the nature of treat­ "Rights of Man and the Citizen." ment of prisoners can only be described as Despite this universal trend, the doc­ barbarous. Nothing is further from the trine is not without a challenge, and this truth, for with the sweeping reforms that paper shall only attempt to describe a have been introduced into the prisons sys­ number of problems plaguing the admin­ tem it can be said that in the history of the istration of the criminal justice system and system no greater change has been re­ give some account of the attempts made by corded than its transformation to an ad­ the prisons administration to preserve and ministration completely re-oriented and protect Human rights at the stage of treat­ committed to new aims, objectives and ment. purpose. This complete change in the character of the system naturally res\.llted The Administration of Justice in a complete change in the nature of treatment of offenders. A marked feature In Malaysia, the most important source of the Malaysian Prison System is its em­ of law3 is the written and unwritten law phasis on humane treatment of prisoners as which consists of the follOWing: required by the Prison Rules of 1953 and (a) The Federal Constitution which is the United Nations Standard Minimum the supreme law of the land to­ Rules for the Treatment of Offenders. gether with the constitutions of In a Malaysian Prison a prisoner is no the thirteen states comprising the longer required to serve penal servitude Federation; with hard labour. 1 Prisoners are also pro­ (b) Legislation enacted by Parliament tected by the Malaysian Constitution, and and the State Assemblies under this is evident in Article 6 of the Constitu­ powers conferred on the them by tion 2 which prohibited slavery and forced the respective constitutions; labour, but work incidental to the serving (c) Delegated or subsidiary legislation of a sentence of imprisonment imposed by made by persons or bodies under !l court of law shall not be taken to be powers conferred on them by forced labour. Acts of Parliament or enactments "Human rights" is a twentieth century of State Assemblies. name for what has been traditionally The unwritten law comprises the follow­ known as "natural rights" or in a more ex­ ing: hilarating phrase, "The Right of Man." (a) Principles of English law applicable to local circumstances; (b) Judicial decisions of the Superior * Director of Prisons, Head of Security and Courts, that is, The High Courts, Regime, Prisons Headquarters, Kajang, Federal Court and Judicial Com­ Malaysia. mittee of the Privy Council; and

35 EXPERTS' PAPERS

(c) Customs of the local inhabitants a variety of general duties for the protec­ which have been accepted as Law tion of the general welfare of the people. by the Courts. They are also responsible for investigating Muslim law is also an important crimes, detecting and identifying offenders source of Malaysian law but it is and prosecuting criminals in Courts. Be­ applicable to Muslims only and it sides all these they have to perform a vari­ is administered by a separate sys­ ety of other duties including patrolling tem of courts, which is called the coastal waters, rivers and jungles using Syaria's Courts. patrol boats and planes. To top it all the The Criminal Justice System of Malaysia police also have to perform in jungle opera­ is enforced and administered in three areas, tions, tracking down undesirable elements, which though are separate but nevertheless investigating the smuggling of drugs, anns, related in their functions. They are the and other protected items through the Police, the Judiciary, and the Prison. Their borders, and ensuring the safety of passen­ functions are related in that the enforce­ gers travelling on the nation's railway and ment and administration of the Criminal airline systems. Justice System in essence is to catch, sen­ The Nation's Police force is headed by tence and rehabilitate the same person. an Inspector General of Police, his Deputy The aims of the CrimimllJustice System and four Directors of Divisions, viz: the in relation to law-breakers are that "It re­ Criminal Investigation Department, The moves dangerous people from the com­ Special Branch, Security and Public Order, munity. It deters others from criminal be­ and Management. The Inspector General of haviour and it gives society an opportunity Police is responsible to the Minister of to attempt to transform law-breakers into Home Affairs. law-study-citizens." These objectives of the Although the Criminal Justice System State are achieved by a close working rela­ of Malaysia is enforced and administered in tionship between the Police, the Judiciary three areas, the close working relationship and the Prison Service. of the Police and the Prison Service are clearly laid down in both the Prison Ordi­ The Judiciary nance of 1952 and the Police Act of1967.4 The Malaysian Constitution provides for These two provisions in the laws establish the exercise of power by the Legislature, the powers and relative duties and responsi­ the Executive and the JUdiciary. The Judi­ bilities of the officers in the two services. ciary plays an important role in this bal­ This clearly establishes the fact that not ance of power. It has the power to hear only arc the functions interchangeable, the and determine civil and criminal matters, authority and relative power vested in one and to pronounce on the legislative or ex­ can and is exercised by the other. The rela­ ecutive acts. To enable it to perform its tionship between the two services is very judicial functions impartially, the Judiciary close and intimate in character. It is largely is relatively independent. upon the effectiveness of the close rela­ The judicial power of the country is tionship established between the two serv­ vested in the Federal Court, the "High ices that the practical result of the Criminal Courts and subordinate Courts. The Head Justice System is attained. of the Judiciary is the Lord President of the Federal Court, and he has direct super­ History vision over all Courts which is headed by an administrative head who is the Chief In Peninsular Malaysia before the Sec­ Registrar. ond World War, the penal establisimlentsS in the various Malay States and Straits Set­ The Police Force tlements were directly under the responsi­ The Malaysian Police Force are charged bility of the respective states and Settle­ with the very heavy responsibilities of not ments, each of which had their own prison only preventing crimes but also perfonning regulations. The Straits Settlements (com-

36 PROTECTION OF HUMAN RIGHTS

prising of Singapore, Penang and Malacca) trends in penoloLY and social defence. were the earliest to build prisons. The old­ est prison in Malaysia is Penang Prison and General Principles of Prison this is recorded to have been built is 1849. Administration Then the policy in all prisons was bas­ ically punitive in nature; by making the life The chief aims of the Malaysian Prison of the prisoner hard and unpleasant it was system are: hoped that such conditions would operate (a) to safeguard its own existence as a deterrent to criIne. It was only some (b) to protect the public years later that some efforts were made to (c) to deter potential law breakers introduce prison industries, though on a (d) to reform the convicted offenders. somewhat limited scale. These included The Prison Administration is part of this stone quarrying, carpentry and rattan system and a brief description of its func­ work. tions within this system will serve to illus­ In 1949, a centralised administration trate the complex, arduous and dangerous was set up and a Commissioner of Prisons nature and onerous responsibilities of the appointed to exercise control over the ad­ Prisons Department. ministration of all prisons. From 1950 Malaysia, like many countries in the onwards, in keeping with modern trends of British Common wealth, has a colonial her­ penal development, the deterrent theory of itage which brought about an importation punishment was replaced by the reforma­ of concepts of the prison system from the tive theory and this had an important in1- British System. This is evident in the fact pact on the department. The year 1953 that the Prison Ordinance was made in was an important year for it saw the repeal 1952. In 1953 the Standard Minimum of the seven separate and different Prison Rules for the prevention of Crime and Enactments which were replaced by the Treatment of Offenders was passed by the present Prison Ordinance and Rules which United Nations, developed as well as devel­ are based on the modern conception of oping for adoption and iInplementation. humane treatment of prisoners. The Prison Rules of 1953 modeled after This new piece of legislation is a land­ the United Nations Standard Minimum mark in the development of the penal sys­ Rules was passed on the 1st of July 1953. tem in the country as, for the first time, it It speaks well for Malaysia, which is a de­ became possible to apply uniform penal veloping country, that her administration methods throughout the country and to of penal establishments and treatment of ensure consistency of administration in all offenders are ill accord with these Rules. establ'shments in all the states. As a result, The Prisons Department is recognised by it was possible to make considerable strides the United Nations as one of the Govern­ in classification, educational and industrial ment Departments illvolved ill the field of training, the extension of trust and respon­ Social Defence ill the pmvention of crime sibility and special training schemes for and treatment of offenders. As part of the certain categories of prisoners. international action organised by the U­ Great strides continued to be made in nited Nations, officers from the Prisons, the post-independence period. The year Police, Judiciary, social welfare and social 1957 saw the achievement of nationhood defence organisations attend the same by the country and the appointment of the courses of study, seminars, conferences, first Malaysian Commissioner of Prisons. and Congresses organised by the United An energetic and innovative administrator, Nations. he took great pains to ensure the develop­ Like many other countries Malaysia has ment of a more humane treatment pro­ been strongly infiuenced by the so-called gramme for prisoners. Since then, more treatment and rehabilitation concepts, and innovations have been embarked upon by strongly believes ill the possibility of being his successor who sees that the Prisons De­ able to treat and rehabilitate offenders. partment keeps itself abreast with modern The treatment process within the prisons is

37 EXPERTS' PAPERS

clearly directed towards the preparation of them to learn a trade that will be gainful prisoners for an eventual return to the and useful to them on their discharge. community as law-abiding and socially Treatment is the sum total of the activities productive citizens. Their treatment pro­ that are carried out in a penal establish­ grammes should spell out principles of le­ ment, including activities of community gality, humaneness, and this confomls in living e.g., recreation, education, work etc. almost every aspect to the United Nations that go to make up a reginle that is calcu­ Standard Minimum Rules, and the Prison lated to maintain, stimulate and awaken Rules of 1953. These Rules shall be ap­ the higher susceptibilities of prisoners, to plied, due allowance being made for the help to develop their moral instincts and differences in character and respect for dis­ ultimately to tum them out of prison bet­ cipline of various types of prisoners in ac­ ter men and women, physically and moral­ cordance with the following principles: ly, then when they came in. (a) discipline and order shall be main­ tained with fairness but firmness, Young Offenders and with no more restriction than For the Young Offenders, 10 special is required for safe custody and to emphasis is laid on their training and ensure a well ordered community treatment. The responsibilities here are life; onerous, for it is recognised that these (b) in the control of prisoners, prison young offenders are incipient criminals and officers should seek to influence if they are not specially helped onto a them, through their own example morally straight path, they will later in life and leadership, so as to enlist their turn to a career in crime and prey on the willing co-operation; people at large. Training and treatment in (c) at all times the treatment of con­ Borstal-type institutionsll difil!r greatly victed prisoners shall be such as to from those for adult offenders. With a encourage their self respect and a regime peculiar to its own, all activities re­ sense of personal responsibility, so lating to treatment and training are special­ as to rebuild their moral, to in­ ly designed to train these young offenders culcate in them habits of good to take tlleir place in society on their dis­ citizenship and hard work, to en­ charge. Education is given special emphasis courage them to lead a good and and they are employed and trained in a useful life on discharge and to fit wide range of occupations from agricul­ them to do so. tural pursuits to engine repairs normally given to young people outside of the insti­ Prison Ordinance 1952, tution. Prison Rules 1953, and the Juvenile Courts Ordinance 1947 Internal Security Act 1960 Within the framework of this Act12 are Within the framework of these legisla­ established Protective Centres of Custody tions is designed a modern and enlightened for the detention of Communists, subver­ prison system to cater for the training and sives and anti-national elements. The ad­ humane treatment of adult offenders and ministration and running of these Deten­ young offenders with a view towards their tion Camps poses special and intricate rehabilitation. problems for the staff. Owing to the nature of detention and the fact that these detain­ Adult Offenders ees come from a background with educa­ Adult offenders, according to their tion, efforts and teclmiques in treatment needs, are sent to the different types of and training of these detainees differ com­ penal establishments e.g., the open prison, pletely from those used in the Prison, for it the local or short term prison, etc. for their must be remembered that rehabilitation for training of offenders in orderly and indus­ these detainees is more a matter of change trial habits, in discipline and in helping of heart than merely changing criminal 38 PROTECTION OF HUMAN RIGHTS

habits. Even the mechanics of security lowed to file an application for habeas measuring the supervision and control of corpus to the High Court as provided for in these detainees are different from those the Constitution. present in a prison. They require a finesse The Prison Rules of 1953 also stipulated on the part of the staff because these de­ that unconvicted prisoners,7 including tainees are quick to exploit a situation debtors, persons awaiting trial, persons on simply to embarrass the authorities and remand and persons committed for safe Government. custody or for want of sureties, who have not been convicted by any Court, are while Public Order and Prevention of Crime Act in prison not to be in association with 1969 convicted prisoners. This class of prisoners All criminals and potential criminals may be pennitted during their period of dredged out by the Police from the reser­ p,xercise to associate together in an orderly voirs of crime in big and small towns manner and may be allowed to smoke throughout the country are sent to the under such conditions prescribed by the Centre of Protective Custody,13 Pulau Director General. 8 They are not required Jerejak for detention and treatment. Here to work, other than what is required to is what could be said to be the first penal keep their rooms, furniture and utensils settlement in this country. The physical clean. If they desire to do so, they may be setting and environment of this Centre is allowed to work and be paid a certain al­ not unlike that of the tragic penal settle­ lowance for their labour and an account of ment of Pulau Senang established by the the value of their daily labour will be kept Singapore Government. Pulau Senang is by the Officer-in-Charge. The amount best remembered because of the terrible saved will be paid to them on discharge. massacre of the staff by tlle prisoners. Al­ Further employment will not be allowed in though help and assistance is available case of misconduct. within call at the mainland, Pulau Jerejak An unconvicted prisoner is allowed to faces the same hazards common to all purchase certain luxuries, in the way of penal islands. The work of the staff is made books and papers, clothing and food items, more arduous and difficult due to the but all these articles must be received or greater emphasis and attention being paid bought through the prisons. Notice to pur­ to the mechanics of organising searches. chase all these will be given to tlle Officer­ in-Charge. The prisoner will be allowed to Unconvicted Prisoners buy his own food, and if he chooses to do this the prison diet will not be supplied to A person is presumed innocent unless him, and neither will he receive any allow­ proven guilty, a basic right clearly spelt out ance in lieu. He is not allowed to receive or in Article 11 of the Universal Declaration buy any spirituous liquors, and all articles which goes on to say that a person must received will be inspected by the Officer-in­ have a public trial at which he is provided Charge, and it is subjected to restriction so with all the guarantees necessary for his as to prevent luxury or waste. defence. He can also invoke Section 220 of An unconvicted prisoner is permitted to the Malaysian Criminal Procedure6 Code to wear his own clothes, and the prison will bring to court any official who has wrongly only provide him with clothing if he is kept him confined. unable to provide it himself. The prison If a person is arrested, he must be in­ will provide all the bedding. formed of the grounds of his arrest, and he He is also allowed, if necessary for the will be allowed to see or consult his lawyer purpose of his defence,. to see a registered who will defend his case. He can be de­ medical practitioner9 appointed by himself tained beyond 24 hours only on the order or by his relatives or friends. He is also of a magistrate. However, the Police are allowed to see his legal adviser on any vested with other powers to detain a man weekday at a reasonable hour. This visit is beyond that period. The person is also aI- to be within sight but not within hearing of

39 EXPERTS' PAPERS an officer. (b) Civil - that is, persons committed for debt, failure to obey main­ Humane Treatment of Prisoners tenance orders, contempt of court, etc. Having examined very briefly its admin­ (c) Convicted prisoners - those serving istrative structure, historical perspective a sentence of imprisonment. and roles and functions, let us now move (d) Juveniles - those who are sent to on to the subject proper, that is, humane Advance Approved Schools. treatment of prisoners. 14 At all times, strict segregation is en­ In Malaysia, particular attention is paid forced in respect of the sexes, young of­ to the treatment of prisoners with the ob­ fenders from adults, unconvicted from jective that persons deprived of liberty convicted prisoners. should be treated humanely, enjoy basic Convicted prisoners sentenced to im­ rights and, as far as possible, conditions of prisonment are divided as follows: living in accordance with the dignity of a (a) Young Prisoners Class - those not free man in a democratic country. exceeding 20 years of age except With respect to Malaysia, the premise of those considered unsuitable who penal administration is provided for in the can be removed to the Star Class. Prisons Ordinance and Prisons Rules. These (b) Star Class - which consists of two pieces of prison legislations embody a prisoners over 20 years of age who modern and humane approach to treat­ are first offenders or who may ment of offenders and confonn in almost have been previously imprisoned nearly every aspect with the Standard Min­ but are considered by the Officer­ imum Rules of United Nations. in-Charge and reception board by So far as this country is concerned, ex­ reason of their history, character perience has shown that the application of and nature of offence to be suit­ the Standard Minimum Rules with its em­ able for training with first of­ phasis on humane treatment of prisoners, is fenders. as essential in Asia as it is in Europe. In­ (c) Ordinary Class - this consists of all deed, with political, economic and social other prisoners (recidivists) unsuit­ advancement of the countries in the area, able for inclusion in the Star Class. the application of the rules is of prime A great deal of trouble is taken over importance. each individual prisoner from the moment Malaysia is one of the countries that is he arrives in prison. Upon admission to the fully aware of the growing concern in re~ institution, each prisoner is documented cent years over infringement of basic lm­ and a dossier is opened for him. All in­ man rights, and we in Malaysia with our formation about the prisoner's social back­ modern system are among the nations in ground, antecedents, physical appearance, the world that have guaranteed that these offence, sentence etc. is recorded in the human rights be incorporated in our prison dossier, admission registry and other legislations. books. The reception board interviews the Great emphasis i~ placed upon humane inma te, ascertains his interests, classifies treatment and the concept of rehabilita­ him and assigns him an appropriate form of tion. This being so, there are provisions for treatment which is deemed best suited to classification of prisoners. For instance, him. with a view to facilitating refonnative In addition to the above, counselling treatment and preventing contamination of officers are to be found in most prisons. better prisoners by the worse, prisoners in This set of officers will endeavour to settle Malaysia are divided into three main cate­ any personal and emotional problems and gories: anxieties a prisoner may have. In particular (a) Unconvicted prisoners - which in­ areas, help may have to be sought from the cludes those on remand or await­ Social Welfare Department. Whatever it is, ing trial. the Prison Department of Malaysia realises 40 PROTECTION OF HUMAN RIGHTS that the important thing is to relieve the is, better remuneration for inmates; train­ man's mind of anxieties so as to enable him ing in more relevant marketable skills; as to obtain the best results. from training. well as revenue for the Government and In Malaysia, every effort is taken to see Prison Trust Fund. 15 that inmates are provided with employ­ Under thIs arrangement, the Prison ment opportunities. Rule 74 of the Prison Department provides the labour supply Rules 1953 reads: (inJnates) and workshop premise (within "Every prisoner shall be required to the prison) whereas private companies engage in useful work, all of which so provide the machinery, raw materials, trade far as practicable shall be spen t in as­ instructors, expertise and is also respon­ sociated or other work outside the sible for the marketing and sale of the cells, and no prisoner shall be em­ products. The participating firms are also ployed on any work not authorised by required to pay for the rental of prison the Director-General or the officer-in­ workshop, water and electricity bills, charge, provided that the Medical Of­ insurance coverage for inmates and regular ficer may excuse a prisoner from work salaries to inmates participating in the on medical grounds, and no prisoner scheme (same as outside factory workers). shall be set to any work unless he has Earnings received by inmates are to be been certified as fit for that work by divided based on the following formula: the Medical Officer." (a) 15% to the Government In the correctional system of Malaysia, (b) 15% to the Prison Trust Fund prison industry forms an integrated part of (c) 70% to inmates. the programme of rehabilitation of of­ Some of the industries pursued under fenders as well as an important instrument the joint-venture scheme 16 are as follows: for providing employment for inmates. Its wood/cane furniture, knitting of sweat­ objectives may be summarised as follows: ers for export, stitching of garments for (a) Rehabilitation of inmates through export, electronic gadgets, carpet inlay vocational training. etc. (b) Training of inmates as far as pos­ Since its inception, the joint-venture sible in marketable job skills. approach has proved to be a success and (c) Provision of employment oppor­ inmates have benefitted tremendously tunities for inmates. from it. For tlus reason, the Prisons De­ (d) The development of sound working partment of Malaysia is planning to expand habits. the said scheme to all prisons. (e) Minimisation of government expendi The Prisons Department operates a pro­ ture and increase in the Prison gressive stage system and an earnings Trust Fund. scheme. To prisoners who exhibit good In all prisons, inmates are provided with behaviour and industry in work, the pris­ wide opportunities to equip themselves on's progressive stage system and earnings with a form of skill/trade to enable them scheme prOVide the benefit of privileges. to maintain or upgrade a skill already They are designed to provide incentive to acquired prior to admission in prison in a prisoners to be industrious, to encourage selected trade in order that they may them to participate in the vocational train­ secure employment upon discharge. ing programme and to maintain good be­ The following are some of the trades haviour. taught in prison: carpentry, tailoring, The progressive stage system is based on laundry, metalwork etc. the length of stay' in custody. The longer As opposed to the emphasis on tradi­ one's sentence is, the higher one can rise in tional type of industries as mentioned the stage system, thereby obtaining numer­ above, since 1981, the Prisons Department ous privileges. There are five stages in of Malaysia has been moving in the direc­ the progressive stage system - first stage, tion of jOint-venture schemes. This new second stage, third stage, fourth stage and approach has three main advantages, that special stage. The earnings scheme is re-

41 EXPERTS' PAPERS lated to the level of skill and amount of aged to impart religious instruction to in­ work of the inmates. There are three grades mates at all institutions. in the earning scheme. Of his monthly Bearing in mind the importance of re­ wages, a prisoner is required by regulation creational activities in contributing towards to save one-third to be paid to him on dis­ physical and mental well-being as well as charge. He can spend the remaining two relieving tensions and monotony, facilities thirds of earnings on canteen articles. for a wide range of both indoor and out­ The humaneness of the prison system is door recreational activities are provided for also reflected in the provision of remission. inmates at all institutions. It is provided in the Prison Rules that all In addition, television and video facili­ convicted persons sentenced to definite ties are also made available. Friendly games terms of imprisonment, whether by one with staff or teams of outside organisations sentence, or by consecutive sentences, may are actively encouraged to minimise the by industry or good conduct earn remis­ feeling of isolation and the effects of segre­ sion of one-third of the remaining period gation. Those inmates who display some of sentence or sentences. inclination to music are encouraged to de­ The penal legislation also permits in­ velop their potentialities. Large prisons mates to receive frequent visits from their have musical bands comprising of inmates .. families or lawyers. Inmates can com­ Great importance is attached to medic&l municate with and receive letters and par­ facilities. Upon admission, all inmates are cels from their friends, relatives or lawyers, medically examined. All institutions have as maintenance of such family ties are infirmaries and dispensaries for medical aid deemed conducive for rehabilitation. Visi­ and care of prisoners. These units are tor's rooms are also provided in all penal manned by qualified medical assistants. institutions. Doctors normally visit the prison once a Education is deemed an integral part of week. Prisoners who are seriously ill or the rehabilitatbn programme. The philos­ require special medical attention will be ophy underlying the educational pro­ rushed to a general hospital outside the gramme is to eliminate illiteracy, to help institution. Mention must be made that offenders overcome their anti-social atti­ most prisons are also equipped with a tude and to develop a wholesome attitude modern dental clinic. Inmates who require and self-redirection. For this purpose, psychiatric treatment such as the criminal­ classes are conducted by professionally ly insane are attended by psychiatrists at trained school teachers and inmates are the national hospital outside the prison. encouraged to sit for various government For the maintemince of order and dis­ examinations. With support from teachers cipline in penal institutions, the Prison and staff members, more and more inmates Rules provides disciplinary punishment are attending the educational classes. Many which proclaims at the same time that only inmates have benefitted from the educa­ those restraining measures which are in­ tional programme and this has assisted dispensable for maintaining security and their resettlement after release. sound functioning of communal life in As part and parcel of the educational such an institution may be employed programme, a library of fiction and non­ against prisoners. The disciplinary punish­ fiction books in the languages of Malay / ments are as follows: reprimand, segrega­ English/Chinese/Indian is provided for in tion, removal or reduction in earnings each penal institution for the use by in­ grade, reduction or delay in stage promo­ mates. In addition, newspapers and peri­ tion, forfeiture of privileges, forfeiture of odicals are made available. remission and committal to solitary con­ It is recognised that religion is an im­ finement and restricted diet. It must be 1 portant reformative agent in that it pro­ stressed that physical punishments ? that vides a guide to honest citizenship and to may cause serious consequences to the decent and honest living. Therefore, religi­ health of the prisoner are not used in the ous teachers of various faiths are encour- system of disciplinary measures in Ma- 42 PROTECTION OF HUMAN RIGHTS laysia. Overcrowding in Prisons The treatment of prisoners in Malaysia is humane. The ration scale for prisoners is It seems rather odd that when the gen­ drawn up by medical authorities and is eral public seems to place so much em­ specified in the Prison Rules. Care is taken phasis on the rights of the individuals, to see that the ration scale shall be of suf­ there is no outcry from them about the ficient calories and quantity and shall be deterioration of the prison regime. The wholesome and of nutritional value. Much effects of overcrowding create pressure not has been done in recent years to improve only on the prisons but also on the pris­ the diets. Food is prepared and cooked oners. Problems and difficulties imply under modern conditions and meals are obstacles to the achievement of the mod­ clean, fresh, wholesome and served in a ern and humane concept of treatment. new type of partitioned tray which is pro­ In 1970, 11,661 prisoners were received duced by the prison. into prisons, and 10 years later in 1980 the Every effort is taken to ensure that figure rose to 29,575, an increase of almost prisoners are supplied with clothing or 154%. The figure kept on lising from year bedding adequate for warmth or health, to year and at the end of 1985, 51,735 Additional or alternative clothing/bedding prisoners were received into 32 prison may be supplied to a prisoner upon the institutions throughout the country. Out recommendation by a medical officer or by of this total 23,635 or 45.7% were con­ order of the head of the institution. victed prisoners, and the rest, or 54.3%, In the above, references have been made were unconvicted prisoners. to the following which reflects the 1m­ The number of prisoners held in prisons maneness of the system: provision of as of December 31st 1970, was 5,730, and vocational/industrial training, education, ten years later in 1980 the figure rose to spiritual welfare, recreation, counselling, 11,405, an increase of almost 100%. On classification system, registry and do~u­ the 30th of November, 1986 there were mentation of prisoners, progressive stage 22,081 prisoners in the various prison insti­ system, earnings scheme, remission system, tutions, whereas the prisons can only ac­ visits, medical services, use of disciplinary commodate 12,320 prisoners at anyone measures, diet scale, clothing. time. Prior to 1980 the prisons could only In addition to the above-mentioned, the accommodate 8,090 prisoners, and this following are also incorporated in the shows that in the last 10 years accom­ treatment of prisoners in Malaysia: modations for only 4,230 more people or (a) Normal working hours with 1}1 2 new prisons, were completed to add to days of rest per week the total capacity. (b) Complete rest on public holidays The total number of prisoners being (c) Hygienic work. conditions held in prisons at the end of each year are (d) Strict separation of male and fe­ as follows: male inmates 1980 - 11,405 (e) Provision of adequate sanitation 1981 - 13,249 (f) Visits by a legal adviser to protect 1982 - 14,403 inmates' rights 1983 - 15,294 (g) Freedom to complain, if he has any 1984 - 15,864 feelings of dissatisfaction to the 1985 - 20,040 director of the penal institution, to 1986 - 22,081 a higher supervising officer Or A total of 7, 100 remand prisoners at the directly to a Visiting Justice mak­ end of 1986 constituted almost 40% of the ing an inspection of the institution total prison population. Some of these and to do so without the presence prisoners have been in prisons for more of the officials of the institution than five years and occupy most of the (h) Pre-release preparation and post­ available accommodatl\)n much needed for penal aid convicted prisoners.

43 EXPERTS' PAPERS

The increase in the number of natural The Remand Problem life and life sentence prisoners have also Remand prisoners add pressure not only created problems of finding places for to overcrowded prisons but also to the them. This is evident in the fact that there officers who have to register them in and are now 81 natural lifers, 348 lifers and out of prisons daily and supervise their 129 condemned prisoners waiting for ex­ visits with their lawyers, families and police ecution. Prisoners in these categories are officers. The accommodation and space more difficult to control and these are the demanded by them in already overcrowded type which need closer supervision at all prisons is a problem that has been resting times. Almost 45% of the total prison heavily on prison authorities for quite population have been convicted for drug­ some time now. related offences or are themselves drug The number of prisoners held on remand addicts. as of 31, 11, 1986 is 7,100 or almost 40% of the total prison population of 22,081. TIle Drug Problem The prison authorities have at present no The Malaysian Government has declared choice but to accommodate the prisoners drug abuse as a security threat and the held on remand while they await the out­ number one enemy of the Nation. Drug come of investigations or hearing of their abuse has been a problem in Malaysia since cases in court. Of the total of7, 100 remand the late 1970's and thousands of youths prisoners, 2,894 have been under remand have been affected and become drug ad­ for under three months, 1,164 between dicts. As a security threat it has consist­ three and six months, 976 between six ently engaged the attention of politicians, months to one year, 600 between one year administrators and the general public. This to two years, 340 between two to three interest has intensified over the last few years, 129 between three to five years and years and has also focussed much more on 995 awaiting repatriation for illegal entry. the problem as it emerges in the prisons. A few have even been on remand for up Millions of dollars have been spent on the to seven years. About 30% of prisoners building of drug rehabilitation centres and held on remand had been charged with yet they are not enough to cater for the bailable offences, but could not raise bail. increasing number of drug addicts. They Three reason have been identified as to not only become drug addicts but are also why remand prisoners often have to remain responsible for the increase in the number in prison for long periods before they of drug related crimes. appear in court: Drug abuse and the smuggling of drugs (a) Investigation takes a long time and into prisons has not only been a preoc­ police give priority to cases which cupation of politicians, the pU9lic, and the are of a serious nature; administration, bu t has also been perceived (b) When the matter comes to court as a major problem in prisons. It was sel­ and the accused is charged, the dom that prisoners could be caught in the trial cannot go on inlmediately act of taking drugs and equally difficult to because courts have a heavy find drugs which had been smuggled in and schedule; then hidden in small quantities in or (c) After a date is fixed for hearing, it around the prison. Drug abuse within the is often put off because either the prisons leads to other problems. However, prosecution or the defence counsel suspected drug users are subjected to a wants a postponement. urine test, and if found positive could face a very stern disciplinary action. Neverthe­ Condemned Prisoners Problem less the influx of drug addicts or drug re­ There are 129 condemned prisoners lated criminals into the prison will keep on awaiting execution in four major prisons in posing a threat not only to the prison the country. These are the type of pris­ regime, but also to the security of the oners that need constant and strict super­ prisons. vision. There are 2,049 others awaiting trial

44 PROTECTION OF HUMAN RIGHTS

for offences canying the mandatory death done by the Public Works Department. sentence. It would take between three to In this respect Malaysia is, I believe, five years to have this type of prisoners among the more farsighted of nations when tried, sentenced and executed. The increase it comes to the repatriation of prisoners in the number of condemned prisoners into society. There are nearly 22,000 pris­ poses a threat to the security of the prisons oners in Malaysian Prison Institutions. It is and this adds pressure to the already hard­ true that tIus number can be read as con­ pressed officers. Besides these condemned sisting of 22,000 misfits, miscreants and prisoners there are 81 prisoners serving wrongdoers. In a great many cases how­ natural life sentences and 348 life sen­ ever, the forgotten truth is that these tences, and everyone of them requires people may also be skilled workers like supervision at all times. carpenters, masons, mechanics, craftsmen, welders and artisans. They form a pool of Building New Prisons captive talent and unharne~sed potential Most prisons in Malaysia were built by for productive labour and the Prisons De­ the British during the last century, many of partment has taken this opportunity to them nearly 100 years ago. From the out­ capitalise on this hitherto unrecognised side they look powerful, forbidding, deso­ fact. Thirty prisoners recently built the late. Each cell-block has one, two or three Tampin Drug Rehabilitation Centre, in tiers of cells, squeezed in orderly rows record time and at a cost of $720,000! In along both walls. The middle is left free, so contrast the Public Works Department had that an officer would be able to see in all estimated the project to cost a minimum of directions. As many as 500 prisoners are $1.3 million, and will take about two years herded together in one block. This results to complete. in a perturbing devaluation of human be­ With this success the Department has t ~ ings. There is no doubt that the structure been given the blessing to build four new and layout of a prison building influences remand centers, one open prison, one drug the prevailing atmosphere and the morale rehabilitation centre .and two new prisons; of prisoner and staff. Though originally on the average, 40% of the work has been built to hold fewer than 200-600, some completed. of the old prisons, like Pudu, Taiping, Penang and lohore Bharu have 2,000 to Conclusion 4,000 prisoners. In the last few years, determined efforts have been made to itn­ It is apparent from the foregoing that prove the large old prisons, with renovation the main feature of the Malaysian correc­ to old blocks and cells. A few smaller tional system lies in its humaneness. Also, buildings were added to the already it is most evident that the treatment and crammed compound, and there is no more rehabilitation programme is geared towards room for further expension. Some of the the preparation of inmates for their even­ old prisons are not only crowded with tual return to the community as law-abid­ prisoners but also with buildings. ing and socially productive persons, and all Building new prisons is a very slow facilities and conditipns for living, work, process. The New Kajang Central Prison recreation, and spiritual and mental uplift­ was built under the First Malaysia Plan by ment conform to standards prescribed by the Public Works Department and the pro­ medical authorities and social conscience. ject started in 1970 took nearly 16 years to In this era of changes, concomitant and complete. With a view to overcome the consistent with national development and overcrowding problems and to replace national aspirations, the Malaysian Correc­ existing old, ill-adapted prisons, the De­ tional Service realises the need to respond partment is in the process of building a to the ever increasing challenges of its time. number of new, modern penal institutions, Given this recognition, it is envisaged that and this will perhaps take another decade in the years to come the department will or two to be completed if they are to be attain greater heights of efficiency and

45 EXPERTS' PAPERS humaneness in discharging its noble task of 4. See Police Act 1967, (Act No. 41 of correctional duties and human reclama­ 1967, Sec. 20 (4)). tion. 5. See Donald Wee, History of Malaysian Prisons, Prison Headquarters Research Paper No.1 - 1974. NOTES 6. See Section 220 Malaysian Criminal Procedure Code. 1. Rule 75 of Pris0n Rules 1953 - A 7. See Prison Rule, 1953, Rule 178 (1). prisoner certified not to be fit for hard 8. Prison Ordinance 1952 PU (B) 324(70 labour by the Medical Officer may be Director-General of Prisons. employed in one or more of the fol­ 9. Rule 241, Prison Rules 1953. lowing forms of light labour, garden­ 1 O. Juvenile Courts Ordinance 1947 Act ing laundry work, cleaning and 2. whitewashing the prison, sweeping 11. Juvenile Courts Ordinance 1967 Act and any such similar services. 2. 2. Federal Constitution Article 6 (1) (2) 12. Internal Security Act, 1960. (3). 13. Public Order and Prevention of Crime (1) NO PERSON 3HALL BE HELD Act 1969 - Act 4 (2). IN SLAVERY. (2) ALL FORMS OF FORCED LA­ 14. See Donald Wee, Humane Treatment of Prisoners, Prison Headquarters BOUR ARE PROHIBITED, but PARLIAMENT MAY BY LAW Resource Material 1976. 15. See Prison Trust Fund, Prison Indus­ PROVIDE FOR COMPULSORY SERVICE FOR NATIONAL tries Resource Material 1984. PURPOSES. 16. J oint-Venture, see Prison Industries (3) Work incidental to the serving of a Resource Material 1984. 17. See Rule 57 (1), Prison Rule 1953, sentence of imprisonment im­ posed by a Court of Law shall Use of Force, See Rule 140, Prison not be taken to be forced labour Rule 1953, Restraints not to be used as punishment. See Rule 132 (1), (2) within the meaning of this article. (3) Prison Rule 1953, Corporal 3. Source of law - see Article 121 - Punishment. Federal Consti.tution.

46

EXPERTS' PAPERS

Appendix 'B' Prisons Heaoquarters, Malaysia (Research Unit) Statistics of Unconyicted Prisoners As of 30.11.1986

Prisoners on Remand Prisoners on Detention Dangerous Other Immigration Other Prisons Total Drugs Act, Ordinances Act, 1959 Ordinances 1952 or Acts or Acts K. Lumpur 849 746 82 2 1,679 Taiping 100 752 0 25 877 P. Pinang 565 351 2 1 919 J ..Bahru 549 475 0 0 1,024 A. Setar 260 151 20 23 454 P. Chepa 141 44 22 27 234 Seremban 0 0 0 0 0 Kuantan 41 90 5 0 136 Sg, Pet ani 31 38 0 3 72 Kajang 63 15 18 0 96 Marang 0 0 0 0 0 Sarawak 2 125 55 0 182 Sabah 124 593 688 22 1,427 Total 2,725 3,380 892 103 7,100 Percentage 38.38% 47.61% 12.56% 1.45% '100.00% Note: (A) Prisoners on Remand refer to those who are kept in prisons under the orders of High/Session/Magistrate Courts pending cases to be heard/tried. (B) Prisoners in Detention refer to those who are kept in prisons under the orders of the Minister of Home Affairs or other authorities pending to be banished or repatriated to other countries or restricted to other places of residence.

48 Appendix 'e' Prisons Headquarters, Malaysia (Research Unit) Statistics of Prisoners on Remand As of 30.11.1986

Period Being Remanded in Priosns Prisons Total -3 3-6 6 -12 1 - 2 2-3 3 mths mths mths yrs yrs yrs - K. Lumpur 903 260 212 130 63 27 1,595 Taiping 388 213 141 70 27 13 852 P. Pinang 436 243 139 35 37 26 916 J. Bahru 354 284 213 117 32 24 1,024 A. Setar 319 30 42 16 4 0 411 P. Chepa 94 25 45 9 8 4 185 Seremban 0 0 0 0 0 0 0 Kuantan 96 7 4 13 7 4 131 Sg. Pet ani 39 8 3 16 3 0 69 Kajang 51 3 8 9 7 0 78 Marang 0 0 0 0 0 0 0 Sarawak 53 22 20 5 15 12 127 Sabah 161 69 149 180 139 19 717 Total 2,894 1,164 976 600 342 129 6,105 Percentage 47.4% 19.1% 16.0% 9.8% 5.6% 2.1% 100.0% Note: Prisoners on Remand refer to those who are kept in prisons under the orders of High/Session/Magistrate Courts pending cases to be heard/tried.

49 EXPERTS' PAPERS

Appendix 'D' Prisons Headquarters, Malaysia (Research Unit) Statistics of Prisoners Under Sentence of Death As of 30.11.1986

Crimes/ Acts ISA Arms Drug 30?PC 396 PC Kidnap Total Sex Male 13 3 89 17 3 1 126 Female o o 3 o o o 3 Total 13 3 92 17 3 129 Ethnic Group Malay 3 27 4 o o 35 Chinese 10 o 34 7 o 1 52 Indian o o 6 2 o o 8 Other M'sian o o 4 3 o 8 Foreigners 2 o 24 o o o 26 Total 13 3 92 17 3 129 Prisons K. Lumpur 3 2 16 2 o o 23 Taiping o o 42 5 o o 47 P. Pinang 11 o o o 12 J. Bahru o 2 o o o 3 A. Setar o o 4 o o o 4 S. Petani o o o o o o o P. Chepa o o 4 o o o 4 Kuantan o o o o o o o Seremban o o o o o o o Kajang 8 4 6 o 20 Marang o o o o o o o Sarawak o o o 3 3 o 6 Sabah o o 9 o o 10 Total 13 3 92 17 3 129 Note: Other 302 PC Sarawakian (n) 3 Malaysians 396 PC Sarawakian (n) 3 Drug Thai 2 Foreigners ISA Thai, 1 Singaporean 1 Drug Indonesian 1 Thai 8 Hongkongite 8 Filipino 7

50 ~~i\~K~'hE~'::.~!5£S:::~!L;,:;r,':.."'~lffibf_~~~~~.,.~'m"'~"'I11"'",,"~'I""':=O"~""Fll'",y..;,'Y,w.. 'r.~ .•, .. ,,,,,.". f

PROTECTION OF HUMAN RIGHTS

Appendix 'E' Prisons Headquarters, Malaysia (Research Unit) Statistics of Prisoners Under Sentence of Natural Life , Imprisonment As of 30.11.1986 l' j I~ :f Crim es/ Acts ISA Arms Drug 302 PC 304 PC Total ',~ Sex If Male 0 61 11 7 80 il Female 0 0 0 0 1 I~', Ii: Total 0 61 11 8 1 81 I~ Ii, Ethnic Group Malay 0 36 4 0 41 ~,~ Chinese 0 13 5 2 0 20 it~ Indian 0 0 0 0 0 0 ~. Other M'sian 0 2 0 0 5 .~ 3 ~ Foreigners 0 10 2 2 1 15 •f: f Total 0 61 11 8 81 ~ ! Prisons ~ K. Lumpur 0 7 0 0 0 7 Taiping 0 29 0 0 0 29 ~. P. Pinang 0 3 0 0 0 3 ~ J. Bahru 3 0 ~ 0 0 0 3 ~ A. Setar 0 7 0 0 0 7 I S. Petani 0 0 0 0 0 0 i P. Chepa 0 0 0 0 0 0 Ii Kuantan 0 0 0 0 0 0 t i Seremban 0 0 0 0 0 0 ~ Kajang 0 7 0 0 0 7 l Marang 0 0 0 0 0 0 Sarawak 0 1 6 1 0 8 t Sabah 0 4 5 7 17 Total 0 61 11 8 81 f ----~---~ ~ f; Note: ,I· Other Arms Sarawakian (n) I t Malaysians Thai 1 f 302 PC Sarawakian (n) 1 !, Sabahan (n) 2 Foreigners Arms Filipino 2 ! Singaporean 2 Indonesian 6 302 PC Indonesian 2 304 PC Filipino 1 Drug Filipino 1 Chinese 1

51 '-_,"0. ~~~"""'!'~:-""O·"-t·,,,~- '~~~:~;'~"~~~"':C~~'?-.~~~"~'~'.".,~~~iW~~~~~"'iI; .•" " ,~

EXPERTS' PAPERS

i Appendix 'F' Prisons Headquarters, Malaysia Research .Unit Statistics of Prisoners under Sentence of Life Imprisonment I As of 30.11).986 Crimes/ Acts - ISA Arms Drug Kidnap 302PC 304PC 307PC 376PC 394PC Total Sex Male 22 5 261 19 15 8 1 7 339 ~ Female 0 0 9 0 0 0 0 0 0 9 Total 22 5 270 19 15 8 1 7 348

Ethnic Group ! Malay 3 3 139 4 12 4 0 0 3 168 Chinese 13 2 86 12 0 1 1 0 0 115 Indian 1 0 12 0 2 1 0 2 19 I~ Other M'sian - 0 0 2 3 1 0 0 0 0 6 ~ Foreigners 5 0 31 0 0 2 0 0 2 40 Total 22 5 270 19 15 8 1 1 7 348 It Prisons K. Lumpur - 1 0 8 1 2 2 0 1 2 17 i Taiping 15 2 98 10 4 2 1 0 5 137 P. Pinang 1 0 48 2 0 1 0 0 0 52 I J. Bahru 0 0 2 0 1 0 0 0 0 3 I, A. Setar 0 0 56 3 2 3 0 0 0 64 ~ S. Petani 0 0 0 0 0 0 0 0 0 0 ~ P. Chepa 0 0 2 0 0 0 0 0 0 2 !.' r Kuantan 0 0 0 0 0 0 0 0 0 0 t Seremban 0 0 34 0 0 0 0 0 0 34 Kajang 5 3 22 3 6 0 0 0 0 39 I, Marang 0 0 0 0 0 0 0 0 0 0 & Sarawak 0 0 0 0 0 0 0 0 0 0 Sabah 0 0 0 0 0 0 0 0 0 0 Iumlah 22 5 270 19 15 8 1 7 348 !i: f Note: p Other Kidnap Thai 3 ~ Malaysians 302 PC Eurasian 1 Drug Thai 2 ! Foreigners ISA Thai 5 Drug Australia 2 !, American (USA) 1 (, - /. Thai -17 i Burmese 3 r Singaporean 4 i Hongkongite 2 t French 1 ! - Indonesian - 1 304 PC Indian 1 Thai 1 396 PC ll1ai 2

52 PROTECTION OF HUMAN RIGHTS

Appendix 'G-1' Prisons Headquarters, Malaysia (Research Unit) Statistics of Prison Accommodation in Peninsular Malaysia

Actual Security Year Accommodation Prisons Established Classification Available

Kuala Lumpur 1895 600 Maximum Taiping 1879 1,100 Maximum Pu1au Pinang 1849 600 Maximum Johor Bahru 1883 500 Maximum Alur Setar 1893 450 Moderate Pengka1an Chepa 1950 500 Semi-open Seremban 1902 500 Maximum Kuantan 1908 40 Maximum Sungai Petani 1920 250 Maximum Kajang 1984 1,670 Maximum Marang * 1,000 Open Simpang Rengam * 2,000 Maximum Penor * 1,000 Open Jelebu * 1,000 Open Total 11,210

Henry Gurney Schools Teluk Mas 1950 500 Open Air Keruh 1969 100 Open Melaka (*) 1860 60 Maximum Batu Gajah (F) 1954 15 Open Total 675

Rehabilitation Centres Pulau J erejak 1969 570 Moderate Muar (#) 1927 110 Maximum Batu Gajah (&) 1902 250 Maximum Total 930

Centre of Protective Custody Taiping 1973 330 Moderate

Grand Total of Accommodation 13,145 All institu­ tions Note: * = New prisons presently under construction. ( * ) Formerly a prison. Later in 1962 began to function as a Henry Gurney School. (#) Formerly a prison; then a Centre of Protective Custody. Later in 1975 began to function as a Rehabilitation Centre. (&) = Formerly a prison; then a Centre of Protective Custody . Later in 1983 began to function as a Rehabilitation Centre. 53 EXPERTS' PAPERS

Appendix 'G-2' Prisons Headquarters, Malaysia Research Unit Statistics of Prison Accommodation in East Malaysia

Sarawak Actual Year Security Accommodation Established Classification Prisons Available Kuching 1882 200 Maximum Sibu 1927 200 Maximum Seri Aman 1864 200 Moderate Miri 1962 200 Moderate Limbang 1965 SO Moderate

----.--~--~---~-~- Total 850

Centre of Protective Custody Kuching 1964 1,000 Moderate ----Sibu 1927 200 Moderate Total 1,200

Drug Rehabilitation Centre Kuching 1980 500 Moderate Grand Total of Accommodation 2,550 All institu- tions

Sabah Actual Year Security Accommodation Established Classification Prisons Available Kota Kinabalu 1953 450 Maximum Tawau 1965 250 Maximum Sandakan 1954 250 Maximum Keningau 1965 40 Open Kota Kinabalu (F) 1967 60 Moderate -----~---.----- Total 1,050 ----- Henry Gurney School Kepayan 1973 75 Open

Centre of Protective Custody Kota Kinabalu 1964 200 Moderate

Grand Total of Accommodation 1,325 All institu- tions

54 International Co-operation, Training apd Research l

by Yolande Diallo*

Implementation of International ticular forms of treatment and punishment, Instruments on Human Rights has initiated studies leading to the prepara­ tion of a Draft Code of Medical Ethics and Since the General Assembly adopted has reaffirmed the Standard Minimum and proclaimed the Universal Declaration Rules for the Treatment of Prisoners which on Human Rights on 10 December 1948, have provided some measures of protection the United Nations organs have continu­ to incarcerated persons. ously sought new ways and means of pro­ moting respect for, and observance of the The Universal Declaration on human rights and fundamental freedoms Human Rights and set out in the Declaration. The International Covenant on Economic, A major achievement in this endeavour Social and Cultural Rights and was the adoption in 1966 and entry into the International Covenant on force in 1976 of the International Cove­ Civil and Political Rights nant on Economic, Social and Cultural Rights, the International Covenant on Composed of the Universal Declaration Civil and Political Rights and the Optional on Human Rights and the Covenants, the Protocol to the International Covenant on International Bill of Human Rights con­ Civil and Political Rights. tains provisions for adequate protection of These instruments, together with the detained persons. Universal Declaration on Human Rights, The basic principles governing respect provide measures of implementation of the for the rights of detained persons are found human rights and fundamental freedoms in Article 5 of the Universal Declaration on set out in their provisions. Human Rights which reads: In addition, the United Nations organs "No one shall be subjected to torture or have adopted a wide variety of resolutions, to cruel, inhuman or degrading treat­ decisions, declarations and conventions ment or punishment." designed to accelerate the universal realiza .. Article 7 of the International Covenant tion of human rights and fundamental on Civil and Political Rights of 1966 reads freedoms by all. Some of these have been as follows: of general character while others have "No one shall be subjected to torture or ainled at ensuring the enjoyment of par­ to cruel, inhuman or degrading treat­ ticular rights and freedoms. Moreover, the ment or punishment. In particular, no United Nations had adopted particular one shall be subjected without his free standards applicable to categories of per­ consent to medical or scientific experi­ sons such as persons deprived, for whatever mentation." reason, of their liberty whether accused or Article 4, paragraph 2 of that Covenant convicted of crime. It has outlawed par- provides against any derogation from Arti­ cle 7. Article 10 of the same Covenant reads * Principal Human Rights Officer, Secre­ as follows: tary of the Sub-Commission on Preven­ "1. All persons deprived of their liberty tion of Discrimination and Protection of shall be treated with humanity and with Minorities, United Nations Centre for Human Rights, Geneva respect for the inherent dignity of the 55 EXPERTS' PAPERS

human person. suffering arising only from inherent in or 2. (a) Accused persons shall, save in incidental to lawful sanctions to the extent exceptional circumstances, be segre­ consistent with the Standard Minimum gated from convicted persons and shall Rules for the Treatment of Prisoners. be subject to separate treatment appro­ "Torture constitutes an aggravated and priate to their status as unconvicted deliberate form of cruel, inhuman or persons. (b) Accused juvenile persons degrading treatment or punishment." shall be o.eparated from adults and Article 2 characterizes any act of tor­ brought as speedily as possible for adju­ ture as an offence to human dignity and dication. states that it should be condemned "as a 3. The penitentiary system shall com­ denial of the purposes of the Charter of the prise treatment of prisoners, the es­ United Nations and as a violation of human sential aim of which shall be their rights and fundamental freedoms pro­ reformation and social rehabilitation. claimed in the Universal Declaration of Juvenile offenders shall be segregated Human Rights." from adults and be accorded treatment The Declaration denies States the right appropriate to their age and legal to pennit or tolerate torture even in cases status." of national emergency (Article 3) and States The question of torture and other cruel, are called upon to institute effective meas­ inhuman or degra l:ng treatment or ures against the use of torture and the like punishment has been closely examined in (Article 4) to subject their interrogation recent years due, in large part to "the method to general review (Article 6) and increase in the number of alarming reports special review (Article 7). Public officials on torture" and to the close attention concerned with law enforcement must be given by the various bodies of the United trained to operate without compensation Nations such as the Commission on Human for harm sustained and confessions ob­ Rights and the Sub-Commission on Preven­ tained in such a manner cannot be used for tion of Discrimination and Protection of evidence (Article 12). Minorities. In addition the Sixth and the Article 5 of the Declaration, relating to Seventh United Nations Congresses on the education and training merits being quoted Crime Prevention and the Treatment of in full: Offenders which took place in Caracas in "The training of law enforcement per­ 1980 and in Milano in 1985 have paid par­ sonnel and of the public officials who ticular attention to the implementation of may be responsible for persons deprived the Declaration on the Protection of All of their liberty shall ensure that full Persons from Torture and other Cruel, account is taken of the prohibition Inhuman or Degradi.llg Treatment and against torture and other forms of Punishment adopted by the General As­ cruel, inhuman or degrading treatment sembly at its thirtieth session as "A guide­ or punishment. This prohibition shall line for all States and other entities exercis­ also, where appropriate, be included in ing effective powers." The Declaration such general rules or instructions as are contains twelve articles. issued in regard to the duties and func­ In Article 1, "torture" is defined for the tions of anyone who may be involved purpose of the Declaration, as "any act by in the custody or treatment or such which severe pain or suffering, whether persons." physical or mental, is intentionally in­ It should be noted that no circum­ flicted by or at the instigation of a public stances, however exceptional, can permit official or a person for such purposes as resort to torture and like practices. In the obtaining from him or a third person, in­ Declaration: formation or confession, punishing him for "Exceptional circumstances such as a an act he has committed or is suspected of state of war or a threat of war, internal having committed, or intimidating him or political instability or any other public other persons. It does not include pain or emergency may not be invoked as a 56 INTERNATIONAL CO-OPERATION

justification of torture or other forms The provisions protecting detained per­ of cruel,. inhuman or degrading treat­ sons found in the Universal Declaration of ment or punishment." (Article 3) Human Rights (Article 5), in articles 7 and The same rule is provided for in Article 10 of the Covenant have been given very 4 of the International Covenant on Civil detailed expression in the Standard Mini­ and Political Rights. Not even in national mum Rules for the Treatment of Offenders. emergencies which justify derogations of These rules were adopted by the First other rights, may torture or other cruel, United Nations Congress on the Prevention inhuman or degrading treatment or pun­ of Crime and the Treatment of Offenders ishment be permitted. Likewise, the Geneva (August 1955) and approved by the Eco­ Conventions of 1949 prohibit the use of nomic and Social Council (July 1957) torture both in international wars and non­ which invited Governments to give favour­ international armed conflicts. able consideration to the adoption and Similarly the Standard Minimum Rules application of the Rules in the operation for the Treatment of Prisoners in paragraph and administration of their penal and cor­ 31 reads "corporal punishment, punish­ rectional institutions. ment by placing in a dark cell, and all Paragraph 2 of the Standard Minimum cruel, inhuman or degrading punishment Rules de8cribed them as "the minimum shall be completely abolished for dis­ conditions which are accepted as suitable ciplinary offences." by the United Nations." The Draft Principles on Freedom from The Rules are divided into two parts - Arbitrary Arrest and Detention deal also one, applicable to specific categories of with this subject and provide in Article detained persons, that is prisoners under 24: sentence, insane and mentally abnornlal " 1. No arrested or detained person shall prisoners, prisoners under arrest or await­ be subjected to physical or mental com­ ing trial and civil prisoners. pulsion, torture, Violence, threats or As a basic principle, the Standard Mini­ incitements of any kind, deceipt, trick: mum Rules for the Treatment of Offenders ery, misleading suggestions, protracted are to be applied impartially with no dis­ questioning, hypnosis, administration crimination on the grounds of race, colour, of drugs or any other means which sex, language, religion, political or other tend to impair or weaken his freedom opinions, national or social origin, pro­ of action or decision, his memory or perty, birth or other status. However, the his judgement. necessity of respecting the religious beliefs 2. Any statement which may be in­ and the moral precepts of the group to duced into making through any of the which a prisoner belongs is explicitly re­ above prohibited methods as well as any cognized by the Rules. The following evidence obtained as a result thereof topics are covered in the different sections shall not be admissible in evidence of the Rules; the maintenance of a registra­ against him in any proceedings." tion book for the ·antry and leaVing of pris­ 3. No confession or admission by an oners, the separation of categories of pris­ arrested or detained person can be used oners according to sex, age, criminal record, against him in evidence unless it is made the necessities of their treatment and the voluntarily in the presence of his coun­ legal basis of their detention (untried or sel and before a judge or other officer convicted prisoners, other civil prisoners, authorized by law to exercise judicial criminal offenders, juveniles); accommoda­ power." tion including sleeping accommodations, living and working areas, sanitary installa­ United Nations Standard on tions, including adequate bath and shower Minimum Rules for facilities; personal hygiene; clothing and the Treatment of Offenders bedding; food; exercise and sports; medical services. Under this latter section basic 1. Th~ Rule.~ medical services for both physical and 57 EXPERTS' PAPERS mental illnesses must be provided and in considered innocent and receive the benefit women's institutions special prenatal and of a special regime including separation post-natal facilities are to be maintained. from convicted prisoners. Civil prisoners, The section of the Rules dealing with dis­ not subject to criminal procedures, are also cipline and punishment provides that law to be given special treatment not less or regulation of competent administrative: favourable than that of untried prisoners. authorities shall determine the conduct In 1977, the Economic and Social constituting disciplinary offences as well as Council decided that a new rule should be the types and duration which may be in.. added to the Standard Minimum Rules. flicted. No prisoner shall be punished The new rule relates in particular to persons except in accordance with the terms of arrested or imprisoned without charge, and these laws or regulations and he shall never provides that they shall be accorded the be punished twice for the same offence. In same protection as persons under arrest or addition, a prisoner shall be informed of awaiting trial and prisoners under sentence. the offence alleged against him and given a proper opportunity to present his defence. 2. Application and Implementation Limits are placed on permissible types In 1976 the Committee on Crime Pre­ of punishment and in no case is cruel, in­ vention and Control at its fourth session human or degrading punishment allowed after recommending that the Standard and any punishment by close confinement Minimum Rules be amended (as previously or reduction of diet is subject to the con­ mentioned), adopted recommendations for tinued supervision of the medical officer. Procedures for the Effective Implementa­ Another section of the Rules limits the tion of the Standard Minimum Rules for instruments of restraint which may be used the Treatment of Offenders. on prisoners. States whose standards for protection of Provision is also made in these Rules for detained persons against torture and similar written information concerning prison treatment fall short of the Standard Mini­ regulations to be given to prisoners to mum Rules were requested to adopt the make requests or to complain to the direc­ Rules which should be embodied in na­ tor of the institution, prison inspectors, the tionallegislation and other regulations and Central Prison Administration and to judi­ made available to persons concerned with cial, or other proper authorities. Prisoners, their application and in particular to cor­ under the necessary supervision, are to be rectional personnel. The Standard Mini­ permitted contact with the outside world mum Rules should be made available to all through communications and visits and detained persons in a manner and form they are to be kept infornled of all im­ they can understand. A regular reporting portant new items. system is provided for on the extent of Other sections of these Rules deal with implementation and progress made with books, religion and religious services, the regard to the application of the ·Standard custody of prisoners' property and infor­ Minimum Rules, and Member States would mation concerning death or serious illness be asked to inform the Secretary-General of a member of the prisoner's family and on the subject. The co-operation of the illness or transfer of the prisoner himself. specialized agencies and of governmental Other provisions deal with the methods of and non-governmental organizations in the transfer of prisoners from one institution preparation of eventual periodic reports on to another and the qualifications of the the implementation of the Rules could also personnel of the prison. be requested. Others recommended proce­ Special additional rules are provided to dures dealing with the examination of in­ cover the case of prisoners who have been formation on the Rules and the imple­ sentenced and those who are insane or mentation, aid and assistance to govern­ mentally abnormal. ments, and seminars on the subject. The Prisoners under arrest or awaiting trial Committee on Crime Prevention and Con­ but who have not been convicted are to be trol was given special responsibility for

58 INTERNATIONAL CO-OPERATION

reviewing the Rules, and their implementa­ needs peculiar to their age; tion and procedures are provided for in the (3) Juvenile offenders should not be enforcement of the Rules. incarcerated in a correctional institution At the Seventh Congress on Crime Pre­ unless adjudicated of a serious act vention (Milano, 1985) the need for further involving, above all, violence against implementation was stressed once more by another person or persistence in com­ governments. mitting other serious offences; more­ over no such incarceration should United Nations Standard Minimum Rules occur unless it is necessary for their for the Administration of own protection or unless there is no Juvenile Justice other appropriate response that will ("the Beijing Rules") protect the public safety, or satisfy the end of justice and provide the juvenile The Sixth United Nations Congress on with the opportunity to exercise self­ the Prevention of Crime and the Treatment control; of Offenders, in its Resolution 4 entitled (4) The community of nations should "Development of Minimum Standards of do all it can, both individually and Juvenile Justice" recommended that the collectively, to provide the means by Committee on Crime ~revention and Con­ which every young person can look trol develop "standard minimum rules for forward to a life that is meaningful and the administration of juvenile justice and valuable. the care of juveniles to serve as a model for The Standard Minimum Rules for the Member States." The Congress also re­ administration of juvenile justice have two commended that the Secretary-General characteristics: as standard rules, they should report to the Seventh United Na­ should be applicable in countries with very tions Congress on the Prevention of Crime different backgrounds and legal systems; as on the progress achieved in the formulation minimum rules, they should contain, and of the new rules for review and final ac- disseminate world-wide, a certain "quality tion. of life" in accordance with the ideal of The Congress recognized the fact that universal human rights. special attention should be given to the The draft rules are to be considered in ways in which juveniles are handled be­ this perspective: as standard rules, they cause of their early stage of development have to be sensitive to the broad scope of and affirmed that standard minimum rules national and regional differences that mark for the administration of juvenile justice the experience and practices in juvenile were important in diminishing any adverse justice in the contemporary world. As effects of formal intervention, and in pro­ mininlUm rules, they none the less have to tecting the fundamental human rights of incorporate an unequivocal set of guaran­ juveniles in conflict with the law in diverse tees with r{'ference to the administration of national settings and legal structure. For justice and in accordance with the recom­ these reasons the Congress directed that mendations of the Sixth United Nations the Rules should reflect four basic prin­ Congress on the Prevention of Crime. ciples: (1) Juveniles in trouble with the law 1. General Principles should be provided with carefully con­ a) Fundamental principles structed legal protection; (Rules 1.1 to 1.6) (2) Pre-trial detention should be used Rules 1.1 to 1.3 point to the important only as a last resort, no minor or juve­ role that a constructive social policy for nile offenders should be held in a gaol juveniles will play inter alia in the preven­ or other facility where they are vulner­ tion of juvenile crime and delinquency. able to the negative influences of adult Rule 1.4 defines juvenile justice as an in­ offenders during this period, and ac­ tegral part of social justice for juveniles, count should always be taken of the while Rule 1.6 refers to the necessity of 59 EXPERTS' PAPERS constantly inlproving juvenile justice with­ (Rule 4) out falling behind the development of The minimum age of criminal responsi­ progressive social policy for juveniles in bility differs widely owing to history and general and bearing in mind the need for culture. The modern approach would be to consistent inlprovement of staff services. consider whether a child can live up to the Rule 1.5 seeks to take account of exist­ moral and psychological components of ing conditions in Member States which criminal responsibility; that is whether a would cause the manner of implementation child, by virtue of her or his individual of particular rules necessarily to be dif­ discernment and understanding can be held ferent from the manner adopted in other responsible for essentially anti-social be­ States. haviour. If the age is fIxed too low or if b) Scope of the Rules and defInitions there is no lower age linlit at all, the notion used of responsibility would become meaning­ (Rules 2.1 to 2.3) less. In general there is a close relationship The Standard Minimum Rules are de­ between the notion of responsibility for liberately formulated so as to be applicable delinquent or criminal behaviour and other within different legal systems and, at the social rights and responsibility (such as same tinle, to set some minimum standards marital status, civil majority, etc ....). for the handling of juvenile offenders e) Aims of juvenile justice under any defmition of a juvenile and (Rule 5.1) under any system of dealing with juvenile Rule 5 refers to two of the most im­ offenders. The Rules are always to be ap­ pOItant objectives of juvenile justice. The plied impartially and without distinction of fIrst objective is the promotion of the well­ any kind. being of the juvenile. Rule 2.1 stresses the importance of the The second objective is the principle of Rules always being applied impartially. It proportionality, meaning that the response follows the formulation of Principle 2 of to young offenders should be based on the the Declaration of the Rights of the Child. consideration not only of the gravity of the Rule 2.2 defInes "juvenile" and "of­ offence but also of pernonal circumstances. fence" as the components of the notion of £) Scope of discretion the "juvenile offender" who is the main (Rules 6.1 to 6.3) subject of these Standard Minimum Rules. Rules 6.1 to 6.3 combine several im­ It should be noted that age limits will portant features of effective, fair and depend on each respective legal system, humane juvenile justice' administration: the thus respecting the economic, social, poli­ need to permit the exercise of discretionary tical, cultural and legal systems of Member power at all signifIcant levels of processing States. This makes for a wide variety of and the need to provide checks and bal­ ages coming under the defmition of "juve­ ances in order to curb any abuses of dis­ nile" ranging from 7 to 18 years or above. cretionary power and to safeguard the c) Extension of the Rules rights of the young offender. (Rules 3.1 to 3.3) g) Righ ts of juveniles Rule 3 extends the protection afforded (Rule 7.1) by the Standard Minimum Rules to cover This rule emphasizes some important the so-called "status offences," for ex­ points that represent essential elements for ample truancy, school and family dis­ a fair and just trial and are internationally obedience, public drunkeness, etc. . .. ; recognized in existing human rights in­ juvenile welfare and care proceedings; pro­ struments (the presumption of innocence ceedings dealing with young adult of­ which is found in Article 11 of the Uni­ fenders. Such extension seems to be justi­ versal Declaration of Human Rights and in fied as a desirable step in the direction of Article 14 paragraph 2 of the International more fair, equitable and humane justice for Covenant on Civil and Political Rights). aU juveniles in conflict with the law. h) Protection of privacy d) Age of criminal responsibility (Rules 8.1 to 8.2) 60 INTERNATIONAL CO-OPERATION

Rule 8 stresses the importance of the Treatment of Prisoners as well as the Inter­ protection of the juvenile's rights to national Covenant on Civil and Political privacy. Rights especially Articles 9 and 10, para­ i) Saving clause graphs 2(b) and 3. The Sixth United Na­ (Rule 9) tions Congress on the Prevention of Crime in its Resolution 4 on Juvenile Standards 2. Investigation and Prosecution specified that the Rules should inter alia a) Initial contact reflect the basic principle that pre-trial (Rules 10.1 to 10.3) detention should be used only as a last Rule 10.1 is in principle contained in resort. Rule 92 of the Standard Minimum Rules for the Treatment of Prisoners. Rule 10.3 3. Adjudication and Disposition deals with some fundamental aspects of the a) Competent authority to adjudicate procedure and behaviour on the part of the The procedure for dealing wi th juvenile police and other law enforcement officials offenders shall in any case follow the in case of juvenile crime. minimum standards that are applied almost b) Diversion universally for any criminal defendant (Rules ILl to 11.4) under the procedure known as "due pro­ Diversion, involving removal from crim­ cess of law." In accordance with due pro­ inal justice processing and frequently, to cess a fair and just trial includes such basic committing support services is commonly safeguards as the presumption of innocence, practised on a formal and informal basis in the presentation and examination of wit­ many legal systems. This practice serves to nesses, the right to remain silent, etc .... hinder the negative effects of subsequent b) Legal counsel, parents and guard­ proceedings in juvenile justice administra­ ians tion. Rule 15.1 uses terminology similar to c) Specialization within the police that found in Rule 93 of the Standard (Rule 12.1) Minimum Rules. Rule 12 draws attention to the need for c) Social inquiry reports specialized training for all law enforcement Such reports are an indispensable aid in officials who are involved in the admin­ most legal proceedings involving juveniles. istration of juvenile justice. As police are The competent authority should be in­ the first point of contact with the juvenile formed of relevant facts about the juvenile justice system, it is most important that such as social and family background, they act in an informed and appropriate school career, educational experiences, manne:. While the relationship between etc .... For this purpose, some jUrisdictions urbanization and crime is clearly complex, use special social services Or personnel at­ an increase in juvenile crime has been as­ tached to the court or board. Other persons, sociated with the growth of large cities, including probation officers, may serve the particularly with rapid and unplanned same function. growth. Rules 17, 18, 19, 20, 21 and 22 deal d) Detention pending trial respectively with guiding principles in ad­ The danger to juveniles of "criminal judication and disposition, various disposi­ contamination" while in detention pending tion measures, least possible use of institu­ trial must not be underestimated. It is tionalization, avoidance of unnecessary therefore important to stress the need for delay, records and the need for profes­ alternative measures. Rule 13 encourages sionalism and training. the devising of new and innovative meas­ ures to avoid such detention in the interest 4. Non-institutional Treatment of the well-being of the juvenile. Finally parts V and VI rely to institu­ Juveniles under detention pending trial tional and non-institutional treatment. are entitled to all the rights and guarantees of the Standard Minimum Rules for the 61 il;~J\~~';'.":":i>'":'l11t1!'4/''I!!itll~j!l'~': •.

EXPERTS' PAPERS I Code of Conduct for A proposal was made by the Sub-Com­ Law Enforcement Officials mission on Prevention of Discrimination I and Protection of Minorities that the Con­ ~ i: In 1979, the General Assembly adopted gress should find ways and means to pro­ a Code for Law Enforcement Officials and mote international technical co-operation transmitted it to governments with the re­ in the area of restraints on the use of force I commendation that favourable considera­ by law enforcement officials and military tion should be given to its use within the personnel. framework of national legislation or prac­ tice as a body of principles for observance Other International Instruments by law enforcement officials. Article 5 of the Code reads as follows: In addition to the international human "No law enforcement official may in­ rights instruments previously studied re­ flict, instigate or tolerate any act of garding the protection of offenders, we torture or other cruel, inhuman or de­ should also mention some other instru­ grading treatment or punishment, nor ments dealing with this matter. may any law enforcement official in­ voke superior orders or exceptional cir­ 1. Code of Medical Ethics cumstances such as a state of war or a In 1976 the General Assembly invited threat of war, a threat to national the World Health Organizatlon to draft a security, internal political instability or code of medical ethics relevant to the pro­ any other public eme'rgency as a justi­ tection of persons subjected to any form of fication of torture or other cruel, in­ detention or imprisonment against torture human or degrading treatment or and other cruel, inhuman or degrading punishment. " treatment or punishment. In its commentary on Article 5, the As­ With the assistance of the World Health sembly points out that this prohibition Organization, the Council for international derives from the Declaration on the Protec­ organizations of the Medical Sciences and tion of All Persons from being Subjected to the World Medical Assembly, the General Torture and Other Cruel, Inhuman or De­ Assembly was able to formulate and adopt grading Treatment or Punishment, accord­ in 1982 a series of "Principles of Medical ing to which "such an act is an offence to Ethics relevant to the Role of Health Per­ human dignity and shall be condemned as sonnel, particularly Physicians, in the Pro­ the denial of the purposes of the Charter of tection of Prisoners and Detainees against the United Nations and as a violation of Torture and other Cruel, Inhuman or De­ the human rights and fundamental free­ grading Treatment or Punishment." doms proclaimed in the Universal Declara­ Principle 2 states that: tion on Human Rights and other interna­ "It is a gross contravention of medical tional human rights instruments." ethics, as well as an offence under ap­ The Assembly adds that "the term cruel, plicable international instruments for inhuman or degrading treatment or pun­ health personnel, particularly phys­ ishment" has not been dermed by the Gen­ icians, to engage, actively or passively, eral Assembly, but should be interpreted so in acts which constitute participation as to extend the widest possible protection in, complicity incitement to or attempts against abuses whether physical or mental. to commit torture or other cruel, in­ At the Seventh Congres~ on Crime Pre­ human or degrading treatment or pun­ vention the need for further implementa­ ishment." tion of the principles of the Code at the At its 1983 session, the General Assem­ national level, the important role of the bly expressed alarm that frequently mem­ United Nations and its regional and inter­ bers of the medical profession or other regional institutes for the prevention of health personnel were engaged in activities crime and the treatment of offenders was difficult to reconcile with the principles of stressed. medical ethics, urged all governments to 62 INTERNATIONAL CO-OPERATION

promote the application of those principles mum Rules for the Treatment of Pris­ by health personnel and government offi­ oners. cials, particularly those employed in insti­ "The following rules should be applied tutions of detention or imprisonment, and impartially. There shall be no dis­ called for the principles to be widely dis­ crimination on grounds of race, colour, seminattld by the Secretary-General, by sex, language, religion, political or governments and by the intergovernmental other opinion, national or social origin. and non-governmental organizations con­ property, birth or other status" (para­ cerned. graph 6 (1)). The principle of non-discrimination and 2. Draft Principles on Freedom from its implications in the administration of Arbitrary Arrest, Detention or Exile criminal justice was the object of a study The Universal Declaration's proclama­ carried out by the Sub-Commission on Pre­ tion that "everyone has the right to life, vention of Discrimination and Protection liberty and security of person" (Article 3) of Minorities which contained a set of is given more precision by Article 9 which Principles on Equality in the Administra­ states "no one shall be subjected to arbi­ tion of Justice. trary arrest, detention or exile." The Inter­ national Covenant on Civil and Political 4. The International Convention on the Rights in its article 9 states the same: Suppression and Punishment of the "everyone has the right to liberty and Crime of Apartheid security of person, no one shall be sub­ The Convention which entered into jected to arbitrary arrest or detention." force in July 1976 in Article 2 defines the The Commission on Human Rights in crime of "apartheid" as including a number 1956 decided to conduct studies of specific of inhuman acts committed for the pur­ rights or groups of rights and appointed a pose of establishing and maintaining domi­ committee composed of four of. its mem­ nation by one racial group over another bers to undertake the first of these studies racial group and systematically oppressing on the right of everyone to be free from it. Among these acts are: denial to a mem­ arbitrary arrest, detention or exile. The ber or members of a racial group of the study was completed in 1961 and in 1962 right to life and liberty of person ... or a series of draft principles were prepared arbitrary arrest and illegal imprisonment. which are presently before the Sixth Committee of the General Assembly for Roles of the United Nations and completion and adoption. Other International Agencies in the Protection of 3. The International Convention on the Rights of Offenders and Victims Elimination of All Forms of Racial Dis­ crimination 1. The United Nations This Convention which entered into Since the adoption and proclamation of force in January 1969 is the key United the Universal Declaration of Human Rights, Nations instrument against racial discrimi­ the United Nations and other international nation. Article 5 provides that States Par­ organizations have continuously sought for ties "undertake to prohibit and eliminate new ways and means of promoting respect racial discrimination in all its forms and to for and observance of the human rights and guarantee the right to everyone, without fundamental freedoms set out in the Decla­ distinction as to race, colour or national or ration. A major achievement was the adop­ ethnic origin, to equality before the law" tion in 1966 and entry into force in 1976 notably the enjoyment of the right to of the International Covenant on Eco­ equal treatment before the tribunals and nomic, Social and Cultural Rights, the other organs administering justice. Non­ International Covenant on Civil and Polit­ discdmination is a basic principle which ical Rights and the Optional Protocol. can be found also in the Standard Mini- In addition the United Nations organs 63 EXPERTS' PAPERS concerned adopted a wide variety of resolu­ of All Persons from Being Subjected to tions, decisions, declarations and conven­ Torture and other Cruel, Inhuman or De­ tions designed to accelerate the universal grading Treatment or Punishment elabo­ realization of human rights by all peoples rated by the Fifth United Nations Congress everywhere. Some of these have been of a on the Prevention of Crime and the Treat­ general character while some others have ment of Offenders, provides in Article 6 aimed at ensuring the recognition and full that "each state shall keep with systematic enjoyment of particular rights and, free­ review interrogation methods and practices doms. as well as arrangements for the custody and Over the years the United Nations has treatment of persons deprived of their also sought in many ways to ensure ade­ liberty in its territory, with a view to pre­ quate protection for all against torture and venting any case of torture or other cruel, other cruel, inhuman or degrading treat­ inhuman or degrading treatment or pun­ ment or punislunent. It has moreover ishment." adopted particular standards applicable to In 1975 the General Assembly called for persons deprived of their liberty, has out­ the preparation of a draft code for conduct lawed particular forms of treatment and for la'Y enforcement officials and the for­ punislunent and has initiated studies lead­ mulation of a body of principles for the ing to the preparation of various interna­ protection of all persons under any form of tional instruments providing some meas­ detention or imprisonment. The Code of ures of protection to incarcerated persons. Conduct for Law Enforcement Officials, One of the main purposes of international adopted by the Assembly in 1979 provides action in the field of human rights is to ex­ in Article 5: tend the lin1its of the protection at national "No law enforcement official may in­ and international levels. flict, instigate or tolerate any act of At the national level, states by volun­ torture or other cruel, inhuman or de­ tarily accepting human rights instruments grading treatment or punislunent." undertake to put into effect the domestic A commentary attached to the article laws, regulations or administrative provi­ points out that although the term "cruel, sions of those instruments. Under Article inhuman or degrading treatment or pun­ 64 of the Charter, the Economic and Social ishment" has not been defined by the Gen­ Council may make arrangements with the eral Assembly it should be interpreted so as United Nations Members and the special­ to extend the widest possible protection ized agencies to obtain reports on steps against abuses, whether physical or mental. taken to give effect to its recommendations A draft Body of Principles for the Pro­ and to recommendations on matters falling tection of All Persons under Any Form of within its competence made by the General Detention or Imprisonment prepared by Assembly. the Sub-Commission in 1978 provides in At the international level, the United Article 19: Nations plays an important normative role "1. No detained person shall be com­ and regarding the protection of rights of pelled to testify against himself. offenders and victims, the United Nations 2. No detained person while being has adopted a number of international in­ interrogated shall be subjected to vio­ struments and standards (Re. Standard lence, threats or methods of interroga­ Minimum Rules for the Treatment of Pris­ tion which impair his freedom of deci­ oners) which have been accepted generally sion or his judgement. to be good general principles and practice 3. No detained or in1prisoned person in the treatment of prisoners. They are shall, even with his consent, be sub­ rules to guard against mistreatment, par­ jected to any medical or scientific ex­ ticularly in connection with the enforce­ perimentation which may be detri­ ment of discipline and the use of instru­ mental to his health." ments of restraint in penal institutions. The urgent need for further effective The 1975 Declaration on the Protection international action to protect the human

64 INTERNATIONAL CO-OPERATION rights of prisoners and detainees, not only graphical distribution. The Government of against torture but also against mistreat­ Japan has just contributed 500,000 US ment is clearly documented by material dollars to the Fund. received by the Secretary-General from At the Seventh Congress on Crime Pre­ non-governmental organizations and pre­ vention particul(l.r attention was given to sented in summary form to the Sub-Com­ the question of the human rights of victims mission at each session since 1976. and many delegations stressed that the Every year the Sub-Commission analy­ time had now come for the adoption of a ses and reviews information on the rights Declaration with regard to victims. of prisoners and detainees, and, by publish­ ing such analyses, seeks to mobilize inter­ 2. The International Labour Organization national opinion against certain practices. Since its establislmlent in 1919 as an Recommendations are also made with re­ autonomous institution associated with the gard to practical action which could be League of Nations, ILO's main concern has taken by law enforcement agencies to been the formulation of international la­ pr~vent the commission of excesses. bour standards and their effective imple­ In the recent past the United Nations mentation. attention was called upon the victims of The International Labour Conference crime while in recent years considerable has gradua.lly built up a body of interna­ progress had been made to improve the tional labour conventions and recommen­ situation of victims. There was wide ac­ dations, many of which deal with such hu­ ceptance of the view that victims had for man rights problems as the protection of too long received insufficient attention arrested or detained trade-union activists. from criminal justice systems, especially in cases of torture. 3. The World Health Organization In 1978 the General Assembly by its The Constitution of the WHO was resolution 33/174 of 20 December estab­ adopted on 22 July 1946 by the Interna­ lished the United Nations Trust Fund for tional Health Conference and came into Chile to receive contributions and distrib­ being on 7 April 1948. Although WHO has ute, through established channels of as­ not adopted international instruments in sistance, humanitarian, legal and financial the field of human rights, it played an aid to persons whose human rights had important part in the preparation of the been violated by detention or imprison­ Principles of Medical Ethics relevant to the ment. role of health personnel, particularly Two years later the General Assembly physicians, in the protection of prisoners requested the Commission on Human and detainees against torture and other Rights to study the possibility of extending cruel, inhuman or degrading treatment or the mandate of the United Nations Trust punishment adopted in 1982 by the Gen­ Fund for Chile to persons whose human eral Assembly. rights had been grossly violated as a result of gross and flagrant violations of their 4. The United Nations High Commissioner human rights and to relatives of persons in for Refugees those categories. As an integral part of the United Na­ In 1981 the Fund was redesigned as the tions system, the UNHCR participates United Nations Voluntary Fund for Vic­ fully in all arrangements for co-operation tims of Torture. within the system. It deals mainly with The Fund is administered by the Secre­ protection of refugees and returnees. tary-General with advice of a Board of trustees composed of five members with Training and Research wide experience in the field of human rights, acting in their personal capacity, In addition to elaborating principles, who are appointed by the Secretary­ setting standards and ensuring the observ­ General with due regard to equitable' geo- ance of human rights and fundamental 65 EXPERTS' PAPERS

freedoms, the United Nations bodies have to the interest expressed by the Govern­ endeavoured to promote respect for those ment of Uganda to provide consultative rights and freedoms through research, the advisory services and other appropriate as­ preparation of studies, and teaching at sistance to help that government take every level of formal and informal educa­ measures to continue guaranteeing the en­ tion. joyment of human rights paying particular In recent years, United Nations organs attention to inter alia the "need for the have devoted considerable time to search training of prison officers with a view to for new ways and means of ensuring to securing the application of recognized everyone the enjoyment of human rights norms of treatment of prisoners" and "the and fundamental freedoms. In this endeav­ need for the training of police officers, our they have considered a variety of pro­ particularly investigative and scientific posals for inlproving the co-ordination of experts. " human rights activities within the United (2) Fellowships Nations system. Fellowships are awarded under the pro­ gramme of advisory services in the field of T)'aining of personnel human rights with a view to providing Between 1953 and 1955 the Secretary­ young persons entrusted with functions General was authorized by the General important to the promotion and protection Assembly and the Economic and Social of human rights in their countries with an Council to make provision, at the request opportunity to broaden their professional of governments and with the co-operation knowledge and experience by acquainting of the specialized agencies where appropri­ themselves with advanced methods and ate, for certain forms of assistance with tec1miques in this field. Most fellowships respect to human rights. The programme are awarded for periods from 2 to 3 was designed to give government officers months and go to candidates nominated by and gualified students an opportunity to their governments on the basis of their share their experience and exchange qualifications and position. Among the knowledge on ways of promoting the full recipients of fellowships have been judges, enjoyment of human rights by everyone. prosecutors, senior police officials, instruc­ (1) Advisory services of experts tors at police academies, officials responsi­ In recent years, experts on questions ble for the preparation of legislation, relating to human rights were provided to officials of ministries of justice, etc .... advise and assist governments of some Many of those receiving fellowships have countries in their efforts to restore to their used their awards to observe and study countries a democratic system, respectful eXisting procedures and various facets of of human rights and fundamental free: the administration of justice. In particular doms. governments have proposed that their ad­ (a) Equatorial Guinea ministrative and judicial officials be given In 1981 the Economic and Social Coun­ the opportunity to observe abroad such cil expressed its readiness to assist the procedures as techniques for ensuring the Government of Equatorial Guinea, at its rights of the accused to a speedy trial, pro­ request, in the task of restoring human tection of the accused in the preliminary rights in that country and requested the investigation of criminal offences, methods Secretary-General to draw up a plan of of interrogation of suspected or accused action aimed at implementing the recom­ persons, and ways of protecting the right mendation submitted by an expert, Profes­ of such persons to communicate with sor Jimenez appOinted by the Secretary­ lawyers, family members and friends. Gov­ General. ernments have also nominated administra­ (b) Uganda tive and judiCial officials to observe the In 1982 the Council approved a decision working of various remedies against the by the Commission on Human Rights to abuse of authority, administrative tribunals request the Secretary-General in response and the role of the ombudsman. 66 INTERNATIONAL CO-OPERATION

(3) Regional training seminars tion or other instrument. In 1963 the Economic and Social Coun­ I will mention in this context the fol- cil requested the Secretary-General to con­ lowing studies: sider the organization of regional training Study on the Right of Everyone to be courses in human rights. The first pilot Free from Arbitrary Arrest, Detention project in group training for human rights or Exile prepared by the Committee on fellows was held at UNAFEI in Japan and the Right of Everyone to be Free from was concerned with human rights in the Arbitrary Arrest, Detention or Exile administration of justice. consisting of four members of the A second one was held in Japan in Commission on Human Rights elected 1972, in Egypt in 1973, Costa Rica in by the Commission. 1975 and Australia in 1976. In 1977 Japan Study on the Equality in the Adminis­ held again a seminar on the "safeguards tration of Justice prepared by Mr. Abu against the deprivation of the right to Rannat, Special Rapporteur appointed liberty and security of persons" and in by the Sub-Commission in 1963. 1981 Australia hosted the seminar on Study on the Question of human rights human rights guaranteed in the administra­ of persons subjected to any form of tion of criminal justice. detention or imprisonment prepared by Mrs. Nicole Questiaux, Special Rap­ Research porteur appointed by the Sub-Com­ Under Article 13 of the United Nations mission in 1977. Charter, the General Assembly may initiate In recent years there has been a con­ studies for the purpose of promoting inter­ siderable upsurge of interest in the victims national co-operation in the economic, of crime. Although attention has long been social, cultural, educational and funda­ focused primarily on the offender, the con­ mental freedoms. tributions of victimologists and victims Under Article 62, the Economic and advocates have helped to draw attention to Social Council may make or initiate studies the needs of victims and to the possibilities for the same purposes with a view to for more effective and informed action on promoting respect for and observance of their behalf. human rights for all, and may prepare draft At the international level the necessity conventions for submission to the Assemb­ of a more scientific approach is felt, the ly with respect to matters falling within its development of basic norms and guidelines competence. seems to be the most important step, but Both the General Assembly and the other steps are also needed. The develop­ Economic and Social Council and many of ment of data systems, which would include their subsidiary bodies have initiated stud­ world-wide indicators of the extent and ies of various aspects of human rights. Most trends of different kind of victimization of these studies have been carried out by and victims, and studies on the efficacy of the staff of the Centre for Human Rights the modalities available to deal with them. but others have been undertaken by com­ in light of the existing needs could facil­ missions, committees, working groups or itate the formulation of more effective and individuals possessing special knowledge or appropriate strategies. The role of the competence. Most of the studies were in­ United Nations in this respect could be of tended to provide the United Nations body great importance mainly through technical concerned with information on the existing assistance, fellowships, promotion of tech­ situation, in law and in fact, with respect nical co-operation among countries. to particular human rights aspects, so that Non-governmental organizations have a it could consider all the facts before decid­ special role to play in this regard, since ing upon a source of action. In many cases they have an independence and impar­ the preparation of a study constituted the tiality that permit them to plead the case preparatory work leading up to the draft­ of many victims who have no one to speak ing of an international convention, declara- on their behalf. Through associations of

67 EXPERTS' PAPERS

victims they can play a leading role in re­ and exile. Emphasis should be placed on search and assistance. the completion and speedy adoption of all those projects which are designated to Conclusion strengthen the existing arsenal of interna­ tional instruments, special care being taken At the international level a number of to provide supervisory bodies to act in instruments have already been adopted: a cases of emergency, without which such draft body of principles for the protection instruments would only be able partially to of persons under any form of detention or fulm their functions. imprisonment, a Convention against torture As regards victims, assistance should be and other cruel, inhuman or degrading provided to aid in action-oriented victim treatment or punishment, a draft Code of research and the most effective means of Medical Ethics. Some other means are in dealing with this new aspect of crimi­ preparation such as the Draft Principles on nality. Freedom from arbitrary arrest, detention

68

, ------SECTION 2: PARTICIPANTS' PAPERS

The Protection of Rights of Offenders and Victims of Crime in Fiji

by Nazhat Shameen Khan *

Introduction There is a right of appeal from trials (both civil and criminal) in the Supreme Court In this paper I will outline firstly the to the Court of Appeal, and a right of ap­ system of criminal justice in Fiji, secondly peal on a point of law from a decision of the statutory provisions relating to the the Supreme Court on an appeal from the treatment of persons awaiting trial, under­ Magistrate's Court. going trial and the treatment of offenders The Supreme Court of Fiji has a Chief after sentencing, and thirdly provisions for Justice (who is also the President of the the treatment of victims of crime in Fiji. Court of Appeal) and seven puisne judges. The Court has unlimited jurisdiction and The Fiji System of Criminal Justice can hear civil and criminal matters which lie outside the jurisdiction of the Magis­ The Fiji Islands were a colony of the trate's Courts. British Empire from 10 October 1874 to The Magistrate's Courts can hear most 10 October 1970. The system of justice is cases except for certain very grave cases British and the Constitution of Fiji pre­ which must be heard by the Supreme serves both the common law and the West­ Court such as murder and treason. All minster Parliamentary Government. other cases are triable in the Magistrate's The Constitution also provides for an Courts but in respect of many offences the Attorney-General, a Chief Justice, Director accused has a right to elect trial by the of Public Prosecutions, an Ombudsman, Supreme Court. Before an accused is com­ Judges of the Supreme Court and Court of mitted to trial to the Supreme Court a Appeal and a Judicial and Legal Services preliminary inquiry must be held in the Commission which is responsible for legal Magistrate's Court. and judicial appointments. The Magistrate's Courts also hear do­ The courts in Fiji are the Fiji Court of mestic "and juvenile cases. At pmsent in Appeal, the Supreme Court and the Magis­ Fiji, one of the main problems is the back­ trate's Court. There is a right of Appeal to log of cases in the Supreme Court. This is the Privy Council in London from Fiji partly due to the increase in crimes for Court of Appeal decisions on matters con­ which there is a right of election to the cerning the interpretation of the Constitu­ Supreme Court, and partly due to the tion or on an application concerning the increase in accused persons who prefer to fundamental rights and freedoms of a per­ be tried by the Supreme Court. This mat­ son granted by the Constitution. In civil ter will be dealt with in more detail later matters there is a right of appeal where the on in this paper. property or matter in dispute is valued in excess of F$l ,000. Rights of Offenders In criminal cases leave to appeal to the Privy Council must be sought from the Fiji protects the rights of accused per­ Judicial Committee of the Privy Council. sons awaiting trial by statutes protecting the liberty of individuals, bail provisions and legal aid. During trial, the. system of criminal * Crown Counsel, Office of the Director of Public Prosecutions, Fiji. justice is based on the concept that accused

69 PARTICIPANTS' PAPERS persons are presumed to be innocent until police interrogation and detention in ac­ they are proved guilty. In addition accused cordance with the development of English persons are entitled to free legal representa­ law. The case conforms with the principles 'tion in serious cases. laid down in Christie v. Leachinsky (1974) After sentence has been passed there are AC 573 and Rice v. Connoly (1966) 2 QB a number of alternatives to penal institu­ 414. tions including compulsory supervision Police interrogation in Fiji is governed orders and parole. by the Judges Rules (issued by the Su­ preme Court Judges of Fiji by Notice in Pre-Trial Rights of Defendants 1967 Cap. 13) which are incorporated into a) Arrest: The police may arrest persons the Force Standing Orders of the Royal with or without warrants. Section 21 of Fiji Police. the Criminal Procedure Code give:; the The Rules are Rules of Practice and are police powers to arrest without warrant not legally enforceable. However breaches any person whom he suspects upon reason­ of the Judges Rules may result in caution­ able ground)l of having committed a cogni­ ed statements being declared inadmissible zable offence (these offences are specified in trials and will be considered when the in the Code), any person who commits any trial judge decides whether the statement offence in the presence of an officer, any given by the accused was admissible or not. person who obstructs the police or escapes In practice the Judges Rules are very from lawful custody and any person found seriously considered by trial judges and on in possession of stolen goods. more than one occasion in 1986 in the Fiji The method of arresting a person re­ Supreme Court, confessions made by quired of police officers in Fiji conforms defendants were declared to be inadmis­ with the provisions of Article 9 of the sible. As a result the police are taking more International Convenant on Civil and care to adhere strictly by the Judges Rules Political Rights. when questioning suspects. In the case of R v. Ponipate Lesavua and b) Bail: Section 26 of the Criminal Sakeasi Yabia Criminal Case No. 927 of Procedure Code, Cap. 21 gives senior police 1985 in the Suva Magistrate's Court, two officers the power to release accused per­ police officers were convicted of unlawful­ sons on bail with or without sureties to ly detaining persons without arresting appear before a Magistrate's Court at a them. stipulated time unless the offence appears In that case the then Chief Magistrate of to the officer to be a serious one. If it is Fiji Mr. Gordon Ward said: not serious the accused persons is entitled "A police officer may only detain a per­ to bail as of right. son when he has arrested him. Any Similarly Section 108 of the Criminal detention, without arrest for example, Procedure Code provides: to question a suspect is unlawful and a "(1) ..... where any person, other than a serious interference with a citizen's person accused of murder or treason, is liberty. There is not, and never has been arrested or detained without warrant by a power to detain or arrest without a a police officer or appears or is brought warrant any person to help with en­ before a court and is prepared at any quiries or to be questioned and anyone tinle while in the custody of such of­ so asked is entitled to refuse to go with ficer or at any stage of the procee-dings the officer unless and until he if. told he before such court to give bail, such per­ is being arrested and the reason for his son may in the discretion of the officer arrest." or court be admitted to bail with or This case did not lay down any new law. without a surety or sureties and, in the However it demonstrates the willingness of case of a court, subject to such condi­ the Fiji Courts to uphold the liberty of the tions and limitations as the court may individual and to restrict the bounds of think it fit to impose.

70 RIGHTS OF OFFENDERS AND VICTIMS: FIJI

(2) The amount of bail shall be fIxed right of appeal, rights of juveniles, right to with due regard to the circumstances of compensation and the concept of autrefois the case and shall not be excessive." acquit or convict. The discretion under Section 108 is The laws of Fiji already incorporate the therefore wider than the discretion given to above principles either by statute or in police offIcers under Section 26 where it is common law. The Constitution for in­ provided that bail shall be granted unless stance establishes the right to a public hear­ the offence is serious. ing and the presumption of innocence. In practice in Fiji bail is granted in all except the most serious cases or in cases 1. The Judiciary where the accused has frequently been in In respect of the judiciary Section 90 of breach of bail conditions. the Constitution provides - It should be noted here that absconding a) The Chief Justice shall be appointed while on bail has caused an increase in the by the Governor-General acting after number of cases pending trial in the Fiji consultation with the Prime Minister courts because it sometimes takes months and the Leader of the Opposition. for the police to trace defendants who have b) The puisne judges shall be appointed absconded. I intend to go into this in by the Governor-General acting after greater depth under Treatment of offend­ consultation with the Judicial & ers during trial. Legal Services Commission. Those defendants charged with murder In practiCf judges are either selected and treason are not entitled to bail. In from local seruor members of the bar who some cases, they may be remanded in have shown a high standard of professional custody for up to a year awaiting trial. The behaviour or from expatriate applicants reasons for this delay are varied, but the who have acted as judges or magistrates in main one is the large back-log of cases in other jurisdictions. At present in Fiji there the Supreme Court. The situation is there­ are ,5 expatriate magistrates and 8 local fore far from satisfactory particularly as magistrates. On the Supreme Court bench delay occurs despite the fact that murder there are 4 expatriate judges and 3 local cases and all cases in which the accused is judges including the Chief Justice Sir detained in custody pending trial, are given Timoci Tuivaga. priority in the Supreme Court. Again I will Every year, four Supreme Court Ses­ deal with this situation under the next sions in Suva, four in Lautoka and three in category. Labasa in the Northern Division, deal with In practice the provisions regarding bail criminal cases. In Suva two criminal Su­ are satisfactory in Fiji from the accused's preme Courts sit simultaneously - in point of view. Lautoka and Labasa only one court sits.

Treatment of Offenders During Trial 2. Delay The most important problem facing the Article 14 of the Covenant provides that Supreme Court in Fiji is the severe back-log accused persons are entitled to a fair and of cases. This is also a problem in some public hearing by a competent independent Magistrate's Courts. While in Magistrate's and impartial tribunal established by law. Courts the cases are not diffIcult to pin­ All accused persons are presumed to be point - that is, the shortage of magistrates innocent until proved guilty and paragraph and courts in which to house them; the 3 (a) provides for understanding of the main causes in the Supreme Court are not charge, choice of counsel, trial without so easy to identify. delay and in his presence, the right to ex­ The following table shows the increase amine witnesses, the right to an interpreter by 1985 in the number of cases to be dealt and the right not to be compelled to con­ with in the Supreme Court annually since fess guilt. The Article also deals with the 1976.

71 PARTICIPANTS' PAPERS

1976 63 cases to be heard in the Supreme Court 1977 28 may not guarantee less delay since there is 1978 42 also a backlog in the Magistrate's Court. 1979 27 Nevertheless cases, particularly the less 1980 52 serious ones, are more speedily dealt with 1981 47 in the Magistrate's Courts, and, it must be 1982 79 added, just as fairly. The following points 1983 80 should also be taken into account: 1984 118 a) There are at present a number of of­ 1985 126 fences for which there is no right of election to the Supreme Court and to The causes for the increase are numer­ which the Law Society has taken no ous, and the result is a backlog of cases, exception at all. These include Com­ delay in healing cases and increased pres­ mitting Nuisance, Selling Noxious Food, sure on prosecutors, court officials and Defilement of a Girl under Sixteen and judges. Attempted Rape. It is clear that the increase in crime rate b) Even without the consent of the is one of the more important reasons. The accused, all cases are triable by the Su­ table shown in Appendix D shows the preme Court. A Magistrate can exercise increase in the crime rate since 1976. his discretion under Section 220 to send An important factor which has helped a case up to the Supreme Court for trial. to create the backlog in the Supreme Court Section 220 provides that - is the number of accused persons who have "If before or during the course of a cases pending in the Supreme Court who trial before a Magistrate's Court it have disappeared and against whom bench appears to the Magistrate that the warrants have been issued. It is ofton the case is one which ought to be tried case that 011 a date set for hearing the ac­ by the Supreme Court or if before cused fails to appear which not only causes the commencement of the trial an inconvenience and expense, it also means application in that behalf is made by that no other case can be called on that a public prosecutor that it shall be so day or for another three days because the tried, the Magistrate shall not pro­ Criminal Procedure Code requires three ceed with the trial but in lieu thereof clear days for a trial date to be set. he shall hold a preliminary inquiry ... " Another probable cause is the increase Section 220 therefore also gives to the in the number of persons electing Supreme prosecutor the right to elevate a case to Court trial. Often some very minor cases of the Supreme Court. Larceny from Person concerning up to $10 c) Trials in the Magistrate's Courts are come up to the Supreme Court for trial. It disposed of fairly quickly in comparison may be the situation that accused persons with the Supreme Court. In the Magis­ f~el that a trial before a judge and assessors trate's Court there will be no prelimi­ may be fairer than a trial in the Magis­ nary inquiry, no trial within a trial or trate's Court. However, the severe backlog voir dire, no need for an opening ad­ in the number of cases caused the question dress to assessors to explain the proce­ of delay and the principle "Justice delayed dure and the burden of proof and no is justice denied" to be raised in Parlia­ need to wait for the next criminal ses­ ment. However the moves by the Attor­ sions. ney-General to limit the types of cases in Thus for the above reasons a reduction which there is a right of election caused a in the number of cases for which the wave of violent opposition by the Law consent of the accused is allowed before a Society of Fiji. The Law Society cited the case is tried in the Magistrate's Court may accused's constitutional right to a fair trial. have the result of reducing delay in the However, a reduction in the number of hearing of trials.

72 RIGHTS OF OFFENDERS AND VICTIMS: FIJI.

Another possible solution is of course then briefs any barrister and solicitor who to provide more judges, magistrates and is willing to accept the brief. In choosing courts. A new court complex was proposed the lawyer the Chief Registrar may accept some years ago but as yet no practical suggestions from the accused himself. move has been made to commence build­ In practice the Supreme Court has funds ing. In addition an urgent need for more only to grant legal aid in serious cases of magistrates and judges is balanced with the murder and manslaUghter. All other ap­ need for members of the bench who are plications are usually unsuccessful. independent, well-qualified and of a high It is evident therefore that the legal aid standard of professional integrity. It would system in Fiji is far from satisfactory. The be a mistake to compromise the latter for definition of "poor person" is far from the former. satisfactory and excludes a number of deserving cases. In practice legal aid is only 3. Legal Representation available in cases of murder and manslaugh­ Accused persons are in Fiji given every ter which excludes complicated cases such opportunity to obtain counsel for their as fraudulent conversion and fraudulent defence. Suspects do not have the right to falsification of accounts which require legal have a lawyer present during police inter­ expertise. rogation. The Fiji Law SOciety attempted in 1984 In the Fiji case of R v. Shiv Narayan to set up a "Duty Solicitor Scheme" Lautoka Supreme Court Case No.2 of wherein barristers and solicitors in Suva 1980 Williams J stated- were required each day according to a "There is no legislation to the effect roster, to attend the cells at the courthouse that a suspect has the right to have a to give impromptu advice to accused lawyer present during the entire course persons remanded in custody pending trial of his interview with the police. Art. on the same day. This scheme was of 5(3) (b) of the Constitution of Fiji course a limited one, but nevertheless it states that an accused shall be afforded was an attempt at a legal aid system. The reasonable facilities to consult his law­ scheme was not a success due to lack of yer.... I am not aware that there is an committment to it on the part of practi­ established common lawright to have a tioners, and it has not been revived. lawyer present through an interview when one is led by the police." 4. The Trial Proper Legal representation in Fiji is not free. Section 10 (2) of the Constitution of The Legal Aid Act Cap. 15 of the 1978 Fiji provides for the presumption of inno­ Laws of Fiji enables the Chief Justice to cence. The burden lies on the prosecution make rules for legal aid to be granted to to prove the accused's guilt. In practice the "poor" persons. prosecutor is expected to be fair and to be The Legal Aid Rules provide that "a concerned primarily with the impartial poor person" is a person who is not posses­ administration of justice. sed in Fiji or elsewhere, of money or prop­ The Director of Public Prosecutions erty, other than wearing apparel, the value under Section 85 of the Constitution has of more than $200. the power to undertake and institute crim­ The Legal Aid Rules provide that Legal inal proceedings before any court of law, Aid may be granted by the President ofthe to take over and continue any criminal Court of Appeal to the Privy Council, or to proceedings and to discontinue at any stage the Court of Appeal and by the Chief before judgment is delivered any criminal Justice for trials in the Supreme Court or proceedings. These powers may be exercis­ the Magistrate's Court. ed by him in person or hy any person act­ Applications are made on a form to the ing on his instructions. The DPP is not sub­ Chief Registrar of the Supreme Court. If ject to the direction or control of any legal aid is granted the Chief Registrar other person or authority.

73 PARTICIPANTS' PAPERS

The DPP may enter a nolle prosequi to in sentencing. discontinue proceedings in cases where £) Provision for a wider range of sen­ witnesses are unavailable, for policy rea­ tencing options such as Community sons and where it would be unfair to Work Orders and Community Car proceed. Often it is considered fairer for Orders. the prosecution to withdraw a charge g) Rehabilitation. resulting in an acquittal for the accused h) A provision that fine and mainte­ than to enter a nolle prosequi which is no nance defaulters should not be impris­ bar to fresh proceedings being commenced oned. against the same accused. i) Introduction of a comprehensive legal Accused persons have the right to have aid scheme. an interpreter, and the same procedural rights which apply under English law for 1. The Fijian Courts trials apply also to Fiji. Much support has been given to the idea of introducing a new Fijian Legal System Treatment of Offenders After Sentence in which villages have their own courts to administer justice in the traditional Fijian First offenders in Fiji are sometimes way. This was approved in a meeting of the sentenced to imprisonment. It has been Great Council of Chiefs despite reserva­ accepted by the Fiji Law Reform Com­ tions expressed as to the practicality of the mission in its Penal Policy Review Report scheme and the possible conflict with the that imprisonment should be used as a state courts. It has been suggested that if punishment of last resort so far as that is Fijians have their own courts then Muslims practicable. However, the rights of the and Hindus also have the right to demand victim is considered as important as the an introduction of traditional Muslim and rights of the offender, and increasing pres­ Hindu courts. However the mechanics of sure from the public is put on the courts to the scheme are still under discussion balance the rights of both. although the idea in principle has been In June 1986, the Law Reform Commis­ a.pproved in respect of certain types of sion recommended that penal policy offences. should place a new emphasis of the rights of victims, that penal policy should ensure 2. Rights of the Victim that an offender does not profit from his Section 161 and 162 of the Criminal crime, and that new emphasis should be Procedure Code provide for compensation placed on compensating a victim for prop­ to be awarded to victims and innocent erty loss. persons by the accused. Section 164, 165, The Law Reform Commission also 166,167 and 168 related to the restoration recommended that legislative guidelines be of property, real and personal to victims of enacted to provide for inter alia: crime. There is no provision for compensa­ a) The in1prisonment of offenders who tion to be paid to victims by the state commit crimes of violence (with certain except of course by civil action. Often in exceptions). cases of break-ins or larceny by accused b) The principle that offences against persons who are unemployed and without property should be dealt with different­ means, victims are left with no financial ly to offences against the person. redress at all. c) Protection of the rights of victims. In respect of victims of rape and domes­ d) Encouragement of the incorporation tic violence a new body called the Women's of traditional and cultural motions of Crisis Centre has been set up in Suva, justice provided they are compatible which is partially subsidised by the govem­ with the established system of crin1inal ment. It deals not only with victims of justice. reported rapes and violence, but also with e) Special regard to custom and culture cases in which the victin1s want no public-

74 RIGHTS OF OFFENDERS AND VICTIMS: FIJI ity and simply require counselling. lems facing the administration of justice in In 1986 about 100 women came to the Fiji today. Crisis Centre for support, counselling and However, with perseverance the chan­ legal advice. Help at the Centre is free and nelling of available resources to improve the Centre has an office in central Suva. facilities and the gradual building of more Much concern has been expressed in courts to house more magistrates and recent months by the public about the justices, some of these problems may be number of offenders who are released as solved in the near future. extra-mural prisoners and on compUlsory For the rest, the basic system of crimi­ supervision orders. Often these are the of­ nal justice, based as it is on constitutional fenders who re-offend. Since 1984, 200 rights, the presumption of innocence and prisoners were released on CSO. In Octo­ individual liberty holds hope for a country ber 1986, public outcry resulted when a which is still developing and which depends Marketing Manager of Rewa Dairy Co­ on justice and democracy for further operative Ltd., convicted of fraudulent peaceful development. conversion and sentenced to 2 years im­ prisonment, was released after 2 months on Appendix A CSO. Questions were asked in Parliament, and as a result, all further grants on CSOs Section 10 Constitution of Fiji, have been suspended. Cap. 1 Ed. 1978 The decision of the Minister for Home Affairs has also been the subject of Judicial Provisions to secure protection of law Review by the DPP as to the considerations 10. (1) If any person is charged with a taken into account before the offender was criminal offence, then, unless the charge is released in that case. It is clear that the withdrawn, the case shall be given a fair public in Fiji are concerned about the con­ hearing within a reasonable time by an in­ dependent and impartial court established sequences of releasing prisoners too early. by law. The laws of Fiji have not placed enough (2) Every person who is charged with a emphasis on the rights of victinlS, or of­ criminal offence - fenders. Prisons are over-crowded, few (a) shall be presumed to be innocent victims are given redress for their loss, the until he is proved or has pleaded court system is a frightening one for a vic­ guilty; tim of rape or violence and not enough (b) shall be informed as soon as rea­ attention is paid to the principles of reha­ sonably practicable, in a language bilitation and compensation. The balancing that he understands and in detail, of the nature of the offence; of the rights of victims and offenders is, of (c) shall be given adequate time and necessity, a delicate one. facilities for the preparation of his However, with the implementation of defence; the recommendations of the Fiji Law (d) shall be permitted to defend him­ Reform Commission the balance may be self in perSall or, at his own expense, achieved. by a legal representative of his own choice or, where so prescribed, by a Conclusion legal representative provided at the public expense; The system of criminal justice in Fiji is, (e) shall be afforded facilities to ex­ in practice, not without its faults. The amine in person or by his legal backlog of cases in the Magistrate's Courts representative the witnesses called by the prosecution before any court and and Supreme Courts, the delays in trials, to obtain the attendance and carry the inadequacy of the legal aid provisions out the examination of witnesses to and compensation provisions, over-crowd­ testify on his behalf before that ing in prisons and minimal regard for the court on the same conditions as rights of victinlS are just some of the prob- those applying to witnesses called by

75 } "'J,.~~S'I.~.l"~~.$ffl~~l'jl~~":~.l~~"!~.,:r,,,,.~,~!;.~~b_~~~~~<'"I'."~j"'r·'''''''''-'''·'':_'''<'''·v''''''''''~'~ ,-'" :~, PARTICIPANTS' PAPERS

the prosecution; and such a court or other authority the case (f) shall be permitted to have with­ shall be given a fair hearing within a reason­ out payment the assistance of an able time. interpreter if he cannot understand (9) Except with the agreement of all the language used at the trial of the the parties thereto, all proceedings of every charge, court and proceedings for the determina­ and, except with his own consent, the trial tion of the existence or extent of any civil shall not take place in his absence unless he right or obligation before any other author­ so conducts himself as to render the con­ ity, including the announcement of the tinuance of the proceedings in his presence decision of the court or other authority, impracticable and the court has ordered shall be held in public. him to be removed and the trial to proceed (10) Nothing in the preceding subsec­ in his absence. tion shall prevent the court or other au­ (3) When a person is tried for any thority from excluding from the proceed­ criminal offence, the accused person or any ings (except the announcement of the person authorized by him in that behalf decision of the court or other authority) shall, if he so requires and subject to pay­ persons other than the parties thereto and ment of such reasonable fee as may be pre­ their legal representatives to such extent as scribed, be given within a reasonable time the court or other authority - after judgment a copy for the use of the (a) may by law be empowered to do accused person of any record of the so and may consider necessary or proceedings made by or on behalf of the expedient in circumstances where court. publicity would prejudice the inter­ (4) No person shall be held to be ests of justice, or in interlocutory guilty of a criminal offence on account of proceedings, or in the interests of any act or omission that did not, at the public morality, the welfare of per­ time it took place, constitute such an of­ sons under the age of eighteen years fence, and no penalty shall be imposed for or the protection of the private lives any criminal offence that is severer in of persons concerned in the proceed­ degree or description than the maximum ings; or penalty that might have been imposed for (b) may by law be empowered to do that offence at the time when it was com­ so in the interests of defence, public mitted. safety or public order. (5) No person who shows that he has (11) Nothing contained in or done been tried by a competent court for a crim­ under the authority of any law shall be inal offence and either convicted or acquit­ held to be inconsistent with or in contra­ ted shall again be tried for that offence or vention of - for any other criminal offence of which he (a) subsection (2) (a) of this section could have been convicted at the trial for to the extent that the law in question that offence, save upon the order of a imposes upon any person charged superior court in the course of appeal or with a criminal offence the burden of review proceedings relating to the convic­ proving particular facts; tion or acquittal. (b) subsection (2) (e) to this section (6) No person shall be tried for a crim­ to the extent that the law in question inal offence if he shows that he has been imposes reasonable conditions that granted a pardon, by competent authority, must be satisfied if witnesses called for that offence. to testify on behalf of an accused (7) No person who is tried for a crim­ person are to be paid their expenses inal offence shall be compelled to give out of public funds; or evidence at the trial. (c) subsection (5) of this section to (8) Any court or other authority re­ the extent that the law in question quired or empowered by law to determine authorises a court to try a member of the existence or extent of any civil right or a disciplined force for a criminal of­ obligation shall be established by law and fence notwithstanding any trial and shall be independent and impartial; and conviction or acquittal of that mem­ where proceedings for such a determina­ ber under the disciplinary law of that tion are instituted by any person before force so, however, that any court so

76 RIGHTS OF OFFENDERS AND VICTIMS: FIJI

trying such a member and convicting ing; him shall, in sentencing him to any (i) any released convict committing a punishment, take into account any breach of any provision prescribed by punishment awarded him under that section 46 of the Penal Code or of any disciplinary law. rule made thereunder; (12) For the purposes of subsection (2) G) any person for whom he has reason­ of this section a person who has been serv­ able cause to believe a warrant of arrest ed with a summons or other process requir­ has been issued. ing him to appear at the time and place ap­ pointed for his trial and who does not so Appendix C appear shall be deemed to have consented to the trial taking place in his absence. Section 26 and 10 8 of the Criminal Procedure Code, Cap. 21 Ed. 1978 Appendix B Detention of persons arrested without Section 21 - Criminal Procedure Code, warrant Cap. 21 Ed. 1978 26. When any person has been taken into custody without a warrant for an offence Arrest by police officer without warrant other than murder or treason, the officer 21. Any police officer may, without an or­ of or above the rank of corporal to whom der from a magistrate and warrant, arrest - such person shall have been brought may in (a) any person whom he suspects upon any case and shall, if it does not appear reasonable grounds committed a cogniz­ practicable to bring such person before able offence; an appropriate Magistrate's Court within (b) any person who commits any of­ twenty-four hours after he has been so fence in his presence; taken into custody, inquire into the case, (c) any person who obstructs a police and, unless the offence appears to the officer while in the execution of his officer to be of a serious nature, release the duty, or who has escaped or attempts to person on his entering into a recognizance, escape from lawful custody; with or without sureties, for a reasonable (d) any person in whose possession any­ amount to appear before a Magistrate's thing is found which may reasonably be Court at a time and place to be named in suspected to be stolen property or who the recognizance, but where any person is may reasonably be suspected of having retained in custody he shall be brought committed an offence with reference to before a Magistrate's Court as soon as such thing; practicable: (e) any person whom he suspects upon Provided that an officer of or above reasonable grounds of being a deserter the rank of sergeant may release a person from Her Majesty's Army or Navy or arrested on suspicion on a charge of com­ Air Force; mitting any offence, when, after due police (f) any person whom he finds in any inquirY, insufficient evidence is, in his high way, yard or other place during the opinion, disclosed on which to proceed night and whom he suspects upon rea­ with the charge. sonable grounds of having committed or being about to commit a felony; Provisions as to Bail and Recognizances (g) any person whom he suspects upon reasonable grounds of having been con­ Bail in certain cases cerned in any act committed at any 108. (1) Subject to the provisions of sec­ place out of Fiji which, if committed in tion 26, where any person, other than a Fiji would have been punishable as an person accused of murder or treason, is offence, and for which he is, under the arrested or detained without warrant by a Extradition Act, or otherwise, liable to police officer or appears or is brought be apprehended and detained in Fiji; before a court and is prepared at any time (h) any person having in his possession while in the custody of such officer or at without lawful eX0:,lSe, the burden of any stage of the proceedings before such proving which excuse shall lie on such court to give bail, such person may in the person, any implement of housebreak- discretion of the officer or court be admit •.

77 PARTICIPANTS' PAPERS ted to bail with or without a surety or sure­ 3. Penal policy should ensure that an of­ ties and, in the case of a court, be subject fender does not profit from his crime. to such conditions and limitations as the (Refer para 164) court may think it fit to impose. 4. As a matter of penal policy imprison­ (2) The amount of bail shall be fixed ment should be used a punishment of with due regard to the circumstances of last resort so far as that is practicable the case and shall not be excessive. and consonant with promoting the (3) Notwithstanding anything contained safety of the community. (Refer paras in subsection (1), the Supreme Court may 64-72 and para 156) in any case direct that any person be 5. A policy of "humane containment" as admitted to bail or that the bail required a basic principle in the treatment of by a Magi3trate's Court or police officer be offenders, should be adopted in re­ reduced. spect of the use of imprisonment. This embodies the principle that an of­ Appendix D fender is sent to prison as punishment and not for punishment. (Refer paras Table showing reported Penal Code of­ 79-80) fences and Number of Convictions annual­ 6. Legislative guidftlines should be en­ ly since 1976 acted in Fiji which lay down broad legislative preferences in sentencing Reported Penal Court Cases (Total without undermining the principle of Code Cases Convictions) judicial independence. (Refer paras 122-139) 1976 12,775 4,489 7. A new sentencing statute should be 1977 12,284 4,424 enacted which embodies broad legisla­ 1978 13,141 5,245 tive guidelines and principles relating 1979 12,988 3,859 to sentencing along with specific 1980 12,479 3,448 sentencing dispositions. (Refer paras 1981 12,399 4,334 38-45) 1982 12,829 4,750 8. Legislative guidelines should be en­ 1983 13,812 2,915 acted that in particular provide for: 1984 14,313 3,630 (1) The imprisonment of offenders 1985 14,168 3,040 who commit crimes of violence 1986 15,648 3,015 (with certain exceptions in special circumstances) . Appendix E - Penal Policy Review (2) A primary recognition of a Recommendations - June 1986 victim's rights in dealing with property related offences. Penal Policy Review Report (Part I) (3) A greater recognition of a victim's right to compensation for criminal Summary of Principal Recommendations lllJury. (Refer paras 151-170, Contained in Report 186-189) 1. Penal policy must ensure the criminal (4) That support the principle that of­ justice system upholds the fundamen­ fences against property should be tal rights and freedoms of every person dealt with differently to offences in Fiji under the Constitution, to "life, against the person. liberty, security of the person and the (5) That implements the proposed protection of the law" so that public principle that imprisonment be confidence in the criminal justice sys­ used as a punishment of last tem is maintained. (Refer paras 13-19 resort. (Refer para 4 of this and para 155) summary) 2. Penal policy should place a new em­ 9. Penal policy should ensure that sen­ phasis of the rights of the victim of tencing does not reflect a situation a crime, both in compensating a victim where crimes against the person are for property loss and damage, and for viewed in the same light as crimes personal injury suffered as the result against property. (Refer para 164) ofacrime. (Refer paras 161-190) 10. That the Courts be empowered to take

78 RIGHTS OF OFFENDERS AND VICTIMS: FIJI

into account an offer to make amends 18. That consideration be given setting up and that a specific statutory provision a comprehensive scheme of criminal be introduced to recognize the princi­ legal aid. (Refer para 160) ple. (Refer para 204-205) 19. The rehabilitation of an offender and 11. A proposed new sentence of repara­ his reintegration back into society tion should extend the principle of should be the ultimate goal of the reparation to include reparation in criminal justice system so far as that terms of goods or services in addition offender is concerned. The adoption to an assessed amount of money. of the twin policies of "through care" (Refer paras 174-177) and "after care" should be adopted to 12. Penal policy should encourage the in­ assist in achieving this goal. (Refer corporation of traditional and cultural paras 211-225) notions of justice into the criminal 20. That legislation be introduced to give justice system, providing they are com­ effect to the "living it down" principle patible with, and do not distort the and deal with the problem of old con­ established system of criminal justice. victions. (Refer paras 226-232) (Refer paras 27-32, 203-204) 21. That a new sentence of "preventive 13. The Courts should have regard to mat­ detention" be introduced to deal with ters of custom and culture where the "habitual" sexual offender. (Refer relevant when sentencing an offender. paras 237-255) A wider provision than that presently contained in the Criminal Procedure Appendix F - Fiji Times Editorial- Code should be introduced, 6/1/87 14. The Courts should be provided with a wider range of sentencing options. In Welcome move on crime particular non-custodial community based sentences as alternatives to im­ THE Special Task Force on crime has got prisonment should be introduced. The off to a commendable start with the deci­ community based sentences proposed sion to suspend releasing any more pris­ are- oners on Compulsory Supervision Orders (1) Community work orders, and (CSO). (2) Community care orders The release of certain individuals on The introduction of these proposed CSOs lately caused the Government a spot alternatives to imprisonment are im­ of embarrassment. portant in view of the large number of Besides this, the number of prisoners fine defaulters and young people in able to get out of jail on special orders has prison, many of whom are first of­ become a cause of alarm and concern to a fenders. (Refer paras 16 and 206-207) public worried by a serious increase in 15. Penal policy should encourage commu­ crime. nity participation in the treatment and Even the courts have objected to the rehabilitation of offenders. The com­ liberal use of CSOs which tend to put into munity should be in a strong partner ridicule sentences imposed by the courts. in the criminal justice system. (Refer Figures released in Parliament at its last paras 212-226) session showed that a total of 200 pris­ 16. A network of "community supervi­ oners had been released on CSOs since sors" should be established to assist in 1984. the supervision of community based Although 1984 was the worst year with sentences. The scheme of community 109 CSOs issued - the numbers have dwin­ supervisors should "link" in with the dled since to 57 in 1985 and 37 in 1986 - proposed new Fijian administration. victims of crime have begun to question a (Refer paras 179-180) system of justice where prisoners are able 17. As a matter of general penal policy to get away so lightly. fine defaulters and maintenance de­ However, a complete ban on CSOs is faulters should not be imprisoned not desirable. unless the default is wilful and in There are cases when these early releases effect amounts to a contempt of the are justified either on the grounds of hu­ court order. (Refer paras 103 -120) manity or for the sake of better rehabilita-

79 PARTICIPANTS' PAPERS tion of a prisoner. sion on these orders. But prisoners must be released with ut­ The Government should consider the most discretion and after serious weighing setting up of a body similar to a parole in of all considerations. review board made up of prison author­ This must dictate against vesting in one ities, social welfare workers and lay people person the power to make the final deci- to deal with such matters.

80 Advancement of Fair and Humane Treatment of Offenders and Victims in Criminal Justice Administration

by A.M.M. Nasrullah Khan*

Introduction and Significance fertile land. Average rainfall over the whole year comes to 203 cm. to 230. In Bangla­ Control of crimes and criminals through desh, criminal justice administration is the effective and efficient administration of responsibility shared by a few departments criminal justice is, admittedly, an essential like those of the police, Jail and Judiciary prerequisite for the healthy development of the Ministry of Home and Ministry of of a country and its orderly growth. Equal­ Law. Police in Bangladesh as a law-enforc­ ly important is the task of the criminal ing and investigating agency has, however, justice administration of a country to en­ a main role to play since the real work of sure and implement within the framework treatment begins the moment an alleged of its own legal system fair and humane offender is arrested by the police. Keeping treatment to offenders and victims of in view the subject matter of the seminar j crimes. Constitutional guarantees for rights I propose to discuss below the situation to individual liberty, security, freedom of and laws as available in Bangladesh in this expression and action or against adminis­ regard. trative abuses are available in a democratic set-up or a government based on demo­ Protection of Human Rights cratic values and principles. of Offenders at the Stages of AtTest, On the other hand, contents of various Detention ac'\i Trial international instruments on human rights and related matters incorporated in na­ This is possible if no one is subjected to tionallaws of many countries in this region arbitrary arrest and detenti::l11 and t.ial is provide for the protection of human rights held under due process of law. In Bangla­ of offenders at the stage of arrest, deten­ desh there exists adequate legal provisions tion and trial and at the stage of treatment. to govern the procedure of arrest, deten­ Protection of and assistance to victims of tion and trial processes of an offender crime have also been called for by the without prejudicing his rigllts as guaranteed recent Seventh U.N. Congress in 1985 in in the Constitution of the People's Repub­ Milan (Declaration of Basic Principles of lic of Bangladesh. Thus, Article 33 (1) of Justice for Victims of Crime and Abuse of the Constitution of the People's RepubUc Power). In this context, let us look at of Bangladesh provides enougll safeguards Bangladesh and its existing system of crim­ to the rights of a person and states in an inal justice administration. unequivocal term that a person can be To introduce Bangladesh, it is a tropical arrested and detained only after he is and densely populated country (100 mil­ informed of the grounds of arrest and lion people in 55,000 sq. miles) having a detention. Such person has the inalienable vast stretch of plain and, at the same time, right to consult and be defended by, a legal practitioner for remedy. Under section 54 of the Criminal Pro· cedure Code (hereinafter to be called as the * Deputy Inspector-General of Police, Cr.P .C.) the police have the power to ar· Criminal Investigation Department, rest a person concerned in any cognizable Dhaka, Bangladesh offence. But under Article 33 (2) of the

81 PARTICIPANTS' PAPERS

Constitution as well as Section 61 of the certain cases of .prolonged detention of Cr.P.C., it is mandatory for the arresting persons in jail awaiting trial have come to authority to produce such person before our notice. Some of the important reasons the nearest magistrate for order within are given below:- twenty-four hours of such arrest exclusive a. Lack of speedy trial in the courts of the time necessary for the journey from more because of congestion of cases with the place of arrest to the court of the mag­ limited or inadequate number of judges. istrate. Even the preventive detention of a b. Prosecutor/defence lawyer, otherwise person beyond a certain period cannot be busy, prefers to take more time from the possible without the compliance of certain court resulting in delay in the trial of a quasi-judicial processes. In addition, there detained person. exists provision for habeas corpus i.e. filing c. Failure of the witnesses to appear in writ to the High Court by an aggrieved time before the court for deposition there­ person against the detention presumed to by causing delay in the trial. have been done illegally. There is specific d. Financial constraint ofthe alleged of­ mention of such relief admissible under fender in detention causes delay in the Section 491 Cr.P .C. All these existing legal appointment of defence lawyer thereby measures are in fact intended to check and delaying the process of trial. contain arbitrary arrest by the executive e. Prolonged detention is also caused authority including the police. This is quite due to delayed investigation of cases by the in conformity with Article 9 of the Uni­ investigating agency. versal Declaration of Human Rights and To remedy the situation against the Article 9 of the International Covenant on prolonged detention, some positive steps as Civil and Political Rights (to be referred to stated below need to be taken. A required as Covenant). number of impartial and independent tri­ With regard to the detention of persons bunals/courts with adequate number of awaiting trial (unconvicted prisoners), the judges should be established. law provides minimum possible duration of 1. Tendency to give time to the prose­ detention and allows release from the cutor/defence lawyer on request should be detention through positive use of bail vide stopped except on genuine grounds. Sections 496 and 498 of Cr.P.C. Exception 2. Appropriate arrangements should be has been made only in case of offence made for the appearance of witnesses be­ punishable with death or transportation for fore the court for deposition. life. Even in such cases, the court may 3. State-help in the appointment of a order bail for a person who is a woman, defence lawyer, in case the alleged offender sick or infirm, or a person under the age of cannot do it, should be promptly given. sixteen years. Provision for bail has been 4. There should be a time-limit for provided under Sections 497 (2) & (4) even completion of investigation of cases by the during the time of investigation by a police police/investigating agency; officer or during the time of trial at the 5. Voluntary associations like tlle Insti­ court if it appears that sufficient evidence tute of Democratic Rights, Bangladesh against the alleged offender is not available. Society for enforcement of Human Rights, In fact such consideration is there because Adhikar Trust (Right's Trust) in Bangla­ a person is presumed to be innocent unless desh should be more active and should take proved guilty. This is in agreement with up in the court the cases of offenders in article 11 (1) of the Universal Declaration detention. of Human Rights and article 14 (2) of the In Bangladesh, the government has Covenant. already taken steps for speedy trial of cases and completion of investigation of cases Reasons for Prolonged Detention and within a fixed time. Recently administra­ Remedies Suggested tive reforms have been carried out in Ban­ Despite such liberal provisions of bail, gladesh. In place of 19 districts, 64 dis-

82 TREATMENT OF OFFENDERS AND VICTIMS: BANGLADESH

tricts and 460 upazillas (sub-districts) have an enforceable right to compensation for beem constituted under recent administra­ the victim of unlawful arrest or detention. tivt~ decentralization. As a result, a required The right to financial compensation of a number of district courts and magistrates' person, illegally arrested and detained on courts have also been established in all the the information of a complainant, which districts and upazilla6. Moreover in the was found to be false, vexatious and frivo­ int1erests of having a speedy trial, the trial lous by the court has been recognized and peliod at the magistrate's court for a par­ provided for under Article 250 of Cr.P.C. ticular case has been limited to 60 days and of Bangladesh. Instances are there where in the trying Session Judge's court to 120 it has been resorted to. Nonetheless, resort days vide Section 339 (c) Cr.P.C. as amend­ to it is infrequent because of the fact that ed. Similarly, it has been made obligatory firstly general people are not adequately for the investigating officer to complete enlightened and familiar with the legal tll(\ investigation within sixty days vide provision and secondly, it is sometimes Section 167 (5) Cr.P.C. as amended. There time-consuming and expensive. In this are legal provisions in Chapters XXXI and respect, arbitration by local elite through XXXII (Sections 404-442 Cr.P.C.) for a system called "Shalish" is more popular preferring appeals etc. to higher courts by in rural areas of Bangladesh and whatever aggrieved person. For fair trial, an insol­ compensation is decided in the "Shalish," vent accused can ask for competent coun­ it is usually paid without resort to further sel and other legal help from the state and appeal by either party. the stato ll11der the orders of court, if cir­ cumstances so require, has to come for­ Cases of Juvenile Offenders ward with such help for the legitimate A juvenile offender, defined as a child defence of the accused. Even the statement or young person alleged to have committed of police before the court or statement or found to have committed an offence recorded uls 161 Cr.P.C. by police is not (vide Article 2.2 (c) ofU.N.S.M.R. known admissible as evidence in a case against an as "Beijing Rules") obviously deserves alleged offender. Thus, sufficient care has special consideration during the time of been taken in Bangladesh for speedy and trial owing to their early state of human fair trial under existing laws and by recent development. administrative decentralisation. Fair and The "Beijing Rules," laid down by the speedy trial is further assured only when U.N. Congress of 1985 in Milan, are very the independence of judiciary is guaran­ extensive and wide in scope dealing with all teed. In this connection, Article 14 of the stages of juvenile cases which include the Covenant concerning the right to a fair and offence committed, protection of and as­ speedy and public trial by a competent, sistance to their rights, investigation, independent and impartial tribunal and prosecution and disposition of such cases court established by law and the Basic in a formal/informal manner, their treat­ Principles of the Independence of Judiciary ment in institutional, non-institutional and as adopted by Seventh U.N. Congress in semi·institutional manner. Milan in August-September, 1985 may be In Bangladesh, the Children Act 1974, referred to in Chapter VI relating to judi­ and the Bangladesh Children Rules 1976, ciary in the Bangladesh Constitution and in fact govern the cases of all juvenile of­ relevant sections of Cr.P.C. as referred to fenders. The Act 1974, consisting of 78 above, and in fact fulfil the requirements articles, appears to be quite in conformity for an independent judiciary existing in with the Beijing Rules. Section 2 (f) de­ Bangladesh. fines a juvenile as a person under the age I( of sixteen years. As per Section 3 of the Compensation for Unlawful Arrest Act, the Government of Bangladesh has and Detention set up a juvenile court at Tongi exclusively , Article 9 (5) of the Covenant provides to deal with such cases. In places where I 83 I I PARTICIPANTS' PAPERS such a court is not in existence, the powers Remand home is an institutional ar­ /authority of the said court have been rangement where an offender is further conferred on the High Court Division, Ses­ studied by the correctional personnel and sion Courts in the districts and Courts of on his report, the court arrives at a final the Magistrate 1st Class. Section 6 pro­ decision regarding the disposition of that hibits joint trial of juveniles and adults particular case. except under exceptional circumstances. Section 9 provides that except those who Training Institute are required in connection with the trial, It plays the major role in reforming and no person shall be present at any sitting rehabilitating the juvenile found guilty of of the juvenile court thereby guaranteeing an offence and placed on probation under their right to privacy to the maximulll. the supervision of a probation officer or Section 17 prohibits the publication of committed to the training institute for reports in newspapers, magazines etc. detention. The initial work starts with regarding the identity of the juvenile, the classification of the juvenile according to proceeding in any court or any other par­ age, average intelligence, antecedent, for­ ticular of the juvenile, unless in the opinion mal education, trade aptitude, the nature of the court it is required in the interest of and severity of offence. A treatment plan the juvenile. Under Section 32 (1) of the is drawn up on the basis of the above data said Act, a probation officer and a police and investigating reports. The treatment officer not below the rank of sub-inspector team consists of a social case worker, of police may bring the cases of juvenile probation officer, house parents, teachers, offenders before the juvenile court which trade instructors, recreation teacher and as per procedure laid down in Sections 32 warders who work individually and in (2-6) and 58 orders the juvenile offenders groups with the inmates. Individual coun­ to be sent either to a certified Institute, selling, group counselling and family guid­ approved home or to the care of the rela­ ance if necessary are provided. Besides a. tive until the juvenile attains the age of weekly conference, there are other extra­ eighteen years or for any shorter period. curricular activities which include recrea­ In the arrest, trial and treatment of the tional progran1mes and physical training as juvenile offender, including their release per requirement with a view to developing from the care and custody of anyone, the comradeship, a sense of responsibility, role of the probation officer who works mutual co-operation etc. To make their under the court is very important. rehabilitation in the society possible after As per the Children Act 1974 and the release, vocational training in various Children Rules 1976, there is one National subjects like automobile and radio/televi­ Institute of Correctional Services in Bangla­ sion repairing, carpentry, tailoring, hair­ desh working at a place called Tongi. The cutting etc. art. made available. Arrange­ complex (National Institute of Correc­ mwt for formal education is also there. tional Services) consists mainly of one Religious education is also imparted to Juvenile Court, Remand Home and Train­ build up their moral character and to make ing Institute. them sensible and responsible. After-care The Court while trying and deciding the service by voluntary organizations during case of a juvenile offender below the age of the post-release period is sometimes a 16 years takes into account the offender's necessity for the released juvenile offenders psycho-socio-economic background and but that is yet to be developed. Rule 19.1 the investigating reports submitted by the however calls upon the member-state to probation officer and $ocial case worker. make least possible use of institutionaliza­ The court commits the offender to remand tion for the treatment of juvenile offend­ home or training institute or to the care of ers. But only one National Institute at the parent/relative under the supervision Tongi for the whole of Bangladesh having of the probation officer as the case may be. a population of ten (10) crotes can not be

84 TREATMENT OF OFFENDERS AND VICTIMS: BANGLADESH adequate. However the Government of of fund-constraint, poor institutional/non­ Bangladesh has a plan to set up three more institutional arrangement, insufficient train­ such institutes in three other Divisions of ing facilities, limited number of trained Bangladesh. Fund-constraint seems to be manpower, lack of public awareness and causing delay in the implementation of the inadequate responses from voluntary asso­ plan. ciations (N.G.O's.), we could not make as Again seen in the context ofU.N.S.M.R. much headway as is required. As it ap­ or Beijing Rules, many more positive mea­ pears, Rule 1.5 of S.M.R., acknowledging sures are required to be taken. the existence of such situations in many Article 11 stresses the disposition of third-world countries, observes categor­ cases at least of a non-serious nature by ically, "These Rules shall be implemented police, i fosecution or authorized agency in the context of economic, sDcial and without recourse to formal hearings. But cultural conditions prevailing in each this is yet to be fully developed. As per member-state." It is perhaps high time for Article 12 of the Beijing Rules, specializa­ the U.N. aid-giving agencies/multi-national tion within the police to deal with juvenile aid-giving agencies and developed countries crinle is yet to be developed in Bangladesh. to come forward and extend all possible The National Institute of Correctional material assistance in this field on humani­ Services provides institutional treatment tarian grounds etc. which in fact embodies some aspects, if not all, of semi-institutional arrangements like Protection of Human Rights of educational houses and vocational training Offenders at the Stage of Treatment courses for rehabilitation of the juveniles. The Department of Social Services of the Article 5 of the Universal Declaration of Ministry of Social Welfare and Women's Human Rights in general and Article 10 of Affairs control~ and supervises the work of the Covenant in particular calIon the the National Institute of Correctional member-states to ensure the protection of Services and also monitors the implementa­ human rights of offenders deprived: of their tion of its various programmes. liberty. Bangladesh Retired Police Officers Wel­ United Nations Standard Minimum fare Association, a voluntary organization Rules for Treatment of Prisoners (SMR for (N.G.O.), has however taken up a laudable Prisoners) adopted at Geneva in 1955 have plan called the "Assistance Plan for Juve­ laid down in detail for consideration by nile Delinquents" (APJD). The plan is member-states various provisions concern­ intended to ensure the implementation of ing the separation of categories (Article 8) various provisions of the Children Act and treatment tv be extended to them in 1974, and its Rules 1976, through effective prison. But to find out how far the human representation at appropriate levels of rights of the offenders are protected in a Administration and to extend necessary particular country, we have to look into assistance to juvenile offenders for their the available prison system, its manage­ proper custody, protection and treatment. ment, strength and above all, the treatment The Juvenile Delinquency Committee the offenders receive or is provided for in (JDC) has been formed to carry on the the prison. responsibility in this regard (vide the In Bangladesh, the management of the weekly Detective 25th Dec., 1986). prisons is generally regulated by laws like The Bangladesh Government has in fact (i) the Prisons Act IX of 1894, (li) Pris­ been attaching due importance to the oners Act-III of 1900, (iii) Act XXXIII of growing problem of juvenile offenders. 1920 (iv) CiVil and Criminal Procedure Laws are there and arrangements made out Code and Bangladesh Penal Code with of its limited resources providing for treat­ regard to confmement of prisoners and ment and rehabilitation of the offenders. execution of sentences and (v) any other Much is yet to be done for them. Because executive orders issued by the Govern-

8-5 PARTICIPANTS' PAPERS

ment through the Ministry of Home Af­ wards. fairs. The Ministly controls the entire jail administration through the Directorate 1. Vocational Training of Prisons headed by the Inspector-General Such training in different trades such as of Prisons. Jails/prisons are divided into cane and banlboo industries, cloth weaving four categories in Bangladesh. With the by semi-automatic looms, carpentry, carpet recent decentralization of the administra­ weaving, coil industries etc. is made avail­ tive system and consequent creation of able to prisoners sentenced to rigorous new districts and upazillas, more jail struc­ imprisonment. tures are coming up. As a result, t11e 2. Academic Training problem of over-crowding in jail, earlier Adult education to illiterate prisoners existing in acute form, has to a large extent by paid teachers is provided. Facilities to been reduced. Classification of a prisoner appear at the examination for academic follows as soon as he is committed to the attainments are provided to well-behaved jail by the court or any other accredited and willing prisoners. A modest library is authority. Thus, convicts are always kept also maintaine~ in most of the jails. separate from non-convicts and both live 3. Well-behaved and willing literate pris­ in two separate blocks. Non-convicts oners are granted facilities to read news­ include untried and under-trial prisoners. papers, periodicals, library books. In every jail, there is a separate annexure 4. Recreational Facilities for the female prisoners who are again Such facilities, though limited in scale, kept separately as convicts and non-con­ are provided to prisoners. victs (unconvicted prisoners). Juvenile prisoners below 16 years are usually taken Condonation of Sentence for Good Work to the National Institute of Correctional and Good Conduct Services at Tongi. In jail, they are kept Convicted prisoners displaying good separate from the rest. Again they are conduct are entitled to remission of their divided into convicts and non-convicts sentence at a fixed rate of days in a month. accommodated in separate blocks. Ado­ In addition, the jail administration is lescent prisoners (age group of 16-21), empowered to grant further remission of divided into convicts and non-convicts, the sentence for good conduct and work. are also kept separately in two separate Moreover there exists an advisory board blocks. Two types of accommodation­ with official and non-official members, and cellular-dormitory are available for which meets twice a year to consider pre­ the prisoners mature release of life-convicts and some The penitentiary system, developed in other convicts under certain circumstances. our country during colonial days under the District magistrates and trying magistrates British concept, is based upon the consid­ are required to pay regular visits to prisons eration that the law-breakers or offenders to see the condition of the inmates and to of law need to be kept within the four attend to their complaints and grievances. walls of an institution for the safety and Experience has shown that all these pro­ security of the society. As a result, the vide incentives to prisoners to reform correction of the offenders and their re­ themselves and to lead a disciplined life. habilitation afterwards in the society under Thus it is evident that the existing non-institutional method did not get pri­ plison system falls short of what is re­ ority as a treatment programme. quired under S.M.R. for the treatment of Despite inadequacy of funds, trained prisoners. S.M.R. for prisoners acknowl­ manpower, lack of requisite facilities etc., edges the fact at Article 2 that not all of the Government of Bangladesh has intro­ t f·e rules are capable of application in all duced inside the jail a number of treatment places and at all times in view of the great progranlmes for the correction of offenders variety of legal, social, economic and and their rehabilitation in the society after- geographical conditions of the world. The

86 TREATMENT OF OFFENDERS AND VICTIMS: BANGLADESH

Government of Bangladesh is aware of the Protection of and Assistance situation and accordingly, a Jails Reform to Victims of Crime Commission headed by Justice F.K.M.A. Munim was set up in 1978 to examine Victimology as a subject concerning vic­ the jail system and to make recommenda­ tims of crime is yet to develop adequately tions. The Commission has submitted its in many third-world countries and required report recommending a modern approach attention to the protection of and assis­ to the whole system with emphasis on a tance to the victims of crime is hardly non-institutio:llal method of treatment given under criminal justice administration. both as a corrective measure and for the The Seventh U.N. Congress in Milan focus­ protection of the rights of offenders. It is sed attention on it and adopted the Decla­ under active consideration by the govern­ ration of Basic Principles of Justice for ment. Non-institutional methods of treat­ Victims of Crime and Abuse of Power. ment, which are open, in fact, constitute According to the Declaration, victims mean in modern times a challenge to and an persons who, individually or collectively, effective alternative to existing institu­ have suffered harm physical, mental, tional systems or jails which work under a emotional and economic, or impairment of closed system. Correction and subsequent fundamental rights through acts or omis­ rehabilitation of offenders are possible sion that are in violation of criminal laws. more often under a non-institutional In Bangladesh, nation-wide surveys have method of treatment which includes liberal rarely been made to detenninc the number use of bail, grant of probation and parole, or class of victims of crimes. However, the introduction of community service orders poor, the weak and the women are gener­ as provided under the Criminal Justice Act ally found to be victims of crinles. Nowa­ 1972 of the U.K., semi-custodial penalties, days criminal activities of organized groups establishment of attendance centres and of Musclemen, called "Mastan" in Bangla­ approved schools for the offenders, condi­ desh, also give rise to victims of crimels. tional discharge, suspension of sentence This is a phenomenon peculiar to towns etc. Such measures for non-institutional and urban areas not only in Bangladesh but treatment should be introduced through also elsewhere. A consolidated statement national legislation thereby making it (non­ of 1985 (Annex-A) indicating how victims institutional treatment) mandatory. suffered materially as a result of traditional For the reformation, training and re­ crimes committed is enclosed here for habilitation of offenders, emphasis needs information. These are taken from the case to be given not on segregation or separa­ references recorded by the police for inves­ tion of categoric'} based on age, sex, gravity tigation. But the picture or the statement of offence but on the classification system never reflects how many people, except the according to the offenders' individual complainant, have suffered in each crime needs and requirements that lead to the recorded by the police. No formal or formulation of a treatment programme for informal institution/system exists to iden­ a group. tify such aggrieved people or victims of To change the present system of prison each crime. For example, a poor pedes­ administration from penal to correctional trian, a breadwinner of a family consisting approach, of six members, died by a vehicular acci­ a) awareness of new values and atti­ dent on the road. The driver may be tudes amongst the prison staff is urgently prosecuted for rash and negligent driving required, under section 304A and B of the Bangla­ b) the employees need to be adequately desh Penal Code. But here the pedestrain motivated and trained is not alone the casualty but all the six c) necessary facilities and amenities for members of the family, dependent on hinl the inmates of the prison have to be for their bread, are tho victims of crimes. catered for. Protection of and assistance to such victims

87 PARTICIPANTS' PAPERS

of crime is obviously called for. Except the expensive. As was said earlier, the existing legal action taken by the police against the system of receiving complaints or accusa­ driver, further protection and assistance to tions is quite adequate. What is required is other victims of crime in this specific to establish good public relations, this instance are ordinarily nobody's concern. by having policemen make frequent tours VictinlS of traditional crimes apart, there in the rural areas in order to intensify their are other victims of crimes resulting from efforts for the protection of the rights and what is known as cruelty to women, such interests of victims and witnesses by safe­ as, (a) victims of acid-throwing, (b) the guarding their privacy, minimising inconve­ WIfe as a victim of crimes for dowry, (c) nience, ensuring their safety and avoiding maid servant as a victim of crime. There delay in the investigation and disposition are also other victims of crimes such as of cases. As regards the grant of parole or small tenants as victims of crime in the conditional release and pardon by the hand of landlords, consumers as victims of court or by the government to an accused, crimes in the hands of traders selling adul­ it is increasingly felt nowadays that the terated goods and charging high prices etc. opinion of c.oncerned victims of crime Instances of victims of crimes in some should also be taken. It is a new concept more fields of activity are also present. providing certain amounts of accountabil­ The important issue is how far protection ity of the accused towards the concerned and assistance to such victims of crimes viCtinl but it is yet to be adequately known are available in Bangladesh. to the public in our part of the country. To begin with, we may first examine That the victims of crimes have the right the procedure to receive and deal with to financial redress has been accepted in accusations or complaints. In Bangladesh, the Seventh U.N. Congress of 1985. Finan­ a victim can lodge a complaint, free of cial redress includes restitution obtained cost, to a police station or to a court on from an offender or the third party and payment of nominal court fees. He may compensation provided by the state or also do so by submitting a petition to some other fund set up for the purpose. higher police authorities, to the Ministry Restitution which may include the return of Home and even to the President's Sect. of property or payment for the harm or Even if no information has been received loss suffered, reimbursement of expenses from the complainant, a police officer can . incurred as a result of victimisation is pos­ lodge a complaint suomoto with the police sible in Bangladesh under the Civil Code. st,;tion on receipt of such information Section 545 of CLP.C. also vests the court through his own source. Thus, it may be with the power to order payment of ex­ seen that the procedure to receive com­ penses incurred in prosecution or pay plaints or accusations is quite wide and ex­ compensation to a person from the fine haustive. If the complaint, so received and imposed as a sentence for loss or injury recorded, is a cognizable offence, the police caused by the offence. Though the Section take up the investigation under Cr.P.C. 545 Cr.P.C. provides some scope for pay­ and submit reports to the criminal court ment of reasonable expenses or compensa­ for disposal. In case of non-cognizable tion to the victim from the fine imposed, offence, police can take up enquiry/investi­ it is however no substitution for restitu­ gation under CLP.C. on the orders of the tion, and very poor substitution for com­ court. It is however found in practice that pensation as discussed under the terms victims of crimes in certain cases fall shy "Restitution" and "Compensation" in the of going to police station and flling com­ Declaration of Basic Principles of Justice plaints because of the fact that as they are for victims of crime of the Seventh U.N. ignorant, they are not aware of remedies Congress of 1985. In Bangladesh, there available in the court or they have no exists, since time immemorial, the tradi­ confidence in the policemen or they think tional system of mediation or arbitration in that the process is time-consuming and the rural areas, under which it is possible

88

"------_._._-_. - TREATMENT OF OFFENDERS AND VICTIMS: BANGLADESH for the victims of crime to avail themselves in each member-state. Fund-constraint, of restitution or compensation obtained poor responses from government function­ from the offender. aries, lack of public awareness etc. are So far, state-funds in Bangladesh for use some of the ills which have defmitely slow­ in compensation to any victim of crime ed down the process of implementation. has not been provided under law. However, Nevertheless, the advancement, though the Government of Bangladesh as an ad­ slow, is still far greater than existed in the ministrative practice does give a lump·sum preceding years. monetary compensation to victims or their dependents in case of injury or death due Training and Research to accident, police-fire, natural calamity etc. No hard and fast rule with institu­ To improve the situation further and to tional arrangement to process such cases accelerate the process of implementation on a regular basis for compensation seems of various international instruments and to have been developed. Voluntary associa­ national legislation on the aforesaid sub· tions which extend legal help and counsell­ jects, training of functionaries who suffer ing to the victims of crimes may take up a from inertia, lack of motivation and com­ project for collecting and establishing a mitment is indispensable. Extensive train­ fund. It may be possible to raise such a ing both at home and abroad should be fund if the job is taken up in earnest by the arranged and given in right earnest. Victims voluntary associations. of crimes constitute, comparatively, a new subject on which scientific and action­ International Instmments on oriented research should be taken up with Human Rights data-based information collected from the member-states. Their cases may be dis­ As discussed above, international con­ cussed in the legal forum, seminars and ventions like the Declaration of Human conferences both at home and abroad with Rights, the Covenant for Civil and Political a view to reaching a consensus on the Rights, S.M.R. for the Treatment of Of­ guidelines and recommendations for mem­ fenders and for the Administration of ber-states. Juvenile Justice, Declaration for the Victims of Crime etc. exist in detail in each Role of V.N.O. and specific field calling member-states to Other International Agencies ensure within their national framework advancement of fair and humane treatment V.N.O. and other international agencies of offenders and victims in criminal justice can play a very significant role in this administration. In many countries, these regard (training, research, monitoring etc.). instruments are incorporated into their They can arrange international and regional national legislation, regulations and admin­ conferences of member-states for exchange istrative practices for implementation. of views and consequent decisions, assist There however still exists no small gap them in training and research and call upon between what international instruments the developed countries and international/ profess and national legislations reiterate multi-national agencies to extend material and what has been achieved on the ground help to developing countries where it is required.

89 PARTICIPANTS' PAPERS

Annex-A

Statement of Property Stolen and Recovered for the Year, 1985

Amount of Amount of Prop- Range and Units Property Stolen erty Recovered 1 2 3 1) Dhaka Metropolitan Police 19,22,35,552.00 6,01,12,398.00 (DMP) 2) Dhaka Range 8,51,30,809.71 1,39,59,738.00 (Consisting of 17 districts/Units.) 3) Chlttagong Metropolitan 70,00,000.00 30,00,000.00 Police (CMP) 4) Chlttagong R1l.nge 4,69,23,013.96 29,57,928.30 (Consisting of 16 districts/Units.) 5) Rajshahi Range 10,15,58,727.00 6,63,62,034.20 (Consisting of 17 districts/Units.) 6) Khulna Range 13,02,96,899.45 22,00,913.80 (Consisting of 16 districts) . TOTAL 56,31,45,002.12 14,85,93,012.30

90 The Protection and Assistance of Victims of Crime in Malaysia

by Mohd Sedelc bin Haji Mohd Ali*

Background and Introduction assistance to victims of crinle focusing mainly on certain specific crimes of passion This paper is prepared to meet the re­ and to explore and suggest other ways of quirements of the Seminar held at UNA­ achieving the same. FEI, Japan, between January 28 to March This essay will in certain respects be 16, 1987. I have chosen this small but general in nature, but with much emphasis interesting topic to be examined with rela­ on the aspect of the ne~d of evolving a tion to Malaysia since there is a recent more humane approach in the handling of flurry of interest and commitment amongst victims of rape and victims of crime to­ individuals and voluntary organizations in wards the fairer sex. It is the overall hope Malaysia towards similar subjects. To of tlus paper to establish that when the quote a few instances; in early 1986 a welfare and protection of victims of crime voluntary organization called "The Nation­ has been adequately met, t1u~" will compli­ al Council of Women's Organizations," ment the criminal justice system in the sent a memorandum to the government country, and its sum total will work in urging amongst other things the further concert to create a near crime-free society. improvement of the various approaches Finally, it should be stressed here that towards the victims of rape and cases of the basis of any law in Malaysia and in any family violence, both in terms of the legal democratic country has always been that framework and the handling and investiga­ the needs of the majority overrides the tion of such cases. This voluntary organiza­ minority. The fact that there are generally tion has so far been very serious and more victims of crime than those comitting persistent about the matter and to mention crime, means that there should be more briefly, it has so far started to establish committment on our part to give priority rape crisis centres to help victims of rape. to the subject of the protection of crime In another case in Kuala Lumpur it is victims. k.."1own that there was an idea mooted by a group of individuals to set up an associa­ Crime and Victims of Crime in Malaysia tion to help victims of crime. It should suffice at this stage to impress There has been no general consensus on that there is in fact an upsurge in the the definitions of crime between countries awareness towards improving further the in the world. This is understandable, since protection and assistance towards victims there are differences in cultures between of crime, especially so in crimes of passion countries, and this accounts for the differ­ and those affecting the weaker sex. ences in their world views which influence their definitions of crime. Generally, how­ Object and Scope of This Paper ever, it can be said that crime is a wrong­ doing by one onto another which the state The object of this paper is to examine takes cognizance of, and thus penal laws the present facilities of protection and and procedures are enacted accordingly through which justice is meted out. In the context of Malaysia, crinle is a wrongdoing Assistant Director of Criminal Investiga­ * or a violation of a certain set of laws en­ tions (Research and Planning), Royal Malaysian Police, Malaysia acted by Parliament. The Malaysian Penal

91 PARTICIPANTS' PAPERS

Code lays down the provlSlons on most 95,096 reports respectively. Since there major crimes and this is supplemented by are no records being kept on the actual other subsidiary laws. According to the number of crime victims in Malaysia per United Nations Declaration of Basic annum, it could safely be assumed that the Principles of Justice for Victims of Crime, total crime reports above could be repre­ "victims" are defmed as being a person or sentative of the number of victims of persons who individually or collectively, crime. Taking the population forecast fer have suffered harm, including to physical 1986 which is 16,109,000, it can be said or mental rights, injury, economic loss or that the ratio of victims to population substantial impairment of their funda­ stands at 1: 169. Seen in another perspec­ mental rights, through acts or omissions tive, appendix B shows the crime per that are in violation of Criminal Laws 100,000 population for Malaysia and some operative within member countlies. In my other countries. essay I shall simplify the definition of It can thus be concluded that for Malay­ "victims and crime," as being one or a sia in particular, and most other countries group, which suffer an act or wrongdoing, in general, there is an upward trend in including omissions, that violates a set of crimes reported. If we focus further on the laws enacted by the Malaysian Parliament. crime types it is evident that violent crime The legal system and provisions in has shown an upward trend and this has, Malaysia have run the test of time and so in part, spurred the population especially far have never shown any inadequacy in through their voluntary organizations to meeting the wide and varied nature of all make representations for victims of crime ~riminal acts. This in my opinion is the to be better protected. Though these core through which protection and assis­ representations do not necessarily mean tance to victims of crime emanate. If there that there are inadequate protective mea­ are no adequate laws to define a wrong­ sures for crime victims, it may indicate dOing, this would be tantamount to totally that sometimes we are more engrossed in disregarding a victim as a victim, and what the fight to protect the human rights of further avenues are there for any protec­ the criminals. It is time that we devote tion or assistance when in the first instance attention to address the subject of victims a victim is not even regarded as one. with similar zest and vigour; after all In the Malaysian context, at least up to victims of crime never choose to be victims the present moment, our legal provisions and most of the time the trauma and are adequate and flexible to meet the psychological effect of the crime, espe­ various circumstances of a criminal act. cially in violent cases, the memory of Our Penal Laws are codified and there are which is ineffaceable for the victim. other subsidiary legislation on certain specific crimes which are given special Procedure to Receive and Deal with emphasis due to their violent nature. In Accusations and Complaints appendix A are absolute figures on crime for the years 1984, 1985 and 1986, which In the paper I have so far assumed that have been extracted from the records kept the victims of crime are those parts of the by the Malaysian Police. Though there are population that have been affected by the limitations for any cross-country compari­ wrongdoing of another and that wrongdo­ sons to be made from these statistics, this ing or violation has been reported to the Interpol index crime format may at best authorities. Though the defmitions of provide for some form of inter-country victims of crime can be wide and varied, comparison. I have narrowed down the definition to be From the figures of appendix A it can in line with the overall objective of this be seen that there has been an increase in paper. This definition has also been thought the crimes recorded in Malaysia over a to be practical so that any suggestions to three-year period, i.e., 77,939, 89,224 and improve the protection and welfare of the

92 PROTECTION OF VICTIMS OF CRIME: MALAYSIA victims of any crime are built around the of the country. current provisions of the law and the current criminal justice system. Protection of Rights and Interests of Victims of Crime During Measures to Facilitate Complaints Crinlinal Procedure In Malaysia the provisions and proce­ dures to make reports and complaints are 1. Protection of Privacy laid down in Part V, Chapter XIII, of The It is an acknowledged fact that confi­ Criminal Procedure Code. It is clear in dentiality of all reports and complaints Section 107 of the above provisions that made by victims must be maintained at all any information or complaint shall be times. Anything falling short of this would reduced to writing and will be acted upon only make a victim feel unsafe and tlueat­ by the police. To comply with this provi­ ened and its overall effect would work sion of the law there are at present 726 against encouraging a fair, dftmocratic police stations in the country where the atmosphere where any person can make a public can lodge their complaints either complaint without any fear or favour. by going to the police station or com­ In the Malaysian context this fact was plaints can be received by phone. The ratio realized and the law has therefore provided of police stations to the p0pulation is safeguards to ensure the secrecy and about 1:22189. Taking the number of confidentiality of reports made by victin1s crimes reported in 1986 which is 95,096, of crime or anybody else. the ratio of police stations to the number All reports made to the police are confi­ of crime victinlS would be higher, i.e. dential public documents which are not 1: 131. We are also fortunate in that Malay­ divulged to anybody except by application sia, at least in the first instance, anybody and for a legal reason. This is very clearly can report on any information without stated in Sections 74 and 75 of the Evi­ having to be the victin1. The commence­ dence Act No. 56/1950. Recently an am­ ment of police investigatiOl~ and actions mendment to The Official Secret Act was does not depend on reports to be made by passed by Parliament to tighten further victims. The police themselves can lodge the procedure and safety of public docu­ their own complaints after information is ments by enhancing the punishment for received. ailY violation. The punishment for violat­ There can be many police stations ing the provisions of The Official Secrets existing with simplified procedures for the Act with respect to divulging unauthorized filing of complaints, but this may not nec­ contents of information of any official essarily be indicative of the ease through document was enhanced with the introduc­ which a victim of crime is protected. There tion of a mandatory imprisonment of not is the human aspect to the overall scenario less than one year but not exceeding five which has been given much attention in years. This is to be compared to the Malaysia. The public should not be made previous sentence not exceeding five years, to feel reluctant to come to a police or a fine not exceeding $20,000, or both station to file a complaint. A feeling of imprisonment and fine being imposed. confidence in the police force should This amendment of the law was a subject prevail at all tin1es. The Malaysian Police of much debate and opposition which in Force has given priority to this problem my opinion was more politically moti­ since we realize that this is the spirit and vated. In Malaysia there are sufficient the theme of the protection of victims of legal provisions to protect the privacy, crime. WIllie there are regular courses rights and interests of victims of crime with conducted especially for the personnel at respect to complaints. the front office (enquiry office), regular The other aspect of the protection of checks are also made to uphold the image rights and interests and that of privacy in of the police as a fair enforcer of the laws making reports by victims of crime is

93 PARTICIPANTS' PAPERS physical in nature. The Malaysian Police complainant or witnesses. The Criminal has placed much emphasis on the proce­ Intimidation Act provides for offences dures relating to the reporting of certain if witnesses to an investigation are being sensitive crimes providing for full confi­ intimidated. dentiality at all times. As an example, cases b) Protection of Rights and Interests of kidnap and extortion are dealt with in During Trial highest confidence from the start when During a trial, there are also legal provi­ information is first received. Other sensi­ sions. to protect the victims of crime and tive crimes like rape which receives much witnesses against unfair treatment. There attention more for reasons tied to the are provisions for hearings to be done in nature of the offence are being highly canlera and the Evidence Act also makes protected, especially when reports and provisions to protect witnesses from being investigations are made. In short there is asked insulting questions and questions adequate protection of privacy both legally adducing bad character. Section 8 of The and conceptually when a victim of crime Criminal Procedure Code empowers a lodges a report. Magistrate to exclude members of the public during a trial on grounds of public 2. Protection of Rights and Interest policy or expediency. The Prosecutor and During Investigation and Tlial the Magistrate presiding monitors the There are also legal and conceptual pro­ welfare of the victims, just as the suspect visions to protect rights, interests and the is being given a fair hearing. In certain privacy of victims of clime duling the cases under the Corruption Act certain process of investigation and trial. witnesses or informants are protected from a) Protection of Rights and Interest public exposure even during a trial. During Investigations c) Measures to Reflect Victims' Opinion Investigations are normally classified as on the Sentence and the Decision of being confidential and in certain hyper­ Pardon sensitive cases, special arrangements are On the whole the legal system in Malay­ made to protect further the confidentiality sia only empowers the Court to make of an investigation both for tactical and decisions on any case being heard in a trial procedural reasons. There is every reason where both the defence and the prosecu­ for police investigations to be confiden­ tion will make representations. At the end tial and graded, as otherwise this tactical of the prosecution case the Court will investigative procedure, once known to the decide whether there is a prima facie case criminals, will be used to work against and for defence to be called. When defence police investigative approaches. is called t!lere will be submissions by both In police investigations, statements are parties before the presiding magistrate reeorded privately between the recording decides on the final result of the case. officer and the victim or witness. This is Basically if the magistrate fmds that the clear in Section 112 and 113 of The Crimi­ case has been proved beyond reasonable nal Procedure Code. Other documentary doubt, he will convict the suspect and the and physical evidence of an investigation, amount of sentence will depend on the like that of fmgerprints and chemist present provisions of the related Law. reports, are also confidential, but will I should say that the victim's opinion on be served on the accused within 14 days the sentence of any case will be persuasive before the trial if those documents are on the public prosecutor. The opinion of to be used for evidence in any trial. the public prosecutor though normally In other cases where the authorities being influenced by the victim of such feel witnesses need to be physically pro­ crime and pressures from public and associ­ tected from being harassed or even intimi­ ations, is seen to be independant from such dated for very obvious reasons, the police influences. The decision for pardon if provide security arrangements for the sentence had been passed on the suspect

94 PROTECTION OF VICTIMS OF CRIME: MALAYSIA will depend entirely on the convict and the has gained intemational momentum in Pardons Board which is being presided by both developed and developing countries, rulers (royalties) normally makes the and the female fratemity has been publiciz­ decision independent of the opinion of the ing this problem. It has now come to a victims of crime. Article 42 of the Malay­ point at which it is difficult to ignore. I sian constitution lays out the role and will now describe the situation in Malaysia. powers of the Pardons Board which is the It is undoubted that victims of sexual last and final authority for parole. Under­ cases require considerable help and treat­ standably decisions of the Pardons Board ment. Rape is a heinous crime where the are never influenced by the victim's opin­ victims suffer in silence and with extreme ion but for rather more mundane reasons. mental anguish. The very thought of the ordeal, coupled quite often with social os­ Compensation to Victims of Crime tracism, especially in traditional societies, have further exacerbated the suffering of Victims of crime generally do not re­ rape victims. For many years this crime has ceive compensation from offenders nor do caught the public's attention unfortunately the Courts direct the offenders to pay such for the wrong reasons; among others, as a compensation to the victims. Even in cases topic for discussion of the moral values of of hit-and-run accidents for example, the the victims. Thus the victims of rape not State has no obligation to compensate the only undergo traumatic experiences during victims unless insured. Though there is a the abuse but also long after it. provision in Section 426 of The Criminal At the beginning of 1985, The National Procedure Code which states that, "The Council Of Women's Organizations sent a court before which a person is convicted memorandum to the Malaysian Govem­ of any crime may in its discretion make an ment. Among other things were represen­ order for the payment by him of a sum to tations for a better and more humane be fixed by the Court by way of compensa­ approach towards the crime of rape both in tion to any person, or to the representa­ its handling and investigation. There were tives of any person injured in respect of also suggestions for enhanced punishment his person, character or property by the on rape with minimum jail sentences and crime or offence for which the sentence mandat'Jry Whipping. Suggestions were is passed." To date this provision which also made to widen the definition of rape looks seemingly wide has not been in­ to include among others, anal intercourse, voked. The beginning of this year has seen the insertion of objects such as bottles or some indications that the authorities might hands. Lastly there were also representa­ invoke this provision in view of the in­ tions made that the investigators of the crease in white-collar crin1e. crime of rape should be "professional," more sympathetic and fully appreciative Other Measures to Protect and Assist of the psychological aspects in their handl­ Victims of Crime in Malaysia with ing of victims. Emphasis on the Victims of Rape The Royal Malaysian Police has been responsive to these suggestions and has So far it has been outlined that there are begun forming specialized Rape and Sexual enough and adequate provisions both Crime Investigation Squads consisting of legally and procedurally on the protection female officers. Certain seminars have been of victims of crime. I have also stated in organized together with the NCWO's and the introduction that recently there has The Ministry of Health and Welfare in the been a flurry of interest amongst indi­ area of counselling to revive and rehabili­ viduals and voluntary organizations in tate the victims of sexual assault. Malaysia for better protection and assis­ Support on this project has been well tance towards victims of certain crimes of received from all quarters. Psychological passion. The protection of victims of rape assistance to victims of rape in Malaysia is

95 PARTICIPANTS' PAPERS well underway with the establishment of about 30% of rape reports where victims rape crisis centres. were below 14 years old; 15% where The area of legal amendments to the victinls were between 14 to 16 years old; defmition of rape is still being debated and and 55% of the cases whem victims were has not gained much headway. On the adults above 16 years old. From these whole it can be said that there has been statistics it is imperative that concentra­ much success especially in making the tion of protection should center on the 16 public more aware of the crime of rape and above and those below 14; for they and encouraging the victims to come for­ foml the greater percentage of the popula­ ward to report such crimes. As a final tion. Besides the above the association was result, as can be seen in appendix C there also of the view that the definition of has been an upsurge in the reports on rape sexual intercourse should be given a wider received in 1986. meaning than the concept of penetration. Referring to appendix C, there are vari­ Thus they suggested that the insertion of ous implications in the formulation of a objects into the vagina is also considered as program or strategy to further protect and penetration and thus rape. They are of assist victims of rape in Malaysia. First and the view that sexual assaults are acts of foremost the statistics do tell a tale on the violence rather than excessive passion. This width and depth of the rape problem in suggestion is still at a discussion stage and Malaysia. There are on the average about 2 . has yet to receive all-round support from rape cases reported in a day. Rape as de­ most quarters. fmed in Section 376 of the Penal Code is a From the above discussion one point crime committed by a man who has sexual that is very clear is that the Women's asso­ intercourse with a woman under one of the ciations are now demanding supposedly folloWing circumstances: against her will; wider definitions on the crime of rape. As without her consent or where consent has mentioned earlier I still maintain that been obtained by putting her in fear of Malaysia's laws are adequate and accom­ death or harm; with consent but believing modate most or all kinds of criminal acts. that the man is the one she is lawfully The demand in redefining rape by the married to; or with or without consent Women's association is more a reflection of when the female is under 14 years old; their feeling that the crime of rape should except sexual intercourse with one's own be made a more serious offence and thus wife who should not be below 13 yefUS given a more elaborate and wide definition. of age. Penetration is the main ingredient While it is agreeable that the crime of of sexual intercourse in the Malaysian law. rape, especially those done unto juveniles The women's association as mentioned should be given serious thought from the earlier was not too happy with the present legal aspect, th~ association should also defmition of rape. They argue that the age approach the problem from other perspec­ limit for statutory rape be raised to sixteen tives. The association should study the since tile minimum age of consent for profiles of the perpetrators, the environ­ marriage at the moment is sixteen. The ment of incidents, the motivation of the proposal was debatable especially in the perpetrators, and the age and occupation context of a multi· racial Malaysia where or status of both the victinls and the customs amongst races vary to a large perpetrators. I would summarize that if extent. As an example: amongst MusiinIS the rape problem is being seen as a whole the age of maturity of a female is con­ and not in parts, then there will be an all­ sidered to be the age of puberty, and that round effort in trying to inlprove the is also the legal minimum age for marriage. welfare of victims of rape. Even the This proposal has not gained much ground psychological and counselling programs yet and I personally feel that the present need to be complimented with the pro­ defmitions are more than adequate. posed cross sectional study on rape; or From a study made in 1986 there were otherwise we would tend to treat the prob-

96 PROTECTION OF VICTIMS OF CRIME: MALAYSIA lem through the symptoms as opposed for cial. It is felt that in the same way that a diagnostic treatment. criminals have their rights safeguarded, the All the literature on rape condemns the general public too has a rigllt to live in a crime, especially if done to juveniles. The crime free world or at the least they should sufferings of a victim of rape can almost be well-protected and assisted if crimes never be adequately described. The fact is cannot be eradicated. To my opinion there there is a need for a new approach towards is even more justification to give attention the protection of rape criIne victims and to victims of crime since this area had been particularly in Malaysia. overshadowed most of the time. Voluntary There are other sensitive crimes where organization and the public at large should protection and assistance along the same rally together to work for a bettennent of psychological approach should be pursued. protection and assistance in the areas The victims of the crime of kidnapping and enumerated above. other hostage-taking incidents have also suffered shattering experiences, and there is a dire need similar to that of the rape References victims that they need to be counselled and 1. Malaysian Federal Constitution: Re­ to be psychologically revived. The Royal print No.1 of 1978, printed by the Malaysian Police has also taken note of this Government Printers. need as expressed by the Inspector General 2. Excerpts from the Seventh United of Police at the opening speech of a Crisis Nations Congress on the Prevention of Management Course held on the 19th of Crime and the Treatment of Offenders; January 1987. Report Prepared by the Secretariat. 3. A Compilation of Notes on a Seminar Conclusion on Handling of Sexual Cases and Use of Violance Against Women and Children. The Royal Malaysian Police College. As evident from the previous discussions 4. The Penal Code. there are still gaps which need improve­ 5. Criminal Procedure Code (FMS Cap 6). ments to the assistance and protection 6. Evidence Act 1950, Act 56 (Revised towards victims of crime. One glaring area 1971). is on the aspect of compensation towards 7. Notes on Workshop on Legal Aspects victims of crime, thougll this might be Pertaining to Status of Women, National much related to a multitude of other Council of Women's Organizations of considerations, the main one being finan- Malaysia_

97 PARTICIPANTS' PAPERS

Appendix A

Index Crime Statistics (Total Reports Received)

1984 1985 1986 Total % Total % Total % Reports Change Reports Change Reports Change Violent Crime Murder 293 -3.30 327 11.60 377 15.29 Attempted murder 63 23.53 59 -6.35 84 42.37 Gang robbery with fIrearms 61 22.00 55 -9.84 56 1.82 Gang robbery without firearms 460 22.34 632 37.39 626 -0.95 Robbery with firearms 760 13.77 950 25.00 1,022 7.58 Robbery without firearms 4,710 11.03 6,244 32.57 7,331 17.41 Rape 470 2.17 530 12.77 688 29.81 Causing harm 2,163 5.0 2,684 24.09 2,601 -3.09 Subtotal 8,980 9.39 11,481 27.85 12,785 11.36 Property Crime H'breaking & theft by day 4,478 1.96 5,092 13.71 5,171 1.55 H'breaking & theft by night 18,430 6.01 20,413 10.76 20,374 -0.19 Theft of m.van/lorry 372 54.13 466 24.93 557 19.53 Theft of motorcar 2,271 24.17 3,140 38.27 3,813 21.43 Theft of motorcycle 11,280 17.50 13,654 21.05 16,056 17.59 Theft of bicycle 5,039 -0.57 4,673 -7.26 3,832 -18.00 Other thefts 27,089' 0.20 30,305 11.88 32,508 7.26 Subtotal 68,959 5.20 77,743 12.74 82,311 5.87 Total 77,939 5.67 89,224 14.48 95,096 6.58

98 PROTECTION OF VICTIMS OF CRIME: MALAYSIA

Appendix B

Crime Rate per 100,000 Population for the Year 1984

Causing H'breaking Motorcar Other Murder Rape Robbery arm & theft theft thefts Total Sweden 5.74 11.93 44.12 876.20 1,708.79 460.03 4,718.04 1,117.84 New Zealand * 2.54 14.42 14.91 NjA 2,243.06 NjA 5,001.961,039.56 West Germany 4.51 9.73 49.90 2,550.87 1,554.10 117.96 2,550.87 976.84 Finland 5.62 6.48 33.69 855.30 772.61 171.65 1,649.28 499.23 Japan 1.47 1.60 1.82 577.90 251.90 29.37 855.30 245.62 Hongkong* 1.64 1.63 198.53 4,718.04 236.42 NjA 577.90 819.17 Singapore 2.73 4.15 64.05 8.57 123.92 21.43 876.20 157.29 S. Korea* 1.36 10.02 7.44 1,649.28 63.38 NjA 204.17 276.52 Malaysia ~ .97 3.17 40.36 252.06 154.33 15.30 294.94 108.89 Cyprus * 2.06 0.56 2.62 49.00 182.50 N/A 252.06 69.83 Philip- pines * 42.51 2.63 33.00 N/A N/A-- 2.02 N/A 11.45 Lebanon 19.20 1.13 24.53 294.94 45.07 54.23 49.00 69.73 Indonesia* 0.90 1.23 5.65 N/A 38.44 4.92 8.57 8.53

Note: Countries with * have one or more statistics which are not available. The above statistics were provided by Interpol.

Appendix C

Rape Figures for the Year 1985 and 1986 and Rape Crime Analysis for the Year 1986

State 1985 1986

Kedah/Perlis 41 (-22.6%) 57 ( +39.0%) Pu1au Pinang 50 (+31.6%) 49 ( -2.0%) Perak 59 (+34.1%) 85 ( +44.1%) Kuala Lumpur 42 (-16.0%) 125 (+197.6%) Se1angor 63 (+34.0%) 67 ( +6.3%) Negri Sembilan 28 (+33.3%) 37 ( +32.1%) Me1aka 10 (-33.3%) 16 ( +60.0%) Johor 44 (+15.8%) 61 ( +38.6%) Pahang 38 ( ;-8.6%) 28 ( -26.3%) Trengganu 16 (-20.0%) 24 ( +50.0%) Kelantan 37 (+94.7%) 27 ( -27.0%) Sabah 75 (+13.6%) 71 ( -5.3%) Sarawak 27 (+12.5%) 41 ( +51.8%)

Total 530 (+12.8%) 688 ( +29.8%)

Note: Statistics in ( ) are percentage changes over preceeding year. These figures are from records maintained by D2A.

99 PARTICIPANTS' PAPERS

Persons Arrested by Race - 1986 Environment of Incident

Malay 173 (56.1%) Public places 156 (32.0%) Chinese 59 (19.1%) Dwelling 265 (54.3%) Indian 27 (8.8%) Hotel 52 (10.7%) Others 49 (15.9%) Unknown 15(3.1%) Total 308 (100%) Total 488 (100%)

Suspected Perpetrators by Race - 1986 Relationship of Victims/Perpetrators 1986 Malay 246 (47.0%) Chinese 153 (29.2%) Known to victims 262 (53.7%) Indian 57 (10.9%) Unknown to Others 67 (12.8%) victims 226 (46.3%) Total 523 (100%) Total 488 (100%)

Suspected Perpetrators by Occupation Known to Victims - Breakdown

Govt. servants 42 (8.0%) Boyfriends 32 (12.2%) Unemployed 57 (10.9%) Casual friends 31 (11.8%) Private sector 88 (16.8%) Classmates 1 (0.3%) Self-employed 97 (18.5%) Fathe;s 13 (5.0%) Unknown 239 (45.7%) Step-fathers 7 (2.7%) Total 523 (100%) Uncles 13 (5.0%) Neighbours 44 (16.8%) Acquaintances 84 (32.0%) Breakdown of Rape Victims - 1986 From same hometowns 25 (9.5%) Victims by Age Colleagues 8 (3.1%) Below 14 years 131 (26.8%) Brother-in-Iaws 4 (I.5%) Below 16 years 89 (18.2%) Total 262 (100%) Above 16 years 268 (55.0%) Total 488 (100%) Unknown to Victims - Breakdown Victims by Race Malay 260 (53.3%) Strangers 148 (65.5%) Chinese 96 (19.7%) New Indian 46 (9.4%) acquaintances 84 (37.2%) Others 86 (17.6%) Total 226 (100%) Total 488 (100%)

Victims by Occupation Rape Cases Reported/Solved/Arrests 1985 - 1986 Unemployed 189 (38.7%) Students 137 (28.0%) Year Total Solved Arrests Govt. servants 14 (2.9%) Others 148 (30.3%) 1985 530 269 (50.7%) 309 1986 688 243 (35.3%) 308 Total 488 (100%) Total 1,218 512 (42.0%) 617

100 SECTION 3: REPORT OF THE SEMINAR

Summary Repol"ts of the Rapporteurs

Session 1: Protection of Human Rights at three main areas. the Stages of Investigation, a) Persons remanded for long periods Detention, Arrest and Trial of time pending trial; b) Arbitrary arrest and detention; Chairperson: Mr. Jyotoh Shimanouchi c) Compensation for arbitrary deten­ (Japan) tion. Rapporteur: Ms. Nazhat Shameem Khan (Fiji) Remands Pending Trial Advisor: Mr. Yasuro Tanaka In many countries, one of the reasons why prisons are over-crowded is the large number of persons who are remanded in Introduction custody pending trial. It was suggested that attention be focussed on this problem and A discussion was held to supplement it was recommended by the visiting expert and expand participants' contributions in Professor B.J. George Jr. that all cases in their presentation of individual papers on custody pending trial should be the excep­ the protection of rights of suspects at the tion rather than the rule. Before a suspect pre-trial stage of investigation, arrest and is remanded in custody pending trial, cause detention, and of the protection of the must be shown as to why custody is neces­ rights of those standing trial in the adminis­ sary in a particular case. tration of criminal justice. The actual state The participant from Nigeria recom­ of affairs in respect of these rights in vari­ mended the system of voluntary reporting ous countries was discussed. More impor­ on appointment to assist investigation in tantly, however, recommendations were cases where the suspect's identity and ad­ made by partiCipants to remedy any dress are easily obtainable. breaches of these rights in their countries The participant frorr. Jamaica suggested and to offer alternatives to the over-use, the introduction of an efficient processing for instance, of remanding suspects pend­ system whereby the background of an of­ ing trial. fender is thoroughly investigated before he or she is remanded in custody to ensure Protection of Human Rights at the Stages that custody is really necessary. For of Investigation, Detention and Arrest instance custody may be necessary in cases where there is a fear that witnesses will be In most countries, the powers given to interfered with. police officers to investigate, arrest and Another possible solution to remedy a detain suspects, are ensconced in statutory situation of a prolonged period of remand provisions. For instance, in Bangladesh, pending trial is the imposition of time section 54 of the Criminal Procedure Code limits for investigation and trial. Dr. specifies the persons to whom the power of Kunert stated that in Germany where there arrest is given, and on what grounds these is sufficient evidence to show a high grade powers may be exercised. Most countries of suspicion or guilt and anticipation of also have legislation limiting the period of escape or interference with witnesses, a time for which a suspect may be detained warrant may be issued by the court to by the police before he or she is taken allow the police to remand the suspect before a judicial officer for an order grant­ while investigation is being carried out. A ing bail or for remand. time limit of sL'{ months is given for such The problems, however, appear to lie in investigations after which the matter must

101 REPORT OF THE SEMINAR

be reviewed by the High Court. detainees and arrestees are not always ob­ In Bangladesh, India and Tanzania, a served. For instance in Sri Lanka the sus­ statutory time limit of 60 days is given for pect is not always told that he may contact the police to complete investigations. his next·of·kin or his legal representative. Beyond this period, special leave of the This is also the case in Nigeria. court must be applied for to extend the There were various recommendations on time limit if good cause is shown. how to deal with this problem. In Peru, Another solution is the system of set­ there is provision for public prosecutors to ting off the period spent in custody with visit any police station at any time to the period of sentence passed at the end of check the detained persons therein and to the case. This solution however only ap­ see if their rights are being respected. The plies to cases which end in convictions and participant from Bangladesh suggested in respect of which the sentence exceeds increased supervision by senior police of­ the period spent in custody before trial. ficers. The participant from Kenya re­ Bail, which is available in most countries commended better and more extensive (with the exception of Peru) may be used training of police officers about human more extensively to reduce the number of rights in relation to arrest and detention. prisoners pending trial. However, in coun­ Education of this nature should also ex­ tries such as Sudan and Fiji where com­ tend to the pUblic. The participant from munications are not sophisticated and large J arnaica recommended training and the ap­ numbers of the population are uneducated pointing of police public relations officers and ill-informed, suspects have a tendency who would mediate between the police and to disappear into the country and valuable the offender. resources would then be wasted in an at­ The recommendation of training would, tempt to trace them. of course, also apply to human rights in The solution in such cases may well be relation to all stages of pollce investigation the modernizing and re·structuring of court such as search, seizure, confiscation of administration so that offenders are tried goods and the interrogation of suspects. In quickly, efficiently and justly. The partici­ most countries although the police have pant from Sri Lanka suggested that the theoretically no right to induce or threaten decision to prosecute should be exercised suspects during interrogation, breaches of by a public procecution as in Japan to this rule sometimes occur. The reports of obtain the best positive results in court. such incidents give rise to concern in this area also. Perhaps the most important solu­ Arbitrary Arrest and Detention tion to these problems would be the use of The participant from Bangladesh sug­ effective procedures to compensate the gested that the· powers given to police of­ victim of such abuse. ficers to arrest and detain suspects ought to be limited in cases of officers of a lower Compensation for Arbitrary Arrest rank. Such powers given to a police const­ Detention and Interrogation able who may be semi-educated can be Professor B.J. George Jr. suggested that misused and therefore the powers should the introduction of a compensation scheme be exercised under the supervision of a whereby a victim of police abuse would be Class 1 Gazetted Officer. The participant paid by the state treasury would not cause from Tanzania stated that the police some­ the officer concerned to suffer personally. times arrested persons without enough Disciplinary proceedings would be more evidence and caused those persons to be effective as a check against the abuse of remanded in custody for up to five years powers by the police. Such proceedings before they were released on the ground could take the form of a fine or reprimand, that there was insufficient evidence for a a reduction in pay, or suspension of em­ hearing. ployment; similar measures are imple­ It was also noted that the rights of mented in some countries. In Peru for

102 SESSION 1 instance more than 1,000 police officers and accelerated trial procedure such as a have been iismissed from employment for guilty plea procedure. illegal behavior while on duty. In Sri The participant from India agreed that Lanka disciplinary police proceedings have the system of the administration of justice been established by statute. ought to be streamlined, and that time limits ought to be imposed for the hearing Protection of Human Rights at of cases. the Stage of Trial The participant from Sri Lanka suggest­ ed the appointment of more judges to Again, most countries have statutory courts for an easier division of the work­ provisions dealing with the protection of load. The participant from Bangladesh the right to a fair speedy and public trial sugge~ted the introduction of a system of by an impartial tribunal, the right to an fmes for minor offences as is found in West interpreter, to competent counsel and the Germany in property cases. He also recom­ right to appeal. The rights of juveniles are mended that the judiciary should discoura­ also protected in most countries. age adjournments as a rule, and that there In practice, however, some countries are should be a check system of the judiciary encountering difficulties in protecting in respect of delays which would make the those rights at the stage of trial. The most judiciary accountable to Parliament or important problem areas appear to be: some other body. a) delay in hearing; The participant from Jamaica expressed b) the right to competent counsel; the reservation that speedy trial should not c) the right to an interpreter; and mean that the judge has no time to dis­ d) protection of rights of juveniles. pense justice to the offender. The partici­ pant from Tanzania suggested an increased Delay in Hearings use of the idea of suspending prosecution The inability of the administration of and also of settling minor cases out of justice to bring offenders to trial quickly is court such as traffic violations. It must be a problem facing many countries. In noted that these solutions are working well Ecuador for instance cases may be delayed in Japan. for a long time, whereas in Papua New Often delay in trials is due to poor com­ Guinea it may take up to ten months munications and lack of resources. How­ before a hearing commences. In Japan the ever the stream-lining of court systems average length of a trial in which the de­ would do much to minimize delay. Lack of fendant is denying facts charged is 10.9 personnel, as is found in countries such as months. Malaysia, where it may take up to three The causes of delay are numerous. years for a murder trial to be heard, is a Amongst them are: the tendency of the real problem which may be solved to a accused to jump bail and not to appear on certain extent by re-structuring the system hearing dates, frequent applications for ad­ of justice. journments by counsel, administrative It must be noted that some countries difficulties such as the shortage of judges, have prOvided for legislative time limits for lawyers and interpreters, and delay in in­ the hearing of cases. For instance in vestigation. Bangladesh a case must be heard within Various solutions were suggested by three months (although on a transfer to participants and visiting experts. another court, the three-month time limit Professor B.J. George Jr. suggested the will once again begin to run) and in India modernizing of court administration, hav­ judgment must be given within 15 days ing a system of checking the length of time after the end of trial. a trial has lasted, statutory time linlits of court proceedings, the introduction of The Right to Competent Counsel sanctions where proceedings are prolonged This right is provided for by the legisla-

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REPORT OF THE SEMINAR

tion of most countries. However, in prac­ training of interpreters will be necessary. tice, free legal representation is only available in the most serious cases. In addi­ Juveniles tion legal and statutory provisions are Most countries have prOVlSlons for often limited and unsatisfactory, separate courts for juveniles and different One complaint was that counsel given procedures. It was suggested that prosecu­ briefs to defend defendants on legal aid tions of juveniles should be suspended to a were often inexperienced and incompetent. greater extent so that juveniles are not This was due to the fact that more experi­ exposed to a court procedure at alL It was enced counsel were earning more money in also suggested that despite legislative and private cases. procedural safeguards the juvenile knows In Papua New Guinea the office of the very well that he is accused of a criminal Public Solicitor offers free legal representa­ offence and that he is liable to punishment. tion to offenders. This office is a govern­ Again, a more liberal use of suspending ment office within the Civil Service. prosecution in cases of juveniles would Professor Kunert suggested that counsel minimise sllch exposure. should be made available at the tinle of arrest and detention for it is at this stage Conclusion that the accused is most in need of support and legal assistance. It is clear that in most countries, the It is clear that in most countries the pro­ human rights of offenders during investi­ visions for free legal representation are un­ gation and trial are not strictly observed. satisfactory and requir0 reform urgently. This is due to a variety of reasons including However, lack of resources handicap the lack of education, resources and supervi­ development of the area of human rights. sion. However with the in1plementatioll of Professor George suggested that specialised at least some of the recommendations sug­ training is necessary for counsel and judges gested by the participants of tlus seminar so that there is a systematic control over much can be achieved to improve the effi­ judges, prosecutors and defence counsel. ciency and fairness of the various systems He also recommended a Public Defender's of criminal justice. Office which should take the majority of cases. However members of the private Bar could also appear to defend accused persons with the approval of the court. Session 2: Protection of Human Rights of It is the responsibility of the courts to Offenders at the Stage of ensure that the defendant is represented by Treatment competent counsel. Chairperson: Mr. Stephen Olaiya The Right to an Interpreter Abeji (Nigeria) This right is an important one because it Rapporteur: Mr. Suresh Chandra is necessary for the defendant and witnes­ Dwivedi (India) ses to communicate and understand clearly j Advisor: Ml: Yulvio Nomura the court proceedings. There is some diffi­ culty in Papua New Guinea with obtaining interpreters due to the large number of Introduction dialects used and the general unaccessibili­ ty of these interpreters. TIus problem gives The topic above constitutes one of the rise to adjournments and further delay. aspects of the theme of the 74th Seminar In Tanzania the magistrate or judge may in session i.e., '~Fair and Humane Treat­ act as his own interpreter, interpreting ment of Offenders and Victims of Crime." from Swahili to English for record pur­ The protection of the right of offenders poses. In some countries therefore the has been fostered significantly through

104 SESSION 2 various international and domestic legisla­ 32,000 cases were arrests effected i.e. 15% tions. Article 5 of the Universal Declara­ of total cases were handled by public tion of Human Rights (1948) and Article prosecutors. The offenders as a rule of pru­ 10 of the Covenant prOvide anlply for the dence are generally not arrested or gov­ protection of human rights of offenders erned by rules of prudence. In 1986, deprived of their liberty and some other 42,000 were prosecuted and through the articles of these instruments are also re­ effective instrument of suspension of pro­ lated to them. The cardinal principles secution, a very few unconvicted persons established in the aforesaid articles have are detained in Japan. In 1984 through the been very explicitly enumerated in the district courts, 66,000 only received sen· United Nations Standard Minimum Rules tences, 27% of total arrested were released for the Treatment of Prisoners (1955) on bail. Prisoners, if at all arrested are commonly known as SMR for Prisoners inlmediately released after arrest and in the adopted by the First U.N. Congress on majority of cases are not arrested at the Prevention of Crime and Treatment of very outset itself. In 1985 penal institu­ Offenders held at Geneva in 1955. tions on an average confined 55,000 per­ The subject was discussed taking into sons, and out of these only 45,800 became consideration the following sub-topics. convicted prisoners. This meant that 85% a) Treatment of unconvicted/under­ are convicted prisoners and only about trial prisoners 9,000 are unconvicted i.e., 16.8% of the b) Treatment of prisoners and protec­ total number. It is a unique criminal justice tion of their rights system that strives to keep the number of c) Treatment of juveniles contained in unconvicted to the minimum. penal institutions and protection of The delegate from Jamaica pointed out their rights. that the treatment of offenders should d) Treatment of offenders under com­ start at the stage of arrest itself and it is munity supervision and protection very important as to how we interact with of their rights (procedure of revoca­ the arrested person and it was emphasized tion, charge of condition etc.) that the police should be very humane and The session took up the discussion on empathetic and all efforts should be to the SMR for prisoners in particular and humanize their approach as the persons consensus emerged that SMRs (1955) have arrested (unconvicted) are presumed to be had a great impact on the domestic legisla­ innocent and hence all possible courtesy tion of various countries and on peno­ should be extended to them and they correctional practices. All the participants should be allowed to consult their fanli1y were unanimous on the dire need to imple­ whereby they can attend to urgent matters ment the prOvisions of SMR for prisoners of importance. There should be continuity with adequate attention to the sensitive in communication with the outside world and urgent problems of segregation of and they should have the knowledge of undertrials/remands from convicted prison­ their rights and a lawyer should be made ers. available whenever required for. It is un­ Apropos above two sub-topics i.e., fortunate that society in general views an a)-b) the national situation of participating unconvicted/under trial person as a con­ countries is as follows: victed prisoner. If the arrestees are re­ In Japan it was noticed that the situa­ manded it should be ensured that all social, tion was most satisfactory as the system recreational facilities i.e. radio, newspapers resorts minimally to arrest the persons who etc. are provided in detention centres. innately respond to voluntary investigation While in court such a detenu should be at the first stage of inquiry itself, and the respectfully addressed and not as a convict. arrest rate is constantly on the decline, for It is deplorable to prejudge and treat such a instance in 1985 - total no. of cases person as guilty. Such an approach instant· prosecuted stands at 216,000 and only in ly stigmatizes and dehumanizes him by

105 REPORT OF THE SEMINAR creating a wrong role-perception of those In Hong Kong the detainees/rt:mands involved in the criminal justice system. In are kept at separate remand centres. There Saudi Arabia fair and humane treatment are four such centres in Hong Kong for was meted out by extending all necessary adults and children - male and female services to convicted and unconvicted respectively. Only those involved in serious persons and neither of them are kept in offences are detained at these centres as isolated cells and full facilities of T.V., most of them are first offenders and might radio, magazines, and newspapers are instantly react negatively to this new provided. without discrimination. They are environment. These remand centres are free to receive a call (local and internation­ maImed by professional persons with al) from family and friends. Lawyers can special orientation in crisis-intervention be contacted for legal aid if required. An­ techniques and the inmates are provided other interesting feature was a release of a with plenty of recreational facilities. large number of prisoners during Ramadan They are also offered counselling on court by the King, who condoned the sentences procedures and legal aid. An empathetic by one quarter or a half of the total sen­ attitude is expected of the staff working at tence. these centres. The Kenyan delegate observed that It was further informed that in Tanzania, there should be no maltreatment of uncon­ UNSMR are incorporated in the 1967 victed prisoners and in no circumstances Prison Act, in prison standing order and should they be made to do forced hard prison regulations, and these are being labour. On the contrary it was felt that followed but the problem of segregation is these persons should be respected as any a serious one leading to overcrowding in respectable citizen. He reiterated the need prisons. Conceptually it is an ideal arrange­ for segregation of the unconvicted from ment but resources are lacking to imple­ the convicted and a milieu should be creat­ ment it. The government would like to ed so as not to infect the detenus by keep­ build a remand prison in every district but ing them together with convicts. In regard fmancial constraints have thwarted this. to humane treatxnent it is essential that Persons remain under trial for long periods the convicted/unconvicted persons are in view of delays in investigation. In the provided with decent food, clothing and case of certain categories of convicts, some facility to see their relatives whenever are put in open prisons and if they have desired. It was observed that it is not pos­ less than six months' punishment there is a sible to have open prisoners in Saudi provision for releaSing them on extra-mural Arabia as 70% to 80% of the prisoners are labour. There is constant review of long foreigners who may seek an easy escape. timers and after four years some can be The delegate from Sudan stressed that an released. In case of those facing penalty unconvicted detenu should not be dubbed with death, they can apply for mercy a prisoner and may be called a remand or petition/pardon to the president and sen­ detenu and should not be incarcerated tences are sometimes commuted. There is a unless very violent and dangerous. He remission system in vogue on the merits of should be free to see relatives, doctors, and each case. A participant from the correc­ lawyer. Traffic violators should. not be tional services of Japan informed that un­ kept in policefjudicial custody unless it is a convicted/convicted persons are placed in case of rash and negligent driving resulting detention separately and the attitude in death. Treatment to prisoners (convict­ towards treatment for both also varies. In ed) should be fair and humane but not too case of those unconvicted there is a free lenient, except in the case of juveniles and protection of rights while in case of con­ victims. The problem of better prison ad­ victed ones there is some limitation. ministration was considered more impor­ A participant from Thailand informed tant than the building of more prisons in that they have an open jail along with a view of heavy fmancial implication. resettlement Village. According to Article

106 SESSION 2

11 cf the Corrections Act-remands under rules and regUlations but the humane im­ trials are to be kept separately from the plementation of these directions is conspi­ convicts and for this purpose their exists a cuous by its absence. It was observed that special remand prison in Bangkok but in there should be periodiC visits of commit­ the context of rural areas this has not been tees to prisons to oversee the observance possible and there is no separation. It has of rules. The board of governors who visit been evident that the behaviour/attitude of the prisons weekly should fully ensure the correctional officers is not up to the compliance to SMRs for prisoners, extend­ mark. He felt that if the government ing a reasonable opportunity to the in­ cannot cope with the problem of the lack mates to complain to them wherever they in segregation, it should ensure that the have been denied their rights. detenus are treated properly attitudinally The Director of UNAFEI in concluding and behaviourally. emphaSized the most vital aspect of conges­ In Bangladesh-The nomenclature of tion/overcrowding obtaining in many "under trinl" is used in cases of unconvict­ countries in the area of treatment of COll­ ed persons. Some under trials remain in victed persons and human rights. It was jail for a long time. There is a defInite considered almost impossible by anyone policy of fair and humane treatment and agency/segment of the criminal justice vindication of their rights. The delegate system to tackle it. It is a natural corollary suggested that there should be liberal use when a system resorts more and more to of bail to relieve congestion in prisons. For prosecution-resulting in more arrests and the convicted it is necessary that the incar­ less and less releases/bails and rehabilita­ ceration should generate some sense of tion; overcrowding is inevitable and cannot deterrence within rules of local discipline. be wished away. He exhorted the need for Emphasis should be laid on non-institution­ creating a high-powered committee-i.e. a al treatment with minimal regimentation in First Instance FulfJlment Committee as the shape of open jails, halfway houses existing in Japan representing all the seg­ etc., and the special training of correction­ ments of the criminal justice system i.e., al officers is very important especially in Chief Judge, Public Prosecutors, Defense cases of underdeveloped and developing Lawyers-for a better co-ordination of countries with a shift in criminal policy administration at the fIrst instance etc. The from penal to correctional approach. possibility of establishing such a body The session was enlightened a.bout Sri should be explored in aU developing coun­ Lanka's approach that .there should be tries complising all those concerned with further differential treatment of unconvict­ the criminal justice system i.e., correction­ ed from presumed innocent persons. All al institution, pr).uce, courts, and proba­ factors in case of those found guilty should tion, to evaluate periodic implementation be weighed with authorities especially in of SMRs for ptisoners with an integrated case of fear of accused absconding, inter­ and pragmatic approach to solving the fering with and intimidation of witnesses, problems of criminal justice administration etc. Unconvicted ones are treated decently with inter-disciplinary perspectives. as normal citizens with all normal facilities An expert from U.S., Prof. George Jr. provided. In the Malaysian context it was was of the view the international agency mentioned that there is congestion prob­ like the U.N. can do little in dealing with lem due to the unconvicted being lodged consequences of overcrowding in prisons together with the convicts. A viable solu­ except in the area of research. Something tion would be to build up remand centres can be done by courts by not sending large with a new nomenclature of under trials or number of convicts to prisons. Courts remands. In the context of convicted ones should apply a rule of parsimony-with a no perceptible violation of SMRs was in. norm of prison sentences as a last resort evidence as the spirit of these has been and not the fIrst. On the point of building enshrined in the domestic correctional more prisons-the need created by more

107 REPORT OF THE SEMINAR

harsh sentences-leads to a vicious c~rcle. to juveniles and adults. Parole is considered In the U.S. there is a pressure valve pro­ at the earlier stages with a lot of suitable vided to plisons that when the strength rehabilitation schemes. exceeds 10% of the sanctioned capacity the The delegate from Ecuador was of the parole authorities are asked to release more view that there should be separate prisons and more prisoners. for juveniles. There should be good hy­ Further discussion ensued on c) the gienic conditions but in reality not a very treatment of juveniles confmed in penal healthy atmosphere exists. Prisons in institutions and protection of their rights Ecuador are overcrowded and there is no and d) on the treatment of offenders under sound personnel policy regarding proper community supervision and protection of recruitment of prison staff. Their salarie~ their rights (procedure of revocatioIl­ are low and sometimes they have been charge of condition etc.). found colluding with criminals. SMRs for Apropos the above SMR for juvenile juveniles are not observed in their true justice (Beijing rules) adequately and ex­ spirit. He suggested holding of internation­ plicitly provide that incarceration of a al seminars for free and frank exchange of juvenile in an institution is to be rare and ideas regarding SMRs for juveniles. This for a minimum period only with accent on was reiterated from the U.N. Congress at well developed rehabilitation schemes. Milan on the Prevention of Cliri1e and Such measures will control stigmatisation Treatment of Offenders in 1985. and reduce recidivism. In Thailand correctional institutions are Further, the seminar realised the need under the Ministry of Interior while proba­ for deliberation on the lack of attention tion cases are under the Ministry of Justice. paid to the protection of the rights of The King also pardons convicts individually offenders under community supervision and collectively. Any prisoner can apply (probation, parole etc.). Due consideration for parole after completing two-thirds of of offenders' rights under community his/her rmprisonment term based on good supervision, which if not properly exer­ conduct. There is classification of prison­ cised on their behalf will negate the whole ers as bad, fair and good. Another method system of community supervision orders. of evaluation is by public work conduct; if Hence prompt and empathetic monitoring they are not sentenced for more than two of this supervision by the community is a years, they are automatically released must for a fair and humane treatment of under this scheme. Further there are two offenders. open jails with ample freedom of move­ During the discussion the session was ment. There is one resettlement village informed that in Japan, there is differentia­ established for those who can carry out tion between juveniles and a.dult offenders agricultural operations with their family at the investigation stage itself and main­ staying with them. tained till the end. Segregation is an in­ In Japan family courts make decisions built mechanism in the system. There are regarding institutionalisation of juveniles nine juvenile prisons in Japan. In 1985, a and most of the cases are decided by them. total of 626 juveniles were prosecuted to Rehabilitation of juveniles is related to the criminal court and only 129 juveniles parole and two aspects are kept in mind were sentenced to imprisonment without i.e., as to who is to be paroled and when to obtaining suspended sentence, :md out of be paroled. Tllis has eased the problem of this 41 were in traffic offences and only 80 overcrowding. Selection of parolees is done were placed in juvenile prisons. Inprison­ very carefully and meticulously. There is ment is awarded with labour and sentences special stress laid on environmental adjust­ of long-tenn and short-term parole is auto­ ments with perspective planning for reha­ matic if one-third of the minimum sen­ bilitation facilities in consonance with tence has been passed satisfactorily. There human rights of juveniles. However, com­ is distinct and different treatment accorded munity-based treatment also poses some

108 SESSION 2

problems. In a community there are other the family court can order confmement up people around and a parolee is always con­ to 6 months and this prOVision for long. scious of it. Hence the need for anonymity term sentences is providing a big deterrent. for the probation officer or voluntary pro­ Two different types of juveniles are not bation officers. kept at the same place to avoid mutual In Panama juvenile delinquents are not contamination and segregation is resorted considered offenders but maladjusted. to on the scientific basis of degree of There are separate juvenile penal institu­ criminality/ delinquency. tions manned by personnel well trained in In Hong Kong on the other hand insti­ child psychology and social defence. Visits tutional sanction imprisonment is used as a of these maladjusted children are organized last resort and community-based treatment to schools, along with participation games is preferred as a sound correctional policy. etc. They are also given vocational educa­ But somehow it has not been very effective tion. In a number of cases applications for operationally. Efforts are made to assess release on parole are accepted by the each juvenile comprehensively on merits judges. They are also enabled to acquire regarding his suitability for the specific jobs in local industries. According to Arti­ kind of treatment. The institution of cle 27 of the Panama Constitution-it is Detention Centres in Hong Kong as Bor­ enjoined on the penitentiary system to stals is very successful, as after three years provide security principles, social defense! of release it has been noticed that no crinle and rehabilitation to delinquent children. is committed by juvenile offenders. A participant from Kenya indicated that An expert from West Germany, Dr. children of 14-15 years of age are referred Kunert, was ofthe view that efforts should to approved schools while those in the be made to avoid negative effects of over­ category of 15-17 are sent to Borstals. In crowding by incarceration as building more the correctional approach, a non-institu­ institutions leads to a vicious circle and tional arrangement is preferred to an in­ alternatives of parole, protection and com­ stitutional one. The inmates are imparted munity supervision are very appropriate for school subjects and skills and trained in juvenile justice. In the context of institu­ agriculture and animal husbandry. There is tional treatment of juveniles it calls for an accent on non-stigmatisation. Parole optimum socialisation with more stress on boards review their cases very carefully and formal education, vocational guidance all possible efforts are made to naturalise rather than sentencing to forced labour. them in society. Although there is an Act dealing with parole-it is rarely invoked Conclusion and more often probation is practised in case of juveniles and adults alike. The The Seminar reiterated the need for problem of confidentiality as faced by baSic minimum human needs to provide Japanese probation officers and voluntary basic minimum facilities in prisons. Ad­ probation officers also exists in Kenya in a vocated strongly, was the non-use of hide-and-seek situation between offender nomenclature of convicts/prisoners, instead and probation officer. referring to such persons as remands or We were further informed about the under-trials and they should be treated a Japanese system that there are three types little differently and more humanely as of juvenile training schools for different compared to treatment meted out to those age groups and according to the nature of convicted. offence, an average period of stay is 1.2 It was an unanimous view that all the years or 1.4 years. It is heartening to note suggestions/recommendations stipulated in that the popUlation of such referrals is SMRs for prisoners (1955) and SMR for decreasing. Normally the juveniles have Juvenile Justice (Beijing Rules) should be been found to be involved in shop-lifting, fully implementated in letter and spirit as joy-riding etc. Under the new dispensation, these are still valid and call for expeditious

109 REPORT OF THE SEMINAR

suitable action. All member countries Session 3: Protection of and Assistance to should be exhorted to review these SMRs Victims of Crime and comply with them as also those stres­ sed by Milano Conference Seventh U.N. Chairperson: Mr. A.MM Nasmllah Congress on the Prevention of Crime and Khan (Bangladesh) Treatment of Offellders (1985). Rapporteur; Mr. Mohamed Ahmed A conspicuous consensus arrived at was Hashim (Sudan) in the area of developing more and more Advisor: Mr. Shu Sugita alternatives to institutional treatment for juvenile offenders as it was keenly felt that it should be preferred at all times in view Introduction of its obvious advantages. Training of cor­ rectional officers should be given due im­ Victims of crime have received insuffici­ portance in view of lack of proper and ent attention from the criminal justice empathetic attitudes in them today. Sen­ system. Although in recent years consider­ sitivity training of all those involved in able progress has been made to improve the criminal justice administration was the situation of victims, many shortcomings sine qua non of a sound system. Segrega­ and problems still remain. tion was strongly recommended to avoid Respect for human dignity and the dehumanisation, criminalisation with dif­ protection of human rights makes it im­ ferent treatment for the convicted/uncon­ perative that protection and assistance victed juveniles. The Family Court model should be provided to victims. The of Japan for juvenile justice was considered paramount objective of the criminal justice a model one to be emulated with local administration is to ease further traumas of modifications. All possible efforts must be victims suffering from bodily injury, the made by police, public prosecutors, courts loss of property, or fear and shock of and correctional officers to resort to ways victimization. and means to secure release of offenders to Not only the direct impact of crime help reduce congestion as building more described above, but also the secondary and more institutions is no solution to distress shall be kept to a minimum. In­ ensure fair and humane treatment of sensitiveness on the part of criminal justice offenders. In order to achieve these objec­ agencies to the feelings of victims may tives it was agreed that countries should inflict humiliation or embarrassment upon constitute a high powered-First Instance, victims of crime, which might lead to the Fulfillment Committee as in Japan, consist­ loss of confidence in criminal justice pro­ ing of all segments of criminal justice cesses or unco-operative attitude toward administration to review and remedy the the administration of criminal justice. This situation. The need for this symbiotic and lack of confidence and co-operation will interdisciplinary perspective is inlperative definitely hamper the effective pursuance to achieve a well co-ordinated effort in all of social justice. segments of crinlinal justice administration. Thus, the protection of and assistance to victims of crime shall be an urgent con­ cern uf all criminal justice personnel, as it has a decisive influence upon the adminis­ tration of crinlinal justice. The third session of General Discussion focused on the issue "Protection of and Assistance to Victims of Crinle" to explore various ways and means to strengthen the status of victims.

110 SESSION 3

Procedures to Deal with Accusations or shall be avoided as much as possible. If Complaints delay is necessary, efforts must be m<;lde to set a deferred court date at a time conveni­ The right of victims to trigger the ent to victims and witnesses. Both parties criminal justice process into action shall be (i.e. prosecution and defence counsel) must facilitated with a view to obtaining timely produce minimum necessary witnesses and accurate crime related information. before court to expedite r,roceedings. For At the same time, workable machanisms expedItious court procedure, informal pre­ to prevent false complaints or accusations hearing consultation between prosecution must be introduced. For this purpose, a and defence counsel is indispensable. The screening process at the early stage of case being fIled by police or prosecution investigation is recommended. should be sent directly to the court, well Victims must be informed of the pro­ evidenced and nicely processed. Any pro­ gress of proceedings and the disposition of perty which has been seized by the police their cases, especially where serious crimes in relation to the case should be returned are involved and where they have requested to the victim as soon as possible. such information. Protection of privacy is another issue Victims who are not satisfied with the which requires serious efforts and atten­ original disposition shall be given a right to tion. It is accepted that the reputation of apply for the review of the cases by appro­ an individual in society is very important priate bodies. In such cases, these bodies in the case of rape or sexual assault. It is must be given an independent status so observed that most victims are afraid to that they can render a decision not affect­ report the case to the police for fear of ed by the original one. harassment from the police. They feel that With regard to the procedures to deal their privacy is made public as far as that with accusations or complaints, it is sug­ particular crime is concerned. Such crimes gested that a public relation office be are attractive to the news media and much established in the courts of magistrates so publicity is made. as to encourage victims to go and place If the case goes before the court, the their complaints without the fear of being victims will face embarrassing questions in subjected to harassment imposed by law court and her feelings will be greatly enforcing authorities. harmed. In the end the victim often The disposition of wmplaints or ac­ decides not to bring her case before justice. cusations must be made as soon as possible It must be a responsibility of all crinli­ by those officials who have enough ex­ nal justice personnel to save a victim from pertise and experience in dealing with these this terrible plight. Victims shall not be cases. In the disposition of cases, it is regarded as just a source of information to recommended that personnel in charge of prove on offender's guilt. Victims have the case listen fully to victims' vIews about inalienable rights to access to the mecha­ the offence and offender. nism of justice for the harm that they have suffered. They are entitled to every pos­ Protection of Rights and sible remedy including restitution, com­ Interests of Victims of pensation, and necessary material, medical, Crime in Criminal Procedure psychological and social assistance and support. Victims shall be informed of these The foremost measure to be taken to rights and the availability of various ser­ protect rights and interests of victims is to vices throughout the legal process by ap­ prevent unnecessary delay of the criminal propriate means. Free legal services to justice processes. victims must be systematized at the ex­ The investigations and trial must be pense of the state. speeded up without sllbjecting the victims. In rape or sexual assault cases, it is sug­ to undue harassment. Adjournment of trial gested that public rescue centres dealing

111 REPORT OF THE SEMINAR

with sexual abuse should be set up so as to be comprehensive to cover all such acts. assist the police as sOOn as a complaint is Other innovative measures designed for made about a rape case. These centres witness protection must be considered and must be provided with well-qualified established. professionals such as doctors, nurses, Without official or accurate knowledge psychiatrists, psychologists and counsellors. of the impact of the offence upon the vic­ These services shall be given free of charge tim, the court may not be able to decide and be made available even after the con­ appropriate disposition. Such knowledge clusion of criminal proceedings. The police could lead to more humane and just treat­ should refer the case in1mediately to the ment of both offender and victim. centre so that the victim can get proper In the United States, efforts have been counselling services to make them made to reflect victims' feelings in sentenc­ better witnesses and prepare them for the ing. The Victim Impact Statement em­ court procedure. ployed in a number of jurisdictions in the Crimes against public health or environ­ United States is one example. ment need urgent attention. In view of the Concerning measures to reflect victims' characteristics of contemporary post-in­ feelings on the decision of parole and dustrial society and the role played by pardon; the Japanese system for dealing growing industrialization, technology and with the issue was most acceptable. In this scientific progress, special protection a­ concern, the feeling of the victim at the gainst criminal negligence should be ensured time of parole decision plays a very impor­ in matters pertaining to public health, tant factor. In order to satisfy this feeling, labour conditions, the exploitation of various efforts are being made in the Japa­ natural resources and the environment and nese system. There are two methods; one the provision of goods and services to con­ is by adjustment of the environment. The sumers. The United Nations shall assume a law provides that the feeling of the victim leading role in setting workable norms and must be determined and it has to be put guidelines to prevent this type of victimi­ into a report in writing before the determi­ zation. nation of parole. In this report in ordinary Economics crimes also require special cases, the feeling of the victim is investigat­ attention. Economic crimes often affect a ed. If the feeling is changed then new in­ great number of people, causing tremen­ vestigations are made. In several states of dous hann to economiC, social stability of the United States, victims or their re­ a nation. Quick and secure remedy shall be presentatives are allowed to attend parole materialized through the introduction of hearings to present their views about parole innovative measures. Victims as a group determination. may be given some legal status in seeking Insensitive treatment of victims during redress with regard to such cases. the criminal justice processes could lead With regard to the protection of witnes­ not only to their isolation but also to ses, various services shall be implemented secondary victimization. Cumulatively, such as transportation to and from pro­ those factors could create a situation where ceedings and child care during proceedings .. victims increasingly tend to withhold their Witnesses shall be compensated for the loss co-operation from the criminal justice of income incurred by attendance at system. To prevent this, one possible criminal proceedings. As effective victims measure is adequate training of criminal and witness protection is crucially impor­ justice personnel responsible for investiga­ tant for the fair and proper administration tion, prosecution and trial. Investigation of criminal justice, it is essential that law officers must be recruited from persons of enforcement agencies accord high priority good calibre and high qualifications and to the prevention of intimidation or retalia­ should receive adequate training in law, tion against witnesses. For this purpose, criminology, sociology and victimology. penal legislation to punish these acts must Appropriate guidelines to deal with vic-

112 SESSION 3 tims shall also be developed to ensure some kind of gift. The effect is that the proper and prompt aid. The establishment two families will reconcile. The overall of a victims unit in law enforcing agencies effect of the system is that it provides is recommended so that specialization of compensation and secondly it provides officers can be promoted, enabling them to reconciliation and that might ultimately handle victims both effectively and com­ suspend civil or criminal proceedings. passionately. In Japan traditional arbitration or medi­ ation has an important role because just Compensation to Victims financial compensation might not in all cases be accepted by the victim or his It is clearly noticed that most countries family. The feeling of personal compensa· have not provided in their constitutions or tion to the victim or his family is what is criminal codes any provisions with regard sought after. to compensation of crime victims. The In Bangladesh, the traditional mediation usual practice in such circumstances is and arbitration system has worked some­ resolting to civil proceedings to obtain times more fruitfully than the court pro­ compensation. However, this process is ceedings which are civil in nature and take costly and time-consuming. Moreover, even a lot of time. when orders or decrees granting awards to The participants have expressed a varie­ victims are rendered, the offender might ty of ways and means through which not be able to pay the restitution for which disputes can be tackled peacefully in their he is liable. Thus, the victims or their respective countries. These informal families are left to their fate suffering in­ mechanisms should be utilized where ap­ jury and demoralization. When compensa­ propriate to facilitate conciliation and tion is not fully available from the offender redress for victims. or other sources, the state should endeavour to provide financial compensa­ Conclusion tion to victims who have suffered from significant bodily injury or impairment of In the course of the discussion, the physical or mental health as a result of multi-faceted nature and the technical serious crimes. The family of victims who complexity of the subject has been con­ have died or become physically or mental­ firmed. This is partly because the issue has ly incapacitated as a result of crimes shall not been throughly confronted previously. also be compensated. The establishment of However, the adoption of the Declara­ national funds for compensation to victims tion of Basic Principles of Justice for should be encouraged. In countries where Victims of Crime and Abuse of Power has the convicted prisoners are paid for the charted new ground, by setting the various work which they perform in prison, part of courses of action to be taken to protect their income should be paid to their vic­ victims of crime from trauma and distress. tims by the prison administration as com­ The inlplementation of the Declaration pensation. shall be taken into consideration on a In developing countries where there are priority basis in respective countries to no provisions for compensation to victims promote fair, humane and just administra­ of crime, traditional mediation and arbitra­ tion of criminal justice. tion play a significant role in settling Continuous concern must be given to disputes between victims and the accused this issue, and the United Nations shall person. Each country adopts its own sys­ assume a leading role so that workable tem. norms and standards could be further de­ In Fiji, the traditional system for media­ veloped. tion or arbitration is called Sevu Sevu. In No efforts shall be spared until the pre­ this system the family of the accused will servation and respect of. victims' rights approach the family of the victim and give become an integral aspect of the whole

113 REPORT OF THE SEMINAR justice system. matters of international studies and policies pertaining to prevention of crime and the treatment of offenders. The adoption of a "Universal Declaration on Human Rights" Session 4: International Co-operation, (1948), the "United Nations Standard Training and Research Minimum Rules for the Treatment of Prisoners" (1955) and the "International Chairperson: Mr. Munasinghe Chandra Covenant on Civil and Political Rights" Prema Mendis (Sri Lanka) (1966) by member countries, incorporating Rapporteur: Mr. Jacob Rongap provisions in domestic legislations have (Papua New Guinea) endeavoured to promote rights of offend­ Advisor: MI'. Masao Kakizawa ers. However, in reality, difficulties are encountered in the implementation stage due to a number of factors. The problems Introduction are more intensified in developing nations due to lack of budget, staff and technical All nations of the world in their endeav­ equipments. our to develop in social, economical and In recognition of the need for inter­ political aspects are threatened by crimes change of information and co-operation which have been rapidly increasing not between member states, the United Na­ only in number but also in complexity. tions with willing assistance from well-to­ Furthermore crimes are not confmed to do nations is promoting fair and humane national boundaries but have exploded into treatment of offenders and victims through international contentions. Therefore, inter­ seminars, training courses and research governmental agencies whose concern for projects. Regional institutions such as healthy development of their respective UNAFEI have and will continue to en­ countries have been advocating efficient hance international co-operation by pro­ administration of criminal justice systems. viding in addition, consultation or advisory The international interest for prevention services to governments. of crime and treatment of offenders prompted the formation of the Interna­ International Co-operation tional Penitentiary CommIssion (later to be known as the International Penal and Nearly every state in the world has Penitentiary Coll1ll1ission) just before The provisions in its constitution or basic law Second World War. The Commission com­ for the protection of particular human prising of thirty (30) member countries rights and fundamental freedoms. This is formulated a constitution and met at five­ particularly true of countries which a­ year intervals except during The Second dopted their basic legal texts after the World War period. The first article of its proclamation of the Universal Declaration constitution stated its purpose as being of Human Rights in 1948. Other nations that of gathering data that would enable it have in most recent years ratified their laws "to advise governments on the general in accordance with some, certain or all, of measures to be taken to prevent violation the provisions of the Declaration. of the penal law and to provide for the One of the main aims of international repression of crime and at the same time to action in the field of human rights is to reform criminals." extend the limits of national protection. The formation of the United Nations in States, in voluntarily accepting human 1945 saw the abolition of the Commission rights conventions, undertake to put into but in its stead the United Nations created effect the domestic laws, regulations or regional consultation groups of experts administrative prOvisions, or to take the whose task was to advise the Secretary­ judicial measures necessary to give effect to General and the Social Commission on the provisions of those conventions. The

114 SESSION 4

United Nations organs have in providing cies such as the Civil Liberties Bureau of guidance to member states, continued to the Ministry of Justice, Courts and Bar seek new ways and means of promoting Associates conduct seminars on human respect for and observance of the human rights with co-operation of mass media. rights covenant. Every year, a day (Day of Law) and a week Participants agreed that provisions of (Law Week) are set aside for the purpose of the Universal Declaration of Human Rights educating the public of their rights. and other related instruments have been Again fmancial constraints restrict the accepted in principle by incorporating pro­ efforts of governments, and there is still a visions in the domestic legislation. A par­ lot to be done in this respect. If one as­ ticipant from the People's Republic of sumes that a normal law-abiding person is China observed that a number of the Arti­ not concerned about his rights, then what cles of the Covenant have been already is the situation with regard to an offender included in the country's Constitution or convicted prisoner? Being deprived of whilst discussion on further improvement his basic rights at the time of detention, he is still progressing. One would then ask has every right on admission to a penal in­ how effective is implementation of those stitution to be given a modified version of instruments in respective countries. the Standard Minimum Rules for the Treat­ Member states, especially certain de­ ment of Prisoners. veloping nations are not able to effectively Discussions then centred on the roles of maintain standards as required due to international bodies such as the United circumstances which are beyond their Nations, its regional institutions such as control. Financial and proper training of UNAFEI and other international bodies personnel in the administration of their concerned with. the well-being of the agencies are only a few of the obstacles. human race. The United Nations and other For example in Peru, although a new Penal international organizations have, since the Code was enacted in 1985, the administra­ adoption and proclamation of the Univer­ tive mechanism in maintaining the prisons sal Declaration on Human Rights, worked in accordance with the Standard Minimum vigorously to discover ways to promote Rules for Treatment of Prisoners is not respect for and observance of human rights functioning due to corruption and political and fundamental freedom. A marked influence whereby untrained persons are achievement in this regard was the adop­ appointed to prison administration duties. tion in 1966 and acceptance by Member On the other hand, Japan has quite success­ States in 1976 of the International Cove­ fully adopted and is implementing all nant on Economic, Social and Cultural aspects of the Human Rights Declaration Rights. Article 1 of the Covenant declares including the Declaration of the Elimina­ that all people have the right of self deter­ tion of Discrimination Against Women. mination in political, economical, social Participants then discussed what their and cultural development. Member States respective governments have done in dis­ are required to furnish reports to the seminating infonnation to the general Secretary-General of the United Nations on public on the international instruments, measures which they have adopted and the and how effective such programmes have progress made in achieving the observance been. In most countries the mass media is of the human rights. used to educate people of their rights at The participants acknowledged the schools, institutions and homes. However, work of the United Nations with regard to participants from India and Malaysia were its promotion and acceleration of human critical of the fact that much more should rights through establishing various interna­ be done in this regard through mass propa­ tional instruments on human rights which ganda and inclusion in school syllabuses. each Member State has incorporated into Countries in the region need to follow the domestic laws. However concern was raised example of Japan where government agen- by the participant from India that although

115 REPORT OF THE SEMINAR the United Nations is a respectful organiza­ Training of Officials tion, its image as a world body to take drastic action against incidents of violation Whilst all participants assented that in­ of human rights is very millimal. service training programs for cdminal jus­ Visiting lecturers, Prof. George and Dr. tice system officials are undertaken in their Kunert pointed out that Member States respective countries there is yet more to be should undertake bilateral and multilateral done. The participant from Jamaica advo­ agreements to facilitate nation-to-nation cated that acceptance of personnel into the interaction for the eradication of matters criminal justice system and in particular, that infringe on human rights outside of the police and correctional agencies, should their own respective territorial boundaries. not be on academical qualification but on Absence of such treaties denies offenders personality. A person who is psychological­ or convicted persons the right to fair and ly and physically calm would achieve more humane treatment. fruitful results in human relationships than Regional institutes such as UNAFEI a person who is academical qualified but is have promoted the aspirations of the not practicable. United Nations to foster understanding Dr. B.J. George Jr. and Dr. Kunert in anlOngst officials involved in crime preven­ support of comments by the participants tion and treatment of offenders. The from India and Bangladesh commented participants praised the Japanese Govern­ that sensitivity training should be the es­ ment in taking the initiative in establishing sence of training. Trainers should be con­ such an Institute which has since 1962 stantly reviewing their training programme conducted 73 courses for officials. In so as to improve on weaker points identi­ addition to these courses, UNAFEI has fied in dealing with offenders or victims of conducted three regional training courses, crline. namely in 1967, 1972 and 1977, on the Training on the national level should subject of the protection of human rights encourage seminars and training courses for in criminal justice administration. The participants from all government agencies fruits of UNAFEI's efforts are evident in involved in the cdminal justice system, so the fact that most of its former· partici­ that each agency would appreciate the pants are greatly contributing to the functions of others and iron out problem­ development of criminal justice, taking atic areas of common interest. Such important positions in their professions courses should utilize the services of visit­ in their own countries. The success of ing lecturers from the United Nations to UNAFEI is therefore of high regard and provide expert advise on measures to be participants declare that more courses undertaken in order to ease problems. should be held at UNAFEI. The Director Agencies should also utilize the services of UNAFEI, Mr. Hideo Utsuro, in response of local universities in deSigning relevant stated that UNAFEI will continue to make courses for senior officials so that their every effort for further development of knowledge of social, economical and politi­ criminal justice in close collaboration with cal situations in their own countries and in various governments in the region. The the rest of the world would guide them in participant from Venezuela was concerned policy-making in their profession. Coun­ that the regional institute in Latin Ameri­ tries such as Nigeria and Papua New Guinea ca, was not doing as much as UNAFEI, have had such programmes in existence for whilst the participant from Tanzania some time now. wanted to see the operation of the regional Training of personnel should not only be institute in Africa to commence as soon as confined to their professional subjects but possible. also include other related areas, including provisions of the United Nations instru­ ments pertaining to treatment of offenders and victims of crime. Agencies endeavour-

116 SESSION 4 ing to perfect their own systems tend to the causes. In ordt:r to achieve such an aim, overlook human factors such as behaviour governments should sponsor research work both psychological and physical. regardless of the expenses involved. Participants advocated more interna­ Some countries have had research done tional seminars and training courses for on the causes of crime, the effectiveness of officials. Such seminars and training criminal justice system and victimoiogy. courses facilitate exchange of information The problems identified, however, would and experience and also promote co­ require tinle and money to correct. As­ operation in specific fields. The United sistance should be sought from various Nations should continue to collect and bodies to undertake research work. disse~inate information on specific coun­ So far much emphasis has been placed tries, including statistics and comments. . on treatment of offenders and little re­ The United Nations should also consider search has been conducted on victimology. regional seminars for police ofHcers espe­ Victimology is therefore, a relatively new cially in the field of investigation and in field in criminal justice system that calls particular use of scientific methods. The for concentrated research. "United Nations Code of Conduct for Law In most developing countries, govern­ Enforcement Officials demands certain ment agencies may need to co-operate with levels of conduct but at present there is no local universities in research work due to international exchange of concern. Whilst cost factors and the availability of human the prison services in Asia and the Pacific resources. The findings of any research region have an annual Seminar (the Asia work may not always be practicable for and the Pacific Conference of Correctional policy makers and therefore some critics in Administrators), this is not so for the law opposing research work say it constitutes enforcement officials. more waste of financial and manpower The United Nations fellowships awarded resources. Therefore, close co-operation under the programme of adviSOry services should be established between scholars and in the field of human rights should be practitioners in order to make the results continued to foster betterment of young of research more relevant to policy, more persons invol\'ed in criminal justice admin­ reliable and to better facilitate the imple­ istration fields. 'the advancement of such mentation of the research. Action-oriented fortunate individuals will depend largely on research on human rights will be supported individual governments to devise proper by the governments which consider the career plans so that there is continuity in well-being of their citizens most important. training in respect of protection of human rights. Conclusion UNAFEI, one of the regional institutes, has been contributing much to the Asia The United Nations has greatly contrib­ and Far East in offering training. It's suc­ uted to the promotion of the human rights cess is noticeable in individuals who have of offenders as well as victms of crime advanced in their own field and in some through formulating various international cases, returned on invitation to UNAFEI as instruments on human rights which have visiting lecturers. been incorporated in domestic iaws in re­ spective countries. However, it is generally Research agreed that full implementation of such international instruments has been ham­ The development of a country is greatly pered by various reasons, e.g., financial affected if social disorder is not controlled. constraint, shortage of manpower and lack Crime and in particular treatment of of­ of training of officials. Therefore, the fenders demands carefully planned ap­ United Nations and its related bodies are proach. To determine the best approach it strongly urged to provide various types of is necessary to establish the problem and assistance in order to promote human

117 REPORT OF THE SEMINAR rights in criminal justice through full im­ information and experience. plementation of international instruments The lack of research, especially of vic­ on human rights. tims of crime, is pointed out by partici­ The training of officials concerned is pants. Action-oriented research which is inevitable for the advancement of fair and closely relevant to policy-making is urgent. humane treatment of offenders and victims ly necessary for well-planned and thus of crime. Especially, the importance of effective approach to crime prevention and sensitivity training should be emphasized humane treatment of offenders as well as since the insensitive treatment of victims victims of crime. In order to facilitate the by officials during the criminal procedure action-oriented research, close co-operation has sometin1es compounded their feelings between scholars and practitioners should of helplessness and frustration. The train. be established specially in developing coun­ ing/seminar will also provide officials from tries where the lack of financial and human various areas of the criminal justice system resources has been the obstacle for research with good opportunity to exchange their activities in criminal justice.

118 PART II

Material Produced during the 75th International Training Course on Non-Institutional Treatment of Offenders: Its Role and Inlprovement for More Effective Programmes lIS ~ 90

SECTION 1: EXPERTS' PAPERS

New Kinds of Non-Custodial Measures - The British Experience -

by John Eryl Hall Williams*

Introduction many offenders being. imprisoned in this way, many for long periods - and review­ The opportunity to review new kinds of ing the length of prison sentences, as well non-institutional treatment methods for as the use of custody itself, particularly offenders in England and Wales for the youth custody for young adult offenders 75th International Training Course has under twenty one. provided the chance to assess the situation This paper describes in outline the new at a crucial stage in these developments. As developments in the field of non-custodial will be seen, many different kinds of treat­ measures, and attempts to assess the re­ ment measures are now available to sentenc­ sults. ing courts. The experience with these will be reviewed, and some conclusions offered New Kinds of Non-Institutional together with some possible guidelines for Measures for Dealing with future developments. Although it is ap­ Offenders in England & Wales preciated that the situation in many coun­ tries is not the same, and the possibilities Developments in Connection with a Proba­ for such extensive developments may be tion Order severely limited by resources and local Many of the new measures have been conditions, it is hoped that something can developed by using conditions imposed on be learned from the experience in western the offender as part of a probation order. countries, and in particular from the British While it has not been the custom in Britain experience in these rna tters. to allow many conditions to be required in The background against which one must this connection, the law has recently been set these developments is one of rising con­ extended to pennit a wide range of re­ cern about crime, which has escalated in quirements to be attached to such an order, recent years, and the bulging prison popula­ always of course Witll the offender's con­ tion, which by April 1987 had reached a sent. Negative requirements such as requir­ record high level in England and Wales. ing a person to refrain from associating Clearly, renewed efforts are needed to cope with a person or type of person or frequent with this situation. The development of so certain places such as football grounds, many new alternatives to imprisonment has public houses or certain parts of a city area, had some effect, but has not been suf­ may be incl~ded in a probation order pro­ ficient to stabilise the prison population, vided the court has first consulted the pro­ leave alone to reduce it. There are those, bation service, but probation officers are like the present writer, who have come to not very keen on such requirements since believe that what is now needed is a frontal they are so difficult to enforce, and con­ attack on the use of imprisonment itself. flict with the probation service's concept This means tackling the question of the use of its "helping" role. Positive requirements of remand in custody pending trial - too may be included requiring a person to at­ tend a specified activity during the whole or part of a probation order's duration, or '" Professor of Criminology with Special Reference to Penology, London School to attend a day centre, but it is no longer of Economics, United Kingdom permitted to order the offender as part of a 121 EXPERTS' PAPERS

probation order to pay compensation or training centres in connection with proba­ make reparation to the victim. A separate tion. Also a number of probation services power is available to make a compensation had opened day centres. order (See below). Day training centres were established In England and Wales 42,000 probation experimentally in four areas under the orders were made in 1985, and the total Criminal Justice Act 1972. The Act pro­ number of persons currently under supervi­ vided that a court could make it a require­ sion exceeds 100,000 persons in anyone ment of a probation order that a person year. One third of those are formally "on should attend a day training centre full­ probation," one third are under what is time for 60 days, five days a week from 9 called statutory supervision following a a.m. - 5. p.m. Responsibility for his super­ custodial sentence, and the remainder are vision rested on the probation staff at the either under voluntary or statutory after­ centre during this period and an intensive care, including parole supervision. Cases of programme of education classes, instruc­ "domestic supervision" arising from family tion and discussion was provided, often problems occupy less than ten percent. directed to the improvement of the of­ There are nearly 6,000 professionally qual­ fender's social skills and self-image. This ified probation officers engaged in field experience was thought useful for many work, assisted by nearly 1,500 ancillary inadequate petty offenders with a previous workers. record of crime who might otherwise face a The imagination and inventiveness of short prison sentence. the probation service has spawned a variety There was a considerable divergence of of schemes and experiments in connection views about the day training centre. Some with probation. Space does not here permit probation staff were obviously jealous of a description of the use of probation to the ample facilities and generous provision secure that an offender receives medical or of staff in these centres. They were un­ psychiatric treatment, but for the sake of doubtedly very expensive to run. Others, completeness this must be mentioned. including the House of Commons Expendi­ Indeed "the psychiatric probation order," ture Committee, gave the innovation a as it is often called, was one of the first warm welcome, When the next criminal measures adopted in an effort to reduce justice legislation was introduced, the the use of imprisonment, in this case for Criminal Justice Act 1982, the opportunity offenders needing psychiatric or medical was taken to replace the provisions of the treatment. It must not be confused with 1972 Act with a general power to allow a the Hospital Order, which has been avail­ day attendance requirement to be inserted able to criminal courts since 1959, and has in a probation order, and it seems that recentIy been amended in 1983 to provide many probation areas now provide facili­ certain improvements. The hospital order ties for offenders of this nature. 1 does not require the offender's consent, unlike the psychiatric probation order, but (2) Day Centres it does require the agreement of the medi­ Another development which the Ex­ cal doctors, and a place to be found for the' penditure Committee found interesting was offender in a hospital. the provision by the probation service of The following new developments in day centres. These are little more than off· connection with a probation order may be tile-street shelters to which the homeless mentioned, and some of these will be and tile unemployed can be directed or be described: advised to attend. A survey conducted in 1980 showed there were 73 day centres in (1) Day Centres and Day Training Centres England and Wales, tile majority provided At the time when the House of Com­ and run by the probation service, but a mons Expenditure Committee looked at significant minority (31) provided by other the situation (1987) an important experi­ agencies, mostly voluntary societies and ment was under way with regard to day associations. By 1985 there were 83 day 122 NEW KINDS OF NON-CUSTODIAL MEASURES centres. Some were specialised rather than the court is of the opinion that it is ex­ generic, i.e., they were intended for and pedient "instead of sentencing him" to catered for sjjecial groups such as young make a probation order. One may well adults (24), homeless adults (20), the long­ think that the approach to this matter by term unemployed (4) or mothers (3). Some the English law is unduly restrictive if not only functioned in connection with a idiosyncratic and hypocritical. The answer probation order. A variety of programmes lies in t,1.e strong belief that if a person is was provided, and different degrees of fit to be allowed his freedom after being formal requirements applied. There appears convicted for an offence, then that conclu­ to have been no evaluation of these centres sion carries with it the implication that no (Walker 1985, 274) but an account on one undue restrictions of the offender's liberty centre by Richard Hil is to be found in may be imposed other than those expressly POinting (1986). allowed by law. Till.::. view must be a serious restriction on the probation service's abili­ (3) The Medway Centre Day Training ty to experiment. In practice however, it· Unit does seem that some interesting experi­ The Kent Probation Service developed ments are taking place. for a while a Day Training Unit at the Medway Centre, which imposed much (4) Tracking stricter obligations for those involved, in­ One method which has received some cluding a detailed check on the offender's pUblicity, and which is modelled on an activities not only during the day, when a American experiment, concerns a scheme work programme was provided, but also whereby offenders on probation are placed during the evening and at weekends. Strong in a programme which involves what is opposition was expressed to this scheme on called "tracking" or "intensive tracking." the grounds that it conflicted with the This is used only after calling the offender traditional "helping" role of the probation in to discuss it with the probation officers, officer, and involved the officer too much and securing his agreement to participate in in the "control" of the offender in the the scheme. A 28-day period of assessment community, and the scheme has now been is requested, with the offender placed on dropped. 2 bail by the court for this period. During This experience raises an interesting this time he will be seen at least once a day question. If the objective is to reduce the by his "tracker," who is not a probation number of offenders receiving a prison officer but a person paid to undertake this sentence, why should there be any restric­ role. During the bail period an assessment tion placed on the degree of "control" will be made of his suitability for the imposed on the offender in order to make scheme. The tracker will liaise with all his continued presence in the community those who have contact with the young more acceptable? The matter was ad­ person - his probation officer, social dressed in a legal case which went to the worker, education welfare officer, parents, House of Lords (the ultimate judicial tri­ teachers, employers etc. A report will be bunal) in connection with a similar innova­ prepared for the Court drawing together all tion: Cullen v. Rogers (1982) 4 Cr App the relevant information and including a R 170. recommendation as to whether the young The court there held that since the ob­ person will be placed on the group work ject of a probation order was "to avoid element of the scheme or an individual passing a sentence," any requirement made programme which would include less inten­ in such an order should not "introduce sive tracking. Once the young person has such a custodial or other element as will been placed on the scheme, less intensive amount in substance to the imposition of a tracking will commence in every case, in­ sentence." This language refers to one of volving contact initially four to five tinles a the pre-conditions for making a probation week, gradually reduced during the period order in England and Wales, which is that of four months he is on the scheme. The 123 EXPERTS' PAPERS tracker will also monitor school attend­ This is an eight-week-Iong course involving ance, and if the offender is not allotted to weekly meetings of two hours' duration the group programme, individual counsell­ designed to give offenders the information ing will take place. There will be an at­ they need to encOurage them to change tempt to get the offender to face up to any their patterns of drinking. Each week smail problem concerning his relationships or groups of offenders, sometimes accom­ values and attitudes. With regard to the panied by friends or spouses, attend the daily contacts, these are not necessarily by Southampton probation office to recall the physical encounter at this stage (as at the day they fell foul of the laws on drunk bail assessment stage) but could be by driving and to learn more about the im­ telephone. The less intensive tracking lasts plications of drinking and driving. They are twelve weeks, after which there is transfer shown slides and videos to illustrate points back to the supervising officer. such as the low levels of alcohol needed to Group work involves a requirement to impair reactions and the ways in which attend three nights a week and all day excess alcohol can damage parts of the Saturday, for a period of three months - a body. More than 100 offenders have com­ total of fifteen hours a week. Each group pleted the course so far and only five of session is staffed by one qualified group these have been convicted again on alcohol­ worker, one unqualified group worker with related offences. Most of those ordered by previous experience as a Tracker, and one the courts to attend are either young of­ volunteer. The average number in any fenders or those with high levels of alcohol group is eight young people, mostly aged in the blood at the time of aaest. The between 15 and 16 yean;. The types of of­ scheme, which is still in the pilot stage, is fence range from taking motor vehicles to being run in the two neighbouring cities, burglary, arson and theft. Most of the Portsmouth and Southampton. young people involved attended regularly and successfully completed the pro­ (6) Other Probation-based Alternatives gramme. Some w.,re breached, Le., taken Space does not permit us to offer a to court for violation, for non-attendance description of each of the many probation­ or lateness. The groups have been con­ based schemes which have been developed cerned with discussing and examining the in recent years - mainly as an alternative offending behaviour of its members, there to custody. Accounts are available of some are visiting speakers on a variety of prob­ of these in John Pointing's book (1986) lems, and also a varied programme of ac­ and one is beginning to get some assess­ tivities is provided including health and ment of the successes and· failures (and fitness, reparation and motor vehicle failures there have been), and a discussion technology. of the significance of these develop­ The early research findings about the ments.3 working of this scheme have been suf­ ficiently positive to encourage the social Community Service Order services department of the local authority Perhaps the best known innovation in· to take it on board from October 1986 as Britain in regard to non-custodial measures an officially backed scheme for young per­ of dealing with offenders is the Communi­ sons under supervision. Naturally there is a ty Service Order (CSO) lntroduced in the high reconviction rate (52%) but this is re­ Criminal Justice Act 1972 as a result of the garded as within acceptable limits. recommendations of the Wootton Sub­ Committee's Report of 1970, Non­ (5) The Hampshire Probation Service's custodial and semi-custodial penalties. At Course for Drunk Drivers first the C.S.O. was provided experi­ Another innovation has been tried out mentally in probation areas representing in the south of England by the Hampshire different parts of the country. The results Probation Service for drunk drivers, with were so encouraging that the application of the co-operation of the magistrates' courts. the C.S.O. was extended rapidly to all 124 NEW KINDS OF NON-CUSTODIAL MEASURES probation areas in England and Wales, and 6) The offender must consent to the has been introduced in Scotland too. making of the order. The present law is contained in the This is a condition of any proba tion Powers of Criminal Courts Act 1973 which order, and although in England and Wales was a consolidation measure gathering (but not Scotland) the CSO is a separate together nearly all the sentencing powers order, the same pre-requisite applies. of criminal courts. We must now examine 7) The court must explain the meaning in detail (1) the legal provisions, then (2) of the order to the offender in ordinary describe the way in which the different language, and supply him with a copy of C.S.O. schemes are operated and (3) finally, the order - copies must also be supplied to discuss the success of the C.S.O. and the the supervising officer and the relevant implications. clerk to the justices. Most CSOs appear to be in the region of 120 hours. (1) The Law Relating to the Community There is provision for amendment and Service Order revocation and extension of a CSO in the 1) The offender must be aged sixteen light of experience. or over. No order can be made which conflicts Originally the minimum age was seven­ with the offender's religious beliefs or teen, but this age was reduced by the times of normal work or school atten­ Criminal Justice Act 1982 to sixteen. dance. Offenders of all ages and both sexes are A CSO can be made for breach of a accepted for the CSO but naturally the Probation Order. majority of offenders are in the younger Breach of a CSO is, like probation, fin­ age group. able (up to £400) or the order may be 2) The offence must be one which is revoked and the offender dealt with for punishable by imprisonment. the original offence. If the order was made This is partly because the aim is to pro­ originally by the Crown Court, then the vide an alternative to prison, and partly to magistrates' court should send the offender avoid using it unnecessarily for compara­ to the Crown Court to be dealt with there tively minor offences. for the breach. 3) The court must be satisfied that the Obligations of tlle Offender offender is a suitable person, and that ar­ The offender's obligations under a CSO rangements can be made for him to carry are severely limited. out the obligation - which is described 1. to report; and notify any change of thus: "to perform unpaid work" for a address. specified number of hours. The court must 2. to work as directed, and do the work specify the number of hours. to the satisfaction of the supervising 4) The minimum number of hours for a officer. CSO is forty hours and the maximum two hundred and forty hours, and it is provided (2) Implementation of CSOs: The Ex­ that this shall be completed within twelve perience months. The experimental areas proceeded in 5) A social inquiry report is a pre­ slightly different ways to implement tlle requisite. This is because the court needs to new powers by developing schemes for be assured that the offender is "a suitable offenders under community service. The person to perform work under such an probation officers assigned to this work order." had to go out and find tasks and "unpaid The usual practice is to refer the of­ work" w.hich could be done in the com­ fender for assessment by those probation munity. An immense variety of different officers responsible for the CSO scheme in tasks has been provided, such as shopping, the area concerned. If the court thinks it painting and decorating and gardening for necessary it may require the probation old people and those who are infirm, officer to give oral evidence. renovating publicly provided children's 125 EXPERTS' PAPERS homes and playgrounds and recreation clared the scheme viable and said it could· areas, work assisting the mentally and be regarded as representing an exciting physically handicapped, public service' departure from traditional penal treat­ tasks such as cleaning over-grown foot­ ment. paths, canal banks and graveyards (includ­ One might add the observation of the ing that in Highgate London where Karl Inner London Probation Service in the Marx is buried I). A wide range of skills can evidence to the Expenditure Committee be used in this way, and offenders have (1978) to the effect that one could describe been surprised to be asked the simple ques­ the community service order as "a simple tion, what skills can you offer? This has but effective method of training and social often been the first time auyone has control" (Report 1978, para 200, lxxiii). treated them as if they had any worth. In their experience 70 to 75 percent of Some offenders have become so involved in orders were satisfactOrily concluded. the work they were doing that they have The second research report from the asked to stay on after the completion of Home Office Research Unit tried to esti­ the order, and have become themselves mate the proportion of those given com­ supervisors. munity service who were diverted from Evidence received by the Expenditure custody i.e., where the order truly replaced Committee in 1978 showed that the CSO a prison sentence. They reported that in had become an integral part of the criminal their view the proportion was within the justice system. There were certain dif­ range of 45 - 50 percent of those given ferences in the approach to the CSO be­ community service orders (Report No. 39, tween different areas, and the Home Office Home Office Research Studies, June appears to have abstained from giving any 1977). So far as reconviction is concerned, strong sense of direction. The result is that the result is given of a one-year study of in some areas like Inner London the CSO those given CSOs in each of the six ex­ has beep treated strictly as an alternative to perimental areas. It was found that 44.2% prison, whereas in other areas the CSO has of all those sentenced to community ser­ been regarded as a sentence standing in its vice in the first year of the scheme were own right alongside other non-custodial reconvicted within a year of the sentence. sentences. This has some significance when There was no evidence of systematic it comes to a consideration of success rates change in the level of seriousness of of­ and evaluation. fences committed after a sentence of community service, nor in the time at risk (3) Evaluation of the Effectiveness of the before reconviction. Indeed, the reconvic: CSO tion rate of the community service group is From the beginning the Home Office, within the same range as that of a group through its research unit, conducted re­ recornn1ended for, but not given, a com­ search designed to test the effectiveness of munity service order (Home Office Press the CSO. Two reports have been published. Notice, June 1977). The first examined the working of the six These results may be interpreted in dif­ experimental schemes which were set up in ferent ways. Some say that they show that the early period, and was published in the CSO is not really being used as an al­ April 1975. The report describes the very ternative to prison, and is no more success­ different approaches adopted by each of ful than more traditional measures. Others the experimental areas, and shows how dif­ regard the results as quite satisfactory. At ferent criteria were applied to the selection least the CSO offenders do not do worse of suitable subjects for the CSO. The con­ than others not given CSOs, and the ma­ clusion was that the schemes were working jority are not reconvicted, some 55%, ac­ well and that the CSO could be regarded as cording to these figures. successful judged by the proportion of There has been another quite separate CSOs satisfactorily completed. The re­ concern about CSOs, and that is the sug­ searchers, in a rare fit of optimism, de- gestion that it does not occupy any clear

126 NEW KINDS OF NON-CUSTODIAL MEASURES place in the sentencing tariff. It is argued less some clarification of the objectives and that there should be some way of equating of the tarifflocation of the CSO is achieved the number of hours with a particular "there is a distinct possibility that the period of imprisonment, so that courts can present enthusiasm for the sentence will know what choice to make, and use the give way to pessimism and disillusion" (p. CSO effectively as an alternative to prison. 242). Thus Pease and West (1977) advocated that One might add that some courts and "clear and explicit commitment to the use judges have a rather sceptical if not cynical of community service as a tariff sentence view of the worth of community service (in Heu of a custodial sentence) should be orders - but then these very courts and encouraged." These thoughts were echoed judges may have become cynical through by Warren Young in his book on Com­ experience about many different aspects of munity Service Orders (1979). Young is the working of penal measures. highly critical of the confusion which pre­ Some support for Warren Young's find­ vails in the philosophy and practical ap­ ings comes from the as yet incomplete re­ plication of community service. search of Tonia Tzannetakis, a graduate of "The overall tariff position of the com­ London University (LSE), who is presently munity service order was affected by studying the way in which several different considerable internal disparity, so that probation areas are interpreting and operat­ in each court the sentence was imposed ing the community service order. It would upon offenders who had committed seem from this research that there is room crimes of widely differing degrees of for quite different interpretations of the seriousness. While some were similar to purposes of the CSO and the way in which those sentenced to imprisonment, it should be operated. Some probation others were at a stage where such a areas see it as primarily rehabilitative in sentence would have been highly un­ function, like a probation order, giving the likely. It has been suggested that tltis supervising officer the opportunity to work in turn was partly because the philos­ closely with the offender with a view to ophy and practice of the community influencing his future behaviour and solv­ service order was riddled with con­ ing his problems. Others see the CSO as fusion and ambiguity, so that there was providing reparation to the community and no consensus, either within or between serving useful function in respect of build­ areas and courts, on the types of of­ ing up community relations. Others yet fenders for whom the sentence was ap­ again regard it rather as serving a bureau­ propriate, the reason for which it cratic purpose, and providing the courts should be imposed, or the way in which with an alternative to prison which is at­ it should be administered. Thus its tractive and convenient. critical purpose of effecting a sub­ The latest figures for the use of the CSO stantial reduction in the prison popula­ in England and Wales show that the num­ tion was blurred." Warren Young ber starting supervision rose from 15,700 (1979 p. 135). in 1979 to 37,200 in 1985 (2,000 of­ He goes on to say that the community fenders were aged 16). Over 90% of the service order is "evidently no nearer to orders were for indictable (Le., the more achieving coherence and consistency, in its serious) offences. The CSO now accounts application as a tariff sentence and in its for 7.5% Qf all disposals for indictable penal objectives, than when it was first offences (Home Office, Criminal Justice: A introduced." Young believes that "if dis­ Working Paper, Revised Edition 1986). The parities and inconsistencies in the applica­ Home Secretary in September 1986 in an tion and implementation of the com­ addreSS to cltief officers of probation munity service order are to be reduced, the stated his conviction that "the basic con­ tariff location of the sentence must be cept of community service as an alternative clarified and its objectives set in order of to custody for relatively seriously of­ priority" (p. 137). He concludes that un- fenders is crucial and must stand." So we 127 EXPERTS' PAPERS can conclude that the community service in England and Wales not only in the case order in England and Wales is "here to of the majority of summary offences, but stay," and has already established a firm if increasingly in indictable offences tried uncertain place in the armoury of penal both in the magistrates' courts and the measures .. Crown Court. There are certain problems about collecting the monies due from of­ Other Types of Non-Custodial Measure fenders, and the committal to prison of Space does not permit a full discussion fine defaulters continues to cause concern, of three other types of important non­ since they represent a very considerable custodial measures available to sentencing work load for the prison staff. Although courts or the prison administration but a they constitute only a small portion of the few comments may be made about each. average daily prison population Gust 2.2%), These are: they number some 22,000 offenders an­ 1. The Suspended Sentence and the nually received into prison, most of them Partly Suspended Sentence; committed to prison for very short periods. 2. Monetary Penalties and Measures; No alternative to prison has yet been found 3. Parole Supervision. for the enforcement of payment of fines. Compensation orders have long been (1) The Suspended Sentence available in English courts but were not Introduced in 1967 into English law, widely used until now. The law has recent­ the suspended sentence is available where ly been re-stated and strengthened so as to the sentence is one of imprisonment for encourage courts to make compensation not more than two years. It is not avail­ orders more frequently. They may now be able, however, in the case of a young adult made independently from any other penal­ offender under the age of 21. The period ty, i.e., they need not be made as an addi­ of suspension can be up to two years (orig­ tional order supplementary to the main inally it was up to three years but that was decision of the court, but may stand alone thought to be too long and the law was as the only penal ty for the offence in ques­ changed in 1972). Something like 12-15% tion. If the proposals now before Parlia­ of offenders receive a suspended sentence. ment become law, as contained in the There are different views about whether Criminal Justice Bill 1986, then courts will this measure has been a success. Some be required by law to consider making a scholars and practitioners believe it has compensation order in every case, and in added to the prison population instead of the case of the magistrates' court, to give reducing it, but Home Office research sug­ their reasons if no order is made. gests otherwise. It seems likely that a re­ Certain additional powers exist to de­ duction of 850-1,900 has been achieved in prive tlle offender of property used for the numbers in prison, and three out of criminal purposes and to confiscate assets four such sentences are not breached dur­ of offenders convicted of trafficking in ing the period of their operation. drugs. Again, an extension of this last The partly-suspended sentence is avail­ power is currently being proposed, so as to able for sentences up to two years provided make it possible to confiscate the asset!; of it is a sentence of at least three months. certain other offenders who are convicted The court can order that part of the sen­ of higllly profitable crimes - crimes where tence should be served immediately (not the profits are in excess of £10,000. less than 28 days nor more than 3/4) and the rest should be suspended. There are (3) Parole Supervision some technical difficulties here in connec­ Though not an alternative to imprison­ tion with remission and parole.4 ment, the power to release a prisoner on parole may be mentioned as one way of (2) Monetary Penalties and Measures reducing the pressure on prisons, and in The most frequently used monetary England and Wales, where it has been avail­ measure is of course the fme. This is used able since 1 April 1968, it has proved most 128 NEW KINDS OF NON-CUSTODIAL MEASURES successful. At anyone time it is estimated used in day centres and other projects such that over 3,000 prisoners are out on parole. as we have described. Voluntary associates Parole is available after six months of the are rather different in that they are subject sentence has been served or one-third - to more in the way of selection and train­ whichever is the longer. Two out of three ing, and when duly accepted they may prisoners are now released on parole. The carry out quite substantial roles in proba­ number who fail by committing fresh of­ tion supervision. Some years ago there was fences during the period of the parole li­ quite a vogue for voluntary associates but cence is small - in 1985 less than 6% of as the number of probation officers has prisoners released on parole in England and now been substantially increased, the use Wales had their licences revoked, and not of voluntary associates has declined. all of these revocations by any means were The voluntary agencies include not only because they committed fresh offences, countless local associations but several many would be because they were "out of nationally organised agencies such as those touch" with their supervising officer. The described in the Working Paper: probation service provides the supervision NACRO (The National Association for of those released on a parole licence. The the Care and Resettlement of Of­ selection of prisoners for parole is vested in fenders) independent local review committees in The Apex Trust (Mainly concerned each prison, and a nati.onal Parole Board with helping ex-offenders to obtain consisting of over fifty persons drawn from employment) the judiciary and the probation service, The Stonham Housing Association (Pro­ psychiatry and criminology, the lay mag­ viding homes for the single homeless istrates and several lay persons with suit­ offenders) able experience. Voluntary agencies run hostels and other accommodation providing currently (4) The Use of Volunteers and the Role of about 4,500 places for ex-offenders. The Voluntary Agencies future of this part of the voluntary work is Also one should mention for the sake of currently under review. completeness the use of volunteers and the Perhaps one should also mention here a role of voluntary agencies in supervising fairly recent development of a large num­ and assisting offenders in the community. ber of victims' support schemes, which are As the Home Office Working Paper of Oc­ now partly supported by Home Office tober 1986 remarks, "the probation service funds tl1fough the National Association of has a valued partnership with the voluntary Victims' Support Schemes. Experiments sector, where several agencies complement are under way in several areas with the its work" (p. 27). It is also true that we use probation service in providing speedy sup­ the help of many thousands of individual port, advice and assistance to victims of volunteers to assist the Probation Service in crime. In this way the Government is en­ carrying out their responsibilities. These couraging the development of victims' sup­ are called either "voluntary associates" or port schemes, as the White Paper of March "probation ancillary workers". I have men­ 1986 pOinted out (para 25, p. 12). tioned that some of the new projects for alternatives to custody such as community Conclusions & Guidelines for service and "tracking" use supervisors who Future Developments are paid for their services. It is also the case that many minor tasks are carried out by (1) Perspectives on Alternatives to Cus­ helpers who may be described as ancillaries. tody There are about 1,000 ancillaries. Many The point has been reached where we ancillaries are members of court teams who can begin to draw the tllfeads together sit in the court to be available where help is concerning alternatives to custody, and needed after sentence, acting in liaison ([each some tentative conclusions: with the probation officer. They are also 1) The provision of alternatives to cus- 129 EXPERTS' PAPERS

tody does not guarantee that they will be As John Pointing has sa.id, "alternatives used as such. The history of the use of the to prison cannot hope to compete (with community service order in England and prison) on the emotional/moral front; they Wales, of the suspended sentence, police tend not to be viewed as equivalent to cautions and intermediate treatmentS all prison, being seen instead as 'soft options'" show that such measures are used for some (Pointing (1986) p. 2). persons for whom a custodial disposition 5) Two kinds of alternatives can be would not be likely to be chosen in any distinguished: event. Thus only a small contribution is 1. Those which do not envisage prison made to the reduction of those in custody as a sanction for breach, such as for whatever reason. the bind over, conditional dis­ 2) Failures during the course of running charge of deferred sentence; of these alternatives often lead to a cus­ 2. Those which do rely on the sanc­ todial sentence. Such sentences may be tion of inlprisonment to add force imposed in addition to the sentence for the to their impact, such as the fine, fresh offence, to run consecutively, as in the suspended sentence and the the case of most suspended sentence fail­ community service order. ures. One is possibly perceiving an offender Perhaps the time has come to review the as a failure at an earlier point than would role of prison as the ultimate sanction for otherwise be the case. There is the danger breach of these alternatives. The search for of widening the net of persons drawn into alternative means of fine enforcement the reach of the crinlinal justice system. In other than prison for fille defaulters may England and Wales more persons are com­ show the way in which this might be done. ing into custody than ever before. At an 6) There is much to be gained by judi­ earlier age they are seen as multiple fail­ cious combination of orders in an imagina­ ures, having offended again after a warning tive way so as to form a package of meas­ and a chance has been given to them. ures to offer the trial court. Not enough 3) The place of the alternative in the has been done to exploit all the potential ladder of penal measures is not clear. Often which lies in this direction, and there are instead of being placed next to custodial certain statutory and traditional barriers to sentence, it is employed at an earlier stage. some combinations e.g., combining some This is true for community service orders measures with probation or suspended and intermediate treatment. There is in sentence. consequence much uncertainty about the Some years ago NACRO was pioneering role and purpose of those measures. experimentation with packages for the 4) Perhaps the time has come in socie­ courts to be offered by the probation serv­ ties such as those where a large number of ice, where this was thought more likely to alternatives to custody are available to appeal than a simple single disposition: cease to search for new alternatives and House of Commons Expenditure Com­ instead to address the question of custody mittee, Fifteenth Report (1978). itself. For whom is it appropriate, we 7) The public might well be prepared to should ask, and at what stage? Are the support such measures. Pointing (1986) scarce resources of the custodial system refers to there being a more liberal climate being used to good effect? Are too many of opinion than in currently supposed (p. persons remanded in custody to await 5), relying on the evidence produced by trial? How do we set about reducing the the British Crime Survey. "This evidence length of custodial sentences while at the suggests that there is substantially less sup­ same time ensuring that society is ade­ port for punitive and custodial sentences quately protected from dangerous of­ than has been assumed hitherto by many fenders, and that public confidence in the politiCians, judges and civil servants" (ibid). criminal justice system is maintained, and 8) Moreover the case for diverting of­ if no strengthened, certainly not weak­ fenders from prison, as Andrew Willis has ened. pointed out, rests on the over-use of such 130 NEW KINDS OF NON-CUSTODIAL MEASURES

facilities to the point where a significant fenders have of failure, so that they appear proportion of inmates, being petty per­ before the courts as multiple failures for sistent offenders, have become entangled in whom custody is the only answer. The risk a "revolving door" relationship to prison of expanding the constituency of the crim­ (Willis in POinting 1986 p. 18). inal justice system presents itself, through 9) The diversity of needs between dif­ bringing in to its reach many who might ferent groups of offenders must be recog­ otherwise be channeled in some other nised and "tailor-made" programmes need direction or whose problems might other­ to be devised to address those needs. We wise have been dealt with differently. have seen some interesting examples of The danger of widening the net has been programmes concerned with the needs of recognised in America by, among others, motoring offenders, problem drinkers, and A. T. Scull in his book on Decarceration offenders requiring close support and (1977). The vogue for diversion from the supervision. As POinting says: "it cannot be criminal justice system is described in stressed too much that the further devel­ terms of "flights of fancy" dictated not by opment of non-custodial programmes has any knowledge concerning the effective­ to recognise and act in accordance with ness of community-based treatment pro­ this diversity" (Pointing (1986) p. 10). grammes but by the insistent pressures 10) The question whether some of these presented by the sheer growth in the size alternatives represent examples of extend­ of the prison population. "A fog of confu­ ing the "control" function of the super­ sion and imprecision" had descended on visors, as opposed to the "helping" func­ the whole operation: (Scull (1977) p. 50). tion, needs to be addressed. This has al­ Two other American scholars in a joint ready given rise to much heart-searching study in 1980, Hussey and Duffee, argue and serious criticism within the probation that service. Some probation officers and social "When the magic aura that frequently workers object to what they see as the ero­ surrounds recent innovations finally sion of their "helping" role and its re­ evaporates, much of the optimism now placement by a "contf<~il" function. The present in discussions on community dilemma identified some years ago by Bot­ corrections will probably disappear. toms and McWilliams (1979) has still not When this happens, community correc" been resolved. It seems there may be ways tional programmes will probably be in which one can view the question in incorporated as standard options with­ terms of offering practical help which in the probation-prison continuum that avoid having to answer such deep and dif­ will be utilised for some offenders in ficult questions (Willis in Pointing 1986 p. specified circumstances". 15 and p. 162). They also say that it is doubtful whether community options will replace prisons: (2) Philosophical Doubts "it is probably more accurate to suggest Ever since the paper by Bottoms and that the question of 'replacement' of one McWilliams (1979) raised doubts about the set of strategies by another makes little propriety of the "control" function of the sense in the first place" (p. 274). They probation officer as distinct from the continue: "helping" function, there have been those "Whatever the various correctional in the probation service and outside who strategies and programmes are called, it have felt uneasy about the provision by the is likely that some will include very regi­ probation service of so many new attempts mented, strict, and sparse regimes and to 'control the offender's behaviour in the some will employ much more flexible community. Criticism of the Medway Pro­ and individualised organizations of ject centred on this feature of the pro­ control" gramme, and there are many who argue that the provision of so many alternatives (3) Considerations Relevant to the Devel­ simply adds to the number of chances of- opment of Minimum Rules 131 EXPERTS' PAPERS

1) The measures which are already be­ bears an uncanny resemblance to measures ing employed under the heading of non­ which have been adopted sometimes and in custodial methods of treatment of of­ some places to deal with prostitutes, va­ fenders vary widely. In Europe and North grants and gypsies. If the U.N. is going to America there is already considerable ac­ be obliged to accept the existence, and tivity in tIus field and great variety. In Asia even possibly the extension of such mea­ and certain other parts of the world there sures, then it should insist on saying some­ may be less variety, though it is hoped that thing about the need, so far as possible, to one result of the work of UNAFEI n1ight respect and preserve human dignity, the be to inspire new developments (See Ap­ right of privacy - wluch means your status pendix I). should not be revealed to all and sundry by 2) Already it seems there exist two some public sign or mark, and one should main streams of provision of non-custodial do all that is possible to limit the intrusion treatment. On the one hand one has those into an individual's autonomy. After all, measures which are premised upon the the decision to release such an offender consent and free and willing co-operation into th.e community presupposes a measure of the offender. Probation and all its vari­ of trust, and places on him or her the re­ ous applications through the imposition of sponsibility for his behaviour. Nothing conditions, whether they be of attendance, should be done wluch detracts from tIlat residence, participation in a programme or responsibility or which does not have the project; community service orders and effect of building on that trust in a positive parole, all these "treatments" require will­ manner. ingness on the part of the subject to be so 4) Beyond tIlis one would like to see dealt with. On the other hand, there are some recognition of the following those types of "treatment" which involve truths: police supervision of released offenders or A. Measures designed to serve as alterna­ community residential arrangements for tives to prison do not always appear to prisoners, such as those existing in Sri work in tlUs way, but are sometimes Lanka, the Philippines and Fiji, which in­ applied to some offenders who do not volve dealing with tile offender, whether he stand in danger of immediate im­ is an ex-prisoner or still has the status of prisonment. prisoner, in some way which puts "tabs" B. Probation Social Inquiry Reports. The on him and shows he is not free. One might social investigation of an offender 'for argue that the status of the person is there­ the purpose of a pre-trial report re­ by differentiated from free citizens. One quires his agreement, and should not n1ight go further and say his human dignity be order~d where tile offender in­ is to some degree violated and he is treated tends to plead "not guilty" since he is as a second-class citizen. In effect, he is a denying responsibility for the of­ prisoner allowed to circulate freely in the fence. When a Social Inquiry Report community but under strict conditions of has been prepared, copies of it should surveillance and supervision. be given to the offender or his legal 3) Now while one might accept that representative. When he disagrees with some prisoners may be released from pris­ some factual details in the report the on to attend education courses on day offender should have the opporturuty release, going back to the prison to sleep, to challenge the parts of the report and some prisoners may be permitted to concerned, and if necessary, to call work outside the prisons as part of the evidence in support of his claims. process of release, more difficulty arises in There is no need for the contents of accepting strict controls and surveillance the social inquiry report (or any on a person who is not yet a prisoner and medical or psychiatric report) to be who may never have been in prison. The made public by reading it out in open danger of producing in this way a kind of court. second-class citizen is very great, and it C. Care should be taken to avoid simply 132 NEW KINDS OF NON-CUSTODIAL MEASURES

introducing one non-custodial mea­ 4. UNAFEI Staff Report, Alternatives to sllre to take the place of another al­ Imprisonment in Asia (undated). ready in existence. 5. Masao Kakizawa, 'Overcrowding in D. There is much to be said for a variety Penal Institutions and Alternative of non-custodial measures being devel­ Measures to Imprisonment in Asia and oped. the Pacific Region', Journal of Asian Crime Prevention No.6, (June 1986). E. Their place in the sentencing system 6. Council of Europe, European Corn .. needs to be carefully considered, and mittee on Crime Problems, Alternative wherever possible defined clearly in Penal Measures to Imprisonment, Stras­ advance. bourg, (1976). F. The combination of various non­ 7. Swiss National Committee for Mental custodial measures may provide a Health, Working Group of Criminology, better solution than the adoption of Director W. T. Haesler, Alternatives to only one, and this practice should be Short-Term Imprisonment (1979). encouraged. 8. Karl-Heinz Kunert, Alternatives to Im­ prisonment, UNAFEI paper, 74th G. Failure to respond to a non-custodial Course (unpublished). measure should not necessarily be re­ garded as requiring reporting this as a Appendix II breach or the imposition of an im­ mediate prison sentence. A degree of 1. Accounts of one such centre by Morris tolerance of poor performance should Vainstone appear in Pointing (1986). be accepted. 2. An account by Peter Murray appears in H. Evaluation of the effectiveness of a Pointing (1986). non-custodial measure should always 3. The following are some additional be carried out, and provision should examples of probation-based alterna­ be made for this at the time of its tives described in Pointing (1986): introduction. i) The Supported Work Scheme 1. Sometimes it is appropriate to see the (Bulldog) introduction of a non-custodial meas­ ii) Alcoholics Recovery Project (Shopfronts) ure as frankly experimental, the re­ ill) The Driver Retraining Scheme' suI ts to be assessed in due course with (Inner London Probation Service) a view to making decisions about its 4. See David Thomas [1979] Crim L.R. continuance or extension. 256; [1984] Crim L.R. 52; [1985] Crim L.R. 799. Appendix I 5. The subject of police cautions and the use of intermediate treatment in con­ A number of useful and informative nection with juvenile offenders was reports are available about these develop­ examined in the UNAFEI lectures but ments. These include: has had to be omitted here for reasons 1. U.N. Economic and Social Council, of space. Committee on Crime Prevention and Control, Alternatives to imprisonment References and measures for the social re-settle­ ment of prisoners, Report of the 1. Bottoms A.E. & McWilliams W., 'A Secretary-General (January 1984). Non-Treatment Paradigm for Proba­ 2. International Review of Criminal Policy tion Practice', British Journal of No. 36 (1980) pp. 3- "Alternatives Social Work, Vol. 9, pp. 159- to imprisonment". Prepared by the U.N. (1979) Secretariat. 2. Horne Office Research Study No. 39, 3. UNAFEI Resource Material Series No. Community Service Assessed in 1976, 28, December 1985. Reports produced by K. Pease, S. Billingham and I. during the 69th International Training Earnshaw (1977) Course on Community-Based Correc­ 3. Horne Office Press Notice, June 1977 tions. 4. Horne Office Research Study No. 76,

133 EXPERTS' PAPERS

The British Crime Survey: first re­ 8. Pointing, John (ed.) A lternatives to port. By Mike Hough and Pat Custody (1986) Mayhew (1983) 9. Scull, Andrew T. Decarceration 5. Home Office, Criminal Justice: A (1977) Working Paper. Revised Edition 10. Walker, Nigel, Sentencing: Theory, (1986) Law and Practice (1985) 6. House of Commons, Expenditure 11. Wootton SUb-Committee: Home Of­ Committee, Fifteenth Report, The fice, Report of the Advisory Council RedUction of Pressure on Prisons. on the Penal System, Non-Custodial H.C. 622 (1978) and Semi-Custodial Penalties (1970) 7. Hussey F.A. and Duffee D.E. Proba­ 12. Young, Warren, Community Service tion, Parole and Community Field Orders (1979) Services (1980)

134 11$(P'1/

Non-InstitJtional Treatment of OffenderL~:~Thailand

by Atthaniti Disatha-Amnarj*

Introduction Justice. 3. The Department of Corrections, Min­ Crimes and punislunent have been called istry of Interior. Each organization social phenomena in every society from the has its own personnel to deal with ancient time up to now. In the past, the the treatment of offenders. purpose of punislunent was basically for retaliation against the offenders by inflict­ The Juvenile Court ing harsh punislunent upon them in order to show that crime did not pay. For cen­ 1. Treatment ofJuvenile Offenders turies such a theory of retribution stood The measures of treatment of juvenile firmly but later on other theories, namely, offenders through Juvenile Courts were prevention, reform and deterrence have started in Thailand in 1952 by virtue of the been developed and implemented along Act Instituting the Juvenile Courts of 1951 with retribution in many countries. How­ and the Juvenile Court Procedure Act of ever, nowadays the objective of punish­ 1951. ment begins to incline toward humanity A Juvenile Court is comprised of two with more stress 011 the rehabilitation of parts (Chart 1): offenders and the safeguard of society 1.1 The Court itself from crimes rather than mere concentra­ 1.2 The Administrative Office tion on retribution. In recent decades, cor­ The Administrative Office is divided rectional activity concerning the treatment into two main parts: of offenders has been developed exten­ 1.2.1 Office of the Registrar, sively. Various types of non-institutional 1.2.2 The Observation and Protection treatment measures for offenders have Centre (or Observation Centre). been in use along with institutional treat­ This Observation Centre is responsible ment. It is found that non-institutional for the custody before trial and the treat­ treatment measures are not only able to ment of juvenile offenders. It is staffed by solve the problem of over-crowded prisons a director and other professional officers, but are also considered to be very human­ such as probation officers, legal officers, itarian and very economically efficient social workers, teachers, physicians and when compared with other treatment psychiatrists. They conduct studies or measures. search for more facts relating to juvenile In Thailand, non-institutional treatment offenders and provide services for the measures are utilized along with the insti­ social welfare and the treatment of juvenile tutional treatment measures. There are offenders. three organizations that are responsible for Usually, when a juvenile offender is sent non-institutional treatment of convicted to the Observation Centre, the Director of offenders namely: the Observation Centre will assign a proba­ 1. The Juvenile Court tion officer to make a study and search for 2 2. The Central Probation Office , Of­ more information regarding the age, bio­ fice of Judicial Affairs, ML'1istry of graphy, conduct, intelligence, education, health, mentality, character, occupation and social status of the juvenile as well as Secretary General of the Office of Judi­ * of his parents, guardian and persons with cial Affairs, Ministry of Justice, Thailand. 135 EXPERTS' PAPERS

Chart I.

Organizational Chart 'I. Songkhla Province ofa 2. Nakornrachasima Province 3. Chiangmai Province Juvenile Court 4. Ubonratchathani Province 5. Rayong Province 6. Surathani Plovince 7. Nakornsawan Province

Office of Maoage- Document and Diagnosis and ment Section Public Relation General Treatment ( Personnel Section Sub-Division Sub-Division Finance Section Investigation of Dingnosi! and After Care Criminal Sub- Mental Health Section Division Service Sub- Training Schools Investigation of Division Section Civil Sub- Technical Sub- Ban Karuna Division Division and (Training school Supervision for boys) Sub-Division tC>'"Clinic G";~"" I!an ~!utlta Guardian Pharmacy Sub· (Training school Supervision Division for younger Sub-Division Nursing Section boys) Ban \..'beckha Annex oCthe Training school (for boys) aan Pranee (Training school (or girls) whom he resides including their environ­ probation officer. ment for the purpose of finding the motive Firstly, the probation officer will ex­ of the delinquent act. This report by the plain tlle order and the condition of release probation officer will be sent to the in­ to the juvenile offender. The 'execution of quiry official or the public prosecutor in probation must follow the condition laid charge of the case and also to the court if down by the court. A probation officer the charge is referred to the court. Mter with specific knowledge of the cause of the the trial, the Observation Centre has au­ delinquency will draw up a program of thority to give treatment to juvenile of­ supervisory treatment that is suitable for fenders following the judgement or order rehabilitating the individual juvenile of­ of the court. Among various measures, fender. It is necessary for a juvenile of­ probation and training are mostly ordered fender to report in person to his probation by the courts. officer on a fixed date. An attempt must be made to check from time to time 2. Probation for Juvenile Offenders whether such program of treatment has Probation was. first used in Thailand in been followed. As a counsellor and guide, the case of a juvenile alleged to have com­ the probation officer is expected to help mitted an offence under the jurisdiction of the juvenile on probation to improve his a Juvenile Court since 1952. behaviour. For this purpose, he may find Probation treatment by the Observation ways by which the probationer may regain Centre starts as soon as the court orders a care and affectlon from his family. He will juvenile on probation. The Director of the introduce the probationer to a new good Observation Centre will assign the case to a friend, encourage him to have new interests 136 THAI NON-INSTITUTIONAL TREATMENT

Table I: The Major Offences Whicn nave Deen Commillell by Children nnd Young persons. The Cenlrol ObservoUon and Proteclion Centre, Central Juvenile Courl. (Years 1974-1986)

Years 19741975 19761977 1978 1979 1980 1981 19821983198419851986 Ml1jor nrrcncc~

Theft 1,547 1,225 1,163 1,009 1,290 1,358 1,264 934 967 870 864 1,039 1,014 Bodily halm 255 271 241 245 302 267 188 140 170 132 97 G8 108

Gtl:llIl>lil\~ 158 129 62 S5 50 51 28 47 30 Snatching 167 123 83 85 89 96 8G 101 Indecent act 61 44 70 64 52 64 47 52 50 64 58 60 K6 Arms and nnlluunitlon 467 302 394 245 164 160 140 110 150 61 65 73 ('rim Ina I ussociation 973 757 662 917 969 934 1,009 221 226 479 460 368 187 Gilng robbery 68 49 29 28 33 34 37 Drug addiction 885 755 800 752 557 626 416 337 319 235 280 246 22'2 Other!! 836 483 852 468 605 597 213 467 -283 382 217 281 250

Total------5,024 3,995 4,182 3,829 3,942 4,010 3,610 2,498 2,329 2,480 2,194 2,114 2,108

Table 2: Punishment .nd Measures for Delinquenl Children Used by the Court. The Cenlral ObservaUon and Proteclion Cenler, Cenlral Juvenil. Courl (Years 1974 - 1986)

Ml'aliurcs u~cJ by Ihe court 1974 197519761977 1978 1979 1980 198119821983198419851986 Numher of delinquent children rererred to the above Oh!lcrvu­ 5,024 3,995 4,182 3,829 3,942 4,010 3',610 2,498 2,329 2,480 2,194 2,314 2.018 Hon ("entre bdorc trl .. 1. Number or dcl!uquent children who were ud.ludgcd guilty, (referring to delinquent children 2,208 2,204 2,035 2,028 2,249 2,239 2,302 1,486 1,305 1,192 1,094 1,579 1,611 who were adjudged in the same ycaruslhcy WCfl~ .. nested and Iried) L Admonition 41 69 48 64 121 144 88 45 62 38 19 26 17 2. lautioo to parent or guardian 428 368 324 354 383 249 319 437 383 317 338 93 411 3. (a) Suspcn~ton of judgement or punishment with 693 842 718 656 692 692 803 374 183 265 197 494 210 probation (h) Su~pclIsion of Judgment or punishment without 247 246 215 165 147 282 156 31 65 45 16 74 42 probation 4. Sul"tltule fine by giving corporal punishment 5. Fine 23 24 31 45 64 II 24 22 14 15 31 27 6. Tminll1!;t School Order 772 649 628 728 827 836 909 555 411 367 313 565 736 7. Annt'x or Training School 82 144 199 287 164 8. Imprisonment 66 II 16 IS 25 3 I 3 9

Tnble 3: The Results of Prob.tlon Orders. The Cenlral Observation and Protectlolt Cenlre, Central Juvenile COllrt (Years 1974 - 1986)

1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986

No, Ordl'linqucnt children on Ilrob;'llion In cach Yl':U 2,596 3,071 3,(01 3,281 2,844 2,485 2,662 2,399 2,249 2,388 2,441 2,518 2.525 (hoth old :Jnd new) I. Ohchnrgc from prob:1tion 448 482 918 936 881 784 978 760 518 S59 448 523 499 2. Hcvocution of probation 284 21S 194 190 229 141 184 174 126 106 79 139 155 J. J)ismls.\J1 (o.g. tlcath, unknown, ctc.) 20

137 EXPERTS' PAPERS in his study, his work, and his fruitful leis­ minimum period upon condition until the ure time, and imbue him with a desire for end of the maximum period. In such a dOing good. case, a social worker will act in the same Besides the role mentioned above, a manner as a probation officer i.e. taking probation officer has another role, that is care of a juvenile and giving advice on. how supervising the probationer on his behav­ he should behave himself until the condi­ iour with the view of improving it, and tion is lifted. An after-care program usually making an evaluation on each individual adopted is to send a juvenile to his own adjustment during the probation period. home town, if he came from a province. Should it appear that the probationer has Besides, the Observation Centre will pro­ been completely rehabilitated,the Director vide temporary accommodation for a juve­ of the Ob~ervation Centre will then make a nile who is first released and has difficulty report to the court to the effect that in finding a place to live. Usually a juvenile probation is no longer necessary in the is permitted to remain at a training school case. The probationer will be discharged of of the open type. Moreover, there is a job­ the probation order. On the other hand, if finding program for juveniles with good a probationer violated the condition of conduct who have to earn their own living. probation, the Director of the Observation Ajuvenile may be given employment in the Centre may recommend the court to revoke barber shop or beauty salon or welding fac­ or terminate probation and adopt a more tory specially set up for the after-care severe measure suitable to changing cir­ program. cumstances. The Juvenile Welfare Committee3 is It should be noted that probation appOinted by the Minister of Justice and is methods will be more effective if the home composed of people in the locality where conditions of the probationer are favour­ the Juvenile Court is situated, and has a able and the probation officer has adequate great role in the job-finding program. This time to supervise the probationer which is because most of its members are well­ means that each probation officer must not known, respectable and benevolent citizens have too many cases under his responsi­ in that locality; they are businessmen and bility. In Thailand, a probation officer has have their own companies, shops or fac­ a heavy caseload (approx. one officer to tories which are able to employ some juve­ 200 probationers). The increase in number niles released from the Observation Centre. of probation officers is hardly pcissible. In case there is no vacancy in their own Therefore, the Ministry of Justice has resort companies, they will try to find some to the use of volunteer probation officers vacancies in some companies of their to work hand in hand with the probation friends or relatives. A jobless ex-offender is officers in juvenile courts as well as in prone to commit further crime; an effec­ ordinary courts.- But it is still in the initial tive way to prevent further crimes from stage, and only a few hundred volunteer ex-offenders is to find stable jobs for probation officers are trained. them.

3. After-Care Services for Juvenile Of­ The Central Probation Office, fenders Office of J urucial Affairs It is the duty of the Observation Centre to do such things as are necessary to 1. History of Thai Adult Probation ascertain the modus vivendi of juveniles Probation has long been widely recog­ released from the Observation Centre with nized as an alternative to terms of im­ a view to assist them, in so far as may be prisonment and as an effective means of possible, in the matters of housing, occupa­ reforming and rehabilitating offenders and tion and education. reducing crime rates. Being the most useful An after-care program is applied general­ reintegrative strategy, probation permits ly in a case where the court releases a offenders to remain in society while receiv­ juvenile from the training school for a ing counselling and assistance. At the same 138 THAI NON-INSTITUTIONAL TREATMENT time, probation attempts to ensure com­ In 1984 six. probation offices were set munity protection through the monitoring up in six. provinces, namely, Songkhla, of offenders' behaviour. Udornthani, Ubonratchathani, Chiangrai, Even though probation has initially Chanthaburi and Ayutthaya. been introduced into Thailand since 1952 In 1986 five probation offices were set for juvenile delinquents under the Admin­ up in five provinces, namely, Nakornsawan, istration of Observation and Protection Nakornpathom, Nakornsithammarat, Phit­ Centre for Juveniles, it had never been sanulok and Phuket. seriously taken into consideration until it In the present year (1988) five proba­ was again mentioned in the Penal Code of tion offices are expected to be set up in 1956, Article 56 that empowers the courts five provinces, namely, Nakornratchasima, to exercise their discretion in applying Khonkean, Suphanburi, Kanchanaburi and probation as a part of the suspended sen­ Suratthani. tence. According to the Government's policy, More than 20 years since such provi­ probation systems will be extended to all sions came into force the courts never provinces throughout the country in the made use of probation simply because of a near future. lack of budget and qualified personnel to be appointed as probation officers. Mean­ 2. Organization of the Central Probation while both government and private organ­ Office izations held several seminars on probation The Central Probation Office is one of and related topics. The result of the semi­ the five divisions in the Office of J udiciaI nars was to bring about recommendations Affairs, Ministry of Justice (Chart 2). which urged the courts to use probation Presently, the Central Probation Office and urged the government to provide a is composed of three sections and 14 Pro­ 'budget for this service. Finally, as the re­ vincial Probation Offices, namely: sult of the same type of seminar being held 2.1 Presentence Investigation Section at Thammasat University in 1976, the gov­ This section is responsible for ernment agreed to provide probation serv­ 2.1.1 Searching and investigating facts ices for adult offenders and entrusted the and information concerning defendants Ministry of Justice with the task to set up according to Section 11 of the Probation and organize a Central Probation Office as Procedure Act a division of the Office of the Judicial Af­ 2.1.2 Compiling and submitting pre­ fairs. The task was accomplished in 1978 sentence investigation reports with re­ and one year later, the Probation Procedure commendations to the court in determin­ Act in accordance with the Penal Code of ing the appropriate sentence and whether 1979 was passed by the National Assembly. to grant probation or not The first group of probation officers, 36 in 2.2 Case Supervision Section number together with its administrator, This section is responsible for were appointed on April 1, 1979 and the 2.2.1 Supervising and controlling the Central Probation Office began its work on behaviour of the probationers August 7, 1979. Since then the Bangkok 2.2.2 Counseling, assisting and ad­ Metropolis area has been provided with monishing the probationers to comply with adult probation services. the conditions of probation Resulting from the satisfactory outcome 2.2.3 Reporting to the court about the of probation operations in the Central outcome of probation cases, the violation Probation Office, the government agreed to and the modification of probation condi­ expand the services into the regions. tions, etc. In 1983 three probation offices at­ 2.3 Statistics, Evaluation and Planning tached to the Provincial Court were set up Section and started their work in three provinces, This section is responsible for namely, Samutprakarn, Chonburi and 2.3.1 Collecting statistics data concern­ Chiangmai. ing defendants and probationers from the 139 EXPERTS' PAPERS

Chart 2: Organizational Chart of the Central Probation Office

I Ministry of Justice I

Office of Office of the Office of Legal Execution Secretary to Permanent Judicial Department t he Min istl'Y Secretary Affairs

Secretariat to Secretariat to Legal Affairs JUdicial Training the Office the Judicial Division Institute Service Commission

lCentral Probation J Office

I I Presentence Case Supervision Statistics, 14 Provincial Investigation Section Evaluation and Probation Section Planning Offices Section

lCommunity Services I Work

Chart 3: Administrative Churt of the Central Probation Office

Secretary-General Chief Justice of of the Region the Office of the judicial Affairs

Director of Central Chl,f 1,d", of Probation Office Provincial court!h I I I Chief of Presentence Chief of Case Chief of Statls- Chief of Provincial Investigation Section SUpervision 'tics Evaluation Probation Office Section and Planning Section

- Work line I Work line 1 Statl5tics Work Presentence - Work line 2 Work line 2 - Research Work Inve$tiga tlon Work - Work line 3 Work line 3 Planning Work Case Supervision - Work line 4 Work line 4 Work I- Work line 5 Work line 5 Clerical Work t- Work line 6 Work line 6 Work line 7 Work line 7 Work line 8

ICommunity Services I Work

140 THAI NON-INSTITUTIONAL TREATMENT beginning till the end of probation process the Case Supervision Section which is 2.3.2 Studying and researching both in divided into eight work lines. Each work basic and evaluative manner and submitting line has a chief who takes charge of its the research works monthly or annually works together with a team of 6 -7 proba­ 2.3.3 Planning of projects and schemes tion officers. For the Statistics Evaluation in supporting probation work to proceed and Planning Section, it is divided into effectively under the policies and objec­ Statistics Work Research and Planning tives of government Work. And the Chief Justice of each region 2.4 Provincial Probation Offices and Chief Judge of each provincial court According to the Court and Ministry of are respectively in line control over each Justice Development Plan, the Central provincial probation office within their Probation Office is also responsible for the own jUrisdiction. The chief of the provin­ expansion of probation work into provin­ cial probation office takes charge of the cial areas. It has already opened 14 provin­ administration of its work which is c\ivided cial probation offices as aforementioned, into presentence investigation work, case and it is expected that provincial probation supervision work and clerical work. offices will be opened in every province There are, at present (1988), 196 proba­ throughout the country as soon as pos­ tion officers, two statisticians, two re­ sible. searchers and 56 clerical personnel in the Besides, there is one community service Central Probation Office. work under the supervisory command of tb.e Director of the Central Probation Of­ 4. Probation Process fice. This community service work is re­ The most important features of the sponsible for facilitating social services and probation process consist of the Pre­ aids to defendants and probationers such as Sentence Investigation and the Supervi­ in drug treatment, employment, etc. It is sion. composed of three sub-functions: 4.1 Pre-Sentence Investigation (1) To procure community resources 4.1.1 Concepts of pre-sentence inves­ for aiding defendants and probationers tigation (2) To carry out the work of Founda­ Pre-Sentence Investigation begins when tion for the rehabilitation of and after-care the courts order probation officers to in­ services for the offenders and the work of vestigate the defendants (usually who have the welfare of the probation officers been found gUilty of the criminal acts) (3) To carry out the work of the volun­ and to submit pre-sentence investigation teer probation officer reports to the courts. The probation of­ ficer is responsible for fmding and col­ 3. Administration and Manpower of the lecting facts and information concerning Central Probation Office the defendant. Those informations will be The administration of adult probation analyzed and compiled in reports together in Thailand is under the responsibility of with comments and recommendations. the Central Probation Office which is a The primary objective of the pIe-sen­ division of the Office of the Judicial Af­ tence investigation report is to focus on fairs, Ministry of Justice (Chart 3). the character and personality of the de­ lne Secretary-General of the Office of fendant, to investigate into his problems Judicial Affairs is responsible for all its and needs, to learn about his relationship general administration and its works. with people, to discover those salient fac­ The Central Probation Office, being tors that underline his specific offence and headed by a Director, is composed of three his conduct in general and to suggest al­ sections and 14 provincial probation of­ ternatives in the rehabilitation process. It is fices. Each section and office has a chief not the purpose of the report to dem­ who is responsible for its works, especially onstrate the guilt or the innocence of the Presentence Investigation Section defendant. which is divided into seven work lines and In the pre-sentence investigation reports, 141 EXPERTS' PAPERS

probation officers must give their opinions view is not sufficient the probation officer concerning the offenders under investiga­ shall conduct another interview. tion, for instance; (3) Examination of the defendant's - What kind of persons they really are; criminal record - Whether or not they want proba- The probation officer has to examine tion services; the defendant's criminal record from the - Whether or not they will be danger­ public prosecutor's office and from the ous to society if they are placed Criminal Record Divisions of the Police under probation and Department. What type of treatment will be suit­ If the probation officer has known of able to them, considering the safety the defendant's past offence but the crim­ of society and the benefit of the inal record does not appear in the official offenders. flles, then the probation officer must The probation officers shall also re­ search for the defendant's criminal record commend the courts about appropriate from elsewhere such as a court, prison, treatment measures to be imposed on the police station etc. offenders. The examination of the defendant's With the aid of a pre-sentence investiga­ criminal record is a very essential part of tion report the court may determine the the pre-sentence investigation because if it appropriate sentence to commit a de­ appears that the defendant was previously fendant to an institution or to grant proba­ imprisoned and the offence was not a petty tion. However the courts are not bound to offence or was not committed by negli­ follow probation officers' recommenda­ gence, such a defendant is not allowed to tions. be placed on probation according to Sec­ 4.1.2 Stage of work in the pre-sentence tion 56 of the Penal Code. investigation function (4) Physical and psychological examina­ (1) Collecting of documents for proba­ tion tion flIes Section 6 (2) of the Probation Proce­ Mter receiving the court's order to dure Act in accordance with the Penal code conduct pre-sentence investigation, the of 1979 empowers the probation officer to probation officer will collect the essential send the defendant for a physical and documents from the court flIes such as psychological examination from a doctor. indictment, plea, plea of mitigation, trial In an offence that counters the Nar­ memorandum and other necessary docu­ cotic Drug Act or other offences in which ments. Then the probation officer will the defendant is suspected to be a drug preliminarily examine and study those addict, the probation officer will send documents before interviewing the defend­ the defendant's urine to a Medical Institute ant and conducting further investigation. for drug testing. (2) Interview of the defendant (5) Examination of the defendant's In case the defendant is released on residence and environment bail, the court clerk will inform the de­ The probation officer should examine fendant to meet the probation officer for the defendant's residence and environ­ an interview. If the defendant does not ment. By such examination, the probation come, the probation officer has the power officer will know whether the defendant's to issue a summons. But in case the de­ residence and environment had resulted in fendant is remanded, the probation officer the commission of the offence and whether will flle an application to the court for it is suitable for the rehabilitation of the sending the defendant to be interviewed in defendant or not. the temporary custody room in the court's During the examination of the de­ precinct. fendant's residence and environment, the The probation officer shall. interview probation officer will also make enquiry the defendant on every detail. If the in­ from neighbours about the defendant's formation obtained from the first inter- behaviour including the neighbour's atti-

142 THAI NON-INSTITUTIONAL TREATMENT tude toward the defendant. In case of ex­ mitted; whether it is of a serious nature or treme necessity, the probation officer has not and how adversely the society at large the power to enter the defendant's resi­ is affected. It also reveals the defendant's dence or working place at night with per­ mentality and his inclination to commit a mission granted from the court. crime. (6) Inquiry with other witnesses (8.2) Past criminal record The probation officer should try to This information is very important be­ obtain evidence relating to the defend­ cause it is a requirement that those to be ant's behaviour from other witnesses, such placed on probation must not have already as his parents, spouse, relative children, served imprisonment terms before. neighbours, employer, co-workers, the (8.3) Family background and marital injured person etc. The probation officer status may go to see the witness by himself or This explains several things in the be­ summon the witness to come for inquiry at haviour of the defendant. A child born his office. in a broken home and raised in a house (7) Examination and authentication without parental affectionate warmth may of documentary evidence and material easily be driven to commit a crime. The evidence state of childhood which constitutes the The probation officer shall make an past of the defendant implies that special examination on the documentary evi­ treatment is required. More often than not, dence or material evidence possessed by defendants of this category are not very the defendant or witness, including taking adaptable and are difficult to rehabilitate. notes on their description and other details On the other hand, a defendant from a with certain authentication. The probation comparatively better family background is officer should inspect into the validity of likely to be given some helping hands from all documents obtained such as the educa­ his own family members and is apt to cor­ tion or employment certificate, medical rection. certificate, note of compensation etc. (8.4) Home and environment (8) Report writing This part of the report usually indicates When all facts and information con­ two important aspects of the defendant's cerning the defendant are collected, the life; firstly, the state of his economy and probation officer will compile a pre-sen­ secondly, the condition in which he lives; tence investigation report and submit it to whether it is a fme residential area or a the court within 15 days from the date of gloomy slum area. Of course, these factors issue of the court's order. If the report count for what he is and what he has done cannot be submitted to the court within in the past. such period, the probation officer shall me (8.5) Education an application to the court for extension of Levels of education can indicate a lot time not exceeding 30 days. of things such as the defendant's level In compiling the report, the probation of intelligence, his academic disposition, officer has to analyze every fact and in­ and prospects for jobs. In cases where the formation obtained from the investiga­ defendants are still studying at school or tion and comments on the image of de­ the university, it is found that most of fendant, the prospects for becoming a them are corrigible, if placed on probation. law-abiding citizen, the possibility to re­ The reason may be that school or univer­ ceive probationary benefits, the suppor­ sity environments keep them busy at work tive factors for the rehabilitation of the and givi~ them some inner discipline which defendant. is very useful in their later life. The de­ The following points of consideration fendant who fails within the context of are always dealt with in the report: acadeinia has a higher chance of the court (8.1) The circumstances of the case placing them on probation than others. This informative part of the report (8.6) Occupation shows the nature of the offence so com- This part of the report shows the re- 143 EXPERTS' PAPERS cords of the defendant's careers, his devo­ (8.10) Past records of drug addiction tion to his work and his human relation­ It has become a general practice that ship with other workers. Sometimes one the defendant's past records of dmg ad­ can detect the cause of the defendant's diction is as a matter of course to be committing an offence by looking at the checked. For drug addiction, though in­ yearly earnings. Some defendants were jurious only to oneself, leads to other driven to commit an offence just because crimes usually in connection with theft and they did not earn enough to have a decent other offences against property. On the living. Also past occupations are geod other hand, if the defendant has a past indications as to whether the defendant record of being a drug dealer, naturally he will be able to live an honest life in the will be regarded as posing genuine danger community. to the public both as a matter of security (8.7) Disposition and behaviour and economy. All this will help the court This item of information will help the decide whether the defendant, if allowed court to see what sort of a person the de­ to go free under probation, is likely or not fendant is. For example, in a drug case, to cause further harm to the public. if the defendant is gullible and has the Lastly, the probation officer shall make propensity to obey the wishes of others recommendations on following alternative who are similarly inclined to drugs, then measures to be used with the defendant: the probability is that after being set free, Institutional treatment is a measure by he will follow the bad example of those he which the court passes a sentence of im­ associates with and return to dmgs again. prisonment and sends the defendant to The probation may not be appropriate have treatment in a correctional institu­ treatment. tion. (8.8) Family responsibility Non-institutional treatment is a meas­ Finding out whether the defendant has ure by which the court declares suspen­ any family responsibility is a very im­ sion of sentenct! with or without imposing portant part of pre-sentence investigation. conditions for probation. In the case where the offender has not only The pre-sentence investigation report the moral obligations to look after his will be examined by the respective supe­ family but also the legal ones to do so, riors before submission to the court. special consideration for probation shall be In case the court needs more informa­ given. In this way undue hardship on the tion other than the report submitted, it part of his dependents can be avoided. may issue an order requesting the proba­ (8.9) Mental health tion officer to submit additional reports. Every act originates normally from the (9) Objection to the pre-sentence in­ mind. It goes without saying that the de­ vestigation report fendant's mental condition must always If the defendant makes an objection to be checked. Very often we discover the the pre-sentence investigation report sub­ cause of his action through mental diag­ mitted to the court, the probation of­ nosis. For example, in 1985 an offender ficer will have the burden to adduce the was charged and found guilty for destroy­ evidence to support his report and then the ing 18 glass windows of a Government of­ defendant has the right to adduce evidence fice, an act which made a newspaper head­ in his favour. line. Upon psychiatric diagnosis, it was 4.1.3 Outcome found that he had a kind of mental dis­ From the beginning of the adult proba­ order that needed time for curing. There tion services up to the present time, the was also a danger that his mental illness number of cases required by the courts for might aggravate. After a suspended sen­ pre-sentence reports are increasing year by tence was given, the probation officer year (Table 4). And concerning the type of decided to send him to a mental hospital. offences, the narcotic drug case ranks By now the offender's condition has im­ highest in the caseload number for the pre­ proved immensely. sentence investigation reports ordered by

144 THAI NON-INSTITUTIONAL TREATMENT the courts, that was shown from first opera­ 4.2.1 Concepts of supervision tion in 1973 till 1987, among 30,108 cases The primary purpose of probation is the ordered for a pre-sentence investigation protection of society. Probation is deemed report, 13,619 cases or 45.23% were nar­ to be a constructive and humanitarian cotic drugs cases. method of treatment and reformation of In 1979-1986, among 6,913 cases the wrongdcer. To release on probation were ordered for a pre-sentence investiga­ those who are capable of being rehabili­ tion report. The court passed sentence in tated can serve the best interests of both accordance with suspended punishment society and the offender. They will be and probation recommendations for 2,311 supervised, guided, assisted, or led toward cases or 32.43%, and passed sentence in noncriminality. Probation offers hope and accordance with imprisonment recom­ encouragement instead of embittennent mendations for 2,069 cases or 29.93% and despair and saves the probationers for (Table 5). The effects of recommendations future useful living. in the pre-sentence investigation reports of Supervision b'egins after the offenders the probation officers in relation to the have been placed under probation. In this decisions of the courts is evident in that case some probation conditions4 are the courts giveriluch significance and trust provided by the courts and probation of­ in the probation work. ficers are assigned to supervise the of­ 4.2 Supervision fenders under the conditions imposed. The

Table 4: Presentence Invc."U1V1tiol1 Caselonu. Central Probation Office in Bangkok Mf:tropolis nnd Provillciall'robatlon Offices (Yearo 1979 - 1987)

Years 1979 (AIIg.- Dec.) 1980 1981 1982 1983 1984 1985 1986 19B7 Tol,,1 Type of offences CPO" ('1'0 CPO ('1'0 CPO 31'1'0" CPO 91'1'0 ('PO 91'1'0 CPO 141'1'0 CPO 141'1'0-_._---- Number l'crcl'nl NilTCOtiC drugs 38 80 184 904 1,416 190 1,583 385 1,394 779 1,773 1,303 1,9U4 16H6 13,6J9 45.23 Gambling I 3 4 12 16 11 4 46 21 110 12 83 l26 1.08

Property 30 89 132 91 66 182 132 570 301 745 423 1,415 600 19~2 6.758 22.45 Weapon law 21 78 68 33 12 45 22 193 50 326 39 329 30 429 1.675 5.56 Assault 50 54 60 35 61 85 136 155 217 229 464 326 758 2.6'7 8.7r. Gang fi~htjng I 12 8 8 7 3 18 73 0.24 Ncgli!!cncc 26 36 49 52 12 155 35 250 134 347 188 437 311 2,040 6.18 Olhers 12 33 26 51 52 63 32 308' 73 312 119 620 219 1061 2,981 9.90

Tot,l 117 357 515 1,193 1,640 568 2,033 1,642 2,229 2,567 2,958 4,432 3,546 6,312 30,109 100.00 All tol,l 117 357 515 1,193 2,208 3,675 4,796 7,390 9,858 Monthly average 23 30 43 99 184 306 400 616 822

.1 C.P.O.: C'clllrnll'rohatfon Office in Uangkok MctropaJili . • 1 )'.1'.0.: I'rovinciall'robalilll1 Ofliccs.

Table 5: Recommendations by Probation Officers and Court Sentences. Cenlral Probation Office in Bangkok Metropolis (Years 1979 - 1986)

RccQl11mcnda~ Su,pcnded Suspended Imprisonment liol1 sentence/ punishment Up to Total Court's Others Suspended amI Past No other Sentence direction punishment probation convicted suitable measurc Number PcrCL'nt Fine 21 9 41 0~59- Confinement 2 S 0.07 Suspended ,"nteneel 132 180 II 23 146 495 7.16 Suspended punishment Imprisonment 13 143 952 1,117 261 2,491 36.03 Suspended punishmellt 24 23 480 864 28 3,730 53.96 and proba.lion 2,311 Ollters 29 25 24 47 17 15) 2.19

, Total 184 2,687 1,012 1,648 1,329 53 6,913 100.00

NOles: In 1979 - 1986 courts made pre-senlence investigation orders in respect of 11,042 persons. Judgmenls concerning 6,913 persons were recorded and the rest concerning 4,129 persons \Vcre not recorded,

145 EXPERTS' PAPERS

probationerss must report themselves custody room after being placed on proba­ periodically to the probation officers. The tion, the probation officer will immediately proba tion officers must also visit the former go to see the probationer and issu~ an order at their homes or their places of work at requesting the probationer to appear at the least once a month to see whether or not probation office after being released from they behave themselves well and if they the confInement. At the same time the have any problems in adjusting themselves probation officer will explain in brief to either to the home or work environment. the probationer about the guideline and The probation officers will make efforts to how to comply with the conditions of provide counselling, render material as­ probation. sistance to probationers, in the form of Apart from the duties as mentioned, the jobs, relief and vocational guidance. probation offIcers who are on duty attend­ In case of violations of conditions for ing at the court must collect copies of the probation or commission of a new offence, essential documents from the court me a probation report must be submitted to such as indictment, judgment and other the court immediately for further con­ necessary documents. All data and in­ sideration. The court may issue a summons formation compiled from the court fIle and or warrant of arrest of the probationer for other places will be analyzed and utilized reprimand, or send him to prison. How­ at the time of interview or in giving guid­ ever, if all goes well and the probationer ance to the probationers. completes the probation period, a fInal (3) Interviewing the probationer report is submitted to the court to close When the probationer appears at the the case. office for the first time, the probation of­ 4.2.2 Stages of work in the supervision fIcer shall furnish to the probationer under function his supervision a written statement of the (1) Registration of case conditions of probation and shall instruct After receiving the supervision cases, the and advise him regarding the same as well chief of the supervision work will record as the measures to be taken if the proba­ the case number into his registration book tioner violates the conditions. and refer the cases to the prqbation of­ In the case where the court grants pro­ fIcers in charge to supervise probationers. bation without requiring a pre-sentence The probation offIcer will fIll out the investigation report, the supervising proba­ probation form with conditions imposed tion offIcer will make an interview in depth by the court together with an appointment in order to obtain all essential information time for reporting to probation officer. from the probationer and record such data (2) Collection of preliminary date in the supervision case fIle. In case the supervision results from the After that the probationer's fInger­ pre-sentence investigation report are sub­ prints will be made and kept in the office. mitted to the court, the supervising proba­ In offences countering the Narcotic Drug tion offIcer will attach the report to the Act, the probationer's urine will be sent to supervision case fIle so that all data and the Medical Institute for drug testing. information concerning background and (4) Reporting to the probation officer history of probationers contained in the The probationer must get in touch with report can be used by the probation officer the probation officer by reporting peri­ in fInding out the proper and suitabI,~ odically to the officer at the time directed. methods for rehabilitating and reintegrat­ Through interviews and counsellings at the ing the probationers into society. The ef­ offIce, the probation offIcer helps the pro­ fectiveness of supervision is in direct pro­ bationer to develop capacities and re­ portion to the extent to which pre-sentence sources which will enable him to solve his investigations are used and the care with problems and needs and to live happily in which persons are selected for probation his home as a law-abiding and useful mem­ treatment. ber of the community. If the probationer is still kept in the In offences countering the Narcotic 146 THAI NON-INSTITUTIONAL TREATMENT

Drugs Act or if the probation officer sus­ particular report must be submitted to the pects that the probationer has consumed court. any kind of narcotic drugs, the proba­ (8) Further proceedings tioner's urine must be required and sent for The probation officer shall appear in testing. In some cases, the probationers court according to the court's order due to may be physically examined by the doc­ the reports submitted. If the probationer tor. makes .\In objection to the report, the pro­ (5) Surveillance bation officer will have the burden to ad­ Principally, the probation officer must duce the evidence in supporting his report keep in contact with the probationer by and then the probationer has the right to visiting his home or place of work at least adduce evidence in his favour. once a month in order to see whether the (9) Case conference probationer complies with the conditions Each supervision work-line shall con­ imposed by the court and the guidance set duct a case conference at least once a by the officer. If the probationer is likely month so that the difficulties and problems to jeopardize the community or commit a arising from each case can be scrutinized new crime, the probation officer shall re­ and solved. By this means every probation primand,: give warning and report to the officer in the same work-line is able to court concerning such circumstances. learn how to solve the problems correctly During the time of visit, the probation and appropriately. officer should question other persons such 4.2.3 Outcome as relatives of the probationer and neighbor­ The outcome of probation work in the ing people in order to get the factual in­ last eight years since its first operation in formation relating to the probationer. 1979 reveals that the number of supervi­ (6) Avoidance of reporting to the sion cases has kept on increasing (Table 6). probation officer And concerning the type of offences, the The following measures are taken if the case involving narcotic drugs have the probationer avoids reporting to the proba­ highest rate of increase in the caseload sizes tion officer. Firstly, a warning order jssued in supervision cases, this being shown from by the probation officer will be sent to the the first operation in 1979 till 1987, in probationer commanding him to come to which 45,530 cases were ordered for super­ the office at the time directed. If the vision, and 25,095 or 55.12% were narcotic probationer fails to comply with the order drugs cases. or does not contact the officer, the officer shall go to the house or place of work to 5. Volunteer Probation Project find the causes of the disappearance and The Volunteer Probation Project was shall report thereon to the court. initiated by the Office of Judicial Affairs The probation officer may examine into to overcome the overworking and under­ the probationer's whereabouts with the aid staffing of personnel. Based on a job analy­ of the District Administration Office, The sis and evaluations, a standard of caseload Post Office or leaders of the local com­ size has been established by the Civil Ser­ munity. In addition, fingerprints may be vice Commission. One probation officer, sent to the Criminal Record Registration in his/her effective capacity, should the­ Office for seeking any record of arrest if it oretically have 50 probationers under is possible that the probationer committed supervision in a year. But in the meantime a new offence during his probation period. each officer in the Bangkok Metropolis has (7) Probation report to supervise 104 probationers annually on The probation officers are required to average; so he or she cannot devote suffi­ give periodic reports about each proba­ cient time to rehabilitate and assist all pro­ tioner under supervision. In case the proba­ bationers effectively. So this volunteer tioner has violated the conditions, or Probation Project was later approved by committed a new offence, or circumstances "the Justice Ministry for further elaboration relating to the supervision have changed, a and then incorporated into the 2nd Devel- 147 EXPERTS' PAPERS

Table 6: Supervision C.,eload. Central Probation Offloe In Bangkok Meltopolis and Provlnel.l Probation Orflees (Years 1979 - 1987)

1979 Years (Aug.- Dcc.) 1980 1981 1982 1983 1984 1985 1966 1987 Total

Type or 1 orfcnecc,t CPO·' CPO CPO CPO CPO 31'1'0" CI'O 9IJl~O CI'O 91'1'0 cro 141'110 CI'O 141't'0 NUIllbl!r Percent --~ ~ ~ -~ ~ -~- ... . - .--- -" .---.-----~------.-- ..... - N.srcotlc Dl\lgs 149 166 1,642 2,908 3,044 399 2,684 1,027 3,059 1.1.62 1,985 1,966 2,026 2,598 25,095 55.12 OlOlbling 116 358 475 627 192 23 117 143 159 949 74 1296 56 999 5,644 12.40 Property 25 73 109 77 88 94 112 219 171 366 159 652 1'71 795 3,111 6.83 Weapon 14 20 35 18 14 54 17 127 51 434 24 939 18 1195 2,960 6.50 Ali~3\11t 43 98 138 118 98 138 154 156 246 182 451 192 677 2,694 5.92 Gang Fighting 54 12 91 14 12 12 14 15 243 0.53 Negligence 33 64 59 10 162 26 290 117 322 119 323 29G 1.902 4.18 Others 1l 19 53 76 80 83 57 236 76 513 78 1061 87 1451 3,881 8.52

Tolal 320 692 2,499 3,920 3,686 764 3,351 1,934 3,976 3,899 2,826 6,576 3,067 8,020 45,530 100.00 All Tolal 320 692 2,499 3,920 4,450 5,285 7,875 9,402 11.087

Monthly Average 64 58 208 327 371 440 656 784 924

.1 r.p.o.: Central Probation Office In Bangkok Metropolis • • 1 p.p.a.: Provincinl Probatiun Ornce". opment Plan of the Judiciary and the Min­ provincial probation office. Then the chief istry of Justice. And because the principle has to summarize and report the issues to of the project is in compliance with the the Task Force for further appraisal. government policy, it is consequently an­ When the administration of th~ Project nexed in the 6th National Economic and confronts difficulties or needs some kind Social Development Plan (1987-1991). of assistance, the Project Committee may 5.1 Organization request advice from the Advisory Board The volunteer project is administered whose members are highly respected and through the Project Committee and the experienced in criminal justice affairs. The Task Forces. Board .actually comprises of the Chief The Project Committee is formed and Justice and Deputy Chief Justice of the appointed by the Justice Minister with the Central Juvenile Court, Deputy Permanent Deputy Secretary-General of the Office of Secretary of Justice, Secretary-General of Judicial Affairs as chairman, the Director the Office of Judicial Affairs, Chief Justice of the Central Probation Office as secre­ of Nine Regions, and with the Permanent tary, five judges from courts of first in­ Secretary of the Justice Ministry as stance in the Bangkok Metropolitan and chairman, other eight senior officers as members of 5.2 Roles of Volunteers the committee. The Project Committee ap­ In general, the principle function of the points a Task Force with the Director of volunteer is to supplement, not replace, the the Central Probation Office as chairman in probation officer's efforts by providing the Bangkok Metropolitan and 14 Task individual specialized services to proba­ Forces with provincial chief judges as tioners, chairman in 14 provinces where probation According to the guidelines in the Regu­ service is in operation, lations of the Justice Ministry 1985, volun­ Under the supervision of the Task teers are to pursue the promising tasks of Force, a volunteer will be directly in con­ supervising and assisting both juvenile and tact with a probation officer in charge of adult probationers. Upon receipt of cases the jurisdiction in which the volunteer has assigned on the basis of job placement and a residence. The probation officer, in addi­ matching, volunteers are supposed to do tion to maintaining regular contact, is to the following: direct, control and assist the volunteer in 5.2.1 To examine the probationer's performing his or her assigned job and re­ background, habits, social interactions, port vertically to the chief of case super­ offence, probation conditions, etc; in order vision in Bangkok or the chief of the to understand his/her fundamental prob- 148 THAI NON-INSTITUTIONAL TREATMENT lems and needs for planning suitable ap­ So far 3 programs have already been com­ proach and strategy to deal with them. pleted with 195 new volunteers. 5.2.2 To try to make acquaintance with During the annual budget of 1988 - the probationer and seek to win their trust 1991, 167 training programs will be held and confidence for mutual understandings with an estimation of 10,320 volunteers to an d co-operation. handle 23,700 supervision cases (Table 7). 5.2.3 To pay visits to the home or working place on a regular basis, at least 6. Trends and Development of the Proba­ once a month. tion System , 5.2:4 To provide the client with coun­ Now, the Central Probation Office and selling, gtlidance and assistance in order to 14 provincial offices are actually serving 28 help thim be able to maintain probation court jurisdictions, 5 for the Central Pro­ conditions', handle and manage daily prob­ bation Office and 23 for provincial offices. lems and crisis, and lead a normal life as a However, judges in other jurisdictions may law-abiding citizen, in doing so, the volun­ order the Central Probation Office to con­ teer needs' to know the source of human duct a pre-sentence investigation or super­ and material resources both in the proba­ vise probationers as they want. The Central tion agency and in the community. Probation Office, upon receipt of such an 5.2.5 To report on the probationer's order from the court, will assign the case to performance to the supervising probation the provincial office nearby tlle offender's officer, a kind of evaluation or suggestion or client's residence for action. is really beneficial to the rehabilitation of Proba tion, especially for adult of­ offenders. Urgent report is very important fenders, seems to show a striking high rate when public safety is at stake or likely to of growth as opposed to other state agen­ be threatened by the probationer. cies established by the same period of 5.3 Outcome and Target of Volunteer time. Initiated in Bangkok with 41 officials, Probation Project 117 pre-sentence investigation cases and The establishment of the volunteer 320 supervision cases in 1979, the proba­ probation officer project by the Ministry tion service has been extended to 14 pro­ of Justice is really in the infant stage of vinces with 196 professional probation of­ experimentation. However it is remarkable ficers, 60 clerical staff, 9,858 presentence to the probation system in Thailand in that investigation cases and 11,087 supervision it promotes human resource development, cases in 1988. For nine years the increase initially draws human and material re­ of manpower is sixfold the amount of the sources from the private sector into public first year while the increase in pre-sentence service, and provides citizens with an op­ investigation cases is eighty-fourfold and portunity to directly participate in rehabil­ supervision cases thirty-fourfold. The per­ itating offenders and preventing crime in centage of an increase in workloads sounds their community. Generally speaking, the dreadful, but it is relatively low in com­ volunteer program can reduce a probation parison with the number of cases, theo­ officer's caseload, and offer a variety of retically applicable to probation measures, services with an increased quality in the brought to courts (Tables 4 and 6). probation system at a reduced cost. The statistics show the obvious unpro­ By the end of 1986, 49 volunteers in portionate ratio of probation granting and the Metropolis, and 175 in Ubon Rat­ presentence investigation orders to the chathani Province have experimentally number of all cases theoretically applicable been appointed to handle 410 proba­ to probation measures. The phenomenon tioners. can be blamed on the insufficiency of staff For the annual budget of 1987, 17 in rendering services. All in all, the com­ training programs, 6 in Bangkok and 11 in mitment of the government to support the provinces, have been planned to be probation in line with the demand of held chronologically. 1,020 volunteers are community would be of great impetus to expected to be appOinted by the Ministry. the expansion of service, which, of course, 149 EXPERTS' PAPERS

TabJe 7: Target of Volunteer Project During the Annual Budget of 1988 - 1991. Central Probation Office

Metropolis Provinces Total

Training program 12 17 29 1988 Volunteer 720 1,140 1,860 Caseload 1,000 2,800 3,800 Training program 12 30 42 1989 Volunteer 720 1,800 2,520 Caseload 1,500 3,900 5,400 Training program 12 33 45 1990 Volunteer 720 2,160 2,880 Caseload 1,700 4,900 6,600 Training program 12 39 51 1991 Volunteer 720 2,340 3,060 Caseload 1,900 6,000 7,900 Training program 48 119 167 Total Volunteer 2,88!) 7,440 10,320 Caseload 6,100 17,600 23,700 Notes: 1. Caseload is estimated from expected probation cases granted by Court. Volunteers are expected to relieve one fourth of all cases. 2. Probation period ordered by court is one year on average. Each case requires field surveillance and report writing once a month or at least once every 2 months.

means a constant increase in workloads, probationers in a year probation could save not only in terms of presentence investiga­ at least 28 million baht (US$1,037,037). tion and case supervision but also in terms No doubt, such fmdings make it clear to of aid and assistance. the government that the benefits of the 6.1 Trends and Development of Organiza­ probation program outweigh the cost. So, tion the government declared its commitment The probation \,ervice not only provides to the implementation of the probation offenders with a second chance to behave service nation-~de and to the encourage­ themselves and to avoid criminal stigmatiza­ ment of participation by communities in tion and related side effects of imprison­ public services. In addition, the National ment, but also reduces tax costs spent for Economic and Social Development Board dealing with offenders, and does not de­ is eagerly supportive of the probation pro­ teriorate opportunities of probationers to gram and urges the Ministry of Justice to the pursuit of legitimate careers, obtaining design a concrete plan for the expansion of income to support their families, and ex­ the probation service. tending the tax base for govenunent. It is 6.1.1 Establishment of new probation found that, in 1S1'85, the government spent offices 2,500 baht (US$93)6 on a probationer per Considering the financial situation of year while it spent 8,100 baht (US$300) the country, the Ministry of Justice plans on a prisoner. 7 With apprOXimately 5,000 to establish 40 new offices in 40 provinces

150 THAI NON-INSTITUTIONAL TREATMENT dispersed in all regions during the five-year trines to reform and rehabilitate proba­ plan of 1987 -1991. The priority pro­ tioners has been planned with two main vinces have to be the locations of new of­ activities. fices is determined by many factors, such (1) Religious orientation as, workloads of criminal cases applicable New probationers will be assigned to to probation measures, availability of phys­ attend a one-day orientation in which reli­ ical facilities, dispersion of offices in the gious doctrines are the main thrust in­ regions, and so forth. corporated along with general subject mat­ If the plan works well according to its, ters considered beneficial to maintain pro­ schedule, by 1991 there will be 55 proba­ bation conditions for success, dealing with tion offices in total across the country with daily crises and leading to a better and 632 probation officers and 191 clerical productive life. This program also applies staff. Consequently the probation enter­ group therapy techniques to help the pro­ prise will become the biggest division the bationers manage their own problems in Ministry of Justice has. normal society. 6.1.2 Reorganizational structure of (2) Ordainment probation offices Ordainment is the other activity The Ministry of Justice proposes a plan planned for probationers. By this approach to reorganize the structure of the proba­ the rehabilitative process heavily relies tion enterprise from one of five divisions upon the ecclesiastical world. When proba­ under the Office of Judicial Affairs to the tioners enter monkhood they are required Department of Probation under the Min­ to keep religious disciplines and maintain istry of Justice to match the size of man­ no less than 227 precepts. In addition, the power and workloads, to obtain flexibility new priests will be supervised and guided and autonomy in administration, to alle­ toward the Noble Path of Lord Buddlia by viate repetition and redundancy of the senior priests. Taking this for granted, reli­ service, proces~, and to maximize produc­ gious control is much greater than that of tivities with efficiency and effectiveness. probation. It is believed that priesthood is Upon completion of the plan by 1990, the creation of self-conscience and creates the Probation Department will comprise a strong bond between a person .and the seven divisions and 22 sections, all of community; ordainment is therefore pre­ which are directly responsible for proba­ sumably one of the most effective means tion affairs. to rehabilitate and reform the deviants. 6.2 Trends and Development of Reha­ With respect to supervision, probation of­ bilitative Programs ficers still regularly maintain direct contact Reform and rehabilitation of proba­ with the probationers and collateral con­ tioners cannot be accomplished without tact with their relatives and companions. rehabilitative programs supplementing the 6.2.2 Bail program enforcement of probation conditions. The objectives of the bail program are Hence, the Ministry of Justice has planned to provide defendants with freedom and to create and implement supplementary liberties during the trial, particularly during programs with a determined purpose of the pre-sentence investigation period; and providing clients with a variety of services to avoid dispensable detention for those in compliance with their problems and who are likely to be granted probation. At needs. Some of the remarkable programs the outset the program is to provide de­ will be mentioned here. fendants, pending for presentence investiga­ 6.2.1 Religious rehabilitation program tion, with bail service in the Bangkok The Thai society has long been involved Metropolis. The next step of the program with religious doctrines for centuries. Re­ is to extend bail service to the provinces ligions, particularly Buddhism, have deeply in which probation has been in operation. influenced the way of life of Thai people Only defendants detained in the pre-sen­ from cradle to tomb. Keeping this fact in tence investigation period are eligible for mind, the program to utilize religious doc- service. The final step is to bail any de-

151 ------

EXPERTS' PAPERS

fendant who is eligible and appropriate tice believes that it is legitimate to utilize regardless of the types of charges and rehabilitative and reintegrative approach whether or not presentence investigation is for offenders by providing them with ordered. The bail project in this stage is to treatment for drug addiction and· other operate throughout the kingdom, which kinds of illness, placing the suitable proba­ will serve by dispensing equal justice to tioners on community service program to people all over the country. win public sympathy, and vested the court This program will be financed and sup­ with authority to establish appropriate ported by the Foundation for the Reha­ measures suitable to particular probationers bilitation of and After-care Services for the on particular circumstances, such as, Offenders (FRASO), which is originally - requiring the probationers to have created by the Central Probation Office compUlsory treatment for drug addiction with the co-operation of private sector, and physical or mental illness. charitable-minded people who are suppor­ - placing the probationers, upon their tive of probation alternatives and all in­ consent, in a community service program. come comes from public donations. So - requiring the probationers to refrain that, from the beginning in 1984 to 1986, from any behaviour or from association the program could help 51 defendants to with certain persons that may lead to remain free in the communities during trial criminal activities. and the total amount ..-,f surety utilized is The most vital and progressive amend­ 747,500 baht (US$27,685). ment in the draft is what the court, on its 6.3 Amendment of Legislation discretion, may stipulate in the way of The administration of the probation supervisory conditions, for the sake of service in Thailand is in fact governed by prevention of recidivism or rehabilitation two legislations, Article 56 of the Penal of offenders. And, if the parliament passed Code and Probation Procedure Act in ac­ the draft and promulgated it as a new legis­ cordance with the Penal Code B.E. 2522 lation, it would become a Significant tool (1979). For during the eight years of pro­ of the court and the probation officer in an bation administration, many problems and attempt to refoun and rehabilitate proba­ difficulties have arisen, particularly from tioners as well as guarantee safety of the the insufficiency of legislation. Under Ar­ community. ticle 56, supervision conditions can be 6.4 Policies and Guidelines for Future stipulated to a very restricted extent. The Administration court could not order compulsory treat­ Besides the concrete plan to expand ment for drug~addicted probationers, could probation service into provincial areas, to not order probationers not to leave jurisdic­ amend legislation appropriate to the uti­ tion without pelmissi('n, could not order lization of probation, and to introduce probationers to do community service, and other innovative programs as mentioned so on. The restriction of legislation some­ earlier, these strategies will also be times interrupts the rehabilitation process adopted. because necessary conditions could not be 6.4.1 Public relations concerning pro­ stipulated and adjusted to the demand of bation work circumstances, thereby reiterating the in­ Adult probation work in Thailand is consistence of practices and the principle now still at the time of imbedding its work of individualized probation treatment of system into society as well as extending the the offender. In order to bridge the gap work into every part of the country. At between practice and theory and solving this point, the adult probation is rather problems, the Ministry of Justice has pro­ new for the public. People and agencies posed a new amendment of the Penal Code both in public and private sectors are quite regarding probation provision. unfamiliar with this kind of work, resulting The rationale for the amendment, argu­ in the public having less understanding ing in the statement of the proposal, is about the objectives or the usefulness of quoted as saying that the Ministry of Jus- probation work towards their community.

152 THAI NON-INSTITUTIONAL TREATMENT

Such conditions will bring out problems The Central Probation Office will begin such as difficulty in co-ordinating work with to use Group Therapy in the treatment of the other agencies concerned, lack of co­ offenders. Such offenders will be classified operation from the community and other by each categolY of offence or by the type social resources. The Central Probation Of­ of crime and those classified offenders will fice realizes the importance of the public be committed to different and suitable attitude and co-operation towards proba­ treatment programs. tion work. Hence it is necessary to continu­ 6.4.4 The foundation of the probation ously disseminate and inform the public of officer association the probation workin order to secure public The Central Probation Office will pro­ understanding on its objectives and useful­ mote the establishment of a Probation Of­ ness. Publicity will be conducted through ficer Association. This association will play organizations and mass media, such as of­ a significant role as a professional forum ficial booklets, conversation in drama among the probation officers in setting the broadcasts, slides, local press, etc. In addi­ criteria and standard of probation work tion academic discussions and seminars and solving other problems concerned. concerning probation work will be period­ 6.4.5 The use of the micro-film system ically or annually provided. Presently, there are a large number of With regard to co-ordination with other pre-sentence investigation fIles and super­ agencies in the communities, The Central vision fIles to be kept in service at the Probation Office has planned to campaign Central Probation Office. These number of for meetings with other agencies concerned fIles are increasing every year not only in in order to facilitate co-ordination with the Central Probation Office but also in the such agencies. provincial probation offices. Therefore, the 6.4.2 Training or seminar for probation Central Probation Office is in the process officers of developing a micro-fIlm system which In order to develop and promote the will be helpful for its benefits of its eco­ effectiveness and efficiency of probation nomy in fIle volume and conveniency in work, every newly-recruited probation of­ searches. ficer has to pass the 3-month-Iong orienta­ 6.4.6 International co-operation and tion training course. This course provides promotion of work both discipline and vocational knowledge The adult probation system has just which are both necessary for the duties of been implement in Thailand for not more a probation officer. After this course the than nine years. It is considered rather probation officer will go for on-the-job young and new when compared with the training, accompanying a senior colleague history of its kind in other countries where for a period of time. The supplementary an adult probation system has been firmly courses both inside and outside the office rooted for many decades. In this regard, will be arranged for the purpose of the the adult probation system in Thailand is improvement and increase in the skills, still striving i1& way for improvement and it methods and teclmiques of doing the inevitably requires 1110re knowledge, ex­ work. perience and technical know-how for its It is also desirable to upgrade the pro­ personnel to qarry out the work. The fessional probation officers to be specialists support and co-operation from countries in particular fields, such as in narcotics where the work in this field has been well treatment, psychotherapy. traffic violation developed will be very useful for the offences and community resource man­ promotion of adult probation work in agement etc. These will improve the capac­ Thailand. It is very impodant to encourage ity of probatio.:l officers appropriate to international education and training for the handle those particular probationers more working staff as much as possible. Also the effectively. exchange of experts and personnel in this 6.4.3 The use of group therapy in the matter is valuable. Therefore, the Central treatment of offenders Probation Office is searching for such 153 EXPERTS' PAPERS international support and co-operation as one. Only convicted prisoners in good, very well as welcoming any form of assistance good and excellent classes who have al­ which will help promote the adult proba­ ready served four-fifths, three-fourths and tion system in the future. two-thirds of their sentences respectively are eligible for consideration. The process TIle Department of Corrections starts from the consideration of a local Ministry of Interior review committee which consists of a pris­ on warden and other prison officers. The The Department of Corrections, Minis­ committee, then makes a recommendation try of Interior, is mainly responsible for to the parole board. The board, which con­ the administration of The Penitentiary Act sists of 7 high-ranking officials including of 1935 which includes care, custody and the Deputy Director-General of the De­ rehabilitation of more than 80,000 in­ partment of Corrections acting as a chair­ mates, youths and adults, convicted and on man, will review the recommendation of remand, being confined in the Depart­ the local review committee, including the ment's varied correctional facilities dis­ prisoner's domestic background or criminal persed throughout the country. The pre­ record, circumstances of the offence, con­ sent administrative organization of the De­ duct during his stay in prison, post-release partment is divided into two main parts, plans, and some other information so as to central and provincial (Chart 4). There are make sure that parole will successfully help today 111 penal and correctional institu­ the prisoner to return to the society. Final tions under the administration of the De­ decision to grant parole depends largely on partment of Corrections. These include 21 the Director-General of the Department of central prisons, 2 remand prisons, 13 cor­ Corrections. A parole granted prisoner is rectional institutions, a vocational training conditionally released from a prison and reformatory, a central house of confine­ placed under supervision of a parole of­ ment, a house of relegation, 56 provincial ficer. prisons and 16 district prisons. In Thailand a number of prisoners granted on parole is very small. The De­ 1. Non-Institutional Treatment under the partment of Corrections mainly relies on Department of Corrections the pardon system to alleviate the problem In addition to institutional programs, of overcrowded prisons (See Table 8). several non-institutional treatment pro­ 2.2 Good-Behaviour Allowance System grams have also been inlplemented by the Under the Good-Behaviour Allowance Department of Corrections so as to provide System prisoners who have good conduct easy transition for offenders from a correc­ are released under supervision in the com­ tional institution to the community. Real­ munity by sentence remission. Prisoners in izing that the interruption of an offender's good, very good and excellent classes with occupational and social life by way of im­ good behaviour and work performance are prisonment adversely affects an offender's able to earn sentence remission. Those who chance to readjusting properly to society, are in excellent class could earn five days a the Department of Corrections has put month remission. Ones in very good and much effort in implementing several non­ good class could earn four and three days a institutional programs, such programmes month remission respectively. Only a pris­ including parole, good-behaviour allow­ oner with a definite term of sentence who ances, public work allowances, and penal has served his sentence for more than six settlements. months is eligible for remission. The sentence board consisting of repre­ 2. Patterns of Non-Institutional Treat­ sentatives from the Department of Correc­ ment tions, the Police Department, the Public 2.1 Parole Prosecution Department, the Social Wel­ Parole in Thailand is not a right for fare Department and a psychiatrist from prisoner but a benefit granted to a selected ~he Public Health Department has the 154 Chart 4: Organizational Chart of Department of Corrections

I Ministry of Interior I I Department of Corrections I ~ ~ I Central Administration I I Provincial Administration ~ Z o Office ofthel Personnel Finance I Personality P:n~~ogy Community Healt~andl Central t Secretary Administration Division Development I DIvIsIon I Treatment House of z I I Medical i CI.l Division and Rehabilita- Division Division Conrme- >-'l ::3 tion Division ment c:: ...... >-'l I- Correspondence I-Personnel I-Finance I-Inmate -Research and -Social Work H Central Prisons J 1House of o Sub-Division Sub-Division Sub-Division Education Planning Sub-Division Relegation ~ I- Inspection and I-Discipline I-Budget Sub-Division Sub-Division -Sentence --1 Remand Prisons I:'"" Report Sub- Sub-Division Sub-Division ,...Inmate Vocation- Correctional lRemission >-'l Division '-Correctional '-Supplies al Training Sub- Practice Sub-Division Correctional Provincial ~ -l tIl i-Internal Audit Staff Training Sub-Division Division Sub-Division Pardon and Institutions Prisons Sub-Division Centre ,... Vocational Legal Affairs Parole s::~ Building and Training Fund Sub-Division Sub-Division Vocational District tIl Maintenance Sub-Division '--, Training Prisons Z >-'l Sub-Division I-Follow-up Reformatory - - -- . - Inmate Welfar Sub-Division

l-' VI VI EXPERTS' PAPERS

Table 8: PdSOll Popula.tion, Sf!ntence Remb;,t:.ion, Parole. Panton nnd Public Work ['rojects. Deparlment of Corrections (Years 1978 - 1987)

Items Sentence Parole Public work projects No. of prison remission Pardon population (Convicted No. of prisoners No. of No. of Uncondi· No. of No. of granted sentence- parole parole Uonal Sentence No.of prisoners prisoners) remission Year rcniission applications grants release i~~~?~~~ projects involved --.~ .. ------~ -'---'- .- ..... _--_.-._---- 1978 47,180 3,787 518 438 1979 47,757 9,595 692 455 12,033 32,158 1980 55,839 9,727 715 606 16,174 29,661 2 3 55 1981 55,266 7,956 899 602 34 59 2,319 1982 55,213 9,495 552 420 18,438 36,188 34 52 2,199 1983 58,895 11,401 1,281 1,136 48 97 2,846 1984 59,817 11,666 1,556 1,470 70 257 3,500 1985 61,859 11,845 1,808 1,523 83 442 4,233 1986 64,377 11,294 2,352 2,095 75 359 4,563 1987 70,102 11,490 1,609 2,034 32,387 47 393 4,867 "Data in the process of being collected. authority by majority vote to grant any serve their sentence in prison for not less sentence remission. Such decision is fmal. than one-fourth of their term and the re­ Upon release, prisoners have to be sub­ maining term being not less than two years, jected to supervision for the remaining and also have good behaviour and good period of their original sentence. If they do performance in prison. The penal settle­ not comply with the supervision or commit ment selection committee would consider another crime, they must be imprisoned all applications with preference for the for the remaining period. Thousands of ones who have previous background in prisoners benefit from the Good-Behavi­ farming and do not have land of their our Allowance System (See Table 8). own. It has been also used as a device to mitigate The participant prisoner would get 8 the destructive impact of an imprison­ acres of land at a pena~ settlement site. ment upon prisoners in an over-crowded They are allowed to have their family stay prison. with them. All products of their farming is 2.3 Public Work Allowance belong to them. They have to build their The Department of Corrections is en­ own house and are able to stay for life. abled to lawfully employ prisoners for pub­ After his death, the land would be able to lic work outside prison. This program pro­ be transferred to his successor. vides an employment opportunity for prisoners and utilize prison labour for pub­ 3. Volunteer in Corrections lic interest. The prisoners who are assigned In 1976 the Department of Corrections to work in public work projects would get established the program for voluntary payment not over 80 percent of the net aftercare officers (See Table 9). The main profit. The officers who supelvise the pro­ purpose are to alleviate the problem of ject would get 10 percent and the remain­ shortage in aftercare officers and to foster ing 10 percent would be put in the invest­ a better relationship between prisoners and ment fund of the prison for public work the community. The volunteer has to pass projects. The other benefit earned by the through the screening and training pro­ assigned prisoner is sentence remission by cesses before taking the responsibility of one day for his one day working outside supervision over prisoners being condition­ (See Table 8). ally-released on parole or receiving sentence 2.4 Penal Settlement remission either by public work allowances This program provides an opportunity or good-behaviour allowances. Each volun­ for .a pre-released prisoner to readjust him­ teer approximately takes care of 10 condi­ self to the community. Prisoners who are tionally-released prisoners. Volunteers qualified for program participation have to work, with no salary, under the supervision 156 THAI NON-INSTITUTIONAL TREATMENT

Table 9: Number of Volunteers. Department of Corrections (Years 1976 - 1987)

Items Number of volunteers in Number of volunteers Total Year Bangkok Metropolis Up-country 1976 48 48 1977 1978 - 1980 66 1,226 1,292 1981 1 ,J 67 1,167 1982 108 1,437 1,545 1983 1,327 1,327 1984 287 1,180 1,467 1985 138 1,155 1,293 1986 140 1,079 1,219 1987 1,152 1,152 Total 787 9,723 10,510 of and the co-ordination with full-time Article 56, which is provided for the aftercare officers. The Department of Cor­ treatment of adult offenders. However, rections selects volunteers from the re­ it had never been applied until the spected persons in the local community. Probation Procedure Act in accordance They quickly earn the conditionally-re­ with the Penal Code of 1979 was passed by the National Assembly and leased prisoner's trust and their close rela­ the Central Probation Office was estab­ tionship provides them a good opportunity lished in 1979. to play a significant role in helping the 3. The Juvenile Court Procedure Act of prisoner to readjust to the society. 1951, Article 10, provided that the Minister of Justice is empowered to Notes appoint The Juvenile Welfare Com­ mittee to advise and assist the Director 1. This article only focuses on The Central of the Observation and Protection Probation Office, Office of Judicial Centre in carrying out his duty for the Affairs, Ministry of Justice, and sum­ welfare of juveniles. marizes the activities of the Juvenile 4. Conditions are provided in the Penal Court and The Department of Correc­ Code Section 56. tions, Ministry of Interior. 5. The offenders are now called the proba­ 2. Probation system was first introduced tioners. into Thailand only for the treatment of 6. Exchange rate: 1 US$ = 27 baht juvenile delinquents in 1951, the ap­ 7. Report of evaluation of probation, Divi­ plication of which is under the jurisdic­ sion of Evaluation and Reports, Budget tion of the Juvenile Court. It was again Bureau (1985). mentionerl in the Penal Code of 1956

157 SECTION 2: PARTICIPANTS' PAPERS

Non-Institutional Treatment of Offenders in Hong Kong

by Walter Wai~wah Wong*

Introduction Probation in Hong Kong applies to of­ fenders of all ages. It penuits offenders to There are currently three services in remain in the community under the guid­ Hong Kong which aim at the treatment of ance of a probation officer for a period of offenders in a non-institutional way. The one to three years. Probation orders are offender is allowed to go free and return usually issued after the court has con­ home but has to fulfil certain conditions sidered carefully the circumstances leading as prescribed by the court or the supervis­ to the offence, the nature of the offence ing officer. The three services are a) pro­ and the character of the offender. There bation service, b) community service orders are altogether 10 probation offices serving pilot scheme, and c) superintendents' dis­ magistracies, and a team of high court cretion scheme. They will be discussed probation officers serving the District separately as follows: Courts and the High Courts in Hong Kong. The duty of a probation officer con­ Probation Service cerns mainly the rehabilitation of offenders who are placed under his supervision. Since 1. Overall Objective he is practising social work in a secondary Probation is a correctional method setting, his first vital duty is to serve the under which the sentences of selected Court. His work starts from the prepara­ offenders may be conditionally suspended tion of a pre-sentence report to the Court upon the promise of good behaviour and which has ordered the enquiry. The report agreement to accept supervision and to is based on the information gathered from abide by specified requirements. In Hong investigations on the offender's character, Kong, probation is a formal and legal family background, work/school records, system placed under the supervision and motivation and capacities for change, administration of the Social Welfare interests, health condition and associates. Department. The overall objective of pro­ The purpose of the report is to assist the bation service is to give effect to the Court in deciding the best method of deal­ direction of the courts on the treatment ing with the offender. A total of 10,614 of offenders through open probation super­ social enquiries were conducted by proba­ vision (non-institutional) and residential tion officers in Hong Kong during 1985 - placement (institutional). It aims at re­ 1986. integrating offenders into the community After an offender is placed on probation through the provision of social work treatment, the duty of the probation of­ services. (For the purpose of this paper, ficer bears more of a social work element discussion will be made mainly on the non­ and is in fact the major part of the service institutional aspect of probation in Hong per se. He is to "assist, advise and be­ Kong). friend" the offender so as to help hin1 turn over a new leaf. During the course of re­ 2. The Service habilitation, the probation officer also has the duty to ensure as far as possible that the probationer does not breach the law again. If the probationer has relapsed to * High Court Probation Officer, Social Welfare Department, Hong Kong crin1e or fails to comply with any require-

158 NON-INSTITUTIONAL TREATMENT: HONG KONG ment ofthe probation order, the probation The Volunteer Scheme for Probationers officer has to report it to the Court for the in Hong Kong was put into practice in latter's further deliberation. During the 1976. Its overall objectives are: year 1985 - 86, 2,252 of a total of 2,774 a) to promote a wider positive approach probationers completed their probation by the public towards helping and orders satisfactorily. Cases in which the reforming offenders and in this way probationers failed to comply with the bring about greater community in­ requirements of the probation order were volvement and stronger community reported back to the courts for re-sentenc­ action against crime. ing and most of them were subsequently b) to meet the specific need of certain committed to reformatory schools, training probationers through personal ser­ centres, detention centers or prisons. vices offered by volunteers. Probation service in Hong Kong has a c) to supplement the effort of proba­ high success rate, which refers to proba­ tion officers in the social rehabilita­ tioners who have successfully fulfilled the tion of probationers. tenns of the probation order and are dis­ (2) Area of Work of the Volunteer charged. As already mentioned, in the year The volunteer will not take over the role 1985 - 86,2,252 of a total of 2,774 proba­ of the probation officer who is dealing tioners completed their probation order with the legal side of duties and solving the satisfactorily, that is, without reconviction behaviour problem of the probationer. The or breach of conditions as specified in the volunteer is expected to assist a proba­ probation order. The success rate thus tioner in activities which require no profes­ calculated is 81.2%. sional skills such as: The success of probation may be at­ a) to act as tutor for a probationer who tributed to the following factors: has problems with school work. (1) Probation is basically a rehabilita­ b) to guide a probationer in proper use tive measure, not a punishment. of leisure time and direct his interest The offender is given a chance to into wholesome social, cultural and turn over a new leaf. Execution of recreational activities. punislunent is suspended subject to c) to help develop a probationer's range the offender's good bebaviour. of interests or hobbies. (2) Offender receives practically no d) to give technical infonnatioll if the social stigma as usually only his volunteer is a professional or skilled family members know about his personne1. commission of offence. e) to provide friendship especially to (3) Offender is allowed to return home probationers without family support where primary emotional support' is and guidance or those without desir­ given. able friends. (4) Offender will continue his school­ ±) to offer practical advice and assis­ ing/employment and participate in tance e.g. child care, management of other constructive recreational ac­ household etc. tivities which should lead to very (3) Criteria for Selecting Volunteers positive social support. a) aged 21 and above (5) Offender is assisted by the proba­ b) preferably of secondary school edu­ tion officer to reform through cation standard social work methods. He will be c) mature in personality encouraged, and never coerced, to d) willing to make friends with law improve himself by his determina­ offenders tion to start anew. e) willing to sacrifice one's own leisure time for serving others without 3. Volunteer Scheme for Probationers monetary reward (1) Overall Objective ±) good health and with wholesome

159 P ARTICIP ANTS' PAPERS

interests. are showing a more open and acceptable (4) Operation of the Scheme attitude towards the work of rehabilitating The scheme is run by a working com­ offenders. Normally the period of service mittee of the Social Welfare Department for each volunteer is six months but it can consisting of a Senior Social Work Officer be extended in case of need. During the (Operations) responsible for probation period from 31 March 1985 to 1 April service and all Supervisors of 11 Probation/ 1986, volunteer service was provided for Aftercare Offices. This committee launches 26 probationers in Hong Kong. annually a territory-wide recruitment exer­ cise, usually around May/June of the year, Community Service Orders Pilot Scheme to recruit a pool of volunteers according to the criteria set out above. The newly re­ 1. Introduction cruited volunteers will be given a training A Community Service Order (CSO) is a and orientation course conducted by the new form of sentence in Hong Kong pro­ committee before they are considered vided under the Community Service Orders ready for service. Ordinance, Cap. 378 which was enacted on Based on the need for probation cases, 23 November 1984. Under the order, an probation officers may select a suitable offender is required to perform unpaid volunteer from the pool of unmatched work of benefit to the community under volunteers to assist a probationer. When a the supervision of a probation officer who volunteer is selected, the matching officer shall also provide rehabilitative counselling will arrange separate meetings to prepare and guidance to the offender. the volunteer as well as the probationer for The order aims at being both punitive undertaking and accepting the assignment and rehabilitative. Under the order, an of­ before actual matching. Once a case is fender is required to use his leisure time to matched, it is the duty of the probation perform community service as reparation officer to regularly contact the volunteer to the hann he has done to the com­ to keep track of the progress of service and munity, and he may, through community to review its effectiveness on the proba­ service and guidance from the probation tioner. officer, gain a changed outlook, a more During the period of service, the proba­ constructive purpose in life, an enriched tion officer should see that the following sense of self-worth, and hopefully be are observed: steered away from committing further a) the volunteer is adhering to the spe­ crime. A Community Service Order should cific service he has agreed to provide therefore benefit both the community and b) the volunteer is to treat all partic­ selected offenders. ulars of the probationer in the strictest confidence 2. Pilo t Scheme c) the volunteer should not give any TIns new form of sentence will be tried direct financial or material assistance out in Hong Kong under a two-y~ar pilot or offer loans to the probationer scheme effective from 1 January 1987 in d) the volunteer should not receive three magistracies: Central, Kwun Tong material reward or gifts of money and Tsuen Wan. The Social Welfare Depart­ from the probationer or his family ment is responsible for implementing the e) the volunteer should not use author­ scheme, an.d for this purpose has created a ity to correct the probationer's team of staff and set up the Community misbehaviour but will refer the mat­ Service Orders Office. At the end of the ter to the attention of the probation two-year period, a review will be made to officer. consider whether this new form of sen­ Every year, the public in Hong Kong has tence should be made available to all given encouraging support to the Scheme. courts in Hong Kong or should be brought It is Widely seen that volunteels, in general, to an end.

160 NON-INSTITUTIONAL TREATMENT: HONG KONG

3. The Making of a Community SerJJice the number of hours specified in the order Order in a satisfactory manner and to comply As provided by the Ordinance, a sen­ with any other additional requirements of tencing court may make an order requiring the order. He shall also comply with the a person of or (;ver 14 years of age and directions of his supervising probation of­ convicted of an offence(s) punishable with ficer on matters concerning his work place­ imprisonment to perform unpaid work for ment and rehabilitation, and immediately a number of hours not exceeding 240 with­ notify the supervising probation officer of in a period of 12 months. Such an order any change in his address. may be made in place of, or in addition to any other sentence. The court shall not 6. Breach of the Order make such an order unless it is satisfied, An offender who fails to comply with after considering a probation officer's any requirements of the order may be report, that the offender is suitable for brought back to court and he may be liable performing community service and that to be re-sentenced for the offence for work placement is available for him, and which the order is made. that the offender consents to the making of the order. 7. Supervision The probation officer of the Commu­ 4. Suitability for a Community Service nity Service Orders Office will undertake Order the supervision of the offenders (known In assessing an offender's suitability, the as community service workers) placed on probation officer will consider the nature the order, and make arrangements for the of the offence(s), the character, social work placement as well as provide rehabili­ background and other relevant circum­ tative counselling for the offender. stances of the offender and also see if there is sufficient stability in the offender's 8. Work Placement situation for him to complete the require­ The work will be carried out during the ments of the order. The probation officer leisure time of the offender, normally over will also take into account the interests of the weekends, public holidays, or weekday the community if the offender is to per­ evenings, in sessions of four to eight form community service. consecutive hours each, and will not While offences punishable with impris­ disrupt the employment, schooling or onment cover a wide spectrum from the religious activities of the offender. serious to the relatively minor ones, serious The work is provided by government offences like manslaughter, rape, arson, departments and voluntary welfare agen­ serious wounding, major drug offences are cies and may be carried out in country apparently unsuitable for community ser­ parks, beaches, hospitals or homes for vice order. Similarly, offenders who are children, the disabled or elderly. sophisticated in crime, or with a known The community service workers will not record of addiction to drugs or alcohol, be depriving other people of employment sexual deviance, criminal violence, mental opportunities as the work they perform are illness or SUbnormality are unlikely to be normally that performed by volunteers or able to benefit from the scheme Or are for an improved standard of ~ervice. Such unsuitable in the interests of the com­ work may be of a wide variety, ranging munity to be placed under a community from work not involving direct contact service order. with people such as grass-cutting, minor repairs and cleansing, to work involving 5. Obligations of the Offender Under the direct contact with the service recipients Order such as assistance in running programmes An offender placed under the order is and caring for the disabled or elderly. required to perform the unpaid work for Community service workers are mainly

161 PARTICIPANTS' PAPERS arranged to work in two ways. The first is 11. Statistics placement in a group of six to eight com­ For the months of January to February munity service workers working on a 1987, the number of referrals for assess­ specific work project under on-the-spot ment of suitability for eso was 33. The supervision of a site supervisor employed number of esos made by court was 12. Of on part-time basis by the department. The the 12 esos made by court, the number of second is a single placement of a commu­ hours sentenced in anyone order ranges nity service worker by himself on a task from 80 to 240, the norm being 120 hours. with minimal supervision provided by a There were a total of 24 government or nominated staff member of the work­ voluntary agencies offering work place­ providing organization. ment for offenders and the total number of The majority of the community service work placement positions offered was 242. workers will be arranged to work in a group project to start with, and move Superintendents' Discretion Scheme to a single placement after they have proved to be steady and reliable workers. The attorney General in Hong Kong They may also be arranged to work along­ formally approved in 1962, the Scheme side other volunteers from the community. whereby police officers of the rank of For all the work placements, the probation Superintendent and above exercise their officer will visit the work sites from time discretion as to whether or not to pros­ to time and make themselves available for ecute, in certain circumstances, a child or consultation and discussion whenever nec­ young person who has attained the age of 7 essary. years but is under the age of 16 years. The practice, which is known as Superinten­ 9. Identity dents' Discretion Scheme, was first put The identity of the community service into effect on 1 January 1963. Under the worker w0uld normally be revealed only to aforesaid Scheme, the Juvenile who is the responsible staff of the work-providing discharged is required to be visited periodi­ organisation on a need-to-know basis. The cally at his home by a police officer for other staff members, clients and volunteers two years or until he attains his 16th birth­ of the work-providing organisation would day. The purpose of the visit is to ensure know him as a volunteer from the Social the juvenile does not lapse into crime or Welfare Department or a volunteer from associate with undesirable characters. The the community. police officer also liaises with other govern­ ment Departments in Hong Kong on mat­ 10. Expiry of Order ters which could assist in the rehabilitation The community service order will re­ and welfare of the juvenile and his family. main i.Tl force until the community service When exercising the discretion, the worker has completed the stipulated police officer bears in mind the following number of hours of work specified in the criteria: order, or upon the expiration of 12 months a) whether the child or young person is from the date of the order or, if the order a first-time offender; is extended, on the expiration of the b) whether the child or young person extended period, or upon revocation of the admits the offence; order, whichever occurs first. The super­ c) whether the offence is of a minor vising probation officer however will try to nature; ensure that the offender would complete d) whether the complainant agrees to the stipulated number of hours of work no prosecution; within the normal duration of the order e) whether the child or young person's which is 12 months, and would bring the parent or guardian has agreed to no case back to court if such is not envisaged prosecution and has also agreed that to be possible. the child or young person might be

162 NON-INSTITUTIONAL TREATMENT: HONG KONG

visited periodically at his home by Most of the offenders discharged were officers of the Juvenile Protection in the age group of 12-13 years (35.7% or Section of the Hong Kong Royal 631 out of 1,767) but the highest portion Police Force for a period of two that had been discharged was found in the years or until the child or young age group 7-11 years (515 out of 659, i.e. person attains his 16th birthday; 78.1%). Of the 1,767 offenders discharged, t) whether any other interest party (e.g. 1,263 or 71.5% had committed shop theft an insurance company) agrees to no offence. . prosecution. The number of offenders discharged by Conclusion the Superintendents' Discretion Scheme according to age group against types of I t is widely accepted by penologists offence for the period from January - that rehabilitative measures for offenders June 1986 is listed as foHows: have a more positive effect than punitive measures. Further, rehabilitation work Offence 7-11 12-13 14-15 16-20 Total should not be done by anyone profession All but all those who are involved in the serious assaults 9 4 11 2 26 behavioural science field. An offender, as a member in a society, is subject to all All robberies 2 3 kinds of influences. The three rehabilita­ tive measures, as mentioned, aim at tlus Blackmail 2 2 5 direction. It is believed that, with suffi­ All cient support and professional advice, an burglaries 1 0 11 8 29 offender can be put back on the right Criminal track. damage to property 6 17 18 41 Theft from vehicle 5 6 5 16 Shop theft 410 453 380 20 1,263 Other miscel- laneous thefts 65 116 108 4 293 Offences against public order 6 7 Major dangerous drug offences Unlawful society 2 8 1 11 Others 10 19 40 4 73 Total 515 631 588 33 1,767

163 Non-Institutional Treatment of Offenders in Thailand

by Vitaya Suriyawong*

Introduction The Department realizes that the interrup­ tion of a prisoners' occupation and social Society reacts to crime in a variety of life by imprisonment may destroy pris­ ways. During previous times, offenders oners' chances to readjust properly to (hereafter replaced by "prisoners" in accor­ society. The Department has put much dance with the existing law) were always effort into implementing several non­ punished by ideas of revenge, retaliation or institutional treatment programs into prac­ compensation for loss of property. Since tice. At present, the Department is imple­ then, the said concepts have been devel­ menting the said programs such as parole, oped from time to time and now we can good-time allowance (sentence remission), say that rehabilitation is the main purpose public work allowance and penal settle­ of punishment in the modern correctional ment. system of the world. In Thailand, like other countries, correc­ The Pattern of Non.Institutional tional activities are mostly concerned with Treatment the treatment of prisoners and of course, they are the responsibilities of the Depart­ Parole ment of Corrections, Ministry of Interior. Parole, a correctional device through The fIrst two goals of the Department are which a prisoner is conditionally released to protect society from convicted pris­ from prisons and correctional institutions oners, and to increase a numher of con­ under supervision by a parole oftlcer after victed prisoners achieving a successful serving part of his sentence, has been adjustment upon their return to the SOciety. introduced to the Thai correctional system In order to accomplish these goals, the by the parole statutory which was enacted Department adopted many correctional under the Penitentiary Act of 1936 by the measures in modern correctional philoso­ Ministry of Interior. According to the phy, such as standards and procedures parole statutory, convicted prisoners are that were then put into practical applica­ eligible for parole consideration by a parole tion. With emphasis on the reformation board after part of their sentence has been of prisoners, penalllnd correctional institu­ served. tions, under the supervision of the Depart­ ment of Corrections, throughout the 1) Eligibility for Parole country are operated primarily for custody Rules of the Penitentiary Act of 1936 and rehabilitation, not for punishment. state the qualifications for prisoners who In addition to the institutional program, will be eligible for parole as follows: several non-institutional treatment pro­ (1) Must be a convicted prisoner show­ grams have also been implemented so as to ing good conduct, progress· in education, provide easy readjustment for prisoners good production in prison work or render­ from correctional institutions to society. ing excellent services for the offIcial enter­ prise; (2) Must have already served more than * Chief Officer (Penologist), Penology Divi­ two-thirds of the tenn of the sentence sion, Department of Corrections, Minis­ which is a time fixed in the warrant of im­ try of Interior, Bangkok, Thailand prisonment, or not less than 10 years in

164 --~------

NON-INSTITUTIONAL TREATMENT: THAILAND case of life imprisonment. 2) Conditions for the Parolee (3) Must be a "excellent class" or "very In addition to Thai Correctional Law, good class" or "good class" prisoner; the Director-General of the Department of (4) The "excellent class" prisoner may Corrections imposes fixed departmental be granted parole for not mm'e than one­ regulations in order to supervise and third of the time fixed in the final warrant control each parolee's behaviour and to of imprisonment; ensure that each parolee will be less likely (5) The "very good class" prisoner may to turn back to crime. Departmental regu­ be granted parole for not more than one­ lations concerning this matter are as fourth of the time fixed in the final war­ follows; rant of imprisonment; (1) Refrain from recommitting crime; (6) The "good class" prisoner may be (2) Refrain from entering areas deter­ granted for parole not more than one-fifth mined by competent authorities; of the time fixed in the final warrant of (3) Abstain from consuming narcotics imprisonment. and gambling; The parole system in Thailand is quite (4) Report in person to the competent distinctive from other countries because authority designated by the Director­ such a system of parole is not a right for General of the Department of Corrections; all prisoners. Parole will be beneficial to (5) Carry on with the occupation ar­ only a selected few eligible ones, There­ ranged and supervised by the competent fore, not all convicted prisoners who are authority; qualified will automatically earn parole. (6) Resume former occupation or take The procedure for convicted pdsoners occupation arranged and supervised by to earn parole starts from the consideration close friends or relatives; and by the prison official review committee, (7) Practice religion. which consists of the prison superintendent and other appOinted prison officials. The 3) Revocation of Parole committee then makes a recommendation Each parolee shall, as far as possible, to the parole board at the departmental behave himself strictly in conformity with level. The parole board will take into con­ the conditions prescribed. If a parolee fails sideration the prisoners' background, crim­ to comply with any of these conditions, he inal records, the circumstances of their may be rearrested without warrant and offence, their conduct while serving a reimprisoned for the remaining period of sentence, the post-release plan and some his term of sentence, and certainly, disci­ other matters so as to make sure that each plinary charges will be inflicted on him. parole a granted prisoner will succeed in If such a case happens, it means that parole going through with the program. has already been revoked. If, during the The parole board at the departmental parole period, a parolee is again convicted level consists of seven high-ranking officials by fmal judgement of the court for an including the Deputy Director-General of offence which is not an offence committed the Department of Corrections who acts as by negligence or petty offence, parole will a chairman of the board and other relevant also be revoked automatically. officials from concerned departments such Parole in Thailand is thus not a right to as the Department of Public Welfare, all prisoners but is limited to a selected Department of Public Prosecution, Depart­ few. Therefore, the number of prisoners ment of Public Health and Police Depart­ who are granted parole within a year is ment respectively. The board has to submit very small. The department, however, its suggestions to the Director-General of urges prisons and correctional institutions the Department of Corrections for fmal to give more support and recommendations approval. Therefore, the decision to grant for eligible prisoners to earn parole and parole to qualified prisoners, by the since the year 1983, the number of pa­ Director-General, is final. rolees has been increased gradually and

165 P ARTICIP ANTS' PAPERS become an effective non-institutional pro­ to the committee appointed by the prison gram of the department in order to in­ superintendent for consideration. The crease outflow of prisoners. Besides, the committee, upon receiving such report, will problem of overcrowding has been relieved. examine all related matters such as the prisoner's domestic background, criminal Good Time Allowance (Sentence records, work performance and his/her Remission) behaviour while being incarcerated. The In Thailand, good time allowance is an final procedure will be at the departmental important measure for treating prisoners in level, and is under the control of the sen­ the community rather than in prison or in tence remission board appointed by the a correctional institution. As a provision Director-General !)f the Department of of the said measure, convicts who have Corrections. The sentence remission board good conduct and are qualified are released consists of various departmental represen­ under supervision prior to the expiration of tatives such as from the Police Department, their sentence. Public Health Department, Public Welfare Good time allowance has been intro­ Department, Public Prosecution Depart­ duced to the Thai correctional system since ment and Deputy Director-General of the 1978 to playa role as an incentive for good Department of Corrections who is chair­ conduct among prisoners while being con­ man of the board. A decision, made unan­ fmed. It has been used also as a measure to imously by the board at a departmental mitigate the destructive impact of impris­ level, is fmal. onment upon prisoners and a problem of overcrowding in prison. 2) Conditions for Good Time Allowance The Director-General of the Department 1) Eligibility of Good Time Allowance of Corrections excercises his power to As a provision of the Penitentiary Act impose departmental regulations for pris­ 1936 (2nd Amendment 1977) and other oners who receive good time allowance related Corrections Department's regula­ privileges. Thus, these regulations are as tions, convicted prisoners who are eligible follows: for good time allowance have to comply (1) Refrain from recommitting crime; with the following conditions: (2) Refrain from entering the areas (1) Must be a convicted prisoner who determined by the provisions of depart­ is of either "goad class," "very good" or mental regulations; "excellent," showing good conduct and (3) Abstain from consuming narcotics adequate prison work performance; or gambling; (2) The number of sentence remission (4) Report in person to competent days depends also on a prisoner's class: authorities designated by the Director­ the "excellent class" will eam five days a General of the Department of Corrections; month, "very good class" will eam four (5) Carryon with previous occupation days a month and "good class" will eam or take on an occupation arranged and three days a month respectively, in con­ supervised by close friends or relatives; and trast to those who are in "fair," "bad" (6) Practice religion. and "very bad"; (3) The eligible prisoners are reqUired 3) Revocation of Good Time Allowance to serve a certain period of sentence which A prisoner granted good time allowance should be more than six months of impris­ shall, as far as possible, behave himself onment. The authority at the prison level strictly in conformity with the regulations has to calculate the term of sentence remis­ precribed. In case a conditionally released sion for each of the convicted prisoners prisoner f"Jls to comply with any of such after having served a certain period of regulations, he may be rearrested without a imprisonment (at least six months). Then warrant and reimprisoned for the remain­ they will write up a report and submit it ing period of sentence and of course, disci-

166 NON-INSTITUTIONAL TREATMENT: THAILAND

plinary charges will be inflicted on him. is not more than 80 percent of the net profit of each project. Other benefits Public Work Allowance included in public work allowance is that The Public Work Allowance scheme was they will have a sentence remission of one introduced to the Thai correctional system day for every day spent working outside. in 1980, initially as a ·new scheme for non­ institutional treatment. In addition to the 2) Revocation Penitentiary Act 1936 (4th Amendment), While prisoners are working on public the Department of Corrections was autho­ work projects outside their prison, they are rized to employ prison labour for public always strictly supervised and examined by work projects outside prisons and correc­ custodian staffs and prison authorities. If tional institutions. This program has signif­ any prisoner misbehaves, his privilege from icantly progressed, the number of projects public work allowance will be forfeited and having been increased from three projects he will be no longer allowed to work out­ in 1980 to 359 projects in 1986. side prison. Such schemes aim to provide employ­ The public work projects, therefore, ment opportunities for prisoners and to bring much benefits not only to prisoners utilize prison labour to the benefit of who will obtain an incentive paYluent and public and community interests. sentence remission, but also to the public as a whole. 1) Eligibility for Public Work Allowance Under this scheme, prisoners, who are Penal SettlemeJ eligible for public work projects outside Penal settlement is another type of pro­ prison, are required to meet the following gram which has been set up as a place for conditions: the pre-releasing of prisoners as a media­ (1) Must be a convicted prisoner of tory stage after prison, so as to help them "good class" or higher; re-adjust to the community. At present, (2) The length of the sentence of there is only one penal settlement in imprisonment is between 1-10 years and Thailand called Klongpai Penal Settlement. has already been served for more than half Klongpai Penal Settlement, which was of its duration; established in 1977, is located in Nakornr­ (3) The prisoner shows him/herself to achasima Province (320 km from Bangkok) be of good conduct and work performance and the total area is 4,450 acres. Prisoners while being incarcerated; and who are selected for Klongpai Penal Settle­ (4) Is in good physical and mental ment are required to participate in farming health, and able to work for construction and agricultural schemes. They are, of projects outside prison. course, given land for living and agricul­ The procedure for prisoners to earn a tural purposes; moreover, they are allowed public work allowance starts at the prison to settle down at the penal settlement level. When a public work project has been although their sentence is expired and their organized, a committee appointed by the period of stay is unlimited. prison superintendent will carefully select qualified prisoners according to the condi­ 1) Eligibility for Penal Settlement tions mentioned above, then submit the list . Male prisoners, whose sentence is final, to the prison superintendent for final may be selected to get a special privilege to approval. live in a penal settlement rather than in an Prisoners who are approved to work institution. They are also required to meet outside prison will be assigned to work in the following conditions: various types of public work projects such (1) Must be a "good class" prisoner or as construction work, drain cleaning, beach of a higher class, and have no more trials to cleaning and canal dredging. Besides, pris­ undergo in the court system; oners will earn an incentive payment which (2) Has already served more than half

167

------I PARTICIPANTS' PAPERS of the sentence and/or the remammg tions. The main purposes of the program is period of the sentence does not exceed two to alleviate the problem of shortage in years; professional aftercare personnel and to (3) Comports himself with good con­ foster better relationships between pris­ duct and is well behaved while incarcer­ oners and the community. The volunteer ated; and aftercare training program was initially (4) Must have previous background in established in 1977 with only 43 volun­ agricultural occupation. If the prisoner has teers in the beginning. At present, they are no land and his financial status is unstable, 9,358 volunteer aftercare officers working the authority may consider such case to be for the Department's aftercare supervision of high priority. program in connection with prisons and Qualified and selected convicts are al­ correctional institutions all over the lowed to bring their family t,o stay with country. It is expected that in 1988, each them while being treated in the penal set­ sub-district in Thailand will have at least tlement. They are also required to build up one or two volunteers attached to it. their own house or cottage in the provided After passing through the screening and area in the penal settlement living area training process, volunteers will be respon­ where all qualified prisoners, who are re­ sible for the supervision of some condition­ garded as being special prisoners, and ex­ ally released prisoners who are on parole prison~rs settle down. or have received sentence remission either Each special prisoner is allowed to by public work allowance or good time occupy eight acres of land for farming allowance. Their caseload is ahout 10 cases plus a piece of land for their own hov.se. but some other may have a bigger caseloads Those agricultural products of the farming depending on their work perfonnance. For will, of course, belong to them. Moreover, their payment, volunteer aftercare officers the possessory right of the land is transfer­ will not be paid more than 50 baht per case able to a prisoner's or ex-prisoner's descen­ as a transportation fee. Volunteer aftercare dant(s) in case of his death. officers have to work in coordination with full-time prison authorities, and will act 2) Revocation both as coordinator and supervisor. Those special prisoners, who are select­ Generally, volunteer aftercare officers ed to live in a penal settlement, are re­ are selected from amongst respected per­ quired to comply with the rules and sons in each community as well as members regulations determined by the authority; of other professions such as teachers, if not done so, their privileges may be lawyers, social workers, monks and retired forfeited and they will be re-imprisoned in government officials. the institution right away. Since volunteer aftercare officers are not members of prison staff, they will be Public Participation in the Thai able to develop a close relationship with Correctional System (Volunteers conditionally-released prisoners. For the in Corrections Services) past seven years, volunteer aftercare We can say that the success of com­ officers in the Thai correctional system munity-based correction programs depends have played a significant role in helping largely on public participation and support. prisoners to re-adjust themselves society. Public participation in community correc­ tions can be seen in various forms but the Conclusion major one is in the form of volunteer activities. Non-institutional treatment of prisoners The most widely publicized volunteer in Thailand under the responsibilities of activity in Thai correctional system is the the Department of Corrections comprises program for volunteer aftercare officers of parole, good time allowance, public organized by the Department of Correc- work allowance and penal settlement. Pris-

168 NON-INSTITUTIONAL TREATMENT: THAILAND oners who are conditionally released under to prisons and it is less expensive than any of these non-institmional programs, incarceration; will be strictly supervised while they are (3) Creates more effective means for living in the community. DUling the super­ reducing recidvism; vision period, volunteer aftercare officers (4) Provides prisoners with an opportu­ will be used to supervise such condition­ nity to earn a living while under super­ ally-released prisoners. Some qualified and vision in the community; selected prisoners will be transferred to (5) Relieves welfare roles and reduces penal settlements in order to prepare general welfare costs since the working themselves prior to their release. All the prisoners can support their own family; above mentioned measures are regarded as (6) Provides referral services for those being part of the non-institutional program prisoners who require specific assistance, for the treatment of prisoners in Thailand. such as eye glasses, health care, job place­ It certainly helps attain the goal of the ment, etc.; department which is to increase the num­ (7) Provides prisoners an opportunity ber of convicted prisoners achieving a to deal with their problems in the environ­ successful readjustment upon their return ment in which they exist, rather than in to the society. Therefore, non-institutional the sterile and criminogenic prison environ­ treatment based on community reintegra­ ment; and tion is of much use to the Department as (8) Relieves the problem of overcrowd­ well as the country as a whole. The follow­ ing in prison and reduces costs of prison ing listed benefits provides some other administration. beneficial dimensions to non-institutional Finally, it is hoped that this paper will treatment conducted under the Depart­ encourage further discussion and questions ment of Corrections, Ministry of Interior, about the roles of non-institutional treat­ Thailand: ment in relation to crime as well as the (1) Prisoners will be able to further features of the correctional system, its their education and carryon with their development and growths for more op­ previous occupation; portunities to deal effectively with future (2) The system decreases commitments directions in a free society.

169 The Prohation System: Philippine Setting

by !bra D. Ondi*

The Probation System was formally Probation: An Alternative to institutionalized in the Philippines on July Imprisonment 24, 1976 when former President Ferdinand E. Marcos signed and issued Presidential Although probation is comparatively of Decree No. 968, popularly known as the recent application in the Philippines, its Probation Act of 1976. This decree concept is not new. As early as 1932, ushered a new era in the Philippine correc­ juvenile offenders could avail themselves of tions system wherein persons 18 years of a form of probation provided for in Article age or over who have been convicted and 80 ofthe Revised Penal Code. In 1935, the sentenced to a penalty of not more than Philippine Legislature enacted Act No. six years of imprisonment are given the 4221 which allowed probation to first of­ opportunity to reform themselves and to fenders of 18 years of age and above who become once again law-abiding and respect­ were convicted of certain offenses. It was ed members of their communities. The however, declared unconstitutional by the institutionalization of probation in the Supreme Court of the Philippines two Philippines enhances the government's years later because certain procedural as­ thrust towards the humanization and pects in matters of its implementation were democratization of justice. found not in consonance with the Philip­ Since January 3, 1978, when the ap­ pine Constitution (people vs. Vera et al. 65 plication of the substantive provisions of Phil. 115). We have also at present the PD 968 went into full force and effect, Dangerous Drug Act of 1972 (Republic and up to December 3, 1986, there were Act No. 6425, as amended), which allows 78,027 adult first offenders who had filed probation to certain types of violators, and petitions for probation with the various the Child and Youth Welfare Code (pre­ courts in the Philippines. Out of this num­ sidential Decree No. 603, as amended), ber, 58,467 petitioners were granted proba­ which affords probation to offenders be­ tion. A total of 34,247 probation cases low 18 years of age. have so far been successfully terminated. Adult probation in the Philippines is There are presently 20,990 probationers all understood as a disposition under which an over the country who are under the active accused, after conviction and sentence, is supervision of probation field officers. In released to the community subject to con­ terms of prisoners' maintenance, probation ditions imposed by the court and to the has saved for the govermuent approximate­ supervision of a Probation Officer. It is a ly P367 ,097 ,309.79 since its operation in privilege granted by law, and as such, it 1978. cannot be availed of as a matter of right by persons convicted of crime. For one to be able to enjoy the benefits of probation, he must first show that he has none of the disqualifications imposed by law.

Salient Features of Probation in *Regional Probation Officer, Probation the Philippines Administration Regional Office No. 12, Republic of the Philippines 1. It can be availed of only once. It is

170 PROBATION SYSTEM: THE PHILIPPINES

a single concept probation as opposed to Special or discretionary conditions are multiple probation being practiced in some the additional conditions imposed on the . countries. This means that an offender probationer which are geared towards his who has been granted probation can no correction and rehabilitation outside of longer apply for the same privilege for an prison and right in the community where offense that he might commit in the he belongs. The court may require him to: future. a) Co-operate with a program of super­ 2. It is intended for offenders who are vision; 18 years of age and above who are not b) Meet his family responsibilities; otherwise disqualified by law. Offenders c) Devote himself for specific employ­ who are disqualified are those: ment and not to change said employ­ a) Sentenced to serve a maximum term ment without prior written approval of imprisonment of more than six of the probation officer; years; d) Undergo medical, psychological or b) Convicted of subversion or any crime psychiatric examination and treat­ against the national security or the ment and enter and remain in a public order; specified institution, when required c) Who have previously been convicted for that purpose; by final judgement of not less than e) Pursue a prescribed secular study or one month and one day or a fine of vocational training; not less than two hundred pesos; f) Attend or reside in a facility establi­ and, shed for instruction, recreation or d) Who had been once on probation residence of person on probations; under the provisions of this decree g) Refrain from visiting houses of ill­ (Sec. 9 PD 968 as amended). repute; If the offender is below 18 years of age h) Abstain from drinking intoxicating at the time of his commission but reaches beverages to excess; 18 years at the time of the trial, the court i) Permit the probation officer or an does not suspend the sentencing of an authorized social worker to visit his offender if that person is found to have home and place of work; committed the acts charged but, instead, j) Reside at premises approved by the pronounces judgement. The youthful of­ officer or social worker and not to fender may then apply for probation. change his residence without his/her 3. Grant of probation is subject to con­ prior approval; ditions imposed by the court. There are k) Satisfy any other conditions related two types of conditions that the probation­ to the rehabilitation of the proba­ er must observe and follow. These are the tioner which are not unduly restric­ general mandatory conditions and the spe­ tive of his liberty or incompatible cial or discretionary conditions, both of with his freedom of conscience. which are incorporated in every order of A violation of any of the conditions probation issued by the court. The may lead either to a more restrictive modi­ mandatory conditions require that the fication of the same or to the revocation of probationer shall: the grant of probation. Consequent to the a) Present himself to the probation revocation, the probationer will have to officer designated to undertake his serve the sentence originally imposed. supervision at such place and time as 4. Post-sentence investigation and the may be specified in the order within submission of post-sentence investigation seventy-two (72) hours from receipt reports are prerequisite to the court dis­ of the said order; position on the petition for probation. For b) Report to the probation officer at each application, a post-sentence investiga­ least once a month as specified by tion is conducted by a probation officer or said officer. his assistant. This includes a thorough

171 PARTICIPANTS' PAPERS study not only of the criminal lecord of munity resources. Community support each offender but also of his character, his makes easier the integration of probation­ family background, his married life, educa­ ers into society. tional and occupational records, inter­ 7. The administration of the Probation personal relationships, and practically all System in the Philippines is under the ex­ areas of his life which may have a bearing ecutive branch. Unlike in other countries in determining his suitability for probation. where p;obation officers work directly The investigation procedure involves inter­ under the courts, our system provides that views of the petitioner, a records check they should be under an agency under the with police agencies, prosecuting officers Department of Justice which is a part of and the courts, interviews with collateral the executive branch of the government. information sources such as family mem­ It is our view that a judge does not have bers, neighbors, and others. When neces­ the time, training, or orientation to be able sary, an applicant for probation may have to perform probation work in addition to to undergo a drug dependency test or a his judicial functions. Probation work is psychological evaluation to better assess service-oriented in nature. Ii cannot be his potential for probation. The findings in handled by the courts whose functions are the investigation together with the recom­ adjudicatory. It may also be stated that the mendations of the probation officer for the executive branch of the government has grant or denial of probation are contained under it all the other subsystems for car­ in a post-sentence investigation report rying out court disposition of offenders so (PSIR) which is submitted to the court that increased interactions and closer having jurisdiction over the case, and which administrative coordination with them and aids the latter in its disposition of the case. the other agencies of the criminal justice S. The decision of the court to grant or system can easily be fostered. deny probation is final and not appealable. Probation in the Philippines centers The probation officer merely plays a mainly on two major functions, namely (a) supportive role to the court. He assists the investigation of applicants for probation court in determining who should be grant­ for the guidance of the court and (b) the ed or denied probation. He provides infor­ supervision of the probationers after they mation to the courts as to whether or not have been granted probation by the courts. there is a need for modification of the con­ There has been a continued increase in the ditions it has imposed and whether the number of convicted persons who have probation should be revoked or terminated. fIled applications for probation. A total of Once the court has granted probation to an 78,027 offenders have so far applied for offender and established the conditions thereof, the probation officer then works with the probationers to see to it that the Table 1: Probation Caseloads conditions are observed and helps him lead a law-abiding and decent life. An order Year Investigation Supervision granting or denying probation is final and not appealable. 1978 6,154 3,199 6. It is a community-based treatment 1979 7,335 5,336 program for offenders. Community sup­ 1980 7,807 5,577 port is solicited in a variety of services, 1981 9,631 6,629 such as a volunteer aid service, manpower 1982 10,038 7,883 development, education, medical assistance, 1983 9,487 7,469 employment, recreation and other services, 1984 9,695 7,627 including drug abuse prevention and treat· 1985 9,699 7,728 ment programs. Rehabilitation work in a 1986 8,381 6,985 community-based correctional program depends much on the availability of com· Total 78,027 58,433

172 PROBATION SYSTEM: THE PHILIPPINES probation from 1978 to 1986. Out of have applied and qualified for probation? these applicants, 58,433 were granted pro­ A profile study of 10,715 probationers bation, 6,712 were denied, 1,622 were dis­ under PD 968 conducted in 1980 by the qualified and 2,194 have withdrawn their Probation Administration showed that the applications. About 34,247 cases were majority committed crimes against persons terminated. Only 2,205 probation cases and against property. Of those who com­ were revoked. Presently, there are 20,990 mitted crimes against persons, 1,857 or probationers who are under active super­ 45.83% committed physical injuries; 379 vision. or 9.35% committed homicide through reckless imprudences; 608 or 15.00% com­ Profile of Probationers mitted frustrated homicide; 212 or 5.23% committed attempted homicide; 318 or What are the most common offenses 7.85% committed physical injuries through being committed by convicted persons who reckless inlprudences; 12 or 0.30% com-

Table 2: Probation Supervision Caseloads

Other Total supervision Cases successfully Cases Active super­ dropped Year cases during the terminated revoked vision year cases 1978 3,199 300 17 9 1979 5,336 1,401 119 39 1980 5,577 2,893 164 72 1981 6,629 3,879 183 113 1982 7,883 4,681 237 138 1983 7,469 5,170 273 146 1984 7,627 4,854 286 168 1985 7,728 5,353 422 209 1986 6,985 5,716 504 326 20,761 Total 58,433 34,247 2,205 1,220 20,761

Table 3: Disposition of Petitions for Probation

Petitions Disquali- pending Active Denied Withdrawn Granted Others court invest i- Year petitions fied petitions petitions petitions disposi- gation tions 1978 3,434 574 574 170 2 1979 4,562 535 181 155 53 1980 5,307 580 168 168 49 1981 6,781 797 196 296 106 1982 8,045 843 214 336 185 1983 7,535 759 143 275 155 1984 7,821 854 196 249 274 1985 7,897 851 164 306 200 1986 7,085 919 173 239 210 3,871 1,804 Total 58,467 6,712 1,622 2,194 1,234 3,871 1,804

173 PARTICIPANTS' PAPERS

mUted maltreatment; 1 or 0.02% commit­ dents; 2,258 or 21.07% have 3 to 4 ted parricide; 35 or 0.86% committed dpendents; 1,554 or 14.50% have 5 murder; 24 or 0.59% committed attempted to 6 dependents; 740 or 6.91% have murder; 72 or 1.78% committed frustrated 7 to 8 dependents; 370 or 3.45% murder; and 534 or 13.18% committed have 9 to 10 dependents; 98 or homicide. 0.91% have 11 to 12 dependents; 47 Of those who committed crimes against or 0.44% have 13 above dependents; property, 1,598 or 48.99% committed and 2 or 0.02% with no information. theft; 607 or 18.61% committed robbery; c) Their age level: 1,681 or 15.69% are 421 or 12.91% committed estafa; 214 or 18-21 years; 2,814 or 26.26% are 22 6.56% committed falsification; 140 or to 27 years; 2,014 or 18.80% are 28 4.29% committed malicious mischief; 264 to 33 years; 1,457 or 13.60% are 34- or 8.09% committed damages to property; 39 years; 1,153.or 10.76% are 40 to and 18 or 0.55% committed arson. 45 years; 702 or 6.55% are 46 to 51 The same study showed that 10,069 or years; 413 or 3.85% are 52 to 57 93.97% were males and only 646 or 6.03% years; 256 or 2.39% are 58 to 63 were females. years; 217 or 2.03% are 64 and The profIle study also showed the fol­ above; and 8 or 0.07% with no infor­ lowing data of the probationers on: mation. a) Their civil status: 7,028 or 65.59% d) Their educational attainment: 2,552 are married; 3,242 or 30.26% are or 23.82% primary; 3,335 or 31.12% single; 103 or 0.96% are separated; intermediate; 2,571 or 23.99% high­ 173 or 1.61% are widows/widowers; school academic; 532 or 4.97% high­ 166 or 1.55% with common rela­ school vocational; 734 or 6.85% tions; and 3 or 0.03% with no infor­ college vocational; 114 or 1.06% mations; college undergraduates; 340 or b) Their number of dependents: 3,754 3.17% degree holders; and 537 or or 35.03% have no dependents; 5.01 % unschooled. 1,892 or 17.66% have 1 to 2 depen- e) Their employment status: 5,131 or

Table 4: Government Savings through Probation in Terms of Prisoners' Maintenance (Unit = P)

Prisoners' No. of daily per Annual mainte- Total amount of prisoners/ Estimated Year capita proba- nance cost of expenses of savings mainte- tioners prisoners the PA nan..:e cost 1978 5.46 3,199 6,375,287.10 11,841,403.23 5,466,116.13 1979 6.58 8,209 19,715,555.30 13,238,165.56 6,477,389.74 1980 7.60 12,227 33,917,698.00 17,513,308.11 16,404,389.89 1981 11.42 15,242 63,533,228.60 21,941,449.00 41,591,779.60 1982 13.14 18,908 90,684,658.80 25,789,052.29 64,895,606.51 1983 12.89 21,626 101,747,086.10 29,363,448.33 72,383,637.77 1984 8.95 23,756 77 ,604,913 .00 29,706,000.00 47,898,913 ..00 1985 8.50 26,344 81,732,260.00 38,071,118.00 43,661,142.00 1986 12.00 27,536 120,607,680.00 41,357,112.60 79,250,567.40 Total 595,918,366.90 228,821,057.12 367,097,309.78

174 PROBATION SYSTEM: THE PHILIPPINES

47.89% employed; 3,968 or 37.03% cost of prisoners reveals that about self-employed; and 1,616 or 15.08% P367,097,309.78 have been saved by the unemployed. government through the probation system f) Their income- status: 1,586 or from 1978-1986. 14.80% with no income; 7,267 or Another form of savings derived from 67.82% below P500.00; 1,180 or the adoption of the adult probation system 11.01% with P500 to P899.00; 227 in the Philippines cannot be measured or 2.12% with P900 to P1,129.00; quantitatively for this relates to the 60 orO.56%-P1,300.00to P1,699.00; humane attributes of probation. Their 38 or 0.35%-P1,700.00 to P2,099.00; value cannot be determined but can only 64 or 0.60%-P2,100 and above; and be felt, as they involve the preservation and 293 or 2.73% with no information. development of an individual's worth and A follow-up study on probationers in dignity as a person, maintenance of family succeeding years is being conducted but its unity and continued family support, findings have not yet been compiled, avoidance of the stigma of incarceration, Probation is a less costly alternative human resource development and utiliza­ to imprisonment. A comparison of the tion, and reduction of the incidence of annual expenditures of the probation on recidivism. administration and the annual maintenance

175 Non-Institutional Treatment of Offenders-Chinese Style

by Sun Yongxin*

For the police and personnel of judicial ment units and public surveillance. and procuratorial organs from China, the The object, content and duration of term "non-institutional" seems to sound Control and Surveillance have been stipu­ rather fresh and strange, and its definition lated specifically by the Criminal Law of is somewhat vague, for the term is not used China. The sentence of Control and Sur­ in China. However, if we do not let the veillance is judged by the court and carried defmitions of "non-institutional treatment out by public security organs. During the of offenders" bother us but pay attention term of Control and Surveillance, the of­ to its content and essence, we will discover fenders must abide by the following there exists in our system a few forms and stipulations: measures which are related or similar to the (1) Abide by the government law and non-institutional treatment of offenders. decree, receive public surveillance, and For example, "Control and Surveillance" participate in collective productive labour and "Comprehensive Treatment," in which or work actively; most of us think there is some non-institu­ (2) Regularly report to the implement­ tional element. Therefore, tlus paper will ing organ on their activities; focus on Control and Surveillance and (3) Move and leave for other places Comprehensive Treatment. upon approval by the implementing organ. The legally permitted minimum time of Control and SlU·veillance Control and Surveillance is three months, and the maximum is two years. The As early as the beginning of the 1950s, a sentence time for those who repeat of­ system of Control and Surveillance began fences cannot exceed three years and be to be adopted in our country. The objects extended. The sentence term begins to be of Control and Surveillance were then counted from the day of conviction. If grafters and counterrevolutionaries whose detained before the verdict was carried out, crinles were minor. In 1979, Control and one day under the term of detention will Surveillance was placed into Article 28 of be compensated by two days of the the Criminal Law of the People's Republic sentence term. of China, as one of five major criminal At present, the objects of Control and punishments; and its new defmition was Surveillance are mainly the offenders who given. What is called Control and Surveil­ committed minor crimes of countering lance is a method of penalizing offenders revolution, disturbing social order, stealing, who have been convicted by the court ac­ swindling, slipping through the border and cording to the law. The offenders receiv­ robbing. The objects also include hooligans ing this kind of punishment will not be put and sorcerers with minor offences. More­ in prison but reform themselves through over, the Criminal Law specifies the fol­ labouring under the control of law enforce- lowing points for implementation of Control and Surveillance: (1) The content does not include the deprivation of political rights; *Chief of the Foreign Affairs Section, For­ (2) The convicted offenders under Con­ eign Affairs Office, Xining Public Securi­ trol and Surveillance enjoy equal pay for ty Bureau, the People's Republic of China equal work during the sentence term. On

176 NON-INSTITUTIONAL TREATMENT: CHINA one hand, the offenders are punished; on ment. In our country, the way of imple. the other hand, they are paid through mentation of Comprehensive Treatment is participating in labour or work; to rely on government departments, (3) At the expiration of one's term of people's organizations, industrial and com· Control and Surveillance, the implementing mercial enterprises, families, schools, neigh. organ will announce the relief to the of· bourhoods, army and the masses, all which fender himself and the masses concerned. work in full co·operation and with unity of Control and Surveillance is a creation of purpose, work together but take on their the criminal penalty of China. Over a long own responsibilities; to use various means period of practice, it has proved to be a of politics, ideology, organization, econom· kind of necessary punishment in the strug· ics, culture, education, morality and law, gle against offenders with minor crimes, an sO as to reach the goal of. the prevention effective method of reforming and educat· and treatment of crimes and juvenile ing them as well as an ideally compulsory delinquency. measure to prevent these offenders from In order to show great concern for repeating crimes. For example, an investi· youngsters and help thp,m grow healthly, gation on 71 offenders ofa city, who were we adopt such a method that in practice, serving the sentence of Control and Surveil· units are responsible for their own staff lance, was made and showed that 17 and workers; educational institutions are (23.9%) of all these offenders behaved responsible for pupils and students; neigh· well; 44 (61.9%) not bad; 6 (8.4%) were bourhoods for youngsters residing there; involved in illegal activities; and only 4 and parents for their children. Units, (5.6%) repeated offences. schools, families and neighbourhoods are As above showed, Control and Surveil· together concerned about the growth of lance has achieved good results in reform· the younger generation in every aspect, and ing and educating offenders. During the frequently observe and help them. At the term of Control and Surveillance, the of· same time, all institutions and organiza. fenders are not separated from their work tions of society take concerted action, units and their families, and can enjoy create a better social e'wironment and equal pay for equal work like other people, provide more places of activities and which does not influence offenders' family recreation for youngsters, such as "youth life, but embodies humanism. This treat· centres" and "cultural palaces," or run ment is also economical and conducive to more courses of dance, music, foreign reforming offenders and maintaining public languages and so on in their spare tinle, so security. as to help youngsters foster lofty senti· ments and cultivate a correct outlook on Comprehensive Treatment life, morality and legality, thus weakening or removing the criminal motivation of In the early 1980s, our government put youth, and putting them under the preser­ forward the policy of Comprehensive Treat· vation and education of society. ment, aimiI}g at relying on the strength of As for the youngsters who had commit· the whole society; making full use of ted minor crinles and those who had served means of ideology, economics, culture and sentence but are now returned to the law to preserve the healthy growth of the society, their units, neighbourhoods, younger generation, to crack down on parents and relative police stations bear the crimes, to prevent and save youngsters responsibility for helping, educating them, from committing crimes. and changing them by persuasion. The Without doubt, families, schools and officials of local police stations should call society are all responsible for preventing on their families regularly, inquiring about youngsters from committing crimes and their thOUglltS, work and life. The units treating them. Comprehensive Treatment and neighbourhoods should frequently combines the prevention with the treat· organize various kinds of activity and reo

177 PARTICIPANTS' PAPERS creation for them, such as cultural evenings, above, Control and Surveillance and athletic sports, the popularization course Comprehensive Treatment, like other types for legal. knowledge and the remedial of non-institutional treatment measures for course of cultural knowledge to help these offenders, are indispensable and effective youngsters improve culturally and morally. means in the struggle against crimes and The purpose of all this is to make them juvenile delinquency, and are very humani­ realize the evil and harmfulness of crimes; tarian and very economically effective to make them disgusted with crimes; and when compared with other treatment to further reduce the motivitation of their measures. repeating crimes. But there still are some' problems in According to statistics, 77% of all implementation of Control and Surveil­ crimes in Xining were committed by lance and Comprehensive Treatment. For youngsters in 1980. Since then, the example, some offenders fled to

178 SECTION 3: REPORT OF THE COURSE First Draft of Proposed United Nations Standard Minimum Rules for the Non-Institutional Treatment of Offenders

Foreword statutes, statistics, research and other data relevant to the understanding of non­ This draft covering non-institutional institutional treatment of offenders in each treatment of offenders is presented by the country. Apart from this, the participants participants of the 75th International were given lectures by visiting experts in Training Course held at UNAFEI from the field of non-institutional treatment of April 20th to June 20th, 1987. The theme offenders, other ad-hoc lectures on related of the Course was "Non-institutional treat­ themes, field studies and visits and ample ment of offenders: its role and improve­ reading material for personal reference. ment for more effective programmes." In the drafting of the Rules, partici­ The main objective of the Course was to pants were first divided into four small provide participants, mainly from Asia and groups while each group was responsible the Pacific Region, with an opportunity to for the discussion and drafting of the Rules study and discuss various contemporary on either one of the following four sub­ problems concerning the non-institutional topics: treatment of offenders. Emphasis was (1) For Group I, their sub-topic was placed on what the role of such treatment "Available forms of non-institutional treat­ has been and will be played in each coun­ ment measures" with focus on the extent try with regard to both the prevention of of their availability and the actual situation repeated offences, the operation of treat­ of their use in each country. ment measures, and the exploration of (2) For Group II, their sub-topic was ways and means which will make the treat­ "Role of non-institutional treatment of of­ ment programme for non-institutional fenders" with focus on: treatment measures more effective. (a) criteria and procedures of selection One may be aware that there are no for offenders applying to various existing Standard Minimum Rules for Non­ types of non-institutional treatment Institutional Treatment of Offenders in the programmes and their applicable world today and thus every step being range; taken in the preparing and consolidating of (b) conditions and revocation of various such Rules appears to be rather significant. types of non-institutional treatment It has to be pointed out that the partici­ programmes. pants of the 75th International Training (3) For Group III, their sub-topic was Course consisted of professionals who are "Measures to implement non-institutional actually working both in the field of com­ treatment programmes in a more effective munity-based treatment and in related way" with focus on: areas throughout the criminal justice ad­ (a) evaluation of the various types of ministration. Their day-to-day contacts current and/or existing non-institu­ with the offenders result in precious ex­ tional treatment programmes; perience and knowledge which evidently (b) problems lmd improvement mea­ was very helpful in the drafting of the sures in implementation of various Rules. types of non-institutional treatment Before the drafting of the Rules, the programmes. participants had an in-depth comparative (4) For Group IV, their sub-topic was study on the treatment of offenders. The "Merits and demerits relating to the prac­ paper presented by each participant on his/ tical use of volunteers in flon-institutional her country was supported by details of treatment measures" with focus on:

179 ---~---.~------

REPORT OF THE COURSE

(a) the method and the extent of the which are respectively stipulated in the practical use of volunteers; United Nations Standard Minimum Rules (b) the limits and problems of the prac­ for the Treatment of Prisoners and the tical use of volunteers; and United Nations Standard Minimum Rules (c) the training methods when volun­ for the Administration of Juvenile Justice. teers are used. Lastly, this first draft on the United Each group first met for the election of Nations Standard Minimum Rules for Non­ officials with Group I electing Mr. K. L. Institutional Trectment of Offenders will Gupta ofIndia as Chairperson and Mr. J. S. be the theme to be taken up for further Leopando of the Philippines as Rapporteur. discussion by the participants of the Group II elected Mr. P. H. M. Ratnayake Seminar Course held at UNAFEI from from Sri Lanka Chairperson, with Mr. M. February 8th to March 12, 1988. It is bin Osman of Malaysia Rapporteur. Group envisaged that their contribution and re­ III elected Mr. I. Canagiltetnam of Sri commendations will continue to pave the Lanka as Chairperson and Mr. W. W. Wong way for the formulation and framing of of Hong Kong Rapporteur; with Group IV the ultimate Standard Minimum Rules for deciding upon Mr. I. Jeet of Fiji as Chair­ the Non-Institutional Treatment of Of­ person and Mr. I. D. Ondi of the Philip­ fenders. pines as Rapporteur. A list of participants and advisors is annexed. I. Each group proceeded to conduct in­ Available Forms of Non·Institutional dependent discussions upon their designa­ Treatment Measures ted sub-topics and produced a preliminary group report on the basis of these respec­ Introduction tive group discussions concerning Standard The 20th century is characterized as a Minimum Rules. In turn, the group report very progressive era in so far as the treat­ was presented to all the participants at the ment of offenders is concerned. From a General Discussion Session for further punitive approach it moved to the reforma­ discussion and evaluation from a wider and tive and corrective stage. Penologists and more general angle. Recognition was care­ those directly involved in the field of cor­ fully given to the differences in the social, rection as well as correctional related cultural and economic traditions in liach officers of the world have time and time country. More infonnation was therefore again recommended various moves to great­ incorporated in the group reports plus ly enhance the treatment of offenders. other amendments and alterations which Among these practices Non-Institutional fmal1y resulted in the production of this Treatment has proved to be the most Draft Standard Minimum Rules for Non­ humane and to provide updated measures Institutional Treatment of Offenders. in the field of correction as advocated by The Rules set out a~e meant to be good the United NaHons. general principles and practices in the nOll­ The role of the non-institutional treat­ institutional treatment of offenders. They ment measures has manifested a great aim at presenting the minimum conditions inlpact not only upon offenders but upon which a.re accepted as suitable by the the criminal justice system, and the of­ United Nations and, as such, are also in­ fenders' family and general public. The tended to guard against inappropriate use psychological development of the offender of treatment methods and the mistreat­ is enabled in a more practical way, and the ment of offenders. For reference, the par­ social and economic influences on the ticipants have paid special attention and offender have been proved more favorable consideration to the development of Hew in almost all countries that practice this international standards for fair and humane method of treatment. administration in the fields of institutional It is within this background that we treatment of offenders and Juvenile Justice dealt with the available forms of non-

180 REPORT OF THE COURSE institutional measures: extent of their informal, being practiced in some of the availability and the actual situation of their countries, to deal with petty crimes. The use in each country. Considering the im­ concerned agencies are vested with certain portance of meeting the requirements of powers under the law or conventions to modern criminal justice administration and deal with petty cases on the basis of jus­ also considering these alternative measures tice, equity and good conscience or on the in the context of the economic, social, and basis of written guidelines. cultural conditions prevailing in each In order to avoid unnecessary punitive country (see, page 9, Alternative to im­ effects upon the offender, and to abate prisonment, International Review of court congestion and decrease the over­ Criminal Policy, No. 36, 1980 ST/ESA/ crowding in prison, diversion assumes a SER.lvl(1,6 prepared by the United Nations profound significance in criminal justice Secretariat.), it is desirable that non­ administra tion. institutional treatment methods shall be Diversion, involving removal from developed and widely used, both at the criminal justice process, and frequently stage (If investigation by police and pro­ redirection to community support services, secutors, at the stage of sentencing by is commonly practiced on a formal and courts and at the penal stage utilized by informal basis in many legal systems. This correctional officers. The greater develop­ practice serves to avoid the negative effects ment and use of such measures must be of subsequent proceedings in criminal jus­ balanced by features to ensure that they do tice administration, such as stigma of not cause a threat to the peace, good order conviction. and security of society. Therefore, we A rule on similar lines has already been divided the topics to discuss into three adopted by the United Nations in respect stages, namely: Pre-Trial Stage, Sentencing of Juvenile Offenders in 1985, popularly Stage and the Post-Judicial Stage and then called the Beijing Rules. drafted the rules and commentaries. In some countries in Asia, different diversion schemes for disposing of minor A. Pre-Trial Stage criminal cases at the local l(~vel outside the court are in vogue. In India, the Village 1. Diversion Panchayat has been delegated certain 1.1 Consideration shall be given, wherever powers in matters relating to peace and appropriate, to dealing with offenders tranquility in the village. The Panchayat without resorting to formal trial by consists of elected and nominated mem­ the courts. bers from among the village community 1.2 The police, the prosecution or othoi' who are elected on the basis of adult fran­ agencies dealing with criminal cases chise (popular election) and some of them shall be empowered to dispose of are nominated by the government/authori­ petty/minor cases, at their discretion, ties to represent women and weaker sec­ without recourse to formal hearings, in tions of the society. They hold office for a accordance with the criteria laid down period of five year.s, unless removed by the for that purpose in the respective legal government by due process of law. The system and also in accordance with the constitution of the Panchayat's election principles contained in the United procedures, the details of their work, Nations Instruments on Human Rights powers to handing out decisions etc., are and Criminal Justice Administration governed by the Acts of the state legisla­ and the other standards recognized by tures. In the Philippines, the basic political the international community. unit called "barangay" is responsible for maintaining law and order and settling Commentary minor cases outside of the court. The The rules mentioned above deal with barangay is headed by a barangay chairman the various diversion schemes, fonnal and who is elected by the people within the

181 REPORT OF THE COURSE barangay along with several councilmen. Criminal Procedure Code and those of­ The barangay chairman and his councilmen, fences under Special Laws which are the number of which varies in accordance punishable with imprisonment of less than with the area's population constitutes the three years or with fine only. In a non­ barangay council 01' legislative council. cognizable case, the police has no powers They have the power to administer baran­ to arrest without a warrant. Thus the gay ordinance and the power to enforce police are automatically excluded from such ordinance within the jurisdiction of investigating and prosecuting the petty the barangay. The barangay council may offences unless there is a strong ground to constitute itself as a Barangay Court proceed further. The cognizable offences pursuant to the Barangay Laws. The baran­ are those punishable for more than three gay court is vested with an authority to years' imprisonment and the police has the settle any disputes between or among the discretion not to send for prosecution the residents of the barangay, in such a manner petty cognizable cases. In China, the police that the victim of a minor offence cannot has the discretion to drop the minor/petty me a criminal charge in a judicial court offences, e.g., stealing, street fighting, etc., without first obtaining a certification from if the offender is willing to repay or com­ the barangay court to the effect that re­ pensate the victim who agrees not to prose­ conciliation or settlement of the case in the cute. In Hong Kong, police supervision is barangay court failed. In Sri Lanka, the placed on such petty offenders for a period system of conciliation boards based on the of two years or until his 16th birthday. In traditional Sinhalese idea of settling dis­ England and Wales, a system of official putes was introduced in 1958, to handle police caution has been in operation ad­ minor criminal and civil cases in the local ministered by police officers. community. Some of the advantageous In most of the countries, the traffic law aspects of these practices may be adopted and other special laws allow the police and by other nations as well, depending on other law enforcement agencies to impose their social, cultural, economical, historical administrative fines in certain cases for factors etc., to set up community courts to easing the burden on prosecution. In settle petty/minor cases. Japan, the Traffic Infraction Notification These schemes should operate under Procedure (Traffic Infraction Ticket Sys­ written guidelines or on the basis of tem) was introduced in 1968 to ease heavy conventions and usage applicable in the court work-loads caused by a sharp in­ various countries. A proper periodical crease in traffic violations. This procedure review to evaluate the outcome of such was also designed to avoid the stigmatiza­ schemes should be undertaken for guiding tion of millions of traffic violators as future improvement etc. In the operation criminals, since a minor traffic violator of thes,e schemes, the aggrieved person may be exempted from prosecution if he should, however, have a right to approach or she pays a non-penal fine or an adminis­ the court so as to ensure equity, justice and trative fine within a specified time at a fairplay and to prevent miscarriages of jus­ post office or bank. tice. These safeguards may be provided in In Thailand, ·the police has the power to the schemes themselves. administer a fine for petty penal offences In some countries, the police has the which may be punished by a fine of not power not to refer the case to the prose­ more than 2,000 baht. cutor in certain petty/minor offences even In order to avoid the stigmatisation ac­ after a case has been reported to the police companying conviction and side effects of station. short-term imprisonment,~l'td to reduce the In India, the penal code offences are caseload of the court, some countries have classified into cognizable and non-cogniz­ tlh' ,r own system of suspension of pros­ able offences. Non-cognizable offences are ecution. In Japan and Korea, the public mostly petty offences mentioned in the prosecutor is authorized to suspend pros-

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REPORT OF THE COURSE ecution at his own discretion in considera­ nizance should be accepted and utilized tion of the interests of society and the more widely, and the alleged offender or offender, even if there is sufficient evi­ the accused must have the right to appeal dence to prove the guilt of the offender. to the higher authority or higher court In Thailand, the public prosecutor directs against the order of not granting provision­ the police officer in charge of investigation al release. In such Asian countries as to settle certain criminal cases out of the Bangladesh, India and Sri Lanka, the Gourt, if it is one which may be settled offences are divided into bailable and non­ without recourse to prosecution. bailable offences. In bailable offences, the In the Philippines, the police tolerate authority concerned and the court must the compromise or amicable settlement of grant bail because it is mandatory. As for offences, which are not of serious nature non-bailable offences, the court can exer­ and the fiscal (public prosecutor) has the cise its discretion in granting or not grant. power to agree to have the criminal case ing bail. In India, there is a provision for settled extra-judicially. anticipatory bail which means that when any person has reason to believe that he 2. Bail may be arrested following an accusation of 2.1 Bail shall be employed to avoid un­ having committed a non-bailable offence, necessary detention to the maximum he may apply to the high court or the extent in every stage of criminal pro­ court of sessiono for a direction that he be ceedings, especially at the pre-trial released on bail in the event of such arrest, stage. which can be considered as an advance­ ment in the system of bail in India. In Commentary Thailand, the anlOunt of bail demanded is Bail is being used as a measure for the rather high. The pecuniary requirement prevontion of unnecessary detention at the should be related to the general economic inve~tigation and trial stage by the police condition of the country to give maximum or the court, in most of the countries. It is benefit to the detained persons. In some one of the best measures to avoid harass­ countries like Japan, bail is admissible to ment of the person under trial and also the an offender only after the institution of overcrowding in jails until his/her guilt has the prosecution (when he becomes a defen­ been proved. In some countries, the first dant) mainly because the pre-prosecution problem concerning bail is that most of the detention is limited to a maxinmm of 20 alleged offenders or the accused are poor, days. In Peru, the system of bail is virtually and they have to rely on a professional non-existent at present. bailor to bail them out. Some bailors are not honest and e-harge a high fee to the ac­ B. Sentencing Stage cused, alleging that they have to share some money with the judge who grants the 3. Various Disposition Measures release. This is not true, yet some bailors 3.1 A large variety of dispositions shall be even produce false documents like title made available to the judicial authori­ deeds for the proposed release. The other ty to provide a greater flexibility and problem is that the authority concerned to avoid institutionaliz~tion as much and the court do not properly exorcise as possible. Examples of such mea­ their discretion in granting provisional sures, some of which may be com­ release with bail or without bail in accor­ bined, are as follows: dance with the provisions of law and so a) Adonition/Absolute Discharge/ forth. Therefore, there are strong opinions Conditional Discharge in such countries that in order to enhance b) Restitution/Compensation the principles of justice and equality hefore c) Fine the law coupled with the presumption of d) Suspended Sentence innocence, the system of release on recog- e) Probation

183 REPORT OF THE COURSE

t) Limitation of Liberty charge are used in some countries, such as g) Community Service Order/Com­ India, Pakistan, Singapore, and are reason­ munity Attendance Center Order able ways of coping with those offenders h) Periodic Detention whose crimes are not too serious and who do not present a risk of re-conviction. Commentary The court should have other alternatives b) Restitution/Compensation to sentencing an offender other than im­ Restitution is an order made by the prisonment. The reason is that incarcera­ court to restore the stolen goods to the tion may have a derogatory effect upon the aggrieved person. If the offender no longer offender, and also may be out of propor­ has the stolen goods, the court may order tion to the seriousness of the offence. The him to pay an amount of money equivalent re-integration of the offender into society to the stolen goods to the aggrieved person. may be more successfully effectuated by As for compensation orders, the court treating him in the community and in the may require an offender to pay compensa­ process, we can reduce/avoid the over­ tion for any personal injury, loss or damage crowding of the prison population in many resulting from an offence. countries. In some countries, such as Hong Kong, India, England and WaleJ, these measures a) Admonition/Absolute may be ordered in addition to another Discharge/Conditional Discharge sentence. While in some countries, such as In many countries, such as Fiji, India, Hong Kong, these measures are also used as Malaysia, the Philippines and Thailand, an independent sentence alternatives to short­ admonition is available for juvenile cases. tenn imprisonment. In some countries, the court is authorized to make an admonition for adults instead c) Fine of other punishment. For example, in In many countries, fInes are used rela­ India, admonition is used for the first-time tively effectively for a wide range of of­ offender who commits an offence punish­ fenders. For example, in Japan, over 95% able with less than two years imprison­ of indicted offenders are punished by fine ment. only. Absolute discharge and conditional Fines are economical both in terms of discharge are used where the court take~ money and manpower, practical in terms the view, having regard to the circum­ of management and administration, and stances including the nature of the offence humane because they inflict minimum and the character of the offender, that it is social damage on the offender. But fmes inexpedient to inflict punishment and that cannot be used for a poor offender who a probation order is not appropriate. An cannot pay. absolute discharge is really a complete "let off," while conditional discharge In some countries, such as the Scandi­ means that the offender is subject to the navian countries and Austria, a system of condition of not committing any further day-fine is available. In this system, the offences during the period fixed by the amount to be paid is proportional to the court. If the offender commits another offender's net income, allowing for cover­ offence during the period of conditional age of basic expenses. In so doing, the discharge, he will be liable to be sentenced gravity of the offence is reflected in the for the original offence. But how to deal number of days for which earnings have to with an offender in breach of a conditional be paid. discharge is left entirely at the court's In some countries, many prisoners are discretion, and the court might take no committed to prison in default of payment action. of fine. This situation may contribute to Absolute discharge and conditional dis- the overcrowding of the prison popUlation

184 REPORT OF THE COURSE or have a bad influence upon the offender. e) Probation There may be three available ways to pre­ Probation is used in many countries as vent such a situation: one of the most important and promising 1) Before the court chooses a fine as a alternatives to imprisonment. But the sys­ pUnishment, it should consider the finan­ tem of probation varies from country to cial situation of the offender. And if the country. offender does not have enough money to In Fiji, Hong Kong, India, Lesotho, pay the fine, the court should impose some Malaysia and Sri Lanka, probation is other alternative. ordered by the court as an independent 2) When the court decides the amount sentencing alternative. In these countries, of fine which the offender has to pay, it probation means a combination of condi­ should take into consideration the financial tional freedom granted to an offender by status, occupation, age and health condi­ the court and supervision and guidance tion of the offender. given him by the probation officer. In the 3) In case of default of fine, all possible case of violation of the conditions of pro­ non-institutional measures should be con­ bation, the court may revoke the probation sidered before applying imprisonment as a order and set a sentence for the original last resort. offence. In Japan and Thailand, the court may d) Suspended Sentence order probation when it suspends the In many countries, there are various execution of sentence. In Thailand, the kinds of schemes to provide offenders with suspension of pronouncement of sentence an alternative to incarceration at the sen­ with probation is also available. In these tencing stage, such as the suspended sen­ countries, probation is added to the sus­ tence. These schemes are designed for pended sentence. If the probationer vio­ avoiding the adverse effects of incarcera­ lates the conditions, suspension may be tion on convicted offenders and helping revoked by the court and the original sen­ them to rehabilitate themselves in society. tence will be executed or pronounced. In Fiji, Hong Kong, Japan, Lesotho, Sri In China, there is a similar system which Lanka, Thailand, Turkey and other coun­ is called suspended sentence. In this sys­ tries, the suspension of the execution of tem, the court suspends the execution of sentence is provided by the law. By thit. sentence and the offender for whom the measure, offenders are sentenced to a suspension of sentence has been pro­ certain prison .term, varying from a few nounced is to be turned over by the public months to five years, and sanctioned by security authorities to his neighbourhood the pronouncement of the sentence. unit or to a basic level organization for ob­ However, the execution of sentence is sus­ servation during the period of suspension pended for a certain period of time, which of sentence; and if he commits no further varies from country to country. The sus­ crime upon the expiration of period of pended sentence will eventually be vacated suspension, the punishment originally if the offender does not commit a further decided is not to be executed; if he crime in the operational period. In some commits any further crime, the suspension countries, such as Japan and Thailand, this is to be revoked and the punishment to be measure is sometimes accompanied by an executed for the punislunents imposed for order of probation. Suspension of execu­ the former and latter crimes will be tion of sentence of imprisonment is fre­ decided according to the stipulations of quently used in Japan and the rate of Article 64 of the Criminal Law and the suspension is over 50%. Criminal Procedure Law. In Thailand, the court is authorized to In the Philippines, the court, after it has suspend the pronouncement of sentence, convicted and sentenced a defendant to a even if it finds the offender guilty. term of imprisonment not exceeding six (6) years, may suspend the execution of

185 REPORT OF THE COURSE the sentence and place him on probation. the Community Attendance Centre (CAC), The decision of the court in granting or under which the offender should attend a denying petition for probation is based community attendance centre in his leisure upon the post sentence investigation by the hours and while in attendance perform probation officer. work, undergo physical training, or attend In many countries, probation is used education classes, etc. which the officer in regularly and successfully. And in some charge decides, work effectively as alter­ countries, such as Thailand and Lesotho, native measures to imprisonment. the government intends the wider use of In England and Wales the CSO has been probation. While in Sri Lanka, it appears introduced in 1972. Under the present law that the probation systel11 is not successful. the court can sentence an offender of 16 The number of offenders released on pro­ years of age or more who has committed a bation during the past 15 years show a crime punishable by imprisonment to t11e downward trend. In 1969, there had been CSO. The minimum number of hours for a a total of 1,840 offenders released on pro­ CSO is 40 hours with a maximum of 240 bation, the figures decline to 899 in 1983. hours and these shall be completed within Some of the reasons for this unsatisfactory 12 months. The consent of the offender is condition may be the apathy of the court needed for the CSO as well as for any pro­ and the hostility of the society toward this bation order. Breach of a CSO is finable or measure. the order may be revoked and the offender dealt with for the original offence. Accord­ t) Limitation of Liberty ing to a Home Office publication entitled In some countries Limitation of Liberty "A Working Paper of Criminal Justice," works as an alternative to short-term im­ (Home Office, 1986), the CSO accounts prisonment. for 7.5% of all disposals for indictable In Turkey, the amendment of the Law offences and it is said that the CSO has on the Execution of Punishment of 1986 already established a firm position in the empowers the court to convert short-term administration of criminal justice. imprisonment (not exceeding 6 months) to Fiji has also adopted the CSO in 1981 in a prohibition from going to a certain place order to provide a method of dealing with or carrying out a particular activity, profes­ offenders who would otherwise be sen­ sion, or trade for a period not to exceed 1 tenced to imprisonment, giving them the year. opportunity to make some general repara­ In the Philippines a penalty of exile tion to the community and to further the known as "destierro" is in practice as an notion of community responsibility with alternative to imprisonment for certain offending by involving it with correctional kinds of offences. The offender sentenced programmes. Under the order, the offender to "destierro" shall not be permitted to continues to live and work in the com­ enter the place designated by the court munity, but during leisure hours gives within the radius of 25 kilometers for such unpaid service to community groups which a period of time as prescribed in the sen­ can valY from eight to 200 hours. He must tence. consent to undergo this sentence, and the manner in which it is to be served is as a g) Community Service Order/Community matter for arrangement between him and Attendance Centre the organization involved. (1) Existing System In New Zealand the CSO has been intro­ In some countries the Community Ser­ duced in 1981. The consent of the offend­ vice Order (CSO), under which the offend­ er is required, and ihe number of hours is er should be engaged in a community work between eight and 200 to be served within in his leisure hours for the hours specified 12 months. The CSO can be sentenced not by the court within the certain period only for any offence punishable by im­ stipulated by the law, and the sentence of prisonment but also fot non-payment of a

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REPORT OF THE COURSE fine imposed by the court. Breaches of the offenders whose term of imprisonment CSO constitute a new offence fmable or would not exceed 3 months might be sen­ the probation officer may apply to the tenced to tlus sanction. Under this sen­ court for another sentence to be substitut­ tence the offender should attend to a ed for the CSO. It can be said that the role centre in leisure hours and do the work of providing an alternative to custodial which an officer of a centre has decided. sentences specifically was reasonably effec­ But tlus system does not work presently tive. for the reason of the non-consciousness of In Hong Kong, the CSO has been adopt­ the necessity of such non-institutional ed in 1984 and the pilot scheme ofCSO is measures in the society. in practice since January 1, 1987. The (2) Basic Considerations maximum number of hours is 240 within (a) The CSO and the CAC were intro­ 12 months and the consent of the offender duced for the purpose of creating a new is needed. sentencing alternative to imprisonment In Sri Lanka the CSO has been intro­ more intensive and demanding than proba­ duced in 1973, but it was not actually put tion or suspended sentences. Under these in force until 1985. Under the present law orders the offender can serve the specified the required hours of work are between 40 sanction in his leisure hours without de­ and 240 within 12 months. stroying his community life by execution Lesotho has also the CSO for juvenile: of short-term imprisonment. Although, offenders (15-18). The term of the CSO needless to say, the CSO and the CAC are should not exceed th;:ee months and in the slightly different from each other in terms case of breach of the order the offender of the content of the obligation, the CAC may be sent to a juvenile training school by can be thought as a variation of the CSO the court. in terms of the purpose and the function. In New Zealand the sentence of Periodic (b) Considering that the CSO demands Detention was in operation since 1962 the offender to spend a large part of his before the introduction of the CSO in leisure hours on unpaid work, an excessive 1981. It was designed to restrict the con­ number of hours and an extended length of vict's liberty to -a significant extent but term in the CSO may become a too heavy without removing him from the communi­ burden to the offender and harm Ius re­ ty, or subjecting him to experience of life habilitation. In order to avoid such results in a penal establishment. In spite of its the maximum hours and term of the CSO naming, the aspect of detention is very are desirably 240 hours over 12 months or weak now and it works quite similarly to less. If a longer term supervision than 12 the CSO, but contains more supervision months is needed, it can be solved by com­ than it. Under the present law any person bination of the CSO and the probation who is convicti:d of an offence punish­ order. able by imprisonment, or who wilfully (c) In Inany countries the consent of refuses to pay a fine, may be sentenced to the offender is prerequisite to the CSO. Periodic Detention for any term up to Setting aside whether it is theoretically 12 months_ The consent of the offender is needed or not, it is obvious that the success not needed. Under the sentence the of­ of the CSO depends on the willingness of fender is required to attend a work centre the offender for rehabilitation and refor­ on a certain number of occasions each mation of himself. Consequently, the in­ week (usually in practice all day Saturday tention of the offender about the CSO for adults) and, while in attendance, must shall be examined by a certain method attend classes or groups, undergo physical before making the decision of the CSO. training, or perform work either in the (d) The contents of the community centre or outside of it. service in which the offender should be In Malaysia there was a system of Com­ engaged must not be those which may pulsory Attendance Centre. Only first infringe the spiritual freedom, such as

187 REPORT OF THE COURSE

freedom of thought and conscience, outside the correctional institution for a freedom ofreligion, etc. of the offender. certian period of time as part of the sen­ (e) It is desirable that the court has a tence. This measure has been in practice in discretion between institutional treatment various countries such as Fiji, Malaysia, and non-institutional treatment, such as Pakistan, Sri Lanka and Turkey. fmes, upon breach ofthe CSO. Home leave is a rehabilitation pro­ gramme wherein offenders with exception­ h) Periodic Detention al conduct are allowed to go home for a In some countries Periodic Detention is certain period of time which aims at adopted for the purpose of not destroying strengthening the family ties as well as the community life of the offender by full promoting offenders' adaptability to free execution of short-term imprisonment. social life. This scheme has been in practice In Turkey if the punishment is not more in India, Malaysia, Sri Lanka, Thailand and than 60 days, the offender may serve the Turkey. punishment by being confined in the The authority concerned shall, as far as prison at not later than 19.00 hours on possible, provide an opportunity to all Friday until the same time on Sunday, and categories of offenders t6 receive tlus if the punishment is not exceeding 4 scheme at the earliest possible time. months, the offender may serve the punish­ 4.2 Conditional Release from an institu­ ment by being confined in the prison every tion shall be used by the appropriate day from 19.00 hours until 07.00 in the authority to the greatest possible morning of the next day, by the decision extent, and shall be granted at the of the court on the request of the offender earliest possible time. Such measures or others. include: Note: The sentence termed Periodic a) Parole/Release on License Detention in New Zealand has b) Compulsory supervision order evolved such that it now operates as c) Remission/Good Time Allowance a work order mainly on Saturdays d) Pardon/Executive Clemency and so has the character of a work group style of CSO, and must be Commentary distinguished from periodic impris­ onment. a) Parole or release on license; HistOrically, parole was the only proce­ C. Post Judicial Stage dure, short of pardon, to diminish an original sentence of confinement. Parole 4. Various Intermediate Measures was one method of controlling excessive 4.1 Efforts shall be made to provide inter­ sentences. It developed, as did probation, mediate measures such as work release, with a rhetoric of leniency rather than be­ home leave and other such appropriate ing regarded as an affirmative tool of cor­ arrangements that may assist offenders rections. Parole or release on license is a in their proper re-integratkil into conditional release of an offender from a society. penal or correctional institution after he has served a part of the sentence. This Commentary scheme is being adapted in many countries This rule emphasizes the necessity of in Asia, such as India, Japan, Malaysia, forming intermediate measures and the Philippines, Republic of Korea, Sri Lanka, need for a diverse range of facilities and and Thailand. In Hong Kong, parole is also services d~signed to meet the different available for a prisoner in a special correc­ needs of offenders re-entering the com­ tional institution for juvenile and young munity. offenders. Parole is applicable after a Work release is a treatment or rehabili­ prisoner has served either one-third, one­ tation programme for offenders to work half or two-thirds of the term of imprison-

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ment. In Japan, a prisoner must have prison. Remission is different from parole served one-third of his sentence before a in that it is automatically granted if prison­ grant of the same. In Malaysia, there is the ers attain the requirements. Although system of release on license for juvenile released automatically, prisoners so re­ offenders in approved schools. The period leased may be returned to prison to serve of stay in schools is for a maximum of the remaining period of their sentence if three years, but offenders may be released they violate any of the release conditions. on license after one year by the board of Prisoners released through remission are visitors on the basis of good progress and not placed under supervision but some­ conduct as well as willingness of their times receive aftercare services which are family to accept. A licensee is supervised available to other released prisoners. The by the probation officer for the rest of the justification of this form of release is that probation period. If he should misbehave, it provides prisoners with an incentive for he may be recalled to the school to serve keeping good behaviour and contributing the rest ofhis detention term with or with­ to prison discipline. This form of release out an extended period of up to six procedure exists in many countries of Asia, n10nthg un puni§hmant. In Sri La..9.kn, long ... l1lCiuding thng Kong, India, Malaysia, term offenders are eligible for release on Philippines and Sri Lanka while, in Thai­ license. The scheme has existed since 1969 land, released prisoners through remission and prisoners who have served six years (or are placed under supervision for which the five years for those who have served one conditions are the same as parolees. Some year at an open prison camp), or one-half countries such as Japan and the Republic of the sentence of four years and over of Korea do not use this system. The sys­ become eligible to be considered for release tem of remission or similar procedure dif­ on license. fers greatly from country to country. In Malaysia, the amount of remission is one­ b) Compulsory Supervision Order; third of the sentence for offenders of all In Fiji, the Compulsory Supervision categories. However, an offender has to Order, a similar scheme to parole, is serve a minimum of actual imprisonment granted to prisoners under Section 65 of of one month after the remission. In Thai­ the Prisons Service Act whereby the Minis­ land, good time allowance is an important ter of Home Affairs, in his discretion, measure of treating prisoners in the com­ directs that a prisoner shall be released on munity rather than in prison or in a cor­ an Order of Compulsory Supervision, for rectional institution. As provision of the such period as he may think, and the said measure, prisoners who have demon­ Commissioner shall forthwith comply with strated good conduct and are thus qualified such directions. When no order has been are released under supervision prior to their made by the Minister of Home Affairs, the expiration of sentence. These qualified Commissioner can make an order providing prisoners are required to serve a certain for the compUlsory supervision of prison­ period of sentence which should be more ers whose sentences are more than three than six months of imprisonment and to be years and where the prisoner has served of good class classification or above. In the two-thirds of his sentence, the supervision Philippines, good conduct time allowance, thereby will not exceed a period of one a similar scheme as good time allowance, is year. applied to prisoners who have faithfully observed the rules and have not been sub­ c) Remission and Good Time Allowance: jected to disciplinary measures. A prisoner Under this system, in the case of remis­ who has been classified as honest or trust­ sion, prisoners are automatically released worthy is given five days additional allow­ from prisons when they have served their ance for every month of service. A prisoner term of sentence minus a specified amount may be classified as honest or trustworthy of time credited for good behaviour in after serving one-fifth of his maximum sen-

189 REPORT OF THE COURSE

tence or 17 years in case of life imprison­ form of non-institutional treatment ment. method, have begun to draw the attention of all nations, not only due to economic d) Pardon or Executive Clemency considerations and the necessity to reduce Pardon or executive clemency has long pressure from overcrowding prisons, but been in existence as a deviL:e for tempering also as they provide more humane, enlight­ justice with mercy and for righting the ening and effective methods of rehabilita­ wrongs done in the course of Justice. The tion of offenders. various forms of pardon available in many As more and more countries are begin­ countries of Asia are as follows: Amnesty, ning to show interest in these methods, it which nullifies convictions as well as bars has become necessary to have general prosecution for specified groups of offend­ guidelines within which these countries ers; Individual Pardon, which nullifies con­ may be able to operate their own systems viction and sentence of the individual giving due consideration to local condi­ prisoner; Commutation for sentence, tions, as well as respecting human dignity which applies either to specified groups of and upholding basic human rights. Thus offenders or individual offenders. the following draft rules are intended to In the Philippines and Sri Lanka, contain the dual characteristics of the pardoning power is often exercised to com­ "United Nations Standard Minimum mute the death sentence to imprisonment Rules." for life or definite terms. Some other On the basis of the above mentioned countries use it to shorten the term of understanding, this chapter deals with, imprisonment of convicted prisoners there­ inter alia, by reducing prison population. In India, all (1) role states implement a programme of giving (2) criteria of selection, extensive commutation of sentences for all (3) procedure, and categories of prisoners in commemoration (4) other conditions, of Mahatma Gandi's birthday and other of various forms of non-institutional special occasions. Thailand uses royal treatment so as to prepare the preliminary pardon extensively to celebrate national draft, on which further discussion and events such as the King's birthday. In crystallization will be developed. The Japan, pardoning is usually exercised on an scope of the discussion is focused upon the individual basis. non-institutional treatment for the con­ The power to grant Pardon or Executive victed offenders; therefore, diversion and Clemency is vested to the Head of State some other measures which may be applied such as The President, Prime Minister, for the un convicted offenders are excluded. King, etc. Such power is purely discretion­ Also it is to be understood that this is ary on the person concerned, hence, no yet the preliminary draft which is to be minimum rules could be prescribed. further examined and researched.

II. 1. General Principles Role of Non-Institutional Treatment 1.1 Non-institutional treatment measures Measures in Treatment of Offenders shall be recognized as an integral part of the national policy of treatment of Introduction offenders and prevention of crime, and With the increasing realization of the every endeavour shall be made to importance of non-institutional treatment educate the Criminal Justice AgenCies of offenders, a number of methods have and the public of the importance and been tried out in various parts ofthe world the role of non-institutional treatment and some of these innovations have come of offenders. to stay in those countries. These methods, 1.2 The role of the non-institutional treat­ in addition to probation which is the oldest ment methods shall be to keep the

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offender in touch with his family, sisted in his own rehabilitation. workplace, normal social life and other In the process of the implementation of community resources while exercising non-institutional treatment measures, the adequate supervision over his conduct degrees of "supervisory" control may and assisting him to rehabilitate him­ differ from one measure to another, or self, thus making his rehabilitation less from one case to another. In some cases, costly to society. intensive supervision may be required in 1.3 In dealing with the offender, every order to protect society; while in other endeavour shall be made to ltlSort to cases, no such intensive control over the non-institutional treatment methods if offender's conduct is required. the risk to community in letting the 1.3 Considering the circumstances and offender at liberty does not over­ the nature of the offence committed by an weigh the damage likely to be caused offender, if it is clear that there is no risk to the offender by imprisonment, in allowing him to be in a community as a considering the circumstances of the penal sanction, non-institutional treatment offence and the offender's record. should be resorted to. In principle society 104 The implementation of non-institu­ has no right to send the offender to prison, tional treatment methods shall be if the damage caused to him by imprison­ carefully designed in oraer to avoid ment will be greater compared to the risks violation of fundamental human rights involved in keeping him in society con­ of offenders. sidering the nature and the circumstances 1.5 Non-institutional methods shall be of his crime. The offender should pay systematically developed using the ex­ society back in terms of punishment only perience gained in various countries in what he owes society and no more. co-ordination with the improvement 104 This rule is meant to compel the of the standard of personnel engaged law enforcing agencies to be mindful of the in handling these services. importance of fundamental human rights even in the case of offenders. Commentary For example, confidential information 1.1 It is observed that in every country on an offender shall be kept and treated non-institutional methods have been fol­ carefuPy in the process of implementation lowed in some form or other. However of treatment. while some countries have adopted few 1.5 It is considered that there are many methods, others have been using a wide methods tried by various countries. This variety of methods. If these forms of rule emphasizes the importance of sharing treatment methods are recognized as an among all nations the experience gained by integral part of a countries' national policy, one country and the need to develop more it will facilitate the adoption of more non-institutional methods which will fit methods and also their wide usage. It is into many situations. also necessary for law enforcing agencies and the general public to know the impor­ 2. Fine tance of these rules so that they would not 2.1 The role of a fille shall be to impose be sceptical of them. sanction on an offender by compelling 1.2 This rule implies the three impor­ him to pay some amount of money. It tant aspects of the non-institutional treat­ forms basically one of the least haml­ ment, namely the offender is allowed to ful sanctions for his liberty. carry on his normal livelihood with his 2.2 A fille shall be imposed on an offend­ family in the environment he is used to, er who commits a minor crime for without any disruption to his domestic life. whom society will not demand im­ However he will be supervised by a proba­ prisonment, though a mere admoni­ tion officer in order to prevent him from tion does not seem to be enough, and relapsing to delinquency and will be as- who does not seem to need rehabilita-

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tive assistance. nomically independent. 2.3 The court shall take into consideration not only the gravity of the offense but 3. Community Service Order (CSO) also the means of the offender and his 3.1 The role of the CSO shall be that ability to pay in fIxing the level of while the offender is being penalized rme. by deprivation of his leisure time, he 2.4 When the court inlposes a fine on a is provided with an opportunity to juvenile, the court shall take into con­ make reparation to the community sideration the educative effect of such against which he has offended. monetal)' pUnishment. 3.2 A CSO shall be made on default of a 2.5 Imprisonment for fme default shall be payment of fine or in lieu of impos· avoided as fur as practicable. ing a sentence of imprisonment for an offence which is punishable by Commentary imprisonment, considering the non­ 2. Defmition: Fine is a monetary necessity of it in view of the offend· punishment imposed by the court upon er's character, nature of the crime, persons convicted of crime in which the and other circumstances, or as a money realized should be paid to the gov­ sentence in its Own right. ernment. 3.3 Before a CSO is made, a report on 2.1 Fines have been used most frequ­ the following facts from a probation ently for dealing with minor offenses, and officer shall be considered: their execution is basically easier than (1) suitability and the fitness of the of· other treatments. There are some more fender to sel. ve a CSO in view of his age, monetary penalties other than fInes such as health, sex, religious beliefs, employ­ Compensation Orders, Deprivation of ment etc. No unnecessary hann should Property Used for Criminal Purposes, be caused to him as a result of the CSO. ConfIscation of Assets, and so on. (2) the offender should be able to 2.2 Some of those offenders on whom report to the place of work from his a fme is imposed may need welfare assis­ residence free of unnecessary difficulties tance. However, this kind of assistance and great final1cial encumbrances. should be provided by social welfare agen­ 3.4 No CSO shall be issued without ex­ cies and not by the criminal justice agency. plaining the conditions of the order 2.3 The fme in itself is not the alter· and obtaining the offender's consent. native for imprisonment but the treatment 3.5 It is recommended that the CSO be for minor offences, so we should bear in made for the perfonnance of an ag­ mind that the measures taken for the fIne gregate number of hours of work default, such as imprisonment, should be during a specified period of time. avoided as much as practicable and be used 3.6 The offender shall not be compelled only for ensuring payment. to work in an unsafe place of work Accordingly, at the stage of fIxing the or in an unhygienic and undesirable level, we should consider the pOSSibility of environment. payment, and also we must be car-aful not 3.7 The number of hours for a day and to create discrimination against the poor. the convenient days of the week for 2.4 As a fine discomforts the offender work shall be arranged after consult­ only economically and mentally, a fIne is ing the offender so that it will not effective as a crime prevention measure interrupt his employment, education only when the offender is mature enougll etc. mentally to be motivated by the payment 3.8 Failure to perform CSO work during of money. the specified time due to an illness or Especially for a juvenile, before sentenc­ any other reasonable ground should ing of fine, it should be considered whether not be treated as a breach of CSO. In he is mentally matured enoug.1-t and eco- such situations the offender may be

192 REPORT OF THE COURSE

given an opportunity to explain, and 3.3 This report will provide the neces­ a reasonable extension of the speci­ sary information which will be required by fied period shall be made to enable the court to decide whether the CSO is the the offender to carry on with the appropriate punishment with regard to a CSO. particular offender. It will, in a way, safe­ 3.9 Even in a case where the offender guard the interests of the offender, too. fails to carry out the CSO within the 3.4 A CSO is bound to fail if the of­ specified period and/or according to fender is not willing to co-operate. the required manner due to his 3.5 The CSO was introduced in Fiji in neglect, an alternative punishment 1981, in Sri Lanka in 1985 and in Hong and particularly a sentence of im­ Kong in 1987. At present an offender on prisonment shall not be conside'red CSO is required to work for a minimum of unless it is proved beyond doubt that 40 hours and a maximum of 240 hours in the offender will not carry out the Sri Lanka and Hong Kong; and 8 to 200 CSO and that there is no other hours in Fiji. Although CSO was originally alternative. introduced in the U.K. to be applied to 3.10 A revocation of CSO shall be done relatively serious offenders as an alternative only after a careful examination of. to imprisonment, CSO in practice in Asian facts adduced by both supervisor and countries is, in most cases, imposed to offender, and also by the court petty offenders such as alcoholic-related which made the order. offenders and minor thefts. In Lesotho, duration of CSO is up to three months Commentary (one working day per week) and CSO is 3. Definition: Community Service exclusively applied only to juvenile of­ Order (CSO) is a form of penal sanction fenders. which requires an offender to be engaged 3.6 This rule is to prevent the offender in community work for a specified period being exposed to risks unintended by law. of time for committing an offence which is 3.7 As one purpose of CSO is to avoid either imprisonable but could be dealt a any damage caused to an offender's family lesser punishment considering the nature life, livelihood, education etc, it is neces­ and circumstances of the crime, or not im­ sary to consult him before the programme prisonable but Ii punishment is necessary, of work is finalised. considering the nature and circumstances. 3.8 to 3.10 It is very important to 3.1 The offender will perform unpaid come to a corre'ct assessment of the situa­ labour for the community during his tion in the event of a breach of the condi­ leisure time as the punishment for the of­ tions, The factors such as illness which are fence. When an offence is committed, beyond control of the offender should not society expects a punishment to be given be held against him when deciding a re­ to the offender not only as a measure of vocation. retribution but also as a general deterrence. This is realized by placing an offender on 4. Suspended Sentence CSO. There is also a rehabilitative aspect in 4.1 The role of Suspended Sentence shall getting him to work for the community be designed to avoid adverse effects of against which he committed the offence. imprisonment on the convicted of­ The offender is allowed to lead a normal fender whose offence warrants a term life in the community except for a certain of imprisonment but will be allowed degree of restrictions of his leisure time. to lead his normal life in society with­ Society gets the benefit of his work. out resorting to crime under the 3.2 The scope of CSO should be broad condition of deterrence of the Sus­ enough to accommodate a number of situa­ pended Sentence, tions thureby avoiding its purpose being 4.2 An offender who has no advanced limited to a few. criminal tendencies shall be considered

193 REPORT OF THE COURSE

to be placed on Suspended Sentence, assist the rehabilitation of an offender provided that the offence he has com­ in the community under supervision mitted is not so grievous as to demand while sustaining his relationships with an immediate inlprisonment. his family, workplace and neighbours, 4.3 The revocation of Suspended Sentence and subsequently, (2) to make it pos­ shall be considered, (1) if the offender sible to avoid undesirable effects of is found guilty of another crime during imprisonment on him as well as to the period of suspension, or (2) if he is prevent the repetition of crime and his found to have violated certain condi­ delinquent behaviour. tions to be observed during the period 5.2 The criteria of selection shall meet the of suspension. following conditions: 4.4 Revocation of Suspended Sentence (1) when taken into consideration shall be determined exclusively by the such factors as circumstances of the court. offence and offender's criminal career, imprisonment is not required or not Commentary necessary. 4. Definition: TIllS term, "suspended (2) the risk, if any to society tluough sentence," may mean either (1) a with­ placing the offender at liberty is holding or postponing the sentencing of a minimal, considering the moral, social prisoner after the conviction, or (2) a post­ and economic factors of the offender. poning of the execution of the sentence (3) the offender needs continuing at­ after it has been pronounced. tention, helping or supervision. 4.1 In some countries the suspended (4) the offender is capable of respond­ sentence is accompanied by a probation ing to this attention while at liberty. order while it is not so in other countries. 5.3 In order to clarify the suitability of an In Japan, for example, there are provisions offender to be placed under probation, in law for a probation order to be issued On examination shall be done on the fol­ an offender who is given a suspended lOWing factors: sentence. In Japan, the suspended sentence (1) criminal history, plays an important role in sentnecing (2) life history, practise. Except for the fine, this sentence (3) mental, emotional and physical is considered as the basic punishment for factors, non-advanced criminals. There are also (4) socio-economic situation, facilities available in Japan such as assis­ (5) others. tance from a probation office or voluntary 5.4 The probation shall be carried out organization tor rehabilitation of offenders under the supervision of a probation even if the suspended sentence does not officer. accompany a probation order. 5.5 The probation officer shall have pro­ 4.2 If the suspended sentence is given fessional knowledge and skills so as to without the probation order, the offender provide the probationer with counsel­ is expected to be free of crimes during the ling, guidance and other necessary as­ period of suspension without any super­ sistance. vision by a probation officer. 5.6 In the process of probationary super­ 4.3 and 4.4 In the case of suspended vision, social resources shall be fully sentence in terms of (2) of the definition, utilized in order to facilitate the of­ revocation will automatically lead him to fender's rehabilitation. imprisonment, while in terms of (1) the 5.7 Conditions shall be laid down by the offender will have to be sentenced to a authorities, to maximize the offender's term of imprisonment by the court. possibility of his successful rehabilita­ tion. 5. Probation 5.8 The nature and circumstances of the 5.1 The role of probation shall be (1) to breach of the condition(s) of proba-

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tion shall be very carefully considered these conditions should be to assist the . before revocation of probation order speedy resocializatioll of the offender. is effected. In the Philippines there are two kinds of conditions; namely mandatory conditions Commentary and discretionary conditions. Mandatory 5. Definition: Probation is a method of conditions include: non-institutional treatment for offenders, (1) report in person to the probation which is conducted, in lieu of commitment officer within 72 hours after the to confinement, under the supervision of grant of probation, authority in order to prevent the repetition (2) report in person to the probation of crime. officer at least once a month, and 5.1 The two important aspects of the (3) observe the discretionary condition role of probation are emphasized in this if it is imposed. rule; namely, (1) to supervise the conduct Discretionary conditions may depend of the offender in order to prevent com­ on the characteristics of the probationer. mission of crinles and also for his rehabili­ It may include: tation, and (2) to avoid Ulmecessary (1) refrain from association with damage caused to him by imprisonment in people of bad reputation, allowing him to lead a normal life in socie­ (2) having gainful employment, ty. The period of provation varies from (3) refrain from houses of prostitution, country to country. In most countries the and period of probation is from one year to (4) making no change in residence three years, but this period could be reduc­ without permission. ed by the court if he shows early progress. Probationer may have to get permission 5.2 Probation is applied commonly for if he wants to travel outside the area of both juveniles and adults. jurisdiction of his probation officer. 5.3 In certain countries, before the pro­ In Thailand, there are basically three bation order is made the court obtains the types of conditions such as: required information through a probation (1) order to report to the probation officer's report at the pre-sentence stage or officer regularly, post-sentence stage. In countries such as (2) order to take vocational training, Japan this information is obtained indepen­ and dently by the court through. evidence. In (3) order to restrain from bad com­ the interest of justice, the right of an of­ pany. fender to contest, if necessary, the pre­ In Hong Kong, there are two kinds of sentence or post-sentence report, as is conditions; namely, general and special being done presently in Thailand and Hong conditions. General conditions include: Kong, may be preserved. (1) keeping the peace, 5.4 and 5.5 In Japan the supervision is (2) working or studying industriously, carried out by both probation officers and and volunteer probation officers. The volunteer (3) keeping regular contact with the probation officers are functioning under probation officer. the directions and guidance of professional Special conditions may differ from pro­ probation officers. bationer to probationer, and it may include 5.6 As prevention of crimes and re­ such conditions as: habilitation of offenders is in the interest (1) receiving regular medical/psychiat­ of everyone in society, every country ric check-up, and should endeavour to utilize all social re­ (2) returning home by a specific time. sources available to them. In Japan, there are also general and 5.7 The conditions laid down in the specific conditions. General conditions probation order may vary from country to include: country, but the fundamental objective of (1) not committing crimes, or being of

195 REPORT OF THE COURSE

bad conduct, ment. (2) staying at a specified residence, and 6.9 The report of the offender's progress (3) engaging in a lawful occupation. shall be made by the officer in-charge Also the probationer will have to follow or the supervisor where he works. the guidance and supervision by the proba­ 6.10 If the prisoner while on work release tion officer. If he wants to change jobs or commits an offence, of which the residence, or if he wants to travel, he may nature and the circumstances war­ have to get permission. rants his withdrawal, he may be 5.8 The desirable basis for revocation taken out of the programme and in­ can be (1) indication of an offender's will stitu tionalized. against rehabilitation by committing other crimes or keeping bad company, and CommentalY (2) making his supervision difficult by 6. Definition: Work release is a treat­ violation of conditions such as failure to ment or rehabilitation programme for of­ report to the prcbation officer or changing fenders to work outside the correctional his residence without permission. institution for a certain period of time as part of the sentence. 6. Work Release Under the work release system, the 6.1 The role of work release shall be: offenders are allowed to work outside the (1) to resocialise the offender into correctional institutions during the day and close contact with the communi­ return to the institution for the night. This ty, method is also known as a day parole and (2) to provide the offender withjub work furlough. experience which will be useful 6.1 The three main problems a dis­ to him and to the community, charged prisoner who goes back to the and community will have to face are difficulties (3) to give an opportunity to the in adjustment to the community, difficul­ offender to earn an income. ties to find a suitable employment and 6.2 Selection of prisoners for work difficulties to conquer financial difficulties. release shall be done in a manner so The aim of the work release is to help a as not to pose any danger to society. prisoner before his discharge to identify 6.3 The prisoner shall have completed a these problems and to prepare him to face series of institutionally based them. programmes so that work release be­ 6.2 If the correct selection is not comes the next step in the reintegra­ done, society will be exposed to unneces­ tion process. sary danger of having criruinals moving 6.4 The prisoner shall have served a con­ freely. It is very important to select siderable portion of his sentence and correct men for work release. Society needs to be gradually, rather than cannot be allowed to suffer unnecessarily abruptly released to society. in rehabilitating the prisoners. In most 6.5 The work release programme shall be countries prisoners who have served a good carried out outside the penal institu­ portion of their sentence and also of good tion. institutional conduct are selected to be 6.6 The offender shall work under mini­ sent out for work release. mum security or without any direct 6.3 and 6.4 From the time a prisoner is supervision from Criminal Justice admitted to the prison, he goes through a Agencies. series of stages which are meant to rehabili­ 6.7 Programmes or activities, if possible, tate him and to reintegrate him to society. should be in groups. In this progressive system, the final stage 6.8 The programmes shall allow the where the prisoner is connected to the offender to work together with the community should be work release. other employees in the establish- 6.5 The correctional officers will have

196 REPORT OF THE COURSE to find suitable work for prisoners in the the interest of both offender and com­ outside community-in factories, farms or munity, governmental and non-govern­ other establishments. In employing prison· mental agencies concerned with ers one important factor which should be criminal justice shall work in close co­ taken into consideration is that no outsider operation to facilitate the rehabilita­ should suffer loss of employment etc. as a tion process of offenders. result of a prisoner's employment. 7.4 The programmes for rehabilitation and 6.6 As resocialization is one of the resettlement of offenders in a com­ aims of work release, the prisoner should munity after release on parole shall be be allowed to work with minimum super­ carefully planned by the relevant vision. Also as the system should operate officials in consultation with all parties on tmst, strict security would be detri­ concerned in advance, which will be in mental to its smooth working. the interest of the parolee and the 6.7 and 6.8 This is the only way that community. the prisoner will be acquainted with the 7.5 The Parole Board shall have the right outside society. to exercise its authority to release an 6.9 The officer-in-charge or the super­ offender on parole or to revoke a visor of the workplace is not a correctional parole order, after giving careful con­ officer but an independent person who sideration to all the requirements as would be in a position to assess correctly stipulated by law, and the circum­ the prisoner's application for work and also stances involved in the issue free from the progress made by him. bias and prejudice. The officials con­ 6.10 The offence here means either a cerned should provide the Parole criminal act for which he will be further Board with all such information neces­ dealt with according to law, or misconduct, sary for this end. or a lapse on his part which is intentional. 7.6 The parolee on release shall observe The lapses in the nature of accidents or conditions laid down by the Parole circumstances beyond his control should Board for effective supervision and not be considered as grounds of revocation. rehabilitation of the parolee in a manner which will also· safeguard his Z Parole (Release on license) human rights. 7.1 The role of parole shall be to encour­ 7.7 Violation of one or all of the above age the offender who has served a conditions may result in revocation of portion of his sentence of imprison­ parole provided the Parole Board is ment, thus having paid a part of the satisfied that violation was intentional debt he owes the community, to re­ and serious enough to justify the socialise himself in community, while revocation. bearing in mind that he is bound by conditions re'1uiring him to be a law­ Commentary abiding citizen, the violations of which 7. Definition: Parole is a method of conditions will result in his losing the non-institutional treatment in which an privileges he earns with great hardship. offender is released on conditions, before 7.2 The offender's criminal disposition, the termination of his sentence. institutional conduct, vocational skills, 7.1 Parole (Release on License), which and his possibility of securing an em­ is also called Conditional Release, is the ployment in the community and his best known non-institutional treatment acceptance by community shall form method in the post-trial stage aimed at the guidelines for selection of an of­ reduction of the period of incarceration. fender for release on parole after his 7.2 to 7.4 Release 011 parole should be becoming eligible OIl serving a suffici­ effected at the appropriate time when the ent length of his sentence. offender deems to have been rehabilitated 7.3 As the rehabilitation of offenders is in to return to society and the community is

197 REPORT OF THE COURSE prepared to accept him. In order to select non-institutional treatment methods were the correct offender to be released on adopted during this century. Presently parole at an appropriate period of time, (1) such methods as 1. Probation, 2. Suspend­ observation and evaluation as well as gUid­ ed sentence, 3. Fines, 4. Community ser­ ance and other correctional services shall vice orders, S. Parole or release on license, be continuously carried out from the very etc. are practised in most parts of the beginning of his term of imprisonment; world. These measures are designed to while on the other hand, (2) environmental secure rehabilitation of offenders enabling readjustment shall be carried out for him them to lead their normal lives with or so as to make the community (family, without conditions and supervision. The workplace, school, neighbours etc.) ready reason for the Use of these alternative to accept him. methods are 1. overcrowding in prisons, 7.5 and 7.7 Release on parole or revo­ 2. reduction in incarceration time, 3. eco­ cation is determined by the authorities nomically more efficient, 4. more humane concerned. In some countries, the responsi­ treatment of offenders. ble body is an independent agency such as However some problems have surfaced the Parole Board, while in other countries in implementing these measures such as the responsible body may be the court. shortage of probation officers, resulting Ideally speaking, however, an independent in probation officers burdened with case and specialized agency should be establish­ loads, fines being discriminatory against ed for the purpose of examination of the poor sections of community who are in­ eligibility of parole. The independent body carcerated for non-payment, lack of adequ­ shall not be composed solely by the prison ate staff to supervise offenders on com­ officers, but shall include, in a well-balanc­ munity service orders including insufficient ed proportion, all the agencies concerned. projects etc. At the same time due to an 7.6 Conditions to be observed may in­ increase in abuse of hard drugs and conven­ clude the follOWing: tional crime, the community at large is (1) a parolee shall not commit another demanding a closer look into what is the crime or be of bad conduct. most suitable treatment method. Hence (2) a parolee shall stay at a specified the need to educate the community. Suc­ residence. cess of rehabilitation depends on active (3) a parolee shall engage in a lawful participation by the community. In order occupation. to effectively continue the present The condition should not subject the methods, the following aspects should be parolee to the undue publicity, debasement studied and implemented. or harassment etc. 1. Philosophy or fundamental idea of supervision and duration of supervision. III. 2. Conditions suitable to the needs of of­ Measures to Implement Non-Institutional fenders and contents of conditions. Programmes in a More Effective Way 3. Recruitment and training of suitable staff, Introduction 4. Ways to encourage public understanding Crime and punishment have been the and co-operation. accepted norm in society from times S. Mutual co-operation and understanding immemorial. Whilst some countries inflict· amongst concerned agencies, to wit ed harsh punishment on offenders, others pOlice, courts, correctional services etc. treated them more humanely. Prisons or 6. Research of effectiveness of non-insti­ what is referred to as institutional treat­ tutional treatment. ment exist in most countries in the world In conformity with the recommenda­ today. Since the international community tions of the United Nations Congresses on accepted that more humane methods the Prevention of Crime and Treatment of should be adopted in treating offenders, Offenders, it is recommended to promote

198 REPORT OF THE COURSE the non-institutional treatment of offend­ (2) The principle of necessity and ers in a more effective way. Towards tlus appropriateness: goal and on the basis of human dignity The treatment methods shall be taken and rights, it is proposed that draft mini­ within the framework of necessity and that mum rules be enacted in accordance with the confidentiality of an offender's record traditions and culture of countries in this shall be kept. It is important that excessive region requiring society to endeavour to interference sometimes spoils the respon­ seek more effective implementation of sibility of the offender to help himself and non-institutional treatment of offenders so deprives him of the community ties which as to facilitate rehabilitation of offenders he should enjoy and as a result, some form and protect the community from recidiv­ of social stigma would be created. Under ism. In implementing such measures, it this principle, every effort should be made shall ensure that human rights and dignity for early discharge of offenders from super­ of the individuals are well protected. In vision, to modify the conditions or dura­ order to achieve this goal, it shall focus on tion of the supervision order or imposing positive measures to mobilize all available revocation of the supervision order when­ resources. ever required. (3) The principle of individualization A. More Effective Ways for Careful investigation should be made on Non-Institutional Treatment of each offender's age, background, occupa­ Offenders tion, mental and physical conditions, home, associates, environments etc. so as 1. Philosophy or Fundamental Idea of to deduce the best treatment method. In Supervision of Offenders so dOing, flexibility of treatment methods 1.1 Supervision shall be carried out by could be carried out e.g. group treatment leading and supervising the offender to method may be adopted in addition to, or make him observe the conditions as in place of, the individual treatment provided in the supervision order, and method. In Japan, group treatment in the by giving him guidance and aid realiz­ form of lectures about traffic rules and ing that all offenders have the respon­ danger of traffic accidents, have been sibility to help themselves. practised. As each offender is an individual, 1.2 For the practice of supervision, the personal elements shall be put into con­ best suitable method to the individual sideration when assisting them to find shall be adopted, taking into full employment and residence etc. consideration of the age, background, occupation, mental and physical con­ 2. Duration ofSupervision dition, home, associates, environment 2.1 Duration of supervision should neither etc. be too short or too long. 2.2 The minimum duration governing the Commentary supervision is such that correctional There are 3 main principles of super­ and rehabilitative measures could be vision listed as follows: effectively administered. (1) The principle of self-help 2.3 The maximum duration governing the Supervision shall be carried out under supervision should be limited to the the precondition that the offender has the offender's practical need to fulfill the intention to develop himself as a law­ whole of the rehabilitative programme. abiding member of the society and that he 2.4 Provision should be given for measures has the responsibility to help himself. In like early discharge, suspended super­ other words, offenders who lack such in­ vision etc. if the offender has respond­ tention or sense of responsibility would ed favourably to the initial supervision neglect the guidance of the supervisolY period for the purpose of securing organ and commit recidivism. complete rehabilitation in the shortest

199 REPORT OF THE COURSE

possible time. Usually, the ground for early discharge is that the offender has shown very satisfac­ Commentary tory performance by abiding with the Varying from country to country, the conditions of the supervision order; that it duration of supervision ranges from a mini­ was qUite certain that complete rehabili­ mum of a few months to a maximum of a tation has been accomplished and that number of years. However, society does supervision and guidance by the super­ exercise flexibility in deciding on the vising officer is deemed no longer neces­ duration of supervision with reference to sary. the following criteria. They are: the nature of the offence which was committed, the 3. Conditions general character of the offender, the 3.1 For the practice of supervision, the circumstances leading to the commission of competent authority shall impose con­ the offence, his risk (if any) towards the ditions suitable to the need of the safety of the public and his prospect of offender. successful rehabilitation in the community. 3.2 The conditions shall aim at enhancing The duration of supervision is usually public safety and increase the possibili­ mandated by law or ordinance in almost all ty of successful social rehabilitation of . countries. Take probation as an example: the offender bearing in mind that countries like Fiji, Hong Kong, Indonesia, there shall be no infringement of hu­ Singapore and Sri Lanka have set the man rights. minimum period of supervision to one year 3.3 The conditions shall be few, practical and the maximum to three years. On the and precise; but can be modified by other hand, the maximum period of super­ the authority whenever it is deemed vision for Thailand is five years and for the necessary. Philippines six years. 3.4 Serious breach of conditions shall On the other hand, it has to be noted result in revocation of the supervision that the actual duration of supervision and the offender shall be dealt with by being handed down by the competent the competent authority according to authority is also important for considera­ fairness with emphasis on the most tion. Again taking probation as example, in suitable treatment method of his Hong Kong, where the maximum and mini­ rehabilitation. mum period of supervision as stipulated by law is one and three years respectively, the Commentary average duration actually handed down by General conditions of a supervlSlon the court is two years. For Thailand, order refer to abiding with the law of the though the maximum period for probation society the offender is living in, to work or is five years, the average period of super­ study industriously and willingness to vision ruled by the court is two years. In maintain regular contacts with the super­ Japan, duration of adult probation super­ vising officer. The general conditions vision is set with the minimum of one year should be applicable to all offenders. and the maximum of five years. Neither In theory, it is recommended that prior the Court nor the Director of the consent from the offender is to be sought Probation Office can discharge a probation­ in the making of conditions. The offender er from supervision but the Parole Board must openly agree to the compliance of has authority to suspend probation pro­ both the general and the special conditions. visionally upon the request of the Director With reference to rule 3-3-1, "compe­ of Probation Office. tent authority" refers to Court, Parole For some countries, early discharge of Board, Chief of Probation Office etc. supervision order is made possible by a Special conditions are added in super­ favourable recommendation by the super­ vision orders according to some of the vising officer to the competent authority. special needs of the offenders. Examples

200 REPORT OF THE COURSE are: prohibition to use stimulant drugs; 4.8 Implementation of non-institutional compulsory attendance to medical or treatment shall be reviewed periodical­ psychiatdc treatment; to return home by a ly by the competent authority so as to certain time of the day or to stay away secure its fair and effective imple­ specifically from some criminogenic com­ mentation. panions. Commentary 4. Treatment Programmes Suitable to To categorize offenders into appro­ Offenders priate supervisory groups, society has used 4.1 The purpose of treatment programmes specific techniques like the use of an intel­ shall be the provision of necessary ser­ ligence test, personality and aptitute tests, vices to the offender with the goal of clinical observations of behaviour, electro­ reducing the probability of continued encephalogram examination, medical and climinal behaviour on the part of the para-medical examinations and such other offender. disciplines related to psychology, sociology, 4.2 Treatment programmes shall be dis­ psychiatry etc. creetly designed in such a way that Society has developed special treatment both the general and specific needs of programmes for offenders of special needs. each categodzed offen tier are being For examples, drug addiction treatment met with regard to his rehabilitation. centres or drug rehabilitation centres are 4.3 In the categorization of offenders, established for the treatment of drug every possible means and tests shall be offenders; special homes and training employed so as to obtain a thorough schools are established for juvenile offend­ understanding of the offender's back­ ers; special mental institutions are built for ground, personality, aptitude, intelli­ offenders with psychiatric problems and gence, moral values etc. especially the open and semi-open institutions/prisons for circumstances leading to the commis­ petty offenders or prisoners who are ready sion of the offence. for release into the community. 4.4 Further, categorization of offenders Treatment programmes include basic shall be consistent with individual individual casework service. However, dignity, basic concept of fairness and family therapy, group treatment program­ the provision of maximum involve­ mes, community projects and other profes­ ment on the part of the offender. sional skills and teclmiques are used, all 4.5 Professionals in the behavioural science aiming at rehabilitating the offender both field e.g. social workers, psychologists, as an individual and as a member in the criminologists, penologists etc. shall be society. invited to participate in the treatment Varjing from country to country, com­ programmes whenever their expertise munity resources available to offenders is warranted making full use of the include employment assistance, vocational scientific discipline concerned. training, public assistance and other forms 4.6 Community support in treatment pro­ of financial assistance, hostel service, social grammes is vital and every effort shall groups and volunteer service. be made to utilize the community It should be noted that since non­ resources for the purpose of promot­ institutional treatment of offenders has to ing in the offender a stronger sense of be implemented not only effectively but social awareness and community re­ also fairly, the competent authority such as integration. the court and other bodies with qualifica­ 4.7 Treatment programme shall be review­ tions equal to the court (parole board, ed regularly to see if alteration, probation office, case review committee amendment of the programmes have etc.), shall review and evaluate its imple­ to be made in the light of offender's mentation. performance in the community.

201 REPORT OF THE COURSE

B. Recruitment and Training of Staff training shall ensure that the staff do acquire sufficient clinical experience 5. Qualifications ofStaff so as to carry out treatment with sub. 5.1 There shall be no discrimination in stance. qualifications of staff as regards race, 6.3 A training institute/section shall be creed and sex. established as a specialized unit in the 5.2 Persons who have the following quali­ administration, planning and supervi­ fications or equivalent may qualify as sion of the professional development officers engaging in community based of all staff. treatment programmes: (1) Have a University, Technical or Commentary College degree in Psychology, Social Varying from one country to another, Work, Sociology, Law, Criminology or the following are three fundamental princi­ any other behavioural sciences, ples in the training of staff: (2) Have passed a national examina­ (1) To provide a wide range of basic tion in his/her respective fields, knowledge. (3) Have some practical experience in (2) To give instruction on practical aspects correctional services, social work or of the service e.g. legal and criminal other related fields in the treatment of procedures. human behaviour, (3) To offer knowledge relating to be­ (4) Have a good personal background, havioural sciences with a special view aptitude, potentiality, or professional to enriching the mind of knowledge competence to handle any kind of and skills concerning treatment of client he may come across. offenders. In some countries, to make the treat­ Commentary ment of offenders more effective, group There has been a great concern in differ­ treatment is being implemented according ent countries regarding the basic knowl­ to the similar characteristics of the subject edge and skills that are required of the staff group of offenders. Therefore, it may also who are engaged in the supervision and be taken into consideration that in con­ treatment of offenders. Society has now ducting the training of staff, knowledge employed casework, individual counselling, and skills for group treatment will be re­ psychotherapy and other high-skilled tech­ quired for supervising officers. For more niques which warrant both professional effective treatment of offenders, staff are skills and ample academic knowledge. not only required to have specialized Therefore, the general qualifications of knowedge but their speciality has to be staff in the correctional field have been up­ supported by flexibility and creativity. To graded from time to time. serve tlus purpose, staff shall have more On the other hand, staff with specializ­ exposure into different kinds of cases so as ed qualifications are being recruited with to have their clinical experiences more en­ expertise in areas like narcotic treatment, riched. child counselling, psychotherapy, psychi­ Even when -one masters a treatment atric analysis etc. so as to be able to for­ technique, the idea that he can apply it for mulate and implement more effective all types of clients with the same effect can treatment methods for offenders with be quite misleading. Needless to say, we special problems. must have a standpoint that we should select and apply different treatment tech­ 6. Training ofStaff niques according to the individual needs. 6.1 Every effort shall be made to enhance Furthermore, this clinical experience the skills and knowledge of staff for should not stay within the individual level more effective treatment of offenders. in the state of self-complacency. On the 6.2 The competent authority in charge of other hand, he should have sufficient

202 REPORT OF THE COURSE opportunities to share his clinical experi. residents to the reintegration of criminal ence with other supervising officers offenders into their communities and a through informal meetings or case confer· shortage of both manpower and financial ences and by delivering lectures to the resources on the part of government public. It is also essential that each officer agencies concerned. Therefore, human and has to be continually supervised by a senior material resources from the public are to officer so that his work would not only be drawn into the justice service. In so bear his subjective view but an objective doing, citizens are provided with the op· view from another person could also be portunities to become directly involved in taken into consideration. the treatment programmes. The success· ful experience of volunteer schemes in C. PubU.c Co·Operation some countries is a good example. There are two types of public participation ob· 7. Necessity ofPublic Participation served: (1) Citizens such as "Volunteer 7.1 Public participation shall be consider· Probation Officers" (VPO) in Japan, ed to be one of the crucially important Singapore and Thailand who undertake prerequisites to restore the ties be· most of the supervisory roles of probation tween the offender undergoing corn· officers, and (2) Citizens such as the ones munity·based treatment and his family, engaged in "Volunteer Scheme for Proba· relatives, the neighbourhood com· tioners" in Hong Kong, and "Big Brothers munity) fellow employees etc., and to and Sisters Association" in Japan who as· achieve the ultimate purpose of his sist probation officers by only rendering reintegration into society. informal support to meet the specific needs 7.2 Public participation shall be consider· of probationers while the essential role of ed essential in order to reduce the supervision is always carried out by proba. workload on the part of criminal tion officers themselves. justice administration and offer a variety of services with an increased 8. Ways to Encourage Public quality in non·institutional treatment Understanding and Co-Operation at a reduced cost. 8.1 To fulfill the requirements provided 7.3 Public participation shall be con· for in rules 7.1 to 7.3 society shall, sidered indispensable for citizens (1) recognize and support volunta· themselves to be provided with an ry organizations whose function in· opportunity to protect the society volve community·based corrections from recidivism by directly dealing of offenders, with rehabilitation and resocialization (2) encourage and recognize for long of offender&. service to community·based correc· tions by awards or some fonus of CommentalY appreciation, It is widely accepted by penologists and (3) be made known of the impor. has gained recognition among legal practi· tance, desirability and advantages tioners that the rehabilitative measures for of non·institutional treatment as al· offenders have a more positive effects than ternatives to imprisonment. punitive measures. Effective criminal jus· 8.2 Seminars, symposia and other activi· tice administration cannot be achieved ties shall be organized in their society through the efforts of government agencies to enlighten the members on the im· alone, instead, every possible social reo portance of public participation in the sources must be mobilized to that end. non·institutional treatment of offend· There are, however, substantial problems ers. standing in the way of full implementation of non·institutional treatment of offenders, Commentary which include the negative attitude of local Society shall take all possible measures

203 REPORT OF THE COURSE to promote the individual and public ing to observe that very little co-operation welfare by aiding the reformation and is available in some countries of tIllS region. rehabilitation of offenders and to deepen For example, the relationship of the police the public's understanding of contempora­ with the correctional services sometimes ry problems in criminal justice administra­ exhibits role conflict. tion and solicit citi:~;:l<'S co-operation with Hence it has become necessary that the criminal justice authorities. police are well educated to accept the Law enforcement agencies may employ concept of the totality of the system and the communication media and personal the fact that each component has a differ­ contacts to influence public opinion ent role to play so that each will influence favourably. Inter-agency relationship can the effectiveness of the others. Similar role be promoted through such activities as conflicts exist among other agencies as newspaper articles and news-releases on well. To overcome such conflicts a certain radio and television. Other programmes country in the region has adopted a com­ such as distributing information pamphlets pulsory attendance centre whereby the could be a way to enhance public partici­ various agencies involved are compelle'd to pation. meet and discuss regularly matters of con­ cern. However in the absence of interest D. Mutual Co-operation amongst Agencies shown by those concerned, the centre has Concerned not had its desired effects. It is therefore vital that the agencies concerned are edu­ 9. Mutual Co-operation amongst Agencies cated on this aspect. In this direction, the Concerned contribution made by UNAFEI is high.ly 9.1 For efficient functioning of the crimi­ commendable. By its regular group training nal justice system, it is imperative that courses and seminars, participants from the various agencies involved shall various countries and several fields of the work in close collaboration with each crin1inal justice system are invited to dis­ other. cuss their systems. At these seminars and 9.2 There shall be established joint com­ group training courses experts in the field mittees among the concerned agencies are invited to teach new methods and in order to exchange views and ideas improve on present methods. After exhaus­ and avoid fragmentation and aliena­ tive discussions and studies, the partici­ tion. pants return to their respecE','e countries 9.3 It shall be incumbent on the concern­ with knowledge thus gained and discussed ed agencies to visit each other's estab­ methods adopted to their own systems. lishments frequently to enable officers in the field to deepen the mutual E. Research understanding of the different limits of their systems. 10. Research 9.4 It is desirable that information on the 10.1 Research and information mecha­ success or otherwise of the roles of nisms shall be built into the criminal rehabilitation and treatment initiated justice sy&tem to collect and analyze be exchanged between the agencies the relevant data and statistics on the concerned. implementation of non-institutional treatment of offenders. Commentary 10.2 Efforts shall be made to involve both The component elements of the crimi­ public and private organizations to nal justice system are the police, prosecu­ organize and promote research on tional services, courts and the correctional non-institutional treatment of offen­ departments. Mutual co-operation amongst ders as a basis for planning and them is vital for the effective implementa­ policy-making. tion of the system. However, it is disturb- 10.3 Research shall be designed and

204 REPORT OF THE COURSE

targeted in close relation to prob­ which contribute to the lack of accurate lems which confront the community, data on non-institutional treatment of the policy-makers and practitioners offenders in some countries in this region. so that regular review and evaluation Another reason for the lack of research could be made for the improvement is a lack of interest on the part of public of the system and the implementa­ and private organizations with respect to tion of the non-institutional treat­ research activities on non-institutional ment of offenders. treatment of offenders. The governments lOA Efforts shall be made to exchange in­ of the countries in this region, most of formation and promote technical which are developing countries, have co-operation among countries in placed emphasis on economic develop­ research activities on non-institution­ ment. It is true that research and statistics al treatment of offenders. divisions or institutes have been established within police and correctional departments Commentary in some countries in this region. Yet, the It has been recognized that research is research activities conducted by these an irnportant mechanism for planning and divisions or institutions have been limited policy-making of non-institutional treat­ because the budget and the number of re­ ment of offenders. However, there are still searchers with training in research are ex­ some problems to overcome for further tremely limited. Rule 10.2 requires the development of research activities. public and private organizations to pro­ Rule 10.1 emphasized the establishment mote research and ensure funding of of research and information mechanism to research. collect and analyse the relevant data and Rule 10.3 establishes the standard for statistics. Among several reasons for the integrating research into the process of lack of research, it has been pointed out policy-making of non-institutional treat­ that the lack of data and statistics has led ment of offenders. The research as a basis to a lack of research activities. Even if data for planning and policy-making can be and statistics are available for researchers, defmed as action-oriented research. Taking some of this information refers only to an example of action-oriented research on partial circumstances of crime in a given non-institutional treatment of offenders, country. Statistics may refer only to police the Research and Training Institute, Minis­ activitles, to prisons or to big cities. In try of Justice, Japan, conducted in 1975 many countries in this region, it is urgently the research on the base expectancy tables necessary to promote activities for collect­ (prediction tables) for juvenile probation­ ing the fundamental descriptive data neces­ ers which aimed at examining the efficien­ sary for research on non-institutional treat­ cy of the classifiCation table and, at the ment of offenders. Moreover, in rural areas same time, explored the possibility of the of some countries in this region, minor formulation and validation of new tables. offences tend to be dealt with informally This research and the subsequent resear­ in local communities and thus they are not ches led to the formulation of new classifi­ reported to the police or other govern­ cation tables. It is not necessary to say that mental "agencies. The underlying idea of close co-operation between scholars and this system is that local communities practitioners is inevitable for the develop­ should have a primary responsibility in ment of action-oriented research on non­ dealing with minor crimes. This system has institutional treatment. helped to allay court congestion and to Rule lOA emphasizes the importance of reduce the number of incoming prisoners close international co-operation and ex­ to local jails and overcrowded prisons. change of information. In addition .to the However, these minor crimes informally role of each country, the roles of inter­ dealt with in local communities tend to regional or regional institutes such as create large unknown or unreported figures UNSDRI, HEUNI, ILANUD, UNAFRI and

205 REPORT OF THE COURSE

UNAFEI should be emphasized. Since it 2. The prime factor underlying Non­ was established in 1962, UNAFEI has con­ Institutional Treatment is to avoid the ducted on an yearly basis two internation­ incidence of recidivism by guiding the of­ al training courses lasting three months and fender to learn to live productively in the a five-week international seminar course. community which he has previously of­ The production of these international fended against. This proceeds from the training and seminar courses have been theory that the best way to attain this published in the "Resource Material Series" goal is to orient the criminal sanction and have facilitated not only international towards existence in the community set­ comparative studies, but also the improve­ ting. The aim is to enhance the safety of ment of criminal justice systems in the the community by reducing the rate of countries of this region. The main roles of crin1e often committed by persons previ­ these interregional or regional institutes in ously convicted. This is achieved through the field of research activities appear to be guidance, assistance, casework and counsel­ as follows: (1) Provide researchers with ling etc. to enable their reintegration into training in research; since some countries the mainstream of society as law-abiding cannot afford to provide researchers with and responsible citizens. We should regard sufficient training, the role of the institu­ all offenders as human beings who basically tes in this regard is very important in order have the real possibility of rehabilitation. to facilitate research activities. (2) Collect 3. In achieving the objective of reinte­ data and information to provide resear­ gration of offenders, the entire mechanism chers with them; for this purpose, co­ of the Criminal Justice System such as the operation between the institutes and Courts, Prosecution, Law Enforcement countries is essential. (3) Finally, imple­ Agencies, Correctional Institutions and the ment research, especially interregi.onal community has to be mobilized. comparative research which would be Emphasis should, however, be centered facilitated by the exchange of information upon the community since the rehabilita­ and data between the institutes. tion of the offender takes place therein. Although "reintegration" appears some­ N. what abstract, there are various imaginative Merits and Demerits Relating to ways of putting it into practice. Mobiliza­ . the Practical Use of Volunteers in tion strategies will be effective when Non-Institutional Treatment Measures directed to private sectors. Undoubtedly, granting the access to facilities and services Introduction afforded to the ordinary citizen will allow 1. Crimes are complex social phenome­ the re-entry of offenders in the community na involving almost every aspect of' human with less stigma and facilitate the building behaviour. In committing crimes, the and maintaining of their normal roles and offender often exhibits a symptom emanat­ relationships. This calls for the skillful use ing from a social or psychological distur­ of Non-Correctional entities and the initia­ bance. But it may also be a symptom of tion of public education programmes for failure not only of the offender but of the the community at large to participate in society as well. the reintegration of offenders. Non-Insti­ Very often, offenders have had limited tutional Treatment should not only be access to the positive forces that develop taken as the means to relieve overcrowding law-abiding conduct, like proper medical of prison or because of the lack of budget, facilities, adequate housing, gainful em­ but also ra:aer it should be based on the ployment, good schools, etc. In most value of human beings. cases, offenders were denied equal oppor­ 4. To accelerate the reintegration of tunities compared with other members of offenders, their interests, needs and capa­ the society because of their low station in bilities must be taken into account and life. should be based on the wide array of

206 REPORT OF THE COURSE sources and resources available in the com­ A. Role of Volunteers munity. There is a need to classify offend­ ers into various types so that appropriate 1. Role of Volunteers rehabilitation measures be provided. This 1.1 Volunteers shall have the follOWing requires the selective use of diagnostic major functions: techniques and the "common sense" re­ a) To assist Probation Officers in the cognition that people become involved supervision of Probationers with the law for an almost infinite variety b) To provide Probationers with aids of reasons. The task is to identify root & services. causes of the problems in order to come up c) To participate in crime prevention with the right solution. This is an area activities and educational activities of where the role of the public as beneficial the rehabilitative idea functionally for volunteer will come into play. Even if the the public. number of professional probation officers increases, there is still a need for the co­ CommentalY operation of non-professionals who may "Volunteer" in the Standard Minimum have some unique values which profession­ Rules is defined as any person appointed als do not have. by the government to assist a pro,bation 5. The rules cover the role, qualifica­ officer in the rehabilitation of art adult tions, recruitment, selections, training, ap­ probationer in accordance with the idea pointment, matching schemes, and the indicated in Part 5 of the Introduction. supervision of volunteers who are authoriz­ "Probationer" in the rules is defmed as any ed by the government to assist probation adult person convicted of a crime but the officers (for example VPO in Japan and execution of his sentence is suspended; Thailand, VPA in the Philippines) in the this includes a parolee who is placed under rehabilitation of offenders. However, this the supervision of a probation officer, ex­ does not mean that all volunteers shall be cluding a juvenile offender because we directly authorized by the government nor should linlit the rules from overlapping the that the extent of practical use of the pub­ Standard Minimum Rules for the Adminis­ lic shall be linlited to such authorized tration of Juvenile Justice ("Beijing volunteers. Or rather there shall be many Rules"). kinds of volunteers who participate in non­ As mentioned in the introduction in the institutional treatment in different roles non-institutional treatment of offenders, and ways interacting with each other with­ participation of the public is important and out direct government control (for ex­ the roles provided by Rule 1-1 cannot only ample BBS and WARA in Japan), and the be sufficiently carried out by volunteers, government also shall encourage the ac­ but, as well as this factor, in these roles tivities of such kind of volunteer and vol­ volunteers are superior in some points to unteer organization. But it may not be probation officers. First of all, volunteers suitable for t). ~e volunteers to provide have the character of non-officialism, and covering rule~\. :;0wever this rule is able to this characteristic mal(es probationers feel apply to these volunteers within the limit more at ease with volunteers, and lowers of each kind of volunteer's character. the feeling of reluctance often experienced 6. Accordingly, as the result of the con­ with official probation officers. Moreover, sideration regarding the practical matters the fact that volunteers engage themselves such as the method, the extent, the limits in the treatment of probationer without and problems of the practical use of volun­ any payment will have a good influence on teers and the training methods for volun­ the probationers in their care, Secondly, teers, the following Standard Minimum volunteers have broad knowledge about the Rules are hereby recommended. local community and know of different kinds of social resources which are difficult for probation officers to become familiar

207 REPORT OF THE COURSE with, as they are mf.mbers of the com­ rule is like this: the condition of probation munity where the probationers live. This forbids the probationer to travel to other knowledge and social resources are very places outside of the probation area with­ useful for volunteers not only in the super­ out prior permission of his probation offic­ vision of probationers but also in the er, but in the midst of the night, he has to mobilization of social resources in order to travel to a far place in order to attend to an answer to probationers' needs. Also some emergency involving an immediate member volunteers may have special expertise or of the family. At this point of tinle, the teclmical knowledge and skills which they probation officer is not around and his have derived from their occupational residence is far. In such a situation, the experience, and this knowledge and skills probationer may just ask the permission of may prove very useful to help probationers the volunteer who is living nearby and the solve their own problems. Thirdly, from latter in the exercise of his discretion may the point of view that the purpose of non­ allow the probationer to travel and render institutional treatment is to re-integrate a report afterward to the probation officer. probationers into the community, volun­ In these situations, volunteers would not teers may provide a bridge between proba­ be able to perform effectively without dis­ tioners and the community. Finally, as cretion. But this is not to mean that volun­ crime prevention activities and educational teers shall have unlimited discretion, but a activities of the rehabilitative idea func­ discretion limited for the furtherance of tionally for the public, volunteers are also the rehabilitation programme. Probation able to perfonn very important roles in officers always must give attention to the those activities. Namely these activities possibilities for abuse of discretion by cannot achieve sufficient effect without volunteers. widescale participation by the public, a role volunteers are hoped to perfonn as the B. Recruitment and Training core of the public participation. On the other hand, volunteers are non-professional 2. Qualification of Volunteers concerning the treatment of offenders, 2.1 Volunteers shall have the following therefore in order to cover this weakpoint qualifications: it is necessary that probation officers a) of legal age; supervise and support volunteers' activities, b) able to read and write; and provide them with adequate training c) willing to work as such volunteer; facilities for the improvement of volun­ d) citizens of good repute in the com­ teers' abilities. munity; 1.2 Volunteer shall be allowed to exercise e) fmancially stable; limited discretion in furtherance of the f) mentally and physically fit to work. rehabilitation programme. Commentary Commentary Treatment of offenders is very impor­ Although volunteers shall be supervised tant, responsible and difficult work. The by probation officers, volunteers should result of the utilization of volunteers in have some discretion to perform their non-institutional treatment depends mainly duties. During the probation process there upon the governments ability to get volun­ are many possibilities for unusual occur­ teers who are suitable persons for such rences and accidents concerning their work. The qualifications of volunteers are, probationers, and volunteers must have the therefore, most important and the above capacity to quickly respond to such hap­ qualifications appear to be the minimum penings without detailed supervision or necessary to achieve their role. guidance of the probation officer. An ex­ a) Volunteers must be of legal age, be­ ample of a discretion that may be exercised cause volunteers cannot perform their role by the volunteer as contemplated in this without full social rights and duties.

208 REPORT OF THE COURSE

b) The ability to read and right is es­ minister this rule. sential for the proper participation in train­ (1) The Probation Officer of any Pro­ ing courses and the performance of duties bation Office or unit shall be responsi­ involving the reading of case summaries ble for the recruitment and selection and the preparation of supervising process of volunteers in his area of jurisdiction. reports. His authority covers the training of c) In the treatment of offenders great volunteer as provided for under the forbearance is needed and volunteers can­ succeeding rule. not achieve their duty without willingness (2) He shall recommend the appoint­ and enthusiasm to perfornl such work. ment of a volunteer to the appointing d) Non-institutional treatment of of­ power and the ternlination thereof for fenders is never a success without social cause as herein defined. recognition and support and therefore volunteers must be of good reputation in Commentary the community in order to get social con­ In the above-mentioned rule as well as fidence and recognition about their activi­ Rules 4 and 5, the following terms shall ties. bear the following meanings. Recruitment e) The role of the volunteer requires a should be the process by which the poten­ substantial time commitment, for which tial volunteers for appointment are sought. the volunteer must have enough free time Selection is the screening process by which and financial stability. The meaning of suitable persons from the recruited volun­ financial stability, however, shall vary teers are nominated for appointment. depending upon the economical condition Appointment is the final and formal deci­ of each country. sion of authorization and is made by the ±) Volunteers should be in good health formal appointing power. considering the requirements of the nature In some countries such as Japan, the of their role; ego visiting of the probation­ Philippines and Thailand, Probation Offi­ ers' home, and their role demands certain cers are taking immediate and affirmative mental characteristics, such as a sym­ action in recruitment and selection of capa­ pathetic, honest, reliable, and accessible ble and qualified volunteers in correctional personality. Finally, in the practical appli­ roles. The main objective in selecting a cation of the requirements of qualifica­ Volunteer is to ensure that the person ap­ tions, each government shall consider the pointed is suitable and fit to undertake fact that the more strict qualification pro­ such work: The Minimum Standard Rule 3 cedures on application results in a less describes the process by which suitable extended participation of the public. volunteers come to be appointed. Mass media, the distribution of promo­ 3. Recruitment and Selection of tional materials by way of mail, the press, Volunteers radio and television are means that can be 3.1 Volunteers shall be selected from the often undertaken. While the above de­ qualified residents of the community scribed sources are recruiting techniques and recruitment be done through any aimed at selecting individuals, these of the following methods methods are to inform a large, public audi­ a) Advertisement in the mass media ence of the progranlme. Such mass ap­ b) Pooling proaches are then followed by more c) Recommendation personal procedures for discussion of the 3.2 Recruited volunteers shall be screened progranlme and more selective screening. through the following methods. A key element in a successful Volunteer a) Interviews project is the care the progranlme takes in b) Background investigation screening applicants, and the opportunity 3.3 The probation officer shall be vested to the applicants to screen the project. with the following authority to ad- This rule also contemplates the recruit-

209 REPORT OF THE COURSE ment of former probationers as volunteers unteer's service should be done by the provided they possess the qualification appointing authority upon the recom­ prescribed in Rule 2. Tllis idea was includ­ mendation of the Probation Office. ed as one of the rules in the original draft of this chapter presented by one of the 4. Training group workshops, considering that former 4.1 The training course for volunteers shall probationers can greatly contribute to the as much as practicable cover the probation process as Volunteers by using following subject matters: their own knowledge and experience as a) Criminal Justice System; probationers. However, after thorough b) Human behaviour; general discussion, it was decided that it c) Probation process and practice; should be included in the commentary d) Report writing; rather than the rules because it was regard­ e) Guidance and counselling; ed as a very difficult practical matter whlch, f) On-the-job training. although possibly basically sound, would 4.2 The training shall be implemented in cause problems for a public not sufficiently consideration of the following matters. broad-minded enough to accept its social (1) Training period should be long applications. Nevertheless, it is hereby enough to enable volunteers to acquire encouraged that existing sound, policies working knowledge on the coverage and practices be reviewed and revised in thereof. light of this recommendation. (2) Each country shall adopt a con­ There are basically six methods in this tinuing training program in addition to two-way screening process; the applicant pre-appointment or after-appointment form, the personal interview, letters of training programmes. reference, Police checks, self-screening and performance training. Commentary The application form itself can provide A significant aspect of any Volunteer a wide variety of relevant information for programme is training. More than a desire administrative use. The purpose of the to serve is needed to be effective in Volun­ Lrlterview is to provide the applicant with teer service. Training shall be given to mOre information about the programme volunteers to give them an understanding while allowing the Probation Officer to of the needs of the life style common determine whether or not the Volunteer among probationers and to familiarise can work well in this programme. Inter­ them with the objectives and problems of views both oral and written are necessary corrections. Volunteers are non-profes­ and provide a test of the applicant's skill sionals, and recruitment and appointment and ability. Applicants during the self from the ranks of minority groups can screening process can examine his own serve as success models. As outlint.::d in ruie capabilities, resources, and motivation and 6 the training shall be carried out in (1) decide whether to make the commitment Criminal Justice System (2) Probation as a Volunteer or not. Before fmal selec­ process and practices (3) Report writing tion is done it shall be necessary for the (4) Counselling and guiding. Volunteers Probation Officer to know the background after being properly trained on these areas of the Volunteer. Investigation is to be will understand their roles and responsibili­ carried out on his conduct, character and ties and understand the important parts financial stability. A Probation Officer that are played by Courts, Police, Proba­ upon satisfaction of the selection require­ tion Officers and probationers. The writing ments should then recommend the applica­ of reports is a very important skill for the tion to the Appointing Power and upon volunteer to acquire. They should be approval inform the Volunteer of his familiarized as to how r~orts are to be appointment and the Training Programme. made and when it should be made. The AppOintment and termination of a Vol- training period should be designed in such

210 REPORT OF THE COURSE a way tha.t it should be long enough for the commendation of the Probation Officer. volunteers to acquire a good working Moreover, since they are non-professionals, knowledge. In addition to pre-appointment the term which Volunteers serve should be and after appointment training, further limited. This term should not be too long, tra.ining courses such as refresher courses on the other hand, ifit is too short, Volun­ and special courses should be conducted teers' activities may become insufficient. from time to time. Volunteer programme Judging from common sense, we consider training sessions generally focus upon more that about two years is the appropriate general approaches in working with proba­ term. However, it should be noted that as tioners rather than dealing with specific long as Volunteers have the qualifications, skills developed. appointment shall be renewable. On the One must remember that volunteers are other hand, if Volunteers fulfill any of the selected to assist Probation Officers in causes of telmination lis.ted under Rule supervising and rehabilitating probationers. 5-2, the term should be terminated at that An untrained volunteer having no training point. may not be able to assist properly, and It goes without saying that if Volunteers instead of a probationer being socially re­ who are involved in the treatment of integrated into the society the situation Probationer commit a crime or immoral might end up in disaster. To have fruitful conduct, they shall also be disqualified as a results out of the work of volunteers, Volunteer. And it will be quite natural that training is a necessity. they shall no longer be qualified as Volun­ teer in any of the following cases: C. Appointment 1. when they neglect to perform the job as Volunteer, such as neglecting the month­ 5. Appointment ly report to the Probation Office,r or failing 5.1 Upon recommendation by the Proba­ to maintain regular contact with the Proba­ tion Officer, the volunteer shall be tioner; appointed by the competent authority 2. when they refuse to obey an order of for a term of two years unless earlier the Probation Officer without justification; terminated for cause. Appointment 3. when they want to resign for some shall be renewable for the same term. reason; 5.2 The volunteer shall be terminated 4. when they become mentally and/or when any of the following causes physically unhealthy. comes about. a) Commission of a crime; D. Practical Matters b) Immoral conduct; c) Neglect to perform his job; 6. Matching Scheme d) Refusal to obey an order of the 6.1 Matching uf a Probationer with a Probation Officer without justifica­ volunteer shall be made according to tion; the following factors. A. age, B. sex, e) Resignation; C. ethnic background, D. education, E. f) Incompetence. intelligence, F. occupation, G. com­ munity contact, H. interests, I. at­ Commentary titudes, J. religion, K. socio·economic Since volunteers have direct contacts level, L. skills, M. needs, N. nature of with and are involved in the treatment of the offence. Probationers and may learn personal and 6.2 Matching formula shall be formulated private information of Probationers, it is in view of the foregoing factors. only natural that strict qualifications be 6.3 The nature of the case shall be taken required, and that only those who have into consideration in the assignment of these qualifications be appointed as V olun­ cases by matching, complicated cases teers by the competent authority upon re- shall be handled by the probation

211 REPORT OF THE COURSE

officer. 7. Supen1ision over Volunteer 6.4 Matching shall be made at the earliest 7.1 Probation officer shall have the au­ opportunity. thority to supervise and manage the activities of volunteers. Commentary 7.2 Supervision programme shall be based Matching is a very significant mecha­ on mutual understanding, co-operation nism for the success of the utilization of and collaboration between probation volunteer in rehabilitating offenders. Plac­ officer and volunteer. ing the right probationer under supervision, 7.3 Volunteers' performance shall be mon­ guidance and care of the right volunteer itored and evaluated regularly. will increase the probability of success not 7.4 Encouragement, moral support and only in terms of rehabilitation of the educational guidance should be pro­ offender but also of the volunteer program vided by the Probation Agency to itself. Effective matching on the one hand volunteers. will encourage the volunteers to put more active efforts into helping their clients, and Commentary the probationers will render more co-opera­ The performance of volunteers should tion, trust and confidence to the volunteers be regularly supervised, directed, guided on the other, thereby creating good rela­ and assisted by professional probation tionships between both sides. officers. A variety of means may be utili­ The fundamental idea of matching is to zed for the mentioned purpose, such as identify the important need of a proba­ individual contact, group meeting, confer­ tioner which will be matched with a volun­ ence, seminars, training and so on. teer who is the most likely person to make Since volunteers are persons voluntari­ a significant contribution to meeting these ly helping the government in the rehabilita­ needs. tion of offenders without remuneration, Besides the general characteristics of the emphasis should be placed on co-operation probationer and the volunteer, the nature and collaboration of volunteers and proba­ of offence, type and objective of the re­ tion agencies through mutual understand­ habilitation progranlme set for an individu­ ing rather than control measures. Mutual al offender should also be included in understanding can be enlarged and strength­ consideration for matching purposes. Even ened by providing the volunteers with addi­ though the relative importance of charac­ tional educational guidance. teristics may vary from case to case, a The extent of supervision of the volun­ general matching scale should be formu­ teers varies with the roles designated to lated for personnel staff concerned so as to them; the more discretion is vested in obtain objective matching, and the achieve­ volunteers, the more supervision and moni­ ment techniques to maintain consistency toring should be done. It is suggested that and quality of the matching scheme, and to regular monitoring and evaluation of volun­ avoid arbitrariness. teers' performance be conducted since it Practically, it may be difficult to a­ could help probation officers adopt chieve the best match for all probationers. appropriate strategies to manage and Such a dilemma may cause a delay of as­ supervise volunteers. signment of probationers to volunteers and The contributions of volunteers are the passage of time may also discourage the derived from a sincere desire to help other original enthusiasm of volunteers as initial­ people without material benefit. It is ly highly expected of involvement in the therefore, very important to provide the activities. Therefore, it is suggested that volunteers with moral support and en­ the assignment be made as soon as possible couragement to maintain and strengthen for the best available match. such a determined will. A sense of mission in helping other people and social prestige recognized by the public will be incentives

212 REPORT OF THE COURSE and a great impetus for volunteers to put confidential information concerning more efforts in their responsibilities. personal affairs which he has come to However, it is suggested that necessary known in performing his duties. expenditure incurred in the course of the volunteer's duty be reimbursed, and the Commentary volunteers be entitled to the benefit of Volunteers are deemed as official compensation when any bodily injury is representatives of the probation officer and inflicted in the performing of their duties. as such they may be perceived as sanction­ In addition, other forms of rewards of ing and authority-imposing figures. In the honour should be presented to volunteers performance of their duties, and in their whose activities are regarded as great per­ desire to reform the offenders, they tend formance of their duties and high dedica­ to enforce help which may not be appreci­ tion to rehabilitation of offenders. ated by the offenders. Along this line, there arises the imperative necessity to 8. Volunteers' Association impose some restriction on the supervisory 8.1 Each Government shall encourage the activities of the volunteers. organization of volunteers' associa­ 9.1 The concept of privacy is one of tions and which shall be utilized by the most important features of a civilized probation offices for co-ordinated society. In its broader sense, it covers the supervision as well as guidance and whole spectrum of the human personality training. demanding that it must be afforded respect deserving of a human being. In a limited Commentary sense, it connotes the right of every person Organization of a volunteers' association to be alone, to be left alone. on a national and local level in every Any attempt to intrude or intrusion country will certainly heighten the spirit upon such right is normally viewed as a of volunteerism in the public. It will hostile act, a direct attack upon the dignity strengthen the volunteers' ability as a of the intruded. In this connection, any group to effectively carry out their func­ supervision programme must avoid raising tions. On the one hand, it will lessen the the hostile reaction of the probationer. burden of a probation officer in dealing While it is true that in many ways proba­ with them individually especially in a big tioners are virtually under the power of the probation area. It fosters easy contacts and system, still the capacity to ruin the re­ time-saving on the part of the probation habilitation plan lies in their hands. office. An important policy orientation, there­ On the other hand, the associations can fore, is to make the helping aspect of help in formulating effective supervision probation both voluntary and highly parti­ plans with the probation officer and in the cipative on the part of the offender. Re­ matter of training programmes among its spect on their privacy will undoubtedly members. promote this end. Encouragement can be accomplished in Supervision activities should only be various ways like providing it with assist­ conducted reasonably during day time but ance and extending it due recognition as a never should it be done at the place of responsible segment of society. work of the probationer or at his residence during the night time while he is enjoying 9. Restriction of Volunteers' Activities the comfort of his home and his family. 9.1 A volunteer must not intrude into the However, the volunteer may intrude privacy and the human rights of a upon the privacy of the probationer at any probationer, unless such intrusion is time if the purpose is to prevent him from necessary to secure the conditions of committing any act in violation of the probation. conditions of his probation. In so doing, 9.2 A volunteer should not disclose any the volunt('{;r in effect prevents the rein-

213 REPORT OF THE COURSE carceration of the probationer. Mr. Hiroshi Gotoh (Japan) 9.2 This rule prohibits volunteers from Mr. Kazuo Kodama (Japan) the giving out of any infonnation obtained Mr. Yoshinaka Takahashi (Japan) from documents or through interviews and Advisors: observations, knowledge of which could Mr. Kunihiro Horiuchi not have been otherwise obtained if not for Mr. Fumio Saito his official or semi-official capacity as a GROUP III: volunteer (some volunteers are allowed Chairperson: Mr. Ignatius Thavayogam access to official records concerning their Canagaretnam (Sri Lanka) wards). Rapporteurs: Mr. Walter Wai-wah Wong (Hong Kong) ANNEX Mr. Lephotla Siimane (Lesotho) List of Participants and Advisors Mr. Yusuf Ziya Goksu (Turkey) GROUP I: Mr. Mitsuhiro Hasegawa (Japan) Chairperson: Mr. K.L. Gupta (India) Mr. Toyoya Ikeda (Japan) Rapporteurs: Mr. Toshimi Sonoda (Japan) Mr. Juanito S. Leopando (Philippines) Advisors: Ms. Sun Yongxin (China) Mr. Itsuo Nishimura Mr. Vitaya Suriyawong (Thailand) Mr. Masao Kakizawa Mr. Tatsuya Sakuma (Japan) GROUP IV Mr. Yasushi Murakami (Japan) Chairperson: Mr. Indar Jeet (Fiji) Advisors: Rapporteurs: Mr. Yasuro Tanaka Mr. Ibra D. Ondi (Philippines) Mr. Yukio Nomura Mr. Slaikate Wattanapan (Thailand) GROUP II: Mr. Morito Fujita (Japan) Chairperson: Mr. P.H.M. Ratnayake Mr. Noboru Higuchi (Japan) (Sri Lanka) Advisors: Rapporteurs: Mr. Shigemi Satoh Mr. Mustafa bin Osman (Malaysia) Mr. Yasuo Shionoya Mr. Alfredo Ferreyros Paredes (Peru)

214 PARTIn

Materials Produced during Other UN AFEI Activities Report of Asia and the Pacific Region International Experts' Meeting on the Protection of Human Rights in Criminal Justice

- Fuchu, Tokyo, Japan, 17 February 1987-

Preface the Seventh Congress.

Among the most important objectives Objectives of the United Nations are the promotion and encouragement of respect for human The United Nations has contributed rights and fundamental freedoms. The significantly to the promotion and protec­ United Nations Asia and Far East Institute tion of human rights in the course of for the Prevention of Crime and the Treat­ criminal justice administration through the ment of Offenders (UNAFEI) was estab­ adoption and promulgation of several lished at Fuchu, Tokyo, in 1961 as a international instruments, including the United Nations regional institute, pursuant 1948 Universal Declaration of Human to an agreement between the United Na­ Rights, the 1966 International Covenant tions and the Government of Japan. It has on Civil and Political Rights, and the 1955 contributed to the promotion of human United Nations Standard Minimum Rules rights in criminal justice, as requested by for the Treatment of Prisoners. The the United Nations and the governments of nations within the Asia and Pacific region various countries in the Asia and Pacific have responded in various relevant ways to region. these United Nations initiatives directed at UNAFEI sponsored an ad hoc meeting protecting the human rights of offenders of Pacific region international experts on and victin1s, promoting the humane treat­ 17 February 1987, to consider the topic of ment of offenders, and appropriate handl­ the protection of human rights in criminal ing of crime victims. Those responses justice. There were 32 experts from 13 include the incorporation of the language countries in attendance, as well as 11 of international instruments into national special participants representing as many constitutions and laws. Nevertheless, a' countries. Thill experts' meeting was number of problems remain to be solved devised as a means of reviewing current if the human rights of offenders and circumstances in Asia and the Pacific victims are to be safeguarded completely. region affecting the human rights of both Indeed, only in recent years has the impor. offenders and victims of Clime, and of tance of protecting crime victims come to contributing to the further protection of be recognised and acknowledged. those rights. Moreover, the experts meeting Accordingly, UNAFEI convened a meet­ undertook the additional ambitious task of ing of international experts from Asia and responding for the first time to the re­ the Pacific region to discuss more effective cently-promulgated recommendations of measures to enhance (a) protections for the Seventh United Nations Congress on both criminal offenders and victims of the Prevention of Crime and the Treatment crime and (b) appropriate criminal justice of Offenders, held in Milano, Italy, from system handling of and interaction with 26 August to 6 September 1986. both groups. The specific objectives of the It is a distinct privilege for UNAFEI to meeting were to: submit this report as the first response (1) review the current circumstances af­ from the Asia and Pacific region concern­ fecting the protection of human rights ing the promotion of human rights in in criminal justice; and criminal justice in the context of the ac­ (2) explore more effective measures to tions taken and recommendations made by promote the protection of those

217 REPORT

rights. persons pending the completion of criminal proceedings; and (li) that require advance Election of Officers judicial authorisation for arrest and deten­ tion other than in flagrant delict or emer­ After keynote statements from the gency circumstances. The majority of Director of UNAFEI, Mr. Hideo Utsuro nations represented at the meeting follow [Appendix A], the participants in the the second pattern. Nevertheless, it ap­ meeting unanimously elected the following peared to be the consensus that under any officers nominated by Mr. Utsuro: fair system, police arrest powers should be Chairperson limited and swift judicial approval required Mr. H. Abdul HaIim Naim, SH for other than transient interference with Rapporteur-General personal liberty. That is the thrust of Prof. B.J. George, Jr. Article 9 (1) and (3) of the International Rapporteurs Covenant on Civil and Political Rights, as Ms. Lu-Chan Ching-Chuen well as the more general premise in Article Mr. Masafurni Sakurai 9 of the Universal Declaration of Human Rights. In effect, all systems represented Consideration of the Current Status at the session appeared to meet, and in of the Protection of Human Rights fact exceed, the requirements of these in Criminal Justice international instruments. United Nations instruments are not a. Introduction precise as to the proper scope of police The participants in the meeting ad­ interactions with members of the com­ vanced many concerns relating to the munity short of arrest and detention. protection of the human rights of suspects Article 2 of the Code of Conduct for Law and accused persons, and an enhanced Enforcement Officials requires only that recognition of the claims and needs of such officials respect and protect human victims of crime; additional statements dignity and maintain and uphold the were embodied in the national reports human rights of all persons with whom submitted by participants in UNAFEI's they are in contact. The extent to which Seventy-Fourth International Seminar. The citizens are predisposed to co-operate following are the principal points raised in actively with public officials, including the these contexts. Emphasis has been placed police, varies from culture to culture and on those affecting the Asia and Pacific country to country. In the vast majority of region, but some attention also has been the nations represented from the Asia and given to described circumstances in other Pacific region, citizens and even suspects regions. are strongly inclined to give information requested by police and public prosecutors b. Police Activities and, indeed, to report suspicious or crimi­ The legal systems of the countries in nal conduct on their own initiative. Within the Asia and Pacific region, like those else­ such a tradition, a primary concern is that where in the world, are divided into what information be protected as confidential to may be called the Anglo-American and the the maximum possible extent so that, until Roman law systems. When it comes to the a decision to prosecute has been reached, a matter of pQlice powers of arrest, deten­ suspect's reputation and community stand­ tion and interrogation, however, that ing not be irreparably harmed. That, obvi­ division is not controlling. Instead, one ously, is a concern based on Article 4 of finds a more fluid categorisation of coun­ the Code of Conduct for Law Enforcement tries (i) that allow or purport to require Officials ("matters of a confidential nature that police take all criminal offenders into in the possession of law enforcement of­ custody, leaving to judicial authorities the ficials shall be kept confidential, unless the decision to release suspects or accused performance of duty or the needs of justice

218 PROTECTION OF HUMAN RIGHTS strictly require otherwise"). however, would pose serious legal and Not infrequently, the desire of media administrative problems for many coun­ 1~presentatives to gain access to informa­ tries in the region and Vlould, in any event, tion about pending investigations or pros­ require the implementation of measures to ecutions comes into conflict with the assure that members of a tribunal that claim of individuals that~heir privacy be ultimately adjudicated guilt or innocence respected; this is reflected in Article 19 (2) possess the impartiality required by United and (3) (a) of the Int(lrnational Covenant Nations Instruments [Universal Declaration on Civil and Political Rights. Although the of Human Rights Art. 10; International constitutions of some countries guarantee Covenant on Civil and Political Rights Art. freedom of the press and media in stronger 14; cf. Basic Principles on the Indepen­ fashion than others, it appears legally pos­ dence of the Judiciary, Art. 6]. Some sible in every country to maintain the participants advocated that the right of confidentiality of all information in police representation by counsel be rec.ognised and public prosecutor mes until public before the institution of prosecution and prosecution has been instituted in a court, that counsel be allowed to meet with thus allowing authorities to meet the arrestees or detainees before or during international expectations embodied in interrogation. That in turn would present a United Nations instruments without violat­ question of the applicability of provisions, ing domestic constitutional principles. governing criminal trial proceedings, for Interrogation of persons in official representation at national expense of per­ custody seriously implicates the human sons fmancially or otherwise unable to rights of arrestees and detainee·s. United retain private counsel [International Cove­ Nations instruments touch only on the nant on Civil and Political Rights Art. 14 very basic concern that no torture be used (3) (d)] . [Universal Declaration of Human Rights All national systems represented in the Art. 5; International Covenant on Civil and international experts meeting met the Political Rights Art. 7; Declaration on the requirement of Article 12 of the Declara­ Protection of All Persons from Being tion on the Protection of All Persons from Subjected to Torture and Other Cruel, Being Subjected to Torture and Other Inhuman or Degrading Treatment or Cruel, Inhuman or Degrading Treatment or Punishment Arts. 3-4; Model Code of Punishment that statements resulting from Conduct for Law Enforcement Officials torture or other cruel, inhuman or de­ Art. 5 ("or other cruel, inhuman or degrad­ grading treatment (however the latter is ing treatment")] . No political or legal sys­ defined) must be excluded from evidenco tem represented at the present meeting against the source. However, it is unclear in encouraged or condoned coercion in any several nations whether the exclusion of form, including psychological compulsion, such evidence embraces derivative evidence as a means of impelling confessions. or serves to protect criminal defendants The principal issues for member states, other than the source of the confession. therefore, revolved about methods to The Declaration of Basic Principles of assure that national and international law Justice for Victims of Crime and Abuse of be respected in the context of interroga­ Power, Articles 4, 14-15, contemplates tion, at a minimum as required by the that victims be treated compassionately Declaration on the Protection of All Per­ and with dignity, and informed of sources sons from Being Subjected to Torture and of compensation, assistance and redress, by Other Cruel, Inhuman or Degrading Treat­ all authorities including police. This, in ment or Punishment, Article 6. It was turn, is compatible with the premise of suggested that consideration be given to a Article 2 of the Code of Conduct for Law requirement that only judicial officers, and Enforcement Officials that such officials not police or public prosecutors, be legally respect and protect human dignity and eligible to conduct interrogations. That, maintain and uphold the human rights of

219 REPORT all persons. The degree to which police and Civil and Political Rights Art. 10 (1); Stan­ other officials effectuate these interna­ dard Minimum Rules for the Treatment of tional expectations turns to a vast extent Prisoners (passim)] . on cultural and traditional customs; all All nations represented at the interna­ participants agreed that officials should tional experts meeting were committed, treat all members of the community legally and administratively, to compliance politely and with dignity. with such general international standards, However, certain classes of victims, usually supplemented by far more detailed particularly children who have been victim­ and precise domestic laws and regulations. ised in cases of intrafamilial violence and Nevertheless, overcrowding was a chronic women who have been sexually assaulted problem which created problems in main­ or subjected to spousal violence, require taining appropriate standards of confme­ special treatment by police and prosecu­ ment and treatment of detainees as well tors. Several countries in the Asia and as convicted persons. Significantly pro­ Pacific region, as well as elsewhere in the longed pre-adjudication detention also world, have instituted or contemplate results in many countries because of special sensitivity training for law enforce­ delayed and prolonged judicial proceed­ ment officers, and have established or ings. The principal control over this lies contemplate the early establishment of in prompt commencement and completion rape crisis and family violence units, of criminal proceedings, a matter addressed usually cutting across jurisdictional Jines later in this report. within the criminal justice system and An emerging probkm of great sensi­ utilising medical and social services within tivity is preventive detention of persons the community, to work compassionately who may commit crimes ill the future; with victims of these especially traumatic prevention of terroristic acts is of great forms of crime. concern in certain countries within and without the Asia and Pacific region, faced c. Pre-Adjudication Detention with acts of depredation by anned insur­ As noted earlier, all countries represent­ gent bodies. That is a very volatile issue ed in the meeting of international experts which requires a consideration of what is require swift judicial review of initial police denominated the "right of self-determina­ detention of suspects or arrestees, as con­ tion" in such United Nations instruments templated in United Nations instruments as Article 1 of the International Covenant [International Covenant on Civil and on Economic, Social and Cultural Rights, Political Rights Art. 9 (3); cf. Universal Article 1 of the International Covenant on Declaration of Human Rights Art. 9 (pro­ Civil and Political Rights, and Articles 2 hibition against arbitrary detention)] Pre­ and 4 of the Declaration on the Granting adjudication detention of more than very of Independence to Colonial Countries and brief duration (usually twenty-four to Peoples; participants in the meeting de­ seventy-eight hours) requires judicial au­ clined to address that particular problem. thorisation in all the nations represented at However, an essentially non-political the meeting. Under United Nations instru­ dimension of the problem has been gener­ ments, detained suspects and accused per­ ated by Article 6 (d) of the Declaration of sons should enjoy certain rights, including Basic Principics of Justice for Victims of segregation from convicted persons [Inter­ Crime and Abuse of Power, which urges national Covenant on Civil and Political that measures be authorised to protect the Rights Art. 10 (2) (a); Standard Minimum safety of victims, as well as their family Rules for the Treatment of Prisoners Art. members and witnesses on their behalf, 8 (b)] and humane conditions of confine­ from intimidation and retaliation. Imple­ ment [Universal Declaration of Human mentation of that principle may well Rights Art. 5 (no cruel, inhuman or degrad­ require that suspects or accused persons be ing treatment); International Covenant on detained for the purpose of preventing

220 ------

PROTECTION OF HUMAN RIGHTS violent or intimidating actions against glish criminal procedure, by which victims victims or witnesses and the destruction can commence prosecutions in the name of of other than testimonial evidence, even the government. though it is clear that persons detained on Whatever the structure of prosecution, that basis will appear for trial when sum­ public prosecutors, like other public of­ moned. The result is an essentially irrecon­ ficials, should treat victims with compas­ cilable conflict between a prisoner's claim sion and respect for their dignity [Declara­ to freedom pending adjudication of crim­ tion of Basic Principles of Justice for inal guilt and a victim's demand for effec­ Victims of Crime and Abuse of Power, tive protection. Some of the countries Art. 4]. However, they have certain more represented at the meeting have either specific responsibilities, for example, re­ instituted preventive detention, subject to ceiving the views and concerns expressed appropriate procedural safeguards, intend­ by victims lid. Art. 6 (b)] , which ought to ed to safeguard the rights of victims and be considered at the time charging deci­ witnesses as well as criminal justice admin­ sions are reached, as well as afterwards. istration generally, or are considering draft Interventions by the meeting participants legislation of that nature. suggested a rather wide variation in prac­ Persons in pre-adjudication detention tice in this context, a variation that to a must, according to United Nations instru­ considerable extent reflects differing tradi­ ments, have some mechanism available to tions concerning the relationship between contest the legality of their detention public officials and members of the com­ [International Covenant on Civil and munity. Political Rights Art. 9 (4)], as well as a Article 7 of the Declaration of Basic claim to compensation from the state for Principles of Justice for Victims of Crime unlawful detention [td. Art. 9 (5); see also and Abuse of Power supports the use of Declaration of Basic Principles of Justice informal mechanisms for dispute resolu­ for Victims of Crime and Abuse of Power, tion. Although the practice may not be Art. 11)]. All countries represented at the reflected in legislation, pragmatic proce­ meeting have one or more procedures in dures for screening and diversion of cases place to meet the former expectation, but by police, public prosecutors or both compensation for unlawful arrest or deten­ utilise devices for informal dispute resolu­ tion is not available in some of these coun­ tion, which are consistent with long­ tries other than through civil litigation. established traditions in many Asia and Pacific region cultures, as well as in Africa. d. Institution ofprosecution Japan makes very frequent use of a Most of the countries in the Asia and system of suspension of prosecution as a Pacific region adopt the principle of dis­ means of promoting offender rehabilitation cretionary prosecution; some nations in and reintegration of offenders into the Europe and other regions of the world are community. Although that is not me­ committed to a system of so-called com­ diation of disputes in a direct sense, pulsory prosecution, under which judicial restitution to victims can be an important action is required before a criminal case aspect of decisions to suspend prosecution. commences. United Nations instruments Representatives of some Asia and Pacific do not affect which of these principles a region countries expressed their belief that given nation adopts. Under a system of a similar practice is possible and should be discretionary prosecution, some countries encouraged in their systems as well. in the Asia and Pacific region allow police officials to pursue judicial proceedings, e. Adjudication while others place exclusive powers and The principal sources of United Nations responsibilities in the hands of public policy affecting criminal pre-trial and trial prosecutors. A few nations continue a processes are the Universal Declaration of practice characteristic of traditional En- Human Rights [Arts. 10, 11 (1)] and the

221 REPORT

International Covenant on Civil and Politi­ that criminal proceedings will not be cal Rights [Art. 14]. Certain aspects of unduly continued or delayed - not only these provisions became the focus of dis­ because of the inconvenience that delay cussions during the international experts may generate, but also because restitution meeting and the Seventy-Fourth Inter­ may not be legally available until a judg­ national Seminar. ment of conviction has been entered [Dec­ One evident concern is that the judi­ laration of Basic Principles of Justice for ciary be independent [see generally Basic Victims of Crime and Abuse of Power Art. Principles on the Independence of the 6 (e), (d)]. Judiciary]. In some countries in the Asia There are many reasons for this but, as and Pacific region, as well as elsewhere, already noted, an important consideration the judiciary constitutes an independent is the early termination of pre-adjudication branch of government, while in other detention. Many of the reporting countries nations it operates within a ministry of have not been able to implement fully the justice. All participants felt that the judges United Nations' expectations of prompt sitting in criminal cases in their countries proceedings because of, for example, insuf­ were indepen.dent in the exercise of their ficient judges and supporting administra­ official powers; they described various tive personnel, inadequate court facilities mechanisms to assure that this continues to and rapidly escalating dockets. There was be so. In some Asian, Pacific and African an apparent consensus that every nation countries, tribal or indigenous courts have could stand some enhancement of the continued in existence or have been speed with which' it disposes of criminal advocated, usually with only limited or matters; in some, heroic measures may well restricted criminal competence. There be required. Several participants noted appears to be no reason to deny the power that, even if a country's criminal procedure under international law and practice to system does not recognise or tolerate the continue or create such courts, as long as submission of guilty pleas, it is possible to the adjudicators are impartial and indepen­ make significant use of accelerated or sum­ dent in the exercise of their powers. mary procedures that can reduce markedly Persons charged with criminal offences the number of criminal cases that must be should have effective legal assistance, at tried fully. public expense if necessary [International The United Nations expects member Covenant on Civil and Political Rights Art. states to afford criminal defendants open 14 (3) (d)]. This right generally is recog­ proceedings at which they can confront nised in national law, at least after the witnesses against them, and offer evidence institution of formal criminal prosecution. on their own behalf [International Cove­ However, for a variety of reasons, including nant on Civil and Political Rights Art. 14 shortages of qualified crinlinal defence (3) (d) - (e)]. All nations represented at counsel and public funds, some countries the meeting recognise those procedural reported difficulties in providing defence rights in their constitutions or laws. How­ attorneys for financially unable defen­ ever, the actual methods of implementing dants. Few made any provision for as­ them vary, particularly according to signed counsel before the filing of criminal whether documentary evidence amassed charges, and not all recognise a legal status at earlier stages of investigatory procedures in retained counsel to represent suspects can form a valid basis for a fmal judgment before formal criminal charges have been or decree. A few countries in the Asia and filed with or approved by a court. Pacific region, as well as elsewhere, recog­ Speedy or prompt trial is a matter of nise the possibility of in absentia proceed­ formal United Nations concern [Interna­ ings, but allow a defendant convicted tional Covenant on Civil and Political under such circumstances an absolute right Rights Art. 14 (3) (c)]. Victims as well as to an in personam trial and judgment of defendants have legitimate expectations guilt before a criminal sentence can be

222 PROTECTION OF HUMAN RIGHTS effectuated. Tllis appears to be an accept­ Very few countries in the Asia and Pa­ able alternative procedure under Ullited cific region have provided formally for Nations policy. restitution, although officials may in fact A few countries in the Asia and Pacific mandate restitution as a condition of region, as well as a substantial number of probation, parole or provisional or condi­ nations in other parts of the world, have tional release. Even fewer have established tribal or minority groups the members of systems of victim compensation, in part wllich cannot speak or understand the because of the very heavy cost to the official language of the courts. They make public fisc inherent in such schemes. For formal legal provision for interpreters, as that reason, the small number of compen­ the United Nations expects them to do sation programmes in existence are limited [International Covenant on CiVil and Polit­ to instances of death or serious physical ical Rights Art. 14 (3) (f)]. Some nations, injury, and maximum recoveries are quite however, report major difficulties in locat­ low. Non-financial assistance to crime ing and retaining competent interpreters. victims is significantly more prevalent in This is also a problem when defendants the region, although usually under national are deaf. public assistance or social welfare legisla­ As noted in the :;ontext of preventive tion, rather than special statutes directed detention, victims and witnesses should be exclusively at victinlS of criminal conduct. spared as much inconvenience as possible and should be protected from harassment, g. Treatment ofPrisoners intimidation or retaliation [Declaration of The United Nations policy statements Basic Principles of Justice for Victims of governing the treatment of prisoners and Crime and Abuse of Power Art. 6 (d)]. persons under detention are embodied in Only a relatively small number of nations the Standard Minimum Rules for the Treat­ within the Asia and Pacific region have ment of Prisoners, promulgated against the instituted statutory or administrative prac­ more general background of the United tices aimed at protecting victims and wit­ Nations stand against cruel, inhuman or nesses against violent or harassing activities, degrading treatment or punishment [Uni­ but most at least penalise such activities versal Declaration of Human Rights Art. under their substantive criminal1egislation. 5; International Covenant on Civil and The recommendation in the Basic Prin­ Political Rights Art. 7; Declaration on the ciples that the views of victims be solicited Protection of All Persons from Being or received and considered by criminal Subjected to Torture and Other Cruel, justice authorities [id. Art. 6 (b)] can be Inhuman or Degrading Treatment or viewed to govern the determination and Punishment Arts. 3-4; Model Code of assessment of sentences against convicted Conduct for Law Enforcement Officials offenders. For the most part, however, Art. 5] . The detailed national papers nations in the Asia and Pacific region, like presented by the participants of the their counterparts elsewhere, have not Seventy-Fourth International Seminar legislated procedures according to which made it abundantly clear that the statutes victim views on sanctioning can be received and regulations of all their countries meet and evaluated by courts. and indeed exceed the expectations of the Standard Minimum Rules. If there are [. Victim Restitution, Compensation and departures, it is because scientific and Assistance technical developments have rendered The Seventh Congress has recommended obsolete certain provisions of the Standard adoption by the General Assembly of Minimum Rules. policy statements urging adequate restitu­ Prison overcrowding in most of the tion and compensation systems for victims countries represented at the international of crime [id. Arts. 8-11 (restitution, 12- experts meeting has taken its toll in pro­ 13 (compensation), 14-17 (assistance)]. gramming and institutional amenities, al-

223 REPORT

though not thus far to the extent of dropp­ Minimum Rules, Arts. 80-81]. Some ing a country's conditions and practices form of early release appears possible in below the threshold flxed by the Standard every country of the Asia and Pacific Minimum Rules. Reservati.ons were vOiced, region, and incarceration can be forestalled however, about certain provisions of the through suspension of the execution of Standard Minimum Rules which may be sentences of imprisonment, although not incompatible with traditional practices and always under probation or equivalent cultural expectations. For example, single­ supervision. Such programmes are certainly celling, viewed as desirable in Western Eu­ compatible with the emphasis in the Stan­ ropean countries and the United States, dard Minimum Rules on individualised may be considered cruel in a culture in treatment [Arts. 59, 60 (2), 61, 65-66], which communal living, with its opportuni­ even though, as mentioned, there is little ties for converse, is valued. Similarly, space direct United Nations guidance concerning expectations in some Asian, Paciflc and them. African countries may be limited to the size of sleeping mats, even though more i. Juvenile and Youthful Offenders space would seem to be required under Policies adopted by the United Nations the Standard Minimum Rules. In sum, General Assembly relating to juveniles and representatives of both developed and youthful offenders are rather linlited: ac­ developing countries expressed, at least cused juveniles should be separated from circumspectly, a view that the Standard adults [International Covenant on Civil Minimum Rules should be re-evaluated and and Political Rights Art. 10 (2)(b); Stan­ revised in the near future. dard Minimum Rules Art. 8 (d) (young Some attention was directed during the prisoners)], brought speedily to adjudica­ Seventy-Fourth International Seminar to tion [International Covenant on Civil and the transfer of foreign prisoners for service Political Rights Art. 10 (2)(b)], adjudi­ of sentence, as reflected in the Model cated under procedures that take account Agreement on the Transfer of Foreign of age and the desirability of promoting Prisoners and appended recommendations their rehabilitation lid. Art. 14 (4) ("juve­ for the treatment of foreign prisoners nile persons")], and accorded treatment endorsed by the Seventh Congress. A very appropriate to their age and legal status few nations within the Asia and Paciflc after conviction lid. Art. 10 (3)] . region have adopted or are negotiating such More detailed provisions governing the treaties, usually with nations outside the administration of juvenile justice [United region. Most of the countries in the region Nations Standard Minimum Rules for the have no signiflcant foreign prisoner popUla­ Administration of Juvenile Justice ("Beij­ tion, and are not aware that large numbers ing Rules")] have been transmitted to the of their nationals are imprisoned in other General Assembly by the Seventh Congress countries. As long as those circumstances for further consideration and adoption. prevail, it is unlikely that attention will be Several of the participants in the Seventy­ directed to negotiating and ratifying agree­ Fourth International Seminar addressed in ments of this sort. Nevertheless, there was some detail the consonance of their na­ general recognition that the Model Agree­ tional systems with the Beijing Principles; ment is a useful resource if a need for such for the most part, they appeared to be in international agreements emerges. compliance.

h. Probation, Parole and Conditional j. Education, Training and Research Release In some nations of the Asia and Paciflc United Nations instruments essentially region, the governments have sponsored are silent on the matter of probation or (i) publicity covering human rights of of­ provisional release, other than in cursory fenders and criIne victims through the references to prisoner after-care [Standard media, (ii) special national emphasis weeks

224

~------~- PROTECTION OF HUMAN RIGHTS and (iii) government publications contain­ meeting recognised that research is needed ing international documents like the Uni­ in the new field of victimologYj Venezuela versal Declaration of Human Rights, as has undertaken what may prove to be well as domestic constitutional provisions, prototypical studies in that area. In most legislation and administrative regulations, Asia and Pacific region countries, enhanced bearing on the protection of human rights. statistical information needs to be com­ In some countries within and without the piled to establish a basis for more qualita­ region, basic United Nations instruments tive inquiries concerning the status of on human rights have been incorporated victims. into national constitutions or laws. How­ ever, in many countries of the region and k. Regional and International Co-operation world, little or nothing has been done to Each United Nations Congress on the apprise the national community of these Prevention of Crime and the Treatment of important matters. Offenders, including the Seventh Congress, In a few countries, notably Japan and has stressed the importance of regional and Sri Lanka, a special organisation, com­ international efforts in crime prevention monly denominated a human rights com­ and control, treatment of adult offenders mission, has been established to inquire and juvenile delinquents, education and into asserted violations of human rights training, and research. Several nations in and to sponsor public infolmation cam­ the Asia and Pacific region have developed paigns to make citizens aware of the scope effective international co-operation in the of basic human rights, the causes of dis­ prevention and suppression of drug traf­ crimination and other sources of human ficking; most if not all countries in the rights infringement, the role of citizens in region co-operate in gathering and trans­ preventing human rights violations and mitting evidence of crime and in extradit­ remedying infringements, and the mecha­ ing offenders. nisms available to enforce human rights. UNAFEI was acknowledged by the Such organisations have played an impor­ participating international experts to be an tant role in educating the populace. outstanding example of a training and The extent to which human rights research institution that can and does materials are incorporated in entry and promote international awareness and im­ in-service training programmes for em­ plementation in many fields of criminal ployees and officials of criminal justice justice administratiDn, including the pro­ agencies varies Widely from country to tection of human rights of both victims country, usually depending on the state of and offenders. Hopes were expressed that economic development and the availability UNAFEI might expand its role, for exam­ of government funds. There was consensus ple, through frequent jointly-sponsored that training and education in the field of advanced seminars like that held in Singa­ human rights are indispensable to the pore in December 1986, and through effectuation of those rights. The partici­ annual or biennial replications of the pants acknowledged as well that for the present meeting of international experts, most part little or no attention had been convened in the context of UNAFEl inter­ given to sensitivity training and other national seminars or courses. It was also education germane to helpful and posi­ noted that as other United Nations regional tive interaction between law enforcement crime prevention institutes or centres are officials and victims of crime. established (for example, that recom­ The level and scope of criminal justice mended by the Seventh Congress for Africa research also vary from nation to nationj [Seventh Congress Report at 69]), UNA­ once more, natonal economic circum­ FEl can be of immense use in an advisory stances largely dictate the availability of capacity, including the provision of consul­ facilities, equipment and personnel. The tants and sample course agendas and participants in the international experts' materials.

225 REPORT

Recommendations rehabilitation and to reduce prison overcrowding. The participants in the meeting of inter­ (6) Increased attention should be given national experts have formulated the to protecting the privacy rights of following recommendations under four persons under investigation but not primary topical headings. Some are direct­ yet formally charged, by keeping ed principally to the attention of individual directory information confidential countries within the Asia and Pacific re­ and inaccessible to the mass media. gion, while others solicit attention and (7) Governments should institute and responses f~om United Nations entities. fund programmes to compensate persons under crinlinal investigation 1. Measures to Promote the Protection of who are unlawfully arrested, detain­ Human Rights ofSuspects, Accused ed or abused by public employees. Persons and Persons Undergoing Imprisonment or Treatment 2. Protection of the Human Rights of (1) Governments should be urged to Crime Victims reduce and ultimately eliminate (I) Governments, particularly in devel­ extensive delays in reaching final oping countries, should establish adjudications in criminal cases, par­ victim-oriented programmes as swift­ ticularly those involving pre-adjudi­ ly as possibie. cation detention. (2) Governments shouid establish (A) (2) Legal assistance should be available restitution as a sanction flowing during the stage of arrest and investi­ from criminal convictions, and (B) gation for suspects, particularly juve­ publicly-funded compensation pro­ nile offenders and adult offenders grammes for the benefit of crime vic­ suspected of serious crimes, fmancial­ tims who do not receive restitution ly or otherwise unable to retain or are not covered by private insur­ private counsel. ance contracts. (3) Special investigation units should be (3) National, state and local bodies established, perhaps involving police, should be established to co-ordinate, public prosecutors, public health develop and promote the rights and agencies and social work organisa­ claims of victims. Community-based tions, for the investigation and centres should be created to advise prosecution of certain crimes, partic­ and counsel crime victinlS. ularly sexual assaults and intrafamil­ (4) Special victim-assistance officers ial violence, to promote the treble should be designated in every police objectives of effective criminal inves­ facility. tigation, appropriate safeguards for (5) Law enforcement agencies and public crime victims and suitable protec­ prosecutor's offices should establish tions for the human (procedural) mechanisms to provide constant rights of suspects and accused monitoring of criminal investigation persons. activities, for the purpose of detect­ (4) Law enforcement agencies should be ing and remedying actual or potential supplied with high-technology foren­ violations of the human rights of sic and detection equipment as a persons under investigation or prose­ means of facilitating effective crim­ cution, or inappropriate treatment of inal investigations and minimising crime victims. abuses of the criminal justice system. (6) Special funding should be established (5) Sentencing alternatives, particularly to assist victims and witnesses expe­ community-based corrections, should riencing financial difficulties during be considered, both to promote the criminal proceedings. goals of offender treatment and (7) Crisis counselling centres should be

226 PROTECTION OF HUMAN RIGHTS

funded and staffed to provide at the direction of the national assistance to victims experiencing ministry of education or other appro­ psychological difficulties as a conse­ priate organ. quence of criminal acts. (3) Law enforcement officers, public (8) Police, public proSt~cutors and courts prosecutor's office staff members, should be required to keep victims judges and court administrative per­ and witnesses apprised of all pending sonnel should be provided both entry and . completed determinations re­ and in-service education and training garding the progress of criminal concerning victims' rights and the prosecutions affecting them. appropriate and sensitive protections (9) Private insurance carriers should be of those rights in the context of encouraged by regulatory govern­ criminal justice administration. Spe­ mental agencies to establish or ex­ cial sensitivity training should be pand coverage for crime victims provided for those interacting with against death, physical injury and victims of sexual offences and intra­ property destruction, with premiums familial violence. fIxed as low as actuarially sound. (4) Governments should sponsor and (10) Governments should establish some fund research in the field of victim­ form of inquiry organ like a human ology as a basis for refining proce­ rights commission or ombudsman dures affecting victims and witnesses office to which members of the and identifying the scope of appro­ community, including victims and priate victim compensation and assis­ witnesses, can turn for information tance schemes. about their human rights and redress (5) Governments should sponsor and for violations. fund researches on the causes of and (11) Governments should study officially appropriate responses to prison over­ the Basic Principles of Justice for crowding, including that in detention Victims of Crime and Abuse of centres for those under pending Power, and develop legislative and criminal charges. administrative programmes to imple­ ment them fully even before their 4. Recommendations for Regional and ultimate approval by the General United Nations Actions and Activities Assembly. (1) The United Nations Crime Preven­ tion Branch should sponsor and en­ 3, Education, Training and Research courage the establishment of regional (1) Govermnents should promote public committees to consider problems in awareness of fundamental human the coverage and implementation of rights through such measures as the Standard Minimum Rules for the inexpensive publications containing Treatment of Prisoners, based in part the text of United Nations 'instru­ on the annual reports by member­ ments in the national language and state governments to the United local tongues, and an annual human Nations Secretariat. In the Asia and rights day or week given appropriate PacifIc region, this might be best publicity and official financial and accomplished through UNAFEI, for staff support. example, in the form of a special (2) Governments, perhaps through law meeting of designate~ experts annu­ enforcement agencies -!ind the courts, ally during a UNAFEI international should disseminate information to seminar or course. the public about victims' and wit­ (2) The United Nations Crime Preven­ nesses' rights and obligations. Pri­ tion Branch should sponsor re­ mary and secondary school curricula searches, perhaps on a regional might well incorporate such materials basis, into the causes of prison

227 REPORT

overcrowding, sentencing alternatives offenders and victims of crime. to incarceration, community-based (6) The United Nations should provide corrections, and prison administra­ financial and technical assistance to tion. UNAFEI and other regional developing nations in reviewing and institutes might appropriately serve revising their criminal justice systems as co·ordinating agencies. Essential to promote the humane treatment of funding should be provided by the criminal offenders and proper protec­ United Nations. tion of the rights of crime victims. (3) The United Nations should en­ (7) The United Nations should consider deavour to provide financial and the establishment of a consultation personnel support to developing and monitoring service, perhaps countries to assist them in acquiring under the Crime Prevention Branch, forensic equipment and providing based on voluntary participation by staff training designed to promote member states, to assist developing a more effective and humane ad· countries in the development of fair ministration of criminal justice. and humane procedures affecting (4) The United Nations General Assemb­ offenders and crime victims. ly should give early attention to the (8) The United Nations, through the consideration and adoption of the Crime Prevention Branch, should Declaration of Basic Principles of continue to strengthen and encour­ Justice For Victims of Crime and age international, including regional, Abuse of Power and the Standard co-operation toward continually en­ MininlUm Rules for the Administra­ hanced promotion of protections for tion of Juvenile Justice. the human rights of both offenders (5) The United Nations should organise and victims of crline. a Human Rights Year within the near (9) The relationships between and co­ future, as a means to promote a operative activities conducted by universal awareness of and commit. governments in the Asia and Pacific ment to the protection of all human region and UNAFEI should be rights, including those of crin1inal further deepened and strengthened.

228 APPENDIX A

Opening Declaration and Keynote Remarks

Hideo Utsuro *

It is a great honour and pleasure for me, attracted 24 participants, chiefly from as the Director of the United Nations Aisa Asia and the Pacific region. and Far East Institute for the Prevention of As part of this tradition of continuing Crime and the Treatment of Offenders efforts toward the promotion of human (UNAFEI) to open this Asia and Pacific rights, UNAFEI has organised its Seventy­ Region International Experts Meeting on Fourth International Seminar around the the Protection of Human Rights in Crimi­ subject of "The Advancement of Fair and nal Justice. Humane Treatment of Offenders and Vic­ Since its establishment in 1961 as a tims in Criminal Justice Administration." United Nations regional institute, by virtue That seminar, which is now in session, has of an agreement between the United attracted :'.8 participants from Asian and Nations and the Government of Japan, Pacific region, African and Latin American UNAFEI has contributed substantially to nations. The objective of the Seventy­ the promotion of regional co-operation in Fourth International Seminar is to analyse crin1inal justice administration through a current circumstances affecting the treat­ number of its activities. These activities ment of both offenders and victims of have included regional training courses on crime, and to explore effective measures to the protection of human rights in criminal promote the humane treatment of of­ justice, some of which were conducted at fenders and appropriate protections for the request of the United Nations itself and crime victims. I very much hope that this others of which were requested by national seminar will prove extremely fruitful and governments in the Asia and Pacific region. thereby contribute to the further promo­ Thus, in 1963 the Economic and Social tion of human rights in the countries rep­ Council (ECOSOC) requested the Secre­ resented by the seminar participants. tary-General of the United Nations to Indeed, this meeting of international consider the organisation of regional train­ experts has been convened to take advan­ ing courses on human rights in criminal tage of the presence during the Seventh­ justice administration. It is a matter of Fourth International Seminar of persons considerable pride that UNAFEI con­ expert in the fields o(criminal justice and ducted the first regional pilot training human rights. project in 1967. Since then, it has hosted The objectives of this meeting of inter­ two additional regional training courses, national experts are to afford an opportu­ one in 1972 and a second in 1977. The nity for the participants to exchange their 1972 training course, held at UNAFEI at­ expertise and experience in safeguarding tracted 19 participants representing Asian human rights and to explore increasingly and Pacific region countries as well as effective means of promoting the dual African countries. The 1977 human rights goals of humane treatment of offenders training course on safeguards against depri­ and appropriate protection for crime vic­ vation of the rights of persons to liberty tims. Great progress has been made in the and security, held once more at UNAFEI, recognition and protection of human rights from the time of the adoption by the United Nations of the 1948 Universal Declaration of Human Rights. That has * Director, UNAFEI been especially true in the field of criminal

229 REPORT justice, in which much effort has been the participating international experts expended toward improving the lot of following their return to their respective offenders, for example, through incorpo­ countries, UNAFEI hopes that an addi­ rating within national law such interna­ tional major result will flow from these tional instruments as the International deliberations. Specifically, the report with Covenant on Civil and Political Rights and recommendations that will perpetuate the the United Nations Standard Minimum day's activities will be transmitted by Rules for the Treatment of Offenders. UNAFEI to the United Nations as the first Nevertheless, several problems remain to regional response to the recently-adopted be resolved if human rights are fully to be decisions of the Seventh United Nations safeguarded. Many of them flow from Congress on the Prevention of Crime and existential reasons like shortages of person­ the Treatment of Offenders, particularly nel, inadequate financial resources and the Declaration of Basi.c Principles of overcrowding in penal and correctional Justice Relating to Victims of Crime and institutions and detention centres. In Victims of Abuse of Power. addition, concerns must extend beyond the Finally, I trust that today's delibera­ human rights of offenders to embrace fair tions will utilise to the maximum extent and effective means and procedures to the information and recommendations protect the rights and interests of crime embodied in the country papers submitted victims. Only recently has it come to be by participants in the Seventy-Fourth recognised that victims of crime, however International Seminar and in the discus­ they are delineated, have received insuf­ sions based on each of them. Nevertheless, ficient attention from the criminal justice what we accomplish today should reflect system. Therefore, it is important in the an international or regional perspective, context of this international experts meet­ rather than purely domestic concerns, and ing to extend our deliberations beyond the should focus on regional as well as purely field of humane treatment of offenders to national responses to problems at the inter­ consider appropriate safeguards for crime national level. Granted the wealth of victims. In that way, we may be able to experience and profound insights possessed devise integrated policies and measures by those participating in this afternoon's to protect both groups equally, deliberations, we should have little diffi­ Useful as our discussions today may be culty in achieving our goals. Thank you. for the future professional activities of

230 APPENDIX B

List of Participating Experts

1. Overseas Experts Operational Secretariat, Royal Papua New Guinea Constabulary, Prof. B.J. George, Jr. PAPUA NEW GUINEA New York Law School, U.S.A. Mr. Mnasinghe Chandra Prema Mendis Mr. Nor Shahid bin Mohd. Nor Co-ordinating Officer Director, of Puttlam District, Security and Regime Division, Senior Superintendent of Police in Malaysia Prisons Department, Charge of Chilow Police Division, MALAYSIA SRI LANKA Dr. Yolande Diallo Mr. Wisai Plueksawan Principal Human Rights Officer, Director, Central' Hospital; United Nations Centre for Human Chief, Health and Medical Centre, Rights, Department of Corrections, UNITED NATIONS THAILAND Mr. A.M.M. Nasrullah Khan Mr. Sirichai Swasdimongkol Deputy Inspector-General of Police, Chief Judge, Criminal Investigation Department, Phra Nakorn Si Ayutthaya BANGLADESH Provincial Court, Ms. Chen Jing Ministry of Justice, Deputy Chief of Third Division, THAILAND Public Order Department, Ministry of Public Security, 2. Local Experts CHINA Ms. Nazhat Shameem Khan Prof. Kuniji Shibahara Senior Legal Officer, Faculty of Law, Office of the Director of Public Tokyo University Prosecutions (DPP), Prof. Tetsuya Fujimoto FIJI Faculty of Law, Ms. Lu-Chan Ching-Chuen Chuo University Senior Clinical Psychologist, Mr. Mamoru Iguchi Correctional Services Department, Director, HONG KONG General Affairs Division, Mr. Suresh Chandra Dwivedi Civil Liberties Bureau, Chief Vigilance Officer, Ministry of Justice Indian Tourism Development Ms. Chikako Taya Corporation (Deputy Inspector-General Attorney, of Police), Criminal Affairs Bureau, INDIA Ministry of Justice; Mr. H. Abdul Halim Naim, SH Member, United Nations Committee on Head of the Prosecution Economic, Social and Cultural Rights Administration Sub-Directorate, Pro/. Hideo Utsuro Attorney General's Office, Director, INDONESIA UNAFEI Mr. Hohd Sedek B. Hj. Mohd. Ali Prof. Kunihiro Horiuchi Assistant Director, Deputy Director, Criminal Investigation Department UNAFEI (Research and Planning), Prof. Yasuro Tanaka Royal Malaysia Police, Chief, MALAYSIA Training Division, Mr. Jacob Rongap UNAFET. Staff Officer, Pro/. Yoshio Okada

231 REPORT

Chief, Ms. Rosario Palma- Villacorta Research Division, Professor, UNAFEI National Police Academy (ANAPO), Prof. Yukio Nomura HONDURAS Chief, Mr. Basil E. Grant Information and Library Regional Manager, Service Division, Department of Correctional Services, UNAFEI Ministry of Justice, Prof. Shu Sugita JAMAICA UNAFEI Mr. Filemon Kimutai Kirui Prof. Yasuo Shionoya Acting Deputy Principal UNAFEI Probation Officer, Prof. Masao Kakizawa Probation Department, Vice-President's UNAFEI Office and Ministry of Home Affairs, Prof. Koichi Watanabe KENYA UNAFEI Mr. Stephen Olaiya A beji Mr. Seishi Fujimoto Controller of Prisons in Charge of Director, Lagos State Prisons Command, First Examination Division, Nigerian Prisons Services, Secretariat of Kanto Regional NIGERIA Parole Board Mr. Guillermo Enrique Arauz-Caicedo Mr. Tateshi Higuchi Supervisor of Jail System, Assistant Director National Department of Investigations, (Superintendent of Police), PANAMA Investigative Planning Division, Mr. Orlando Tafur del Aguila Criminal Investigation Bureau, Legal Advisor and Secretary National Police Agency to the War Tribunal, Ms. Mioki Kuga Supreme Court for Military Justice, Professor, PERU Training Institute for Mr. Zaki Asad Rahimi Correctional Officials, Jeddah Area Prisons Director, Ministry of Justice Ministry of Interior, Mr. EzYi Matsunaga SAUDI ARABIA Principal Researcher, Mr. Mohamed Ahmed Hashim Second Research Division, Director of Police, Research and Training Institute, EI Gezera Province, Ministry of Justice SUDAN Mr. Masafumi Sakurai Mr. John Casmir Minja Public Prosecutor, Deputy Director, Tokyo District Public Prosecutors Legal Affairs and Rehabilitation, Office Prison Headquarters, Mr. Jyotoh Shimallouchi Ministry of Home Affairs, Judge, TANZANIA Tokyo District Court Ms. Arminda Oquendo-Romero Head, 3. Special Participants Division of Criminological Research, National Administration for Crime Mr.· Cesar Oswaldo Carrera-Gizinga Prevention, Immigration Chief, Ministry of Justice, Guayas Province, Ecuadorean Police, VENEZUELA ECUADOR

232