Crime and Punishment around the World, Volume 3: Asia and Pacific

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Volume 3 ASIA AND PACIFIC

Crime and Punishment around the World

© 2011 ABC-Clio. All Rights Reserved.

Crime and Punishment around the World ASIA AND PACIFIC

Volume 3

DORIS C. CHU, VOLUME EDITOR GRAEME R. NEWMAN, GENERAL EDITOR


Copyright 2010 by Doris C. Chu, Volume Editor Graeme R. Newman, General Editor All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data Crime and punishment around the world. p. cm. Includes bibliographical references and index. ISBN 978-0-313-35133-4 (set : alk. paper) — ISBN 978-0-313-35134-1 (set ebook) — ISBN 978-0-313-35135-8 (vol. 1 : alk. paper) — ISBN 978-0-313-35136-5 (vol. 1 ebook) — ISBN 978-0-313-35137-2 (vol. 2 : alk. paper) — ISBN 978-0-313-35138-9 (vol. 2 ebook) — ISBN 978-0-313-35139-6 (vol. 3 : alk. paper) — ISBN 978-0-313-35140-2 (vol. 3 ebook) — ISBN 978-0-313-35141-9 (vol. 4 : alk. paper) — ISBN 978-0-313-35142-6 (vol. 4 ebook) 1. Crime. 2. Punishment. 3. Criminal justice, Administration of. HV6025.C7115 2010 364—dc22 2010021159 ISBN (set): 978-0-313-35133-4 EISBN (set): 978-0-313-35134-1 14

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This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper Manufactured in the United States of America © 2011 ABC-Clio. All Rights Reserved.

This volume set is dedicated to the memory of Ali Sabeeh of Omara, Iraq, who, while preparing the entry on Iraq, was kidnapped, tortured, and killed in October 2007 To Amma and Nannagaru


Editorial Advisory Board

Adam Bouloukos, Director of Outreach and Partnerships, UNOPS, Copenhagen, Denmark Ronald V. Clarke, University Professor, Rutgers University Adam Graycar, Professor, Australian National University Martin Killias, Professor, University of Zurich Jeremy Travis, President, John Jay College of Criminal Justice


Contents

Acknowledgments, xi

Georgia, 71

General Introduction by Graeme R. Newman, xiii

Hong Kong, 76

Maps, xxiv

India, 86

Map 1. Murder around the World, xxiv

Indonesia, 92

Map 2. Imprisonment around the World, xxv

Japan, 98

Map 3. Death Penalty around the World, xxvi

Kazakhstan, 110

Map 4. Corporal Punishment around the World, xxvii

Kyrgyzstan, 118 Laos (Lao People’s Democratic Republic), 125

Volume 3 Introduction by Doris C. Chu, xxix

Macao, 132

Maps, xxxiii

Malaysia, 141

Country Key to Asia and Pacific Maps, xxxiii

Maldives, 151

Map 5. Murder in Asia and Pacific, xxxiv

Mongolia, 158

Map 6. Imprisonment in Asia and Pacific, xxxv

Myanmar (Burma), 166

Map 7. Corporal Punishment in Asia and Pacific, xxxvi

North Korea (Democratic People’s Republic of Korea), 178

Map 8. Death Penalty in Asia and Pacific, xxxvii

Pakistan, 187

Nepal, 171

Philippines, 192 Singapore, 202

VOLUME 3

South Korea (Republic of Korea), 209 Asia, 1

Sri Lanka, 218

Afghanistan, 1

Taiwan (Republic of China), 222

Armenia, 13

Tajikistan, 232

Azerbaijan, 20

Thailand, 239

Bangladesh, 24

Timor-Leste, 251

Bhutan, 37

Turkey, 262

Brunei Darussalam, 47

Turkmenistan, 268

Cambodia, 52

Uzbekistan, 275

China (People’s Republic of China), 64

Vietnam, 286 ix


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Pacific, 299

Republic of Kiribati, 325 Republic of Nauru, 326

Australia, 299 Melanesia, 305

New Zealand, 327

Micronesia, 315

Norfolk Island, 337

Republic of Belau (Palau), 316

Pitcairn Islands, 339

Commonwealth of the Northern Mariana Islands (CNMI), 318

Polynesia, 344 Tonga, 350

Guam (Guahan), 319 Federated States of Micronesia (FSM), 321

General Bibliography, 359

Republic of the Marshall Islands, 323

Index, I-1

About the Editors and Contributors, 367


Acknowledgments

The contribution made by the volume editors to this project has been inestimable. A project of this magnitude could not have been achieved without their unceasing efforts to find contributors for large and small countries alike, to manage their contributors’ contributions, and to edit them into the style and format required by a publication of this type. They helped overcome a number of crises we met along the way. For this and for their always being on the receiving end of my constant e-mails, I express my sincere appreciation. I thank especially Janet Stamatel for producing the world and regional maps from my sometimes less than adequate databases. Many authors have contributed to these volumes. Without them, of course, this project would not have been possible. The volume editors and I express our great admiration to our contributors and appreciation for their tolerance of our editorial demands, which oftentimes must have seemed unreasonable. We apologize if your chapter ended up a little shorter than you had wanted. We bear full responsibility for any misconceptions that may have occurred as a result of our at-times heavy editorial hand. Finally, we thank the Editorial Advisory Board members for being there when we needed them. —Graeme R. Newman Albany, NY December 31, 2009

xi © 2011 ABC-Clio. All Rights Reserved.

General Introduction

We humans are fascinated by the diversity of cultures, climates, landscapes, and peoples. It is part of our deep human heritage that we have never been able to stay at home. Since the beginning of human time, our haplogroups have migrated far and wide, stumbling on new fauna and evolving with them, adapting to cold, hot, wet, and dry seasons and climates. Along the way, we have constructed societies and civilizations that have come and gone, none reaching perfection; each having tried its own solutions to the problem of order; each constructing rules, laws, customs, and ways of dealing with those who, for whatever reason, have broken with the sacred commandments of order. Somewhere along the way, no matter what the civilization or society, the idea of justice emerged, perhaps independently of the need for order and, indeed, every now and again in opposition to order. But whatever order’s relationship to justice, one thing is certain: order is necessary for societies to survive. And embedded in this necessity is the inevitability that individuals will break laws, rules, and customs and will, as a matter of logic (and justice), be punished for it. So law (so-called if it is written) and custom (embodying law and rules that may not be written but that are “practiced” and conveyed orally) is universal in all known societies. They are part of the “civilizing” process, which seeks to hold in check the tendency of humans to devour each other. It is true that great thinkers, philosophers, and even scientists have insisted—in the face of the overwhelming evidence of history that stands against them—that humans, if only given a chance, can or could work together for their common good without being coerced to do so. But we know of no society anywhere in which this utopian (if it is utopian) conception of human nature has produced a society without laws or customs and their concomitant punishments. And surely humans have had plenty of chances to construct such utopian societies. Yet each time they try, order takes over, because we know that individuals only grudgingly curb their own desires. They do not like the imposition of order, but they know that they cannot survive without it and its accoutrements. Or at least, we may say that life is much more comfortable if one gives into almost any kind of order. This observation probably applies even to the worst of tyrannical orders, for it is easier to remain in submission than it is to rise up and overthrow a very powerful authority. The 18th-century enlightenment thinkers upon whose ideas much of the world’s criminal justice systems are based (whether civil or common) were clearly of the opinion that punishment was a necessary evil, a price paid for the xiii © 2011 ABC-Clio. All Rights Reserved.

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comfort of living in an ordered society. Its universality certainly attests to the truth of this assertion. It should come as no surprise, therefore, that getting reliable information about such a touchy subject—essentially how a society, nation, or culture maintains order in the face of a populace that may secretly or even openly resent its imposition—is very difficult. Nations can be very secretive about their crime rates and their punishments, not to mention their procedures for finding guilt and their manner of interrogating suspects. Various organizations have set themselves up to monitor the most egregious violations of individuals in the name of order, such as Human Rights Watch and Amnesty International, but there is a far larger part of the maintenance of order and the processing of lawbreakers by nations and regional governments that also needs constant scrutiny. Violations of human rights in the name of order may easily be hidden inside the bureaucratic inertia and practices of even the most “enlightened” societies. To admit to having a very high rate of murder or incarceration—perhaps one of the highest—of its citizens is not something of which a nation can be especially proud. Such statistics say something about that nation, though what that something is, unfortunately, can be easily misinterpreted. For example, some countries may be criticized for having very high imprisonment rates, but their retort may be that this is because they have very high crime rates, to which it may be asked, but why do you have such high crime rates? The reply may be, “Because we have strict laws that are strictly enforced, which is for the good of our citizens, who are kept safer than those in other countries whose administration of criminal justice is too lax.” Provided here is just a taste of the controversies and disagreements concerning the differing levels of crime and punishment in diverse countries, as well as the puzzling relationship or lack thereof between prison rates and crime rates. The riddle can be stated thus: more punishment should reduce crime, but more crime requires more punishment. One would think that the costs in public relations to a nation would be far too high to allow for the publication of crime and punishment statistics. So it is an amazing achievement that the United Nations World Crime Surveys, whose mission is to collect the official statistics on crime and justice from member nations, have shown steady and significant increases in the number of countries submitting their statistics since they were first collected in the 1970s. From a handful of countries in the beginning, the number providing crime and punishment statistics had grown to about 50 as of 2005. That is the positive spin. In fact, this is only 50 out of 190 member UN nations, and there are signs of decreasing reporting by countries in recent years, according to Jan Van Dijk, author of The World of Crime and former UN expert on international crime and justice. Although it is true that nations are reticent to make public their crime and punishment statistics for reasons of public image, there are many technical difficulties in making comparisons of officially collected crime and justice statistics across countries. Many of these difficulties are serious, and the reader is warned to use considerable caution in making such comparisons across countries. These technical difficulties include the following:



• Different legal definitions of offenses make it difficult to compare specific offenses across nations. • Different reporting and recording practices of the police who generally have first official contact with a crime make comparing statistics from one country to another unreliable without knowledge of these practices. • Different legal systems may affect the finding of guilt, recording and classification of offenses, and recording of arrests and convictions. • Inconsistent classifications of crime records and frequent changes over time make it difficult to compare trends in crime or punishment. • Different bureaucracies and government departments within each nation that collate and publish crime and punishment statistics may produce different statistics. For example, city- or state-level collection of crime rates or prison rates may differ from collection at the federal level, as in the United States. • Inadequate infrastructure for collecting and processing crime and justice reports, including information technology, may hinder the amount or accuracy of criminal justice data. • Lack of professionally trained crime analysts and statisticians may limit the reliability and depth of statistical data available. • Local events or conditions may inflate crime and punishment statistics, such as genocidal events that may or may not be recorded as murders. • Changing government policies about making crime and justice statistics public may affect trends and the amount and type of data made available. There have been instances where countries have revealed crime and justice statistics to the United Nations, but not to their own citizens. The reverse is also true. There was a time, for example, when the Soviet Union routinely collected crime statistics for its internal use but officially denied to the United Nations that there was any crime at all in the Soviet Union, because there could be no crime in a true communist society. • In large populous countries, there may be vast differences within those countries. For example, the levels of crime and punishment vary enormously throughout the United States; some states still retain the death penalty, and many do not. There may also be huge differences in amounts and kinds of crime between urban and rural regions. There may even be different legal systems operating within the same country, such as, for example, Quebec in Canada or the several customary, Islamic, and civil law systems operating in Timor-Leste. If one must make comparisons—and most people are unable to resist it—the best way to overcome these pitfalls is to make sure that one knows as much as possible about the historical and social context within which the statistics are collected. Crime and Punishment around the World provides just that context. This encyclopedia describes in detail the crime and punishment practices of each country and, in some instances, specific regions. The four volumes offer a glimpse of the ways in which all the nations around the world try to solve the basic problem


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they all face: what to do with those who break the law? They have all enacted either customary or written criminal laws. They have all inherited their criminal laws from their ancestors near and far, not infrequently from other nations that either usurped them or overtook them through migration. They have all developed procedures for the finding of guilt of the accused, and all, of course, follow up the finding of guilt with legislated or customary punishments. These are all essentially the product of their legal systems.

World Legal Systems For more than 1,000 years, the Roman Empire encompassed just about all the region around the Mediterranean and stretched as far north as Great Britain. Law was probably its major weapon against the peoples it subdued, bringing with it order and a stable means of commerce. Its concepts would form much of the basis of canon law and eventually much of the civil law of Europe. Furthermore, much of the Islamic and customary law of the countries surrounding the south and east of the Mediterranean was deeply affected by Roman law because those peoples were also subjects of the Roman Empire at various times for over 1,000 years. Those countries of Europe that retained more of the Roman law and its procedures would later come to be known as “civil law” countries. Those European countries that managed to put aside Roman law came to be known as “common law” countries. And those of North Africa and the Far East retained Islamic and customary law systems. Civil law systems account for over 50 percent of the world’s legal systems, although many such systems are mixed with other legal systems because of local and historical circumstance. In fact, as a result of constant reforms, it is likely that there are no purely civil law systems left in the world. Most countries have incorporated various aspects of the adversarial system. The main characteristics of civil law systems are the following: 1. Systematically written legal codes are the prime source of authority in legal decisions and procedures. 2. Their procedures are often (though not entirely) based on what is sometimes called the “inquisitorial system”—reaching back to the days of the Roman Catholic Inquisition—in which the process of finding of guilt is conducted by a judge or magistrate who both investigates and conducts the final trial. These trials are usually, though not always, conducted before a magistrate or panel of magistrates. Probably the prime examples of European civil law systems are those of France and Germany and, to some extent, Italy, which has recently incorporated aspects of the adversarial system. Common law systems account for another 20 percent of the world’s legal systems. These are commonly referred to as “adversarial systems” because the finding of guilt is not conducted by the magistrate who decides and investigates the case as in civil law; rather, a prosecutor (or sometimes an investigating police officer) investigates the case and prepares the case for a trial by judge and jury © 2011 ABC-Clio. All Rights Reserved.


(although juries are not always required). The two significant features of common law systems are the following: 1. Cases are decided based on precedent, which views previous cases and decisions as a cumulative wisdom and authority. 2. Cases are a courtroom drama in which the prosecutor is pitted against the defense. It should be noted, however, that in modern legal systems of common law, there are legal codes that systematize the law, and these may or may not be based on the codification of past legal practice. In the United States, for example, every state, in addition to the federal system, has its own written code. Cases are decided, however, based not only on how well the offender’s acts match the written code but also on the cases that came before it—that is, precedent. One sees this tradition played out in the U.S. Supreme Court, which arduously scrutinizes past decisions to conclude whether a particular case was decided correctly or not, in accordance with the supreme law of the land, the U.S. Constitution. The popular view that contrasts these two legal traditions is that civil law is focused more on finding a probably guilty person guilty, whereas common law is focused more on defending a possibly innocent person from a guilty verdict. Both systems do, however, adhere to the presumption of innocence of the accused until proven guilty. The most typical examples of common law systems are those of the United Kingdom, the United States, and Australia. Islamic legal systems account for about 10 percent of the world’s legal systems, although there are probably no purely Islamic systems anywhere in the world. This is because of the early Roman influence on all countries surrounding the Mediterranean and because of the imperialism of the West during the 16th through 20th centuries. In its pure form, the Islamic system of law follows the exact law of God, as interpreted by experts (Mullahs), deriving from the Koran, the Bible, and other sacred texts. Islamic law is often called sharia—the path to follow. Perhaps the most contrasting feature of Islamic law is that it is more a way to live one’s life than a set of prohibitions laid down by a state authority as in Roman law and its progenitors. Thus, not only does it include prohibitions, some of which are set out in the Ten Commandments, but it also includes exhortations to lead a good life (e.g., love thy neighbor). No such positive exhortations are found in other Western legal traditions, whose defining principle is prohibition. The procedural rules of Islamic law are those of human reasoning and consensus. One of the problems that faces legal theorists in Islamic law is that there are many offenses that are not specifically covered in any of the sacred texts. For example, sodomy is not mentioned in the Koran or Sunna (another sacred text), but adultery is. So the judge may reason that the two offenses are similar and the punishments prescribed for one may apply to the other. In practice, however, many cases are decided also on custom and precedent, given that in many Islamic countries, tribal customs concerning redress of wrongs (e.g., feuding and vengeance) have developed alongside Islamic and other kinds of law. The majority of countries with Islamic legal systems therefore also have customary law as a major component, especially in dealing with day-to-day infractions. Finally, most Islamic law © 2011 ABC-Clio. All Rights Reserved.

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countries also have a considerable dose of civil law, especially in the field of commerce, though it has been necessary even there for such countries to develop ways to get around the Islamic prohibition of usury, defined rather broadly. Customary law is the law that has arisen through oral tradition among tribes and cultures where law is not written down but rather communicated across generations by tribal elders. Village or regional chieftains are usually, though not always, the main repositories of such legal wisdom, and the finding of guilt usually occurs within an informal meeting of interested parties. In many countries of Africa and southern Asia, these kinds of local meetings occur and settlements are reached based on the hearing of all sides of the complaints. Depending on the culture, shamans or others thought to hold special powers may be brought in as expert witnesses and sometimes as judges. However, the most important attribute of customary law is its specificity to the local region or village. These traditions can be very deep and resistant to change or imposition from outside influences. Perhaps a prime example in the 21st century is that of the tribal villages in the mountains of Pakistan and parts of Afghanistan that have defied state authority for hundreds of years. Instead, these tribal areas have their own chiefs and their own informal ways of settling infractions and disputes. Socialist legal systems are those that have arisen on top of civil law systems, for the most part. Certainly this was the case in the Soviet Union and continues to be the case in Cuba and other communist countries, although China is perhaps an exception. Yet even there, the customary legal system was usurped by Western powers in the 19th century and abolished by the revolution of 1949. However, the emergence in the 1980s of China as an industrial and trading nation required that it develop a legal system that would make commerce possible and more efficient. The result has been that its legal system is based essentially on civil law, with criminal law that codifies edicts of the State and procedures that are largely reflective of the inquisitorial system. Finally, although there are probably no countries that are purely of one or the other legal system, there are quite a number of countries whose legal systems are mixtures of some or all of the preceding. Many African and some South Asian countries are mixtures of customary, civil, common, and Islamic law. Such countries would include, for example, India, Afghanistan, and maybe Egypt.

How Does Your Country Measure Up? Although for the reasons recounted earlier, comparing the crime and punishment of countries to each other is a very difficult procedure, it is nevertheless important to get a rough idea of how one country compares to the rest of the world. It is probably one of the main reasons people refer to world encyclopedias of any kind, to get a sense of how one fits in the universe. To provide a very rough glimpse of how a country’s crime and punishment compare to the rest of the world, we have provided a snapshot of some major indicators of crime and punishment for each country at the start of each country essay. We have chosen these indicators because they are readily available and offer a reasonably approximate way of ranking countries along a continuum. Of © 2011 ABC-Clio. All Rights Reserved.


the crime indicators, murder is chosen as probably the most reliable for making comparisons because its definition is roughly similar across nations, and in most cases, the statistics have been adjusted to fit the UN standard definition of murder for countries reporting their murder rates. Nevertheless, many countries do not report their murder rates. Prison rates are also reasonably reliable for making comparisons, although they too involve great technical difficulties in measurement, considering that the counting of inmates may occur on different days of the year, and a simple accounting on a particular day does not give any indication of the flow of prisoners in and out of the prison over a given period of time. The snapshot indicators provided for each country or region when available are as follow: • • • • •

Type of Legal System Murder—murders per 100,000 people Burglary—those victimized by burglaries per thousand people Corruption—levels of perceived corruption Human Trafficking—how much the country is doing to control human trafficking • Prison—number of prisoners per 100,000 population • Death Penalty—whether the country has the death penalty • Corporal Punishment—whether corporal punishment is available to the criminal justice system

Legal System The types of legal system were compiled from the United Nations Global Report on Crime and Justice, supplemented by information from individual country Web sites and from the University of Ottawa Civil Law Section Web site on World Legal Systems at http://www.droitcivil.uottawa.ca/world-legal-systems/eng-tab leau.php.

Murder These are officially reported statistics on murder supplied by countries to the United Nations World Crime Surveys, supplemented where necessary by individual country information plus homicide statistics from the World Health Organization. Most of the statistics were taken from the revised listing supplied by Jan Van Dijk in his book The World of Crime, in which he reported the average murder rates for 1998–2002, supplemented by more recent United Nations surveys. Additional data from INTERPOL and individual country sources, where available, sometimes for a slightly different period of years, were also included. However, such small differences should not matter because we know that murder rates are fairly stable over time. The countries are ranked from highest to lowest murder rate (murders per 100,000 people) and then divided into quartiles, with the middle two quartiles classified as “Medium” and the two outer quartiles labeled “High” and “Low.” The world distribution of murder rates can be seen in Map 1, Murder around the World. © 2011 ABC-Clio. All Rights Reserved.

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Burglary Obtaining reliable rates of property crime, the most common of which is usually referred to as theft, is especially difficult when relying on officially recorded statistics because definitions and enforcement practices vary enormously across nations. We have therefore included measures of victimization of individuals by burglary. These measures are derived from the International Crime Victim Surveys (ICVS), which are interviews or questionnaires asking samples of a population whether they have been victims of particular offenses over a particular number of years (usually the past year). In this case, the samples were households, and the survey was conducted in many countries, although limited only to urban populations. Therefore, they do not, of course, represent the country or region as a whole, though they do, perhaps in the case of burglary, represent most of the population of a given country that there are, generally, many more households in urban settings than in rural settings. These data are taken from Van Dijk’s World of Crime. Countries were ranked according to their burglary rates (number of victimizations reported per 1,000 people) using quartiles, divided into High, Medium, and Low, with Medium defined by the two middle quartiles.

Corruption The ways in which crime and punishment are eventually perceived by the public and administered by the State are affected by the level of corruption in a particular country. We have therefore included a measure of corruption, a kind of crime that is neither a violent crime nor, strictly speaking, a property crime. Rather, it is a crime against justice itself. There is also the advantage that data on perceived corruption in countries are much more available, thanks to the source of our data, Transparency International at http://www.transparency.org/policy_re search/surveys_indices/cpi. This Corruption Perception Index (CPI) is based on the ranking of “180 countries by their perceived levels of corruption, as determined by expert assessments and opinion surveys” according to Transparency International. We have taken these rankings, added some additional countries in some cases where they were not included in the survey, and then divided them into Low, Medium, and High, using quartiles once again.

Human Trafficking This measure is taken from the U.S. Department of State three-tier listing of countries it classifies as making a strong effort to control human trafficking, making some effort, or making very little effort. The classifications are taken from the U.S. Department of State Trafficking in Persons Report 2008, found at http://www.state.gov/g/tip/rls/tiprpt/2008/index.htm. The classification scheme is derived from the U.S. Trafficking Victims Protection Act of 2000 (TVPA), which defines the minimum standards for the elimination of trafficking. It should be noted, however, that our ratings of “High” “Medium,” and “Low” in the rates of human trafficking are only very rough because they assume that countries that comply with the U.S. anti-trafficking standards of enforcement will therefore have low levels of human trafficking. This is not always true. The United States, © 2011 ABC-Clio. All Rights Reserved.


for example, is rated as low for human trafficking because it complies with the TVPA anti-trafficking act; however, we know that it is a major destination country for trafficked humans. The classifications are as follows: • Low Amount of Trafficking (Tier 1): Countries that fully comply with the U.S. Department of State standards for anti-trafficking enforcement. • Medium Amount of Trafficking (Tier 2): Countries that do not fully comply with the minimum standards but are making significant efforts to bring themselves into compliance. • Medium Amount of Trafficking (Watch List): Countries on Tier 2 requiring special scrutiny because of a high or significantly increasing number of victims, failure to provide evidence of increasing efforts to combat trafficking in persons, or an assessment as Medium based on commitments to take action over the next year. • High Amount of Trafficking (Tier 3): Countries that neither satisfy the minimum standards nor demonstrate a significant effort to come into compliance. Countries in this tier are subject to potential non-humanitarian and non-trade sanctions.

Prison The prison rate assessments are derived from the International Center for Prison Studies, King’s College, London, and found at http://www.kcl.ac.uk/schools/law/ research/icps. The rates are of prisoners per 100,000 population, and countries are ranked from high to low and divided into High, Medium, and Low using the quartile method described previously. These were the most up-to-date and thorough statistics available as of 2008. The world distribution of prison rates is depicted in Map 2: Imprisonment around the World.

Death Penalty About 65 percent of countries have abolished the death penalty either by legislation or in practice. A few have essentially abolished it while retaining it for especially heinous crimes, although it may not have been used for many years. These countries are classified as “maybe” in our assessment of whether the death penalty is available to countries. Thus, the classifications for whether countries have the death penalty as an available punishment are “Yes,” “Maybe,” and “No.” The information has been taken from the Web site Info Please at http://www.in foplease.com/ipa/A0777460.html, which in turn has taken its statistics from Amnesty International. The world death penalty distribution may be seen in Map 3: Death Penalty around the World.

Corporal Punishment The assessments as to whether countries have available to them the use of corporal punishment, either as a sentence for a crime or for use within the prison system for disciplinary purposes, is based on information provided by the Web site http://www.endcorporalpunishment.org/pages/frame.html, which assesses © 2011 ABC-Clio. All Rights Reserved.

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mainly the legislative steps that countries have taken to prohibit the use of corporal punishment. The Web site covers the use of corporal punishment in homes and schools as well as in the criminal justice system. Its assessments of countries are based almost entirely on whether legislation has been passed prohibiting corporal punishment either as a sentence in criminal justice or as a means of discipline in prisons. The legal situation is often ambiguous because, as with the death penalty, many countries retain the possibility of corporal punishment’s use either as a sentence or in prisons but rarely or never resort to it. Thus, there is a category of “maybe” for those countries. Perhaps surprisingly, less than 20 percent of the world’s countries have prohibited by legislation the use of corporal punishment either as a sentence for a crime or for use in prison discipline. Like the death penalty, our classification of the availability of corporal punishment is “Yes,” “No,” or “Maybe.” The world use of corporal punishment is presented in Map 4: Corporal Punishment around the World.

Regions of the Four Volumes The four volumes are broken up into the following regions: • • • •

Volume 1: Africa and the Middle East Volume 2: The Americas Volume 3: Asia and Pacific Volume 4: Europe

There are any number of ways to classify countries into regions of the world. We have mostly relied on a geographical classification based on the United Nations Statistics Division classification system (http://unstats.un.org/unsd/geoinfo/ default.htm). But this method is far from satisfactory. Although geography (relatively speaking) remains the same, the borders of countries do not, mostly as a result of political conflict and other factors such as migration. Furthermore, the definition of what makes a country a country is also very difficult because there are many instances where “principalities” (e.g., San Marino) and “independent nations” (e.g., the Navajo Nation in the United States) exist inside larger nations or countries. The complex histories of colonialism and migration have resulted in particular countries containing a vast variety of peoples, cultures, and social arrangements, such that calling them a “country” or even “nation” gives a misleading impression of a cohesive national system governed by one set of laws. Bosnia and Herzogovina are perhaps a prime recent example of this difficulty. Given the shifting boundaries and definitions of countries and the social, cultural, and political diversity contained in them, allocating such countries to broad regions of the world is obviously even less precise. The final allocation of countries that were hard to classify—Turkey, for example—was admittedly somewhat arbitrary. We finally placed Turkey, along with Georgia, in Asia, not Europe. And we located countries of the Middle East (itself a very difficult region to define in both geographical and political terms) along with Africa in Volume 1. A number of the countries classified in the Middle Eastern region could just © 2011 ABC-Clio. All Rights Reserved.


as easily be placed in Asia, and others are geographically located in North Africa. And the variety of countries found in the Asia and Pacific volume is also vast in terms of both geography and culture; New Zealand and Australia, for example, have much more in common with Europe, from a historical and cultural point of view, than they do with their near and distant neighbors in Asia (although this is probably changing). Thus, comparing regions on any number of crime and punishment factors is fraught with even greater difficulties than comparing individual countries. Some commonalities and patterns, however, do emerge when one peruses the world maps that are provided. It is likely, as editors to the respective volumes point out, that these patterns reflect the colonial past of these regions, although there are no doubt other explanations related to local culture, migration patterns, and political history.

About the Contributors We have drawn on a variety of authors to contribute to these four volumes. In some cases, these authors are professionals who work for their governments, but in other cases (the majority), these authors are independent scholars. The objectivity of reports written by those who work for governments may perhaps be questioned, but on the other hand, government officials have much greater access to information and statistics than do outsiders. With a couple of important exceptions, all governments, by and large, have a monopoly on crime and punishment information. The exceptions are the international crime-victim surveys described earlier that are conducted mostly apart from governments, because they do not necessarily depend on officially recorded statistics by criminal justice officials. However, more government departments are conducting their own victimization surveys because some governments in the past have been embarrassed by the findings. Various nongovernmental watch groups, such as Amnesty International and Transparency International, also collect crime and punishment information and it is part of their mission to apply value judgments and criticism to governments and their administrators. As editors, we have tried in these chapters, as far as possible, to avoid either advocacy on behalf of the government’s interest or criticism of governments, although in some cases the criminality and punitive practices of governments cannot be ignored. —Graeme R. Newman University at Albany


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Murder around the World © 2011 ABC-Clio. All Rights Reserved.

Imprisonment around the World

xxv © 2011 ABC-Clio. All Rights Reserved.

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Death Penalty around the World © 2011 ABC-Clio. All Rights Reserved.

Corporal Punishment around the World

xxvii © 2011 ABC-Clio. All Rights Reserved.

Introduction

Asia and the Pacific comprise the largest region in the world, which is home to more than half of the world’s population. Three out of the four most populous countries in the world—China, India, and Indonesia—are located in Asia. Asia/ Pacific includes the largest number of countries in the world. The growing role of Asia/Pacific in the world makes documenting the criminal justice practices and philosophies within the region essential. Volume 3 of Crime and Punishment around the World contains individual chapters for each of the following countries (regions): Central Asia (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan); Eastern Asia (China, Hong Kong Special Administrative Region of China, Japan, Mongolia, Macao Special Administrative Region of China, Republic of Korea [South Korea], Democratic People’s Republic of Korea [North Korea], and Taiwan), Southern Asia (Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka), Southeastern Asia (Brunei Darussalam, Cambodia, Indonesia, Lao People’s Democratic Republic, Malaysia, Myanmar, Philippines, Singapore, Thailand, Timor-Leste, and Vietnam), Western Asia (Armenia, Azerbaijan, Georgia, and Turkey), and Oceania (Australia, Melanesia, Micronesia, New Zealand, Norfolk Island, Polynesia, Pitcairn, and Tonga). The individual chapters for each of the subregions of Oceania—Melanesia, Micronesia, and Polynesia—encompass the following islands: • Melanesia: Fiji, Papua New Guinea, Solomon Islands, and Vanuatu • Micronesia: Guam, Kiribati, Nauru, Northern Mariana Islands, Marshall Islands, Palau, and the Federated States of Micronesia • Polynesia: Cook Islands, French Polynesia, Niue, Samoa, Tokelau, Tuvalu, and Wallis and Futuna Islands, with separate chapters for Pitcairn and Tonga in Polynesia Some countries from Asia that may be classified as “Middle East” are included in Volume 1 of Crime and Punishment around the World, which covers Africa and the Middle East. Those countries include Iran, Iraq, Israel, Jordon, Kuwait, Lebanon, Oman, Palestine, Qatar, Saudi Arabia, Syria, United Arab Emirates, and Yemen. In addition, Cyprus is included in Volume 4: Europe. With the rapid changes in communication, technology, and transportation, crime is no longer a problem limited by national borders of individual countries. Transnational crimes such as human and drug trafficking, money laundering, xxix © 2011 ABC-Clio. All Rights Reserved.

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Introduction

credit card skimming, hijacking, terrorism, and acts of piracy pose challenges to the international community. To overcome these challenges, multinational collaboration has become an inevitable trend. The form of collaboration usually starts with neighboring or regional countries since the sharing of adjacent borders poses difficulties for individual countries in their attempts to prevent and control crime. This volume covers information regarding human trafficking, drug crimes, and the most challenging crimes (faced by states) for individual countries in the region. While this volume does not provide direct comparisons among countries, its in-depth information regarding crime and punishment covering almost all of the countries (or territories) in the region does provide a good opportunity for those interested in gaining a broad understanding of the region’s crime problems and criminal justice practices. The layout of the book starts with the section on history and context (legal system, criminal justice system, and role of police). Political and historical backgrounds are also included since they are related to the development of legal and criminal justice systems. Sections on crime (classification of crimes and crime statistics), criminal justice procedures (investigation, trial stages, and sentencing), and punishment follow. Some important themes discussed in the country essays are described below.

Legal Systems The legal systems in a number of Asian countries are linked to European colonialism. Civil and common law systems, the two predominant legal systems, were brought into Asia largely through European colonization. Countries colonized by the British, such as India, Malaysia, and Singapore, were largely influenced by common law traditions. On the other hand, civil law was introduced through such colonizers as the Dutch in Indonesia. Additionally, some countries in the region (e.g., Thailand and Japan) never had external legal systems imposed on them through colonization; they chose civil law tradition as the basis of their legal system. Some countries classified under one legal system can also borrow ideas from other systems. The imposed legal system through colonization can also co-exist with indigenous traditions. As a result, the legal classification of some countries can be described as integrated or combined systems. India is one of the examples with a combination of common, Islamic, and customary laws. There are great varieties of political, social, and historical backgrounds among nations in Asia/ Pacific; thus, the legal systems in the region tend to be versatile. Overgeneralization may miss some of the unique features.

Crime While crime statistics are included for each country (territory) if data were available, those statistics should be interpreted with caution. Some of the statistics were based on police records while some represent number of convictions. In addition, categories included in the total number of crimes may vary from nation to © 2011 ABC-Clio. All Rights Reserved.

Introduction

nation. For example, since professional negligence in traffic accidents comprises a considerable amount of the crime in Japan, the inclusion of professional negligence in traffic accidents in statistics may distort crime trends in Japan. Thus, it is important to keep these caveats in mind while making interpretations of crime statistics. Although great variability exists (see the accompanying maps below), nations in the region share some commonalities in crime problems that they find challenging. Many countries in the region state drug crimes are a prominent challenge to them. A number of countries in Asia take rigid positions against drug-related offenses and adopt severe penalties. In some countries, such as China, India, Indonesia, Laos, Myanmar, Singapore, Sri Lanka, Taiwan, Thailand, and Vietnam, the harshest punishment for the most serious drug offenses includes the death penalty.

Death Penalty Correctional systems around the globe can be distinguished by whether the death penalty is used as an available punishment. Zimring and Johnson (2008) indicated that Asia has been the center of death penalty concerns. They claimed that those who study the death penalty must study Asia since Asia is the site of at least 85 percent of the world’s executions. Albeit there is a higher prevalence of death sentences and executions in Asia compared to other regions in the world, variability of death penalty policy and practices exists among nations. As indicated in this volume, a number of countries (territories) (e.g., Armenia, Australia, Bhutan, New Zealand, Hong Kong, and Macao) have by legislation abolished the death sentence for all types of crime. Some of the countries in the region were classified as having the death penalty as an available punishment but they had not carried out any executions for a long period of time. For example, in Brunei, the death penalty is allowed; however, in practice Brunei has not carried out any executions since 1957. Likewise, in Laos the death penalty is allowed but not carried out in practice. On the other hand, there are countries (e.g., China, India, Japan, Malaysia, Mongolia, Singapore, Thailand, and Vietnam) that retain the death sentence and also carry out executions in practice. To get more detailed information regarding distinctions between death penalty policies and recent practices among nations, readers are encouraged to refer to the section on punishment in the chapters. The map below also shows the distribution of the death penalty for each country in this region.

Prison While prison rate assessments are available in the snapshot as well as in the map on page xxxv, readers should be cautioned about making direct comparisons. The prison rates are computed based on number of prisoners per 100,000 population. While this measure is a popular way of making comparisons and is constantly employed by researchers, plain comparisons with relative incarceration rates may be inaccurate at times and can pose some problems. For example, in © 2011 ABC-Clio. All Rights Reserved.

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some countries, there is no distinction between jails and prisons. As indicated in the Bangladesh chapter in this volume, all penitentiary institutions are referred to as jails in that nation. Of its total population in jails, only about 29 percent were convicted prisoners and the remaining 71 percent were either awaiting trial or detained for investigation. Thus, more comprehensive information about the prison system in a given country may help to make more accurate interpretations of prison rates. More in-depth information about inmates and prisons is included in this volume, which can help readers to get a comprehensive picture.

Acknowledgments I am grateful to all the contributors. The preparation of this volume would not have been possible without their hard work and endless efforts. —Doris C. Chu Arkansas State University


Country Key to Asia and Pacific Maps Afghanistan

AF

Nepal

NP

Armenia

AM

New Caledonia

NC

Australia

AU

New Zealand

NZ

Azerbaijan

AZ

Niue

NU

Bangladesh

BD

Norfolk Island

NF

Bhutan

BT

North Korea

KP

Brunei Darussalam

BN

Northern Mariana Islands

MP

Cambodia

KH

Pakistan

PK

China

CN

Palau (Pacific Islands)

PW

Cook Islands

CK

Papua New Guinea

PG

Federated States of Micronesia

FM

Philippines

PH

Fiji

FJ

Pitcairn Islands

PN

French Polynesia

PF

Samoa

WS

Georgia

GE

Singapore

SG

Guam

GU

Solomon Islands

SB

Hong Kong

HK

South Korea

KR

India

IN

Sri Lanka

LK

Indonesia

ID

Taiwan

TW

Japan

JP

Tajikistan

TJ

Kazakhstan

KZ

Thailand

TH

Kiribati

KI

Timor-Leste

TL

Kyrgyzstan

KG

Tokelau

TK

Laos

LA

Tonga

TO

Macao

MO

Turkey

TR

Malaysia

MY

Turkmenistan

TM

Maldives

MV

Tuvalu

TV

Marshall Islands

MH

Uzbekistan

UZ

Mongolia

MN

Vanuatu

VU

Myanmar (Burma)

MM

Vietnam

VN

Nauru

NR

Wallis and Futuna

WF

xxxiii © 2011 ABC-Clio. All Rights Reserved.

Murder in Asia and Pacific

xxxiv © 2011 ABC-Clio. All Rights Reserved.

Imprisonment in Asia and Pacific

xxxv © 2011 ABC-Clio. All Rights Reserved.

Corporal Punishment in Asia and Pacific

xxxvi © 2011 ABC-Clio. All Rights Reserved.

Death Penalty in Asia and Pacific

xxxvii © 2011 ABC-Clio. All Rights Reserved.

Asia Afghanistan Legal System: Islamic/Civil/Common/Customary Corruption: High Human Trafficking: Medium Prison Rate: Low Death Penalty: Yes Corporal Punishment: Yes

Background Afghanistan is a landlocked country bordered by China, Pakistan, Iran, Tajikistan, Turkmenistan, and Uzbekistan. The population numbers approximately 28.7 million, with an estimated 2 million refugees in Pakistan and 800,000 in Iran. The biggest ethnic group is the Pashtun people followed by Tajik, Hazara, Uzbek, Aimak, Turkmen, and Baloch. The Afghan legal system undertook several reconstructions during the 20th and early 21st centuries. Several constitutions have been implemented to coincide with regime changes, while the formal justice system has been influenced at specific times by widely different ideological, theological, and legal schools of thought. During the early 20th century the Hanafi school of Islamic jurisprudence provided a foundation for the state criminal justice system, in parallel to customary dispute resolution mechanisms. The 1950s and 1960s were a time of great change as attempts were made to modernize the state, and a new constitution was adopted in 1964. This constitution elevated state law over Islamic law.

The codification of state law continued until 1978 and many laws, which still stand today, such as the Penal Code, were enacted during this time. In 1978, the president was assassinated in a coup d’état by the Afghan Communist Party. Soviet forces invaded in 1979 on the pretext of defending the Afghan Communist Government from Islamic rebels. The Communist regime enacted a Soviet-style judicial system along the lines of Marxist legal school of jurisprudence. Much of the progress made since the 1950s was quickly lost under Communist rule. In 1989, Soviet troops withdrew from the country and in 1992 the Soviet-backed president was overthrown by mujahideen and other rebel groups; Islamic law was reinstated as the primary source of law. By 1994, Afghanistan was in a state of anarchy characterized by general lawlessness and violent conflicts between various former warlord commanders and criminal organizations to exert influence over areas including the profits from illicit commerce. The emergence of the Taliban out of the conflicts offered the Afghan peoples, tired of fighting and exhausted by famine and drought, peace and a modicum of stability. A far right, patriarchal interpretation of Islamic law was the only source of law during the Taliban era and was enforced with brutality and a complete disregard for basic concepts of human rights. The Taliban were opposed, and eventually overthrown, in 2001, by an alliance of Afghan factions, supported financially and militarily by a coalition of foreign forces. A new constitution was adopted by the Loya Jirga in January 2004. In 2004 and 2005 presidential and parliamentary elections were held 1


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Afghan National Police trainees listen to a speech by their instructor at the police academy in Kabul, Afghanistan, May 22, 2004. (AP Photo/Emilio Morenatti)

in accordance with democratic principles. With regard to the presidential election, 10.5 million Afghan peoples registered to vote and Hamid Karzai was elected from 18 candidates with a majority of 55 percent. Since then the slow process of redrafting the body of legislation and reforming the fractured institutions has been underway. The erratic journey of the Afghan national police force may be illustrative of the history of the criminal justice system in full. A national civilian force was built during the 1960s modernization drive. This force was based upon the European model and supported by West and East Germany. During the Soviet-backed Communist regime the Khedamate-Atlaat-e-Dawlati (KhaD), an Afghan alternative to the Soviet Union’s Komitjet Gosudarstvjennoj Bjezopasnosti (KGB), was created. The police and KhaD were used in the internal power politics of the Afghan Communist Party, which often resulted in violent armed clashes. The police force disintegrated as a civilian force. Reform was attempted again in 1989 with the support of Germany; however, this

was halted due to the conflicts between former warlord factions. The only criminal justice institution the Taliban administered was the despotic Vice and Virtue Ministry, which was mandated only to enforce the Taliban’s far right, patriarchal interpretations of Islamic law.

Current Status of the Criminal Justice System Years of conflict and regime changes left a confused and contradictory body of legislation; in 2001 there were 2,400 separate laws originating from different regimes, and therefore legal schools of thought, that overlapped and conflicted with one another. The post-2001 reforms, at first glance, are promising. The 2004 Constitution is a progressive document defending democracy, human rights, and the rule of law. A more critical view is that the status of Islam in the Constitution could be used by the farright Islamic factions operating within the state to repress the movement toward a greater realization


Afghanistan

of civil and political rights. The Constitution provides in article 3 that Afghanistan’s religion is Islam and that no law can violate any Islamic principle. Articles 130 and 131 also state that if no law exists on a subject then the provisions of Hanafi or Shiite jurisprudence will be applied, which makes Islamic law a secondary source of law. However, the Penal Code gives Islamic law primacy in certain areas of criminal law such as the punishments of those guilty of murder, adultery, and theft. To many the punishments enacted through Islamic law are unjust and can be perceived as contrary to Afghanistan’s human rights commitments. One example is of a student who allegedly downloaded and distributed information on the role of women in Islamic culture. He was sentenced to death by a district court for apostasy; the decision is currently being appealed at the Kabul Appeals Court. However, in the Islamic faith, these punishments come from the Koran and sunna texts and are thus sacred. In sum, the conflict between Islamic law and codified law, coupled with overlapping and contradictory legal codes, makes Afghan law, at present, too complex and lacking in clarity and consistency. With regard to the institutional infrastructure, decades of violent conflict corroded an already weak criminal justice system, limiting not just the material resources but also the pool of professional and trained coercive, legal, and support personnel from which criminal justice systems are founded upon. At present, the judicial process is slow and open to corruption. The administrative infrastructure is poor with a lack of effective record keeping, inadequate storage facilities, and a lack of resources to effectively track the progress of cases. Many buildings are not fit for court, with inconsistent power supplies and no areas for attorneys and clients to privately converse. In many provinces, district courts are convened in rented houses or take place in an impromptu manner in provincial court buildings. Furthermore, the educational infrastructure to support the system is inadequate. With regard to the coercive arm of the state, the Afghan National Police (ANP) are employed by the Ministry of the Interior and comprise the Afghan Uniformed Police; the Afghan Border Police; the Afghan Civil Order Police

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(a rapid reaction force intended to maintain civil order in Afghanistan’s largest cities, created in response to the ineffectiveness of the uniformed police to control riots in Kabul in 2006); Afghan Highway Police; and Counter-Narcotics Police of Afghanistan. There is also a separate Special Narcotics Force, an elite paramilitary force that reports directly to the president and carries out high-level interdiction raids. There is no agreement on the number of police officers operating in Afghanistan. Estimates range from 62,000 (of which 12,000 are border police) to 82,000. The real number could be half this estimate due to desertion, injury, “ghost names,” and the general ineptitude of many officers. In 2008, according to the International Crises Group, only 511 of these officers were female. The lower estimate of 50,000 is equal to 180 operational officers per 100,000, which is very low compared to other states in the region such as Jordan (600/100,000) and Kyrgyzstan (340/100,000), and Western states such as Germany (292/100,000). However, some Afghan experts maintain that even this low number is unsustainable without the financial support of the international community. An alternative to the unsustainability of the ANP was the creation of an Auxiliary Police Force in 2006 to patrol Southern and Eastern Provinces and support counterinsurgency operations. The force was 11,270 strong, recruited locally and came under the control of tribal Jirgas. It was perceived by many Afghans and ANP officers as unprofessional and ineffective, and by many as a policy by a Pashtun president to re-arm Pashtun militias. For these reasons the force was disbanded in 2008. Another major problem with the ANP is that of the blurring of the boundaries between its role as a civilian and military force. However, in a state such as Afghanistan, the lines between military and civilian are blurred; the cultivation of opium is within the civilian sphere, yet many farmers are protected by large, well-armed militia. The ANP is lacking many necessary resources and sufficient training. The 2006 Kabul riots are illustrative as the ANP was ineffective in quelling the civilian dispute; many ran from the scene. Furthermore, there appeared to be no prior intelligence or chain of command, while


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the officers lacked necessary equipment such as protective gear, pepper spray, and water cannons. More troubling is that the force is perceived by many Afghans as inefficient and largely corrupt. Many have reported that the police steal from travelers on state highways. Furthermore, the ANP was accused of numerous human rights violations including torture, illegal detention, and arbitrary arrest in 2006. However, strategic reform was underway, at the time of writing, including placing two officers trained to monitor human rights violations in each province, while the respected Afghanistan Independent Human Rights Commission began providing training to officers. The continued inefficiencies and lack of consistency in the Afghan legal system may point to why, at present, it is estimated that between 80 and 90 percent of the peoples of Afghanistan choose to use informal dispute mechanisms, according to a report of the Istituto Superiore Internazionale di Scienze Criminali (ISISC). The most common of these are the customary conflict resolution mechanisms referred to as Jirgas (in Pashtun tribes) or Shuras (in non-Pashtun tribes); due to the similarities between the two mechanisms Jirga shall refer to both. The Jirga is a customary legal system in which interpretations of Islamic law and local customs are enacted to arbitrate and prevent conflict that has the potential to harm the community. The rules and procedures differ from tribe to tribe; however, all are centered on a belief in “restorative justice” that primarily seeks to restore peace to the community rather than seeking retribution for crimes. The central tenet is that the offender is shamed and then accepted back into society with the victim agreeing to a truce. However, one researcher, Verna Lieble, has also described how many Pashtuns choose to ignore the results of the Jirga, opting instead for personal vengeance. At present the Afghan criminal justice system as a whole is also perceived by many as corrupt, inefficient, expensive, and slow (many Afghans cannot afford the bribes to have cases referred to court). The lack of legal infrastructure means many rural people have to make long journeys on roads that are considered unsafe due to threat from insurgents,

bandits, and corrupt/criminalized police officers. When at court the process can be slow, due to frequent delays caused by administrative problems. Conversely, customary mechanisms are conducted by respected elders with reputations for fairness who reach decisions using “accepted” and established local traditions and values. Many Afghans are illiterate and unable to complete legal paperwork, and due to a lack of legal education, are ignorant of the formal law; yet they are aware of their rights and duties under their tribes’ customary laws. However, the negative aspects are that it is a patriarchal system where women are not allowed to witness the process that can, in many tribes, legitimately give them away as a form of dispute settlement or compensation; much customary law was constructed by men, for men. The UN Special Rapporteur on Women objects to the Pashtun Jirga tradition of arranging a marriage between a female member of the defendant’s family to a male member of their victim’s family. The rationale is that the marriage will bind the families and prevent further disturbance; in practice it reduces women to the property of men, a commodity to be traded. Furthermore, in many areas insurgents and former warlords violently take seats to increase their illegitimate authority.

Finding of Guilt Formal System Afghanistan’s formal court system is developing based on the Constitution, the 2005 Law on Organization and Jurisdiction of Courts of the Islamic Republic of Afghanistan, and the 2004 Interim Criminal Code for Courts. Afghanistan is also a signatory of the International Covenant on Civil and Political Rights and commits, in the preamble of the Constitution, to observe the Universal Declaration of Human Rights. Thus, Afghanistan is obliged to uphold the judicial rights contained within these international instruments. However, the practical application of law lags far behind the actual legislation.


Afghanistan

The Afghan Judiciary, mandated by the 2005 Law on Organization and Jurisdiction of Courts of the Islamic Republic of Afghanistan, is hierarchically structured, with the Supreme Court at the top. Each of Afghanistan’s 34 provinces has a provincial court that is required to have within its jurisdiction: a Central Provincial Primary Court, Juveniles Court, Commercial Primary Court, Family Issues Primary Court, and District Primary Court. District courts have jurisdiction over petty, misdemeanor, and felony crimes. Appeals are referred first to the provincial court and then to the Supreme Court. The 2005 Narcotics Law allows for the creation of special Narcotics Tribunals within the Kabul Provincial Court, which operate and are bound under the 2005 Law on Organization and Jurisdiction of Courts and the 2004 Criminal Code for Courts. The 2005 Juvenile Code article 3 mandates that a juvenile primary court must be held in the capital city of all of Afghanistan’s 34 provinces to protect and prosecute juveniles. An example of the conflicting nature of Afghan legislation is that Juvenile Code article 7 defines a child as a juvenile under 18 years old, while article 10 states that children below 12 are not criminally responsible. Penal Code articles 70 to 73 offer a different classification with minors being aged between 7 and 13, teenagers aged between 14 and 17, and children under 7 being exempt from prosecution. There currently exist 34 provincial courts and 408 primary courts, although only 81 percent of these are functioning. Juvenile courts are situated in the provincial capital as are some primary courts, due to a lack of resources. This makes them inaccessible to many rural people who may have to make long journeys on poor roads that are considered unsafe due to the insurgency, bandits, and/or criminalized police officers. Under the 2004 Criminal Code for Courts, all primary courts are assigned three judges, although it is possible for one judge to sit for security reasons or a lack of resources. Penal action for the prosecution of all crimes is introduced to the court by the primary Saranwal (prosecutor) who investigates whether a crime has been committed and who is responsible. At this stage the Saranwal can either

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indict the suspect, or if there is not sufficient evidence, the case may be dismissed (a more senior Saranwal or the victim may file a complaint against this decision). A notification of the deeds must then be served to the suspect at least three days before the trial. If the suspect cannot be found, then the notification is issued to a police-appointed defense council who acts on the suspect’s behalf and the defendant is tried in absentia. The suspect and defense have the right to examine all documents collected in the Saranwal’s investigation. The accused has a right to remain silent during the process. The judge’s decision can be petitioned by the Saranwal, sentenced person, relative, or the defense council. The petition is evaluated by a committee headed by a Supreme Court judge and two appellate judges. Under the Constitution all citizens of Afghanistan have equal rights and duties before the law, and all are considered innocent until proven guilty (a right which, as shall be discussed shortly, is seldom adhered to with regard to rape); the basic right of due process is provided for under article 27. All are provided with the right to be immediately informed of the nature of the accusation upon arrest. Article 31 of the Constitution provides all with the right to appoint a defense attorney and those charged with a criminal act are entitled to defense from a state-appointed attorney. The right to confidentiality between attorney and client is also provided for in this article. Article 19 of the Criminal Code for Courts sets the eligibility for state assistance as the accused, or suspect, being “financially unable to appoint a defense attorney.” It further states that the defense council must be informed of any searches, confrontations, line-ups, expert examinations, or interrogations during the investigation so that they can be present. Unfortunately, there is a void between legislation and practice in Afghanistan. Legal representation is scarce to the point of being unavailable. There are just 250 lawyers registered with the Ministry of Justice to provide free legal aid to cover a population of 28.7 million. In many provinces there is no access to free legal aid at all. Legal aid in Kabul appears to have improved since 2001; however, few lawyers are present during interrogation and trial,


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contrary to the Constitution and the Criminal Code for Courts. Furthermore, many defense attorneys are contacted on the day of the trial, instead of the five days prescribed by the Criminal Code for Courts; this leaves them little time to produce an effective case. Under article 30 of the Constitution, statements or confessions obtained by means of compulsion are invalid; the confession must be voluntary and the confessor must be of sound mind. However, several women interviewed by a UN researcher in Pole-Charki Prison, Kabul, maintained that they were made to sign confessions at police stations without a defense attorney present. The women interviewed were illiterate and ignorant of their rights and duties before the law. Furthermore, many reported promises of release after signing; these confessions therefore should have been considered invalid under Afghan law. At present the Supreme Court employs 1,700 judges, while the Attorney General’s Office employs 2,500 Saranwals. The Law on Organization and Jurisdiction of Courts, article 58, states that to qualify as a judge an individual must hold a BA degree in law or Islamic law, or a diploma in religious studies from a recognized center and have completed the state practical judicial training course. In practice, the make-up of Afghan judges’ education does not conform to this provision: • 44 percent of judges hold degrees in Islamic law. • 21 percent have attained no higher than a high school education. • 16 percent have qualifications from nonuniversity programs. • 12 percent hold degrees in law. • 8 percent hold nonlaw degrees. With regard to Saranwals, in Kabul 37 percent have university law backgrounds, while in the provinces only 20 percent hold law or Islamic law degrees. Clearly, there is a huge void between the rights and procedures expressed under state law and the ability of the state to enforce them. Under these conditions it is little surprise that the majority of

Afghans prefer to use informal dispute resolution mechanisms.

Informal System Ali Wardak, an expert on Afghan customary law, notes that mediation tends to be split between spheres of authority within Afghan society. This starts with the family, where all “private” matters, such as domestic violence and divorce, tend to be resolved; the oldest male family member has the greatest influence. Conflicts outside of this private sphere are resolved in Jirgas at either the village or tribal level depending on the potential disruption the dispute may cause. For instance, disputes over land rights or murders, which may have the potential to disrupt the tribe, will be under the jurisdiction of the tribal Jirga. The Jirga is composed of the elite of village or tribal elders who are considered to embody certain qualities that make them good sources of judgment, including hospitality, belonging to a honorable family, a record of bravery in violent conflict, while they must be eloquent orators and have a proven record of fair and effective judgment at Jirgas. These men sit in an inner circle with a respected religious leader. An outer circle is formed in which all males of the tribe can observe the proceedings; this is thought to act as a transparency mechanism. The elders then pass judgment using their interpretations of the customary laws of their tribe. The laws tend to be a mixture of custom, practice, and interpretations of Islamic law. The laws and customs vary from tribe to tribe. The formal and customary systems do in some cases interact. In Kandahar Province criminal cases are forwarded to tribal Jirgas by the state and then returned to the prosecutor’s office if the case cannot be resolved.

Islamic Law If Islamic law is used as the source of law to decide a case, then all Hudud and Qissass offenses must be witnessed by two sane adult Muslim men, four in the case of Zena. It is argued that the harshness of the punishments deters offenders and that the


Afghanistan

standard of proof is very high and must, according to the sunna, be proved beyond reasonable doubt. Thus, a lot depends on the honesty of the two/four male witnesses. Under Islamic law a child under seven years old is unpunishable, while from the ages of 7 to 15, the family or tribe is held responsible. After 15 the individual is criminally responsible. The individual can also use the defense of insanity and coercion into the crime.

Crime State Law Crime in Afghanistan is currently classified by the 1976 Penal Code, Book 2, under the following three levels of seriousness: • Felonies, which include embezzling public funds; counterfeiting; the torture of individuals by public officials; arson; murder; kidnapping, with coercion or fraud, of a teenager; kidnapping of an adult women; adultery; highway robbery. • Misdemeanors, which include bribery; the use of illicit narcotics or alcoholic drinks; illegal detention of an individual (extended to a felony if accompanied by torture, coercion, or if the individual is a state employee); kidnap of a minor; kidnapping of a male adult; crimes pertaining to the unlawful slaughtering and hurting of animals. • Obscenities, which include causing disturbance or inconvenience by blowing a horn “or producing uproar or hubbub”; releasing a lunatic “who terrifies people” on public roads; public nudity; and cruelty to domesticated pets. Rape is not clearly defined in the Penal Code; it is implied in various articles that refer to Zena (adultery or sex outside of marriage), including article 429(1) which states: “A person who, through violence, threat, or deceit, violates the chastity of another (whether male or female).” However, it is noted by a UN report that victims of rape are gen-

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erally treated as committing the crime of Zena until able to prove their innocence. Under the Penal Code, article 61, individuals are protected from prosecution if murder is committed in defense of fear of death or serious injury; the act of, or fear of, adultery or homosexuality; human kidnapping; defense against larceny; or defense against unauthorized entry into a residential home at night. Article 62 does though limit the action in that if legal recourse was possible, then it reverts back to being classified an illegal act. It could be argued that this article implicitly makes homosexuality a prohibited act by its inclusion; however, we are unaware of any penalties formally set in the legislation. The use, production, trafficking, possession, and retailing of illicit narcotics is prohibited under the 2005 Counter-Narcotics Law. This law lists the substance prohibited under national law in the following four classification tables: 1. “Prohibited drugs of abuse with no medical use”—this includes heroin, opium poppy seeds and straw, MDMA (Ecstasy), and cannabis. 2. “Strictly controlled plants and substances with a medical use” (which are considered high-risk drugs of abuse)—this includes cocaine and opium. 3. “Controlled plants and substances with a medical use” (considered drugs with a risk of abuse)—this includes codeine and GBH. 4. “Substances frequently used in the manufacture of narcotic drugs and psychotropic substances (precursor chemicals)”—this includes ethyl ether and ephedrine.

Islamic Law Article 1 of the Penal Code differentiates between crimes under the jurisdiction of the code and those to be administered according to Islamic law. The code covers Tazir crimes, ones that are considered less serious under Islamic law and can therefore be left to the discretion of nonreligious judgment. Crimes not covered are those that under Islamic law entail nonflexible punishments, once proved by a just trial. These crimes are classified as follows:


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| Afghanistan

• Hudud (crimes that threaten the existence of Islam), which include Sariqah (theft); Hirabah (armed robbery or armed rebellion); Zina (adultery and sex outside of marriage); Qadhf (an unsupported accusation of Zina); Sharb alKhamr (intoxication); and Riddah (apostasy). • Qissass, which are intentional crimes committed against an individual’s person and could include murder, manslaughter, or bodily harm. If there is a lack of evidence to try the individual under Islamic law, then the case is reclassified as a Tazir crime and comes under the jurisdiction of the Penal Code.

rise in opium abuse; the highest levels of opium and heroin consumption in the world occur along the trafficking routes out of Afghanistan. The consumption of opiates in Afghanistan is above the global average. In 2005, it was estimated that within Afghanistan 150,000 people had consumed opium (0.6 percent of the population) while 50,000 (0.2 percent) had used heroin, 520,000 (2.2 percent) had used hashish, and 160,000 (0.7 percent) of the population had consumed alcohol (a prohibited intoxicant). In general, rural populations are more likely than urbanites to consume opium, heroin, and hashish, while alcohol is more widely used by urban populations.

Drugs

Corruption

The illicit narcotics trade, or more specifically the illicit opium trade, is one of the most high profile and damaging crimes in Afghanistan. It is also indicative of the deficiencies in the criminal justice system. Afghanistan is by far the world’s largest producer of illicit opium—it is estimated that of 8,870 metric tons of illicit opium produced globally in 2007, 8,200 was produced in Afghanistan: a 92 percent share of the market. The nearest rival is Burma, which was able to produce only 460 metric tons. This record-breaking output is cultivated over a 193,000-hectare area. During 2008, 98 percent of all opium was confined to the areas in the west and south, which are classified as high or extremely risky by the United Nations Department of Safety and Security (UNDSS). Most districts are inaccessible to UN and nongovernmental organizations and under the authority of insurgents and/or organized criminal networks, who have violently opposed eradication measures by the state in the past. The major growing areas of production levels include Helmand, Kandahar, Uruzgan, Farah, and Nimroz. According to the United Nations Office of Drug Control (UNODC), 2.4 million Afghans, or 9.8 percent of the population, were involved in the trade in 2008. The increased cultivation has had a direct effect on neighboring states, many of whom are used as trafficking routes and as a result have witnessed a

Corruption in Afghanistan facilitates the illicit narcotics trade. Police and local state officials are bribed to not eradicate opium crops, according to a UNODC report, while high-level offenders are immune from arrest and prosecution due to connections with the political and criminal justice elite. This is illustrated by the practice in some areas of posts for police chiefs in poppy-growing districts being auctioned off to the highest bidder. They can reach as much as US$100,000 for a six-month appointment: an appointment that legitimately pays approximately US$360 over the six months. Corruption in Afghanistan runs deeper than the involvement of drug trafficking networks. Afghanistan is an overall hugely corrupt nation; in the World Bank’s report, “World Governance Indicators,” Afghanistan is placed in the lowest 1 percentile: the only state considered less able to control corruption is Somalia. A consequence of ongoing violent conflict, the existence of former warlords (many of whom profited from the illicit opiate trade during their conflicts with Soviet and Taliban forces) in state institutions and their illegitimate authority in rural areas, the lack of state influence in many areas, and ineffective institutional constraints on corruption is that a culture of impunity has arisen in which criminal networks are protected by corrupt state employees at all levels.


Afghanistan

Connected to institutional corruption is the criminalization of the police, which appears to be a problem of epidemic proportions. There are reports of the police facilitating kidnapping and creating ad hoc, unofficial tollbooths on national roads. In 2007, 35 police officers were removed after a group of truckers went on strike over the payment of such tolls on the Herat-Delaram highway. The corruption and criminalization of state employees is arguably the most damaging crime in Afghanistan, for as long as it, and the impunity it offers, continues, the state will be unable to counter other high-level crimes such as the trade in illicit narcotics.

Insurgency Many prominent crimes in Afghanistan can be linked to the ongoing insurgency. The insurgency claimed 6,500 lives in 2007. A worrisome development is that civilian targets such as schoolteachers, religious leaders, and politicians who support human rights are increasingly being targeted. This strategy has resulted in the closure of 370 schools, which has prevented almost 220,000 individuals from receiving an education, and the death of many perceived progovernment religious leaders and state employees, including nearly 900 police officers and 140 teachers and students in 2007. Another insurgent-linked crime is kidnapping by the Taliban and other militia. In the second half of 2006, 190 kidnappings were reported for political or criminal purposes. The actual level is likely to be much higher, according to a U.S. State Department report. The United Nations reports that the number of insurgent-based security incidents increased significantly in 2008.

Human Trafficking The U.S. State Department notes that Afghanistan is a source, transit, and destination country for men, women, and children forced into sexual, military, and commercial servitude. Human trafficking, forced servitude, and prostitution can be linked to the illicit opium industry as opium seed is offered on a credit basis by criminal organizations. If a debt

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cannot be repaid, for instance after a poor harvest, then it is not unknown for poor farmers to repay the debt with female members of the family.

Violence against Women Violence against women is a persistent problem. According to the U.S. State Department Human Rights Report, women suffer at the hands of their family members, police officials, and the general tolerance of violence in their communities. And, as noted above, women who report their rape risk being charged as adulterers, or Zina. The Afghanistan Independent Human Rights Commission documented 1,651 crimes against women in 2006; of these, 558 were in the form of “severe beatings,” 213 were forced marriages, 50 were murder cases, and 34 were cases of rape (though rape is not a codified crime). The true number is likely significantly higher. The Ministry of the Interior in 2006 reported 134 cases of rape against women and 103 against male children in 2006. An extension of this problem is that of former warlords and their militias raping male and female children and women; during 2005, 21 such cases were reported according to a U.S. State Department report. Again the true number is likely significantly higher. It is also reported that forced marriages and abductions are common crimes committed by former warlords and their militia.

Other A 2006 study by the Centre for Strategic International Studies interviewed 1,000 Afghans; the major conclusion was that the majority of all crimes are unreported. The results indicated increase in theft in both rural and urban areas and a rise in burglaries in Kabul. Kidnapping for ransom has also increased dramatically and is thought to be widespread.

Punishment State Law The Penal Code, articles 23 to 26, state that: • Felonies are punishable with the death sentence or continued (16–20 years) or long (5–15


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years) imprisonment. The death penalty is defined as “the hanging of convicted person on gallows until death.” • Misdemeanors are punishable with a prison term from three months to no more than five years, or a cash fine of more than 3,000 afghanis. • Obscenities are punishable with a prison term of between 24 hours and three months, or a cash fine of up to 3,000 (US$63) afghanis. In October 2007, 15 Afghanis were executed, by firing squad (not hanging as called for in the Penal Code) at Pol-e-Charki Prison, Kabul. The offenses included murder, robbery, and looting. Prior to this, the last execution in Afghanistan was in April 2004, according to Amnesty International. A unique characteristic of the Penal Code is that Zena, if unpunishable by Islamic law, is considered an offense punishable with a long prison term. Many women who abscond from home are also tried for Zena. A UNODC study, which interviewed 56 women in Pol-e-Charki Prison in Kabul, found that 50 percent were detained for committing “moral crimes,” which appear to consist of a wide interpretation of what constitutes Zena; most puzzling is that one woman was charged with “attempted adultery.” The 2005 Narcotic Law, Chapter 4, sets forth penalties, primarily the following: • Trafficking; the punishment is reliant on the amount, and the substance, trafficked. A guideline is set at a maximum of life imprisonment and a fine of between 1,000,000 (US$21,022) and 10,000,000 (US$210,227) afghanis for trafficking heroin, cocaine, or morphine. The minimum sentence is up to three months’ imprisonment and a fine of between 5,000 (US$105) and 10,000 (US$210) afghanis for the trafficking of any other substance contained in the tables. Furthermore, employers or organizers of traffickers are set penalties three times as severe as the maximum penalty, not exceeding 20 years. • Drug laboratories, manufacturing and storage; an individual who allows his or her property

to be used for the purpose of manufacturing, cultivating, processing, storing, concealing, or distributing illicit narcotics can be sentenced to between 10 and 20 years’ imprisonment and fined between 50,000 (US$1,052) and 1,000,000 (US$21,022) afghanis. • Drug-related corruption and intimidation is punishable by 5 to 10 years and a fine of twice the amount of the bribe. • Cultivation; for the cultivating of one jerib (0.4 hectares) of opium or coca bush the penalty is between six months and one year of imprisonment and a fine of between 10,000 (US$210) and 50,000 (US$1,052) afghanis. This is increased by one month imprisonment and a 5,000 (US$105) afghani fine per 100 square meters in excess of one jerib. In addition the crops shall be destroyed without compensation. • Consumption of illegal drugs; the consumption or possession of heroin, morphine, or cocaine is punishable with six months to one year in prison and a fine of between 20,000 (US$420) and 50,000 (US$1,052) afghanis. All other substances are punishable with between three and six months’ imprisonment and a fine between 10,000 (US$210) and 25,000 (US$315) afghanis for opium or 5,000 (US$105) to 10,000 (US$210) afghanis for all other illicit substances. Possession of more than 1 gram of heroin, morphine, or cocaine and 10 grams of opium or hashish are punished as trafficking. The Penal Code also gives the court the power to: quarantine individuals into mental health hospitals or other relevant health institutions for a period of no less than six months; restrict individuals movement or residence to prevent repetition of the crime; delicense individuals from their trade or profession or from driving for a limited amount of time; and close properties used to commit a crime. Article 35(2) of the Narcotics Law also allows for the extradition of nationals in accordance with international and bilateral international agreements.


Afghanistan

Juvenile Punishment The Juvenile Code article 10(2) states that children between the ages of 7 and 12 can, instead of penal punishment, be given a warning, confined to a rehabilitation center, or be supervised by social service. Children between 12 and 18 can be punished with long, medium, and short imprisonment as long as it does not exceed one-third of the maximum term given to adults. The death penalty is prohibited, yet continued imprisonment is allowed if it does not exceed half the maximum applied to adults. If the imprisonment is less than three years, then it may take place in a rehabilitation center. One year probation can also be applied in exchange for imprisonment if the term would be less than three years.

Islamic Law The Penal Code does not offer punishments for Hudud or Qissass crimes, as under Islamic law these punishments are inflexible. The judge has no discretion once a crime is proved, as punishments are set by the Koran or sunna. Hudud punishments consist of the following: • Sariqah, which is punishable with the amputation of a hand. • Hirabah, which is punishable with death, crucifixion, cross-amputation (one hand and one foot), or banishment. • Zina, adultery is punishable with death by stoning, sex outside of marriage with 100 lashes. • Qadhf, which is punishable with 80 lashes • Sharb al-Khamr, which is punishable with 40 lashes. • Riddah, which is punishable with death. The central concept of Qissass is that of lex talionis (an “eye for an eye”). Under Islamic law the victim (or victim’s family) is entitled, under the supervision of the authorities, to inflict a proportional punishment of similar magnitude to the crime. However, this right may be waived, in which case the offender is pardoned by the wronged party in exchange for a Diat (fine).

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There have been no recent reports of the official sanction of stoning or flogging (which would suggest minimal or unreported enforcement of Hudud punishments). Cases in state courts involving murder and rape have been reported in which the judges have allowed the victim to enforce the execution of the guilty party themselves, or receive a form of compensation (which would conform to Qissass). However, all capital punishment must be authorized by the president.

Informal Systems Punishments differ between tribes and regions, yet certain characteristics permeate all tribes, cultures, and regions, including the belief in restorative justice, with the apology of the perpetrator of the crime being central to this. According to the International Legal Foundation, punishments can include the following: • The penalty for murder in most regions ranges from the paying of a fine to the victim’s family, to the death sentence, or the binding of the families through the giving of a woman from the perpetrator’s family to marry a male from the victim’s family (a custom condemned by some tribes especially those in Nuristan Province). • The punishment for Zena between two married persons tends to be the death sentence for both parties. • In Pashtun tribes, if a man rapes a women, he is killed. • The punishment for theft tends to be centered on returning the goods. However, rules differ as to whether an extra punishment should be enacted. Hazaras pay no extra fine other than an apology, while in the Nuristan Province the extra fine can be anywhere between two and five times the worth of the object and a sheep must be slain at the house of the victim. • With regard to domestic violence, in the Pashtun regions if a husband beats a wife, the husband must pay the wife’s father a fine or in the case of murder, the father may kill the perpetrator.


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Furthermore, many rural areas of Afghanistan are controlled by former militia warlords and insurgents, including, but not exclusively, the Taliban. The illicit punishments handed out by such groups are largely undocumented. However, the punishments enforced by the Taliban during its rule may be reflective of its contemporary method of punishment. From 2000 to 2001 the Taliban officially banned the cultivation of the opium poppy. The punishments for disobeying this order included public humiliation; prison sentences of two years or more; and corporal punishment such as lashings, public beatings, and executions. In 2006, more than a dozen Afghan and foreign nationals were beheaded for “crimes” such as espionage and support of the Karzai Government.

Prison The 2005 Law on Prisons article 12 states that every province shall have a detention center (for holding accused individuals pretrial) and a prison (for holding those convicted of a crime). Each district must also have a detention center. Article 23 obliges all prisons and detention centers to be built in accordance with Islamic principles and the United Nations Standard Principles and Terms, while all remaining facilities must be adjusted. Articles 24 to 28 oblige the state to offer a minimum standard of living, including all individuals having a bed and bedding, adequate hygiene, healthy food, clean drinking water, and the opportunity to walk outdoors in the open air for a minimum of two hours a day; a free health service must also be provided. Well-equipped libraries are required to help detainees to study, worship, and for recreation. Prison administrators are required to operate educational and vocational training centers approved by the Ministry of Education. Prisoners are afforded the right to be remunerated for any work they carry out while incarcerated. Detainees and prisoners have the right to contact with their families; these meetings must be in places controlled by the prison or detention center staff. Article 37 also provides for up to 20 days home leave and up to seven days on compassionate grounds.

The formal prison population has significantly increased in recent years from approximately 600 in 2002 to more than 10,000 in 2007 (in addition to more than 500 juveniles), an increase of more than 1,600 percent in five years, according to the ISISC. As the other arms of the Afghan justice system become more efficient, then this number will likely increase. An alternative estimate by the International Center for Prison Studies for 2007 was 9,600. This estimate states that 2.8 percent of the population was female, 4 percent juveniles, and 0.9 percent foreign nationals. The current prison infrastructure is unable to cope with such numbers. The flagship prison is Pol-e-Charki, in Kabul, which has been described by a UN official as overcrowded, lacking sufficient power and clean water, with a security situation described as “shaky,” largely due to corruption and lack of prison staff. Yet for all these negatives the UN official maintains that “Pol-e-Charki is a great prison compared to the other prisons in the country. . . . Most are uninhabitable.” The Afghan Ministry of Justice has noted that of the 34 official prisons, 42 percent are in rented homes. The U.S. State Department reports that in some districts shipping containers are used to house convicts and that in many areas where no detention facilities exist, women are forced into slave labor for the families of village elders. Furthermore, it is noted with regard to juvenile offenders that in 12 provinces, as separate facilities did not exist, children were detained alongside adults. Due to this children are exposed to physical and sexual exploitation and abuse. James Windle and Graham Farrell Further Reading Conference on the Rule of Law in Afghanistan. (2007): http://www.rolafghanistan.esteri.it/ ConferenceRol. International Crises Group. (2008). Policing in Afghanistan: Still Searching for a Solution: http:// www.crisesgroup.org. Ruben, Barnet. (2006). Afghanistan’s Uncertain Transition from Turmoil to Uncertainty. New York: Council on Foreign Relations.


Armenia

United Nations Office of Drugs and Crime: http:// www.unodc.org/. Wardak, Ali. (2004). “Building a Post-War Justice System in Afghanistan.” Crime, Law and Social Change 41(4): 319–341.

Armenia Legal System: Civil Murder: Medium Corruption: Medium Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background A former republic of the Soviet Union, Armenia is a landlocked mountainous country located in the southern Caucasus. One of the world’s oldest civilizations, Armenia was the first country to officially adopt Christianity as its religion in 301. However, the current republic was established in 1991 when the country declared its independence from the Soviet Union. The capital of Armenia is Yerevan. At present, Armenia is a unitary, multiparty, presidential representative democratic republic. Legislative power is entrusted to the Parliament of Armenia. Executive power is exercised by the government while judicial power by the courts. Armenia is very homogenous. According to the April 2006 data, the population of Armenia was 3,215, 800 with ethnic Armenians making up 97.9 percent of the population. The largest minority groups are the yezidis and Russians. Other minorities include Greeks, Kurds, Assyrians, and Georgians.

History of the Legal System The history of Armenian criminal law and legal system takes its origins from the first Armenian kingdoms, where judicial power was executed solely by

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the kings. Later, in the 12th to 13th centuries Mkhitar Gosh’s “Codex” and Smbat Sparapet’s “Law Book” were introduced. These codified acts contained provisions regulating the age of criminal responsibility, the system of punishments, and evidence. After many centuries of living under the rule of conquerors and having no state system, in 1918, the First Armenian Republic was created. The government of the newly established country founded a Ministry of Interior and created a police force. A law on police was adopted on April 21, 1920, regulating its structure, jurisdiction, and responsibilities. According to the law, the Ministry of Interior was divided into units (“commissariats”) administered in provinces and districts, as well as in Yerevan. In the villages the responsibilities of the police were carried out by the Ministry of Interior officers (“commissars”). In the 1920s, the government of the First Armenian Republic developed the judicial system based on the transformation of the Russian Empire’s Court System into the Armenian legislation. The Prosecutor’s Service was attached to the Court System. On November 29, 1920, Armenia was declared a Soviet republic. In 1961, the Criminal Code and Criminal Procedure Code of the Armenian Soviet Republic were adopted, modeled on the Criminal Code of the Russian Soviet Republic. The structure of the Armenian Soviet Republic judiciary system was identical to that of the other Soviet republics. In general, the police and prosecutor’s office were responsible for fighting crimes and investigating the cases. Afterward, the cases were handled by the Courts of the First Instance (“national courts”). The Supreme Court of the Armenian Republic had the authority to review the cases solved by the First Instance courts. As to the jails, they were under the control of the Ministry of Justice. All these institutions were acting under the respective bodies of the USSR. After the collapse of the Soviet Union and the establishment of the new republic, Armenia was faced with the necessity to adopt new legislation and reconstruct the main administrative bodies. During the first years of independence, the legislation of the previous Soviet Union was in force. On July 5, 1995,


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the Constitution of Armenia was enacted upon the referendum. In 1998, the Parliament of Armenia (which is called National Assembly) approved the Criminal Procedure Code, while the Criminal Code of the newly established Armenia was adopted only on April 18, 2003. The Criminal Code set criminal responsibility for such new offenses as terrorism, money laundering, illegal banking, human trafficking, and so forth. One of the achievements of the code was the introduction of a system of alternative sanctions and abolition of the death penalty, which had been in the Soviet Criminal Code. Being a civil law country where the legal system is based entirely on written law, Armenia also adopted laws regulating the structure of the judiciary and law enforcement bodies. On November 8, 1996, the president of Armenia signed a decree entitled On Judiciary Reforms of the Republic of Armenia. In 1998, the Armenian Parliament passed laws on Formation of Courts, On the Status of Judges, On Prosecution, On the Solicitor Service, On Compulsory Implementation of Judiciary Acts, and On the Service Providing the Compulsory Implementation of Judiciary Acts. In correspondence with the new legislation, a three-staged judiciary system replaced the twostaged court system, which was inherited from Soviet times. The new judiciary system started to function consisting of the primary-level Courts of First Instance, followed by the Courts of Appeal and Court of Cassation (the supreme judicial body of the Republic of Armenia except for constitutional matters). As a part of judiciary reforms taking place in the country, on April 18, 2007, the Judicial Code of Armenia was introduced, which provided for the creation of specialized courts, in particular, the Criminal and Civil Courts (Northern, Southern, and Yerevan City). However, in 2008, these specialized criminal courts were abolished. All the reforms relating to the judiciary are carried out by the Ministry of Justice. The functions of the ministry include, but are not limited to, providing legal advice to the president, governmental bodies, or the legislative branch; providing assistance in developing the legislation of Armenia; administering punishments imposed by the courts; and

ensuring the compulsory enforcement of judicial acts of the courts of the Republic of Armenia. As a part of judiciary reforms and as a requirement for Armenia’s ascension into the Council of Europe, in 2001, the Penitentiary Service of the Republic of Armenia, which functioned under the jurisdiction of the Ministry of Internal Affairs, was transferred to the jurisdiction of the Ministry of Justice of the Republic of Armenia. Radical reforms were carried out also in the prosecutor’s office and police. In the beginning of the 1999, according to the law On Prosecutor’s Office, the prosecution system was divided into the General Prosecutor’s Office, Prosecution Offices of the Provinces, of the Yerevan City, of the Yerevan City Districts, as well as into the Prosecutor’s Offices of the Military Units. The prosecutor’s office is authorized to initiate criminal prosecution, including criminal case, as prescribed by law; wield control over the legality of preliminary investigation and inquiry; support the prosecution on criminal cases in courts; present state interests protection suits to the court; appeal the acts, verdicts, sentences, or the decisions of the court; and supervise the implementation of punishment and other means of enforcement measures. In 2007, one of the functions of the prosecutor’s office, investigation of crimes, was taken from the unit and handed to the newly established Special Investigations Service. As to the police, one of the first changes encountered by this body in 1992 was the creation of internal police forces and the elimination of neighborhood police (the latter to be re-established in later years). Special units to combat organized crime and drug trafficking were created. In the same year, Armenia joined the International Criminal Police Organization (INTERPOL). This helped establish closer cooperation between the police officers of Armenia and foreign countries. In November 1996, the Ministries of Internal Affairs and State Security were combined into one. However, in 1999, they again were divided and continue to function independently. On April 16, 2001, the Armenian Parliament passed the law On Police and on June 30, 2002, the law On Police Service. According to the last


Armenia

document, the Armenian police became a law enforcement body adjoined directly to the government of Armenia. The main responsibilities of the police include law enforcement, investigation of crimes, crime prevention, social control, and protection of the public. The activities of the police are directed by the chief of police appointed by the president of Armenia. The structure of the Armenian police is represented by the Central Body, Yerevan Police Department, 10 regional departments (one per each marz/region) and 54 police districts. It also includes the Police Force, Police Academy, and Police Training Center. The Central Body heads the police command staff and is composed of Headquarters, Combating Organized Crime Main Department (including the Trafficking in Drugs and Human Beings Division), Criminal Investigations Main Department, Investigative Main Department, Public Order Department, Personnel Department, Information Center, Public Relations and Press Department, Finances and Economic Affairs Department, Administration, Department of Road Inspection, Passports and Visas Department, State Protection Department, Criminal Forensics and Legal Affairs Department, as well as the National Central Bureau of INTERPOL.

Crime Detailed definitions of crimes are prescribed by the Criminal Code of Armenia. Therefore, a person cannot be accused as a criminal for the willful committal of a socially dangerous act, if the latter is not established as a crime by the Criminal Code. Crime in Armenia is multifold. Nowadays the most frequent types of offenses are corruption, tax evasion, assault, and theft. Due to the extremely high level of hidden corruption, crimes are not accurately reflected in official crime statistics. In the last two decades, corruption has become a particular challenge for Armenian society. However, the cases that receive international resonance are based on political motives. One of the offenses took place on October 27, 1999, when six armed men attacked the Armenian parliament and killed the Armenian

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prime minister and seven other high-ranking officials. The leader of the group, Nairi Hunanyan, accused the government of being corrupt and leading Armenia into political and economic ruin. On October 28, the attackers surrendered and freed the hostages after they were allowed to speak on national television and were promised a fair trial. The court said the criminals had acted on their own and were not guided by outsiders. The criminals were sentenced to life imprisonment. However, many people believe that some political forces, which remained unrevealed and unpunished, were behind the 1999 Armenian parliament shooting.

Classification of Crimes The age of criminal responsibility in Armenia is 16. However, juveniles who reached the age of 14 before the committal of the crime are subject to criminal responsibility for several types of crimes: murder, rape, violent sexual acts, kidnapping, grave assault, theft, robbery, extortion, hooliganism, joyriding, theft or extortion of weapons, drugs, damaging transportation or communication systems, destruction or damage of property in aggravating circumstances. Article 19 of the Armenian Criminal Code classifies crimes into four categories: not very grave, medium gravity, grave, and particularly grave offenses. The gravity of the offense is evaluated based on the punishment provided for the particular crime by the Criminal Code of Armenia. Not very grave crimes such as libel, insult, forgery or use of forged documents, false crime reporting, and tax evasion are the least serious of the four offenses and are punished either with a punishment other than imprisonment or with imprisonment not exceeding two years. Medium-gravity intentional crimes such as joyriding or inducting a person into the use of drugs are punished by a term of imprisonment not exceeding five years. Crimes of negligence receive different levels of punishment but usually do not rise above medium gravity so that the categories of grave and very grave crimes include only intentional crimes. Theft, fraud, robbery, drug sale, production, trafficking, assault, and bribery usually are in the list of


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grave crimes. The Criminal Code provides a maximum punishment not exceeding 10 years of imprisonment for grave crimes. Particularly grave crimes such as murder, money laundering, terrorism, and treason are the most serious crimes. The usual punishment for these crimes is imprisonment for more than 10 years or life imprisonment. Starting from 2008, no criminal responsibility is provided for the consumption of drugs in Armenia. Nevertheless, criminal responsibility and imprisonment for the term of three to seven years is set for the illegal cultivation, production, sale, supplying, possession, transportation, theft, or extortion of any type of drugs. The punishment can be increased to 15 years if there are aggravating factors. A person voluntarily submitting drugs to police is exempted from criminal responsibility for illegal production, sale, possession, supplying, and transportation of drugs. Special provisions are provided for abetting or involving a person in the use of drugs, as well as for the organization and maintaining of dens for the use of drugs.

Crime Statistics For many decades Armenia had an image of a country with extremely low crime. During the last several years, the rise of property and violent crimes, as well as drug-related and corruption offenses, has challenged this conception. According to Armenian police data, the crime rate peaked in 1992 at 473 offenses per 100,000 residents and then began a decline and reached 304 offenses per 100,000 population in 2006. In 2007, there were 8,428 criminal offenses in the country; 43.6 percent of offenses reported to the police were property offenses and 11.6 percent, violent crimes. In spite of the fact that, according to the Corruption Perception Index for 2007, Armenia was ranked 99 out of 179 countries, only seven cases of bribery were registered by the Armenian police. This figure is enough to make anybody think that official crime statistics are misrepresented. According to unpublished data from the Armenian police, the crimes recorded for 2007 were as follows: Homicide Assault

104 521

Rape Robbery Theft Joyriding Embezzlement Fraud Drug offenses Bribery Hooliganism Traffic offense Illegal turnover of weapons Money counterfeiting Other crimes Total

8 199 2,712 137 69 432 1,080 7 241 408 180 57 2,273 8,428

Though, according to official data, the trends of such crimes as theft, robbery, rape, and homicide have remained more or less steady over the last 10 years, an enormous change was registered in drug-offense rates. Mitigation of the control over the borders with Turkey and Iran, which used to be strictly closed during the Soviet era, in recent years has contributed to the increase in drug-related offenses. From 1999 through 2007, the drug-offense rate increased sharply, peaking in 2007 with 33.6 drug offenses per 100,000 population. The reported number and types of offenses vary within the country. In 2007, the highest crime rate was registered in Yerevan (the capital of Armenia) with a rate of 452.7 per 100,000 population, and the lowest rates were registered in Gegharkunik (208.3), Armavir (231.8), and Vayots Dzor (253.5) regions. This distribution has remained almost unchanged since the year 2000. Both violent and property crimes are relatively higher in urban areas. Thefts, robberies, and frauds are more frequent in metropolitan areas, while assaults are common in rustic areas. According to the unpublished data provided by Armenian police, the homicide rate is higher in Tavush (17.4 per 100,000 population), Syunik (16 per 100,000 population), Yerevan (8.8 per 100,000 population), and Lori (8.1 per 100,000 population). Syunik, Shirak, and Lori have relatively high assault rates, 7.9, 8.8, and 7.3 per 100,000 population, respectively. Thefts are more frequent in Yerevan (118 per 100,000 popu-


Armenia

lation), Lori (112.6 per 100,000 population), and Tavush (111 per 100,000 population). Law enforcement officials and experts are increasingly concerned about juvenile involvement in crime. In 2002, 4.9 percent of the total crimes reported to police were committed by juveniles while in 2007 the percentage reached 6.7 percent. For the given years, the amount of the assaults committed by juveniles increased from 3.6 percent to 6.7 percent, and for thefts the data were 5.3 percent and 16 percent, respectively.

Finding of Guilt The Constitution and Criminal Procedure Code of Armenia endow the accused with many rights, which include, but are not limited to, protection against unreasonable search and seizure, protection against double jeopardy, protection against self-incrimination, the exclusionary rule, the right to be informed of the charges, the right to be presumed innocent, the right to a public and fair trial, protection against cruel punishments, the right to due process, equal protection under law, and the right to have assistance of counsel. Starting from the moment of arrest, the accused have the right to have a private or public defender. The latter one is expected to represent the client at every stage of the case proceedings. According to the Criminal Procedure Code of Armenia, the participation of the defender is mandatory in the following cases: the accused undergoes a speedy trial, the accused expressed a wish to have a defender, the accused has difficulties in exercising the right to defense due to physical or mental disorders, the accused does not have sufficient command of the Armenian language, the accused is a juvenile or a person drafted for military service, there are discrepancies in the interests of the accused, meanwhile one of them (the accused) has a defense attorney. The persons charged with committal of a crime can remain in a status of arrestee for no more than 72 hours. At this stage, the suspects are informed of the charges, have their constitutional criminalprocedural rights explained to them, and are given the opportunity to choose their defender. When

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72 hours of an arrest are over, the suspect either has to be freed or must be detained based on the court’s decision. Usually, pretrial detention may be executed for a committal of a crime, for which the person can be imprisoned for more than a year. The detainment carried during pretrial proceedings shall not last longer than two months. However, the time of pretrial detention may be extended up to one year due to the complexity of the case. In Armenia, bail is an alternative to the pretrial detention for those who are accused of committing a crime categorized as not grave or medium gravity. As follows, suspects charged with serious offenses, such as murder, rape, robbery, aggravated theft, aggravated assault, kidnapping, and drug trafficking will be denied bail. The court also may deny the release of the accused in those cases where the identity of the accused is not established or when the accused does not have a permanent place of residence, and where the suspect has attempted to hide from the authority that carries out the criminal proceeding. In Armenia, there is no separate system for juveniles. Though Criminal and Criminal Procedure Codes of Armenia provide several privileges for juveniles, offenses committed by juveniles and adults are handled within the same justice system. Depending on the type of crime committed, the investigation of the case may be conducted by the police, Ministry of Defense, Tax or Customs Service, National Security Service, or Special Investigations Service. In general, police investigators are responsible for the investigation of the majority of crimes including homicide, theft, robbery, drug offenses, and so forth. When the investigation is over, the case either will be dropped or it may be brought before a court. In Armenia, any person charged with a crime may be found guilty only by the verdict of the court. As a rule, when a plea bargain takes place, the case undergoes a speedy trial. In that case, the sentence does not exceed two-thirds of the maximum punishment provided for the charged offense by the Armenian Criminal Code. The Armenian judicial system consists of three court levels: Universal Jurisdiction Courts of First Instance, Court of Appeals, and Court of Cassation. All the judges in Armenia are appointed by


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the president of Armenia with the advice of the Justice Council. To become a judge, one has to earn at least a bachelor’s degree in law, work as an attorney at least for two years prior to nomination, and graduate from judicial school. There is no special term period during which a person can serve as a judge. However, judges’ powers must be terminated upon reaching retirement age. There are 16 Universal Jurisdiction Courts of First Instance in Armenia with 147 judges in total. Each court has a chairman and judges, who hear any type of civil or criminal case. The second level is the Court of Appeals. There are two courts of appeal in Armenia: the Criminal Appeal Court and the Civil Appeal Court. The Court of Appeals has the authority to review cases resolved by the Court of First Instance. It consists of 16 judges, including the chairman. Each case is reviewed at the Criminal Appeal Court in a panel of three judges. The highest level of the courts is the Court of Cassation. Based on a complaint in cases stipulated by law, the Cassation Court reviews judicial acts of the Court of Appeals. The Cassation Court has two chambers: the Civil Chamber and the Criminal Chamber. The latter consists of six judges, who must participate in any session of the Cassation Court.

Punishment Armenia’s Criminal Code provides the following penalties: a fine; a prohibition to hold certain posts or practice certain professions; public works service; deprivation of special titles or military ranks, categories, degrees, or qualification class; confiscation of property; arrest; service in a disciplinary battalion; imprisonment; or life sentence. These penalties fall into three categories: basic, supplementary, and mixed punishments. Public works, fine, arrest, service in disciplinary battalion, imprisonment, and life sentence are used only as basic punishments. Deprivation of special titles or military ranks, categories, degrees, or qualification class and confiscation of property are applied only as supplementary punishments. Prohibition to hold certain posts or practice certain professions is a mixed punishment

and is imposed both as basic and supplementary punishment. Only one basic punishment can be assigned for one crime. One or more supplementary punishments can be added to the basic punishment. Public punishment, banishment, and corporal punishment are not practiced in Armenia. The most commonly used sentencing option is incarceration followed by fines and parole. According to the statistical data provided by the Criminal–Executive Department of the Armenian Ministry of Justice, at the beginning of 2008, there were 2,922 individuals serving their term in prisons. The typical punishment for murder, rape, robbery, theft, and serious drug offenses is imprisonment. Life imprisonment is practiced for aggravated murder, international terrorism, and genocide, crimes against humanity. The death penalty is not imposed in Armenia. All convicts serving their term of imprisonment are eligible for parole. To be eligible, the convict must meet two main requirements: have a good record of conduct and actually serve the minimum sentence required by law. The latter one is one-third of the convict’s imprisonment term for a not grave or medium gravity offense, half of the punishment for a grave offense, and two-thirds for a particularly grave offense. For some offenses such as aggravated murder, aggravated rape, or aggravated robbery, the inmate has to serve three-fourths of the imprisonment term. The actual term of imprisonment served by a person cannot be less than three months. For juvenile convicts, the minimum sentence required by the law is set to one-fourth, one-third, and half of the imprisonment term for not grave and medium gravity, grave, and particularly grave offenses accordingly. People who were sentenced to life imprisonment can be freed on parole after serving 20 years of incarceration.

Prisons According to the Criminal–Executive Department of the Armenian Ministry of Justice, at the beginning of 2008, there were 12 correctional institutions in Armenia. In 2008, one more was established, and at present the number of correctional institutions has reached 13.


Armenia

Based on the level of isolation, the following types of correctional institutions are distinguished: “open,” “semiopen,” “semiclosed,” “closed,” and medical penitentiary institution. Assignment of the convicts is based on the seriousness of the offense committed, and, later, the behavior of the inmate. The inmates needing the minimum state of security serve their sentence at penitentiary institutions of the open type, while those sentenced to life imprisonment or imprisonment exceeding 10 years are at closed-type jails. The majority of the penitentiary institutions, except Kosh, Sevan, and Erebuni correctional institutes, provide sections for keeping pretrial detainees. On January 1, 2008, the total number of prisoners was 3,539 (3,278 in prison and 261 convicts in medical correctional institutions). The majority of the prison inmate population, 53 percent, consists of convicts under the age of 30. Only 4 percent of the prisoners are women, and 1.4 percent are juveniles. The largest correctional facilities in Armenia are Nubarashen, Kosh, and Erebuni penitentiary institutions. Nubarashen serves as the biggest pretrial detention center where inmates awaiting trial are kept (as of January 1, 2008, 407 of 770 prisoners kept at Nubarashen jail were pretrial detainees), while Kosh and Erebuni prisons’ population consists only of adjudicated convicts. Usually, several levels of isolation (divided by units) are housed in the same facility. Nubarashen jail provides all levels of security, while Kosh Prison serves as a correctional institution of open, semiopen, and semiclosed type. Kosh jail has day rooms, library, and telephones. There are televisions in the day rooms, but there is no access to cable networks. The convicts can make phone calls, but not in unlimited amounts. Inmates are allowed to have visitors. Attorneys can have an unlimited amount of visitation hours with their clients. The others (family, relatives, friends, etc.) can have a limited number of short-term or long-term visitations. The latter one is provided only for the family or close relatives of the prisoner. The duration of short-term visitation is four hours, and the longterm visitation lasts three days. Short-term visits are allowed during the daytime (from 10:00 a.m.

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until 5:00 p.m.) in special rooms occupied for that purpose. The convict can have short-term visitation once per month, and long-term visitation is allowed once per two months. The number of visitations for those serving a life sentence in prison is reduced to three and one, correspondingly. The visiting rules in correctional institutions provide for a maximum of three adult persons at a time for short-term and two adults for long-term visitations. Juveniles under age 18 do not count as visitors. However, the list of juvenile visitors is restricted to the brothers, sisters, children, or grandchildren of the prison inmates. Criminals serving their term in prison may be granted a privilege to have extra short-term visits, receive extra parcels, or make additional phone calls for good behavior. Good conduct is required to be eligible for parole or to be transferred to a correctional center with a lower level of isolation. Shortterm furloughs usually not exceeding seven days are another form of privilege granted to prisoners and detainees. Though the correctional institution may require inmates to work, scarcity of jobs makes employment actually impossible. To provide jobs for the prison inmates, the Armenian government founded the fund Assist the Prisoner. In Yerevan in 2006, the market hall Prison Art was opened, which gave the prisoners the opportunity to have their handicrafts sold and the money transferred to their personal accounts. Upon their consent, the prisoners also can be engaged in voluntary works aimed at the maintenance of correctional institution facilities or territories. This occupation cannot exceed two hours per day. Penitentiary establishments take measures to provide necessary conditions for the education of both juvenile and adult inmates. Secondary and vocational education is offered by the correctional institutions free of charge, while higher education can be provided by correspondence at prisoners’ own expense. Prisoners who serve their punishment in Armenia and who have been charged in another country with any crime can be delivered there. The main requirement is the existence of signed multilateral or bilateral treaties between Armenia and the requesting state. At present, such treaties exist between


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Armenia and Russia and many countries of Europe, the Newly Independent States (NIS). No extradition agreement was signed with the United States. However, the transfer of the criminal from Armenia to the United States or any country having no signed agreement with Armenia can be done based on mutual goodwill. An example of prison inmates being transferred to another country is the case of two citizens of Kazakhstan charged with drug smuggling. Drug smugglers planned to take more than 700 grams of heroin to Greece from Tashkent, but the flight was interrupted in Armenia when one of the smugglers went into a coma as the result of the dissolving of the container of heroin he had swallowed. The criminals were sentenced to 10 years of imprisonment. However, in 2008, they were transferred to Kazakhstan upon their request. Anna Margaryan Further Reading Gabuzyan, Ara. (2007). Problemi prestupnosti v Respublike Armenia v perekhodniy period (The Problems of Criminality in the Republic of Armenia in the Transitional Period). Yerevan. Gabuzyan, Ara, and Anna Margaryan. (2004). Tendenzen der Kriminalität in Armenien in der Übergangszeit. Strafrecht and Kriminaltät Entwicklungen in Mittel-und Osteuropa (Trends of crime in Armenia during the transition. Criminal justice and crime at developments in Central and Eastern Europe). Bochum. Margaryan, Anna, and Ara Gabuzyan. (2009). “Armenia.” In Juvenile Delinquency in Europe and Beyond: Results of the Second International Self-Report Delinquency Study, edited by Josine Junger-Tas, Ineke Haen Marshall, Dirk Enzmann, Martin Killias, Majone Steketee, and Beata Gruszczynska. New York: Springer. Official Web site of the Judiciary of Armenia: http://www.court.am.

Azerbaijan Legal System: Civil Murder: Medium Burglary: Low Corruption: High Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background On the eve of the Soviet Union’s dissolution, the Republic of Azerbaijan re-established its independence with passage of the Constitutional Act on Restoration of State Independence, October 18, 1991. With this act, Azerbaijan instituted a presidential republic with a separation of federal powers into legislative, executive, and judicial branches, governed by a system of civil law. The new constitution of 1995 called for political and individual rights as well as the independence of the judiciary. Since its signing of a memorandum of understanding with the Organization for Security and Co-operation in Europe (OSCE) on the July 17, 2000, Azerbaijan has been obligated to respect the rule of law and observe human rights standards as established in the Copenhagen, Moscow, and Budapest Documents of 1990, 1991, and 1994, respectively. Following its successful bid to join the Council of Europe (CoE), Azerbaijan since January 2001 has been obliged to amend its legislation to conform to CoE standards. After joining the CoE, Azerbaijan ratified in 2002 the European Convention on the Protection of Human Rights and Fundamental Freedoms. As a party to the convention, violations can be brought to the European Court on Human Rights when all domestic avenues have been exhausted.

Official Web site of National Statistical Service of the Republic of Armenia: http://www.armstat.am.

Legal System

Official Web site of the Public Prosecutor Office of the Republic of Armenia: http://www.genproc.am.

Domestically, district and municipal courts principally serve as trial courts for criminal, civil, and


Azerbaijan

juvenile cases, while the Supreme Court, the head of the judiciary, largely performs appellate reviews. The Supreme Court consists of 12 members appointed by the Chamber of Deputies to serve fiveyear terms. The court is divided into four chambers with three justices in each. Two chambers are charged with reviewing civil cases, a third chamber handles criminal cases, and a fourth reviews administrative, social, and mining cases. In addition to performing appellate reviews, the High Court has original jurisdiction on questions concerning charges against top officials or state contract disputes. Responding to indications that the Supreme Court is acquiescent to the authority of the president, the Council of Europe offered financial assistance to facilitate further reform of Azerbaijan’s judicial system toward a more democratic example. Although Azerbaijan’s Constitution presumes innocence in criminal cases, calls for public trials, and upholds a defendant’s right to legal counsel, reports continue that judges are subject to political influence and sometimes may take bribes, according to the Fund for Peace, 2009. Among the array of crimes addressed by the Penal Code of Azerbaijan, thefts and frauds are the most clearly defined. In the first six months of 2007, for example, 8,676 crimes were officially registered. Of these, approximately 18 percent were premeditated murders while robberies and muggings accounted for 15 percent; 6 percent were reportedly burglaries; 24 percent consisted of cattle theft; and car theft actually dropped by 11 percent during this period, according to a BBC report. Public prosecutors generally handle prosecutions and supervise investigations by common law enforcement agencies. To practice criminal law, defense attorneys must first obtain membership to the Collegium of Advocates, or the Azerbaijan Bar Association, a quasigovernmental entity that limits its enrollment. Membership is currently obtained through an unclear process that combines a Soviet legacy with an ill-formed mechanism for admitting new members. Further, the Collegium remains under the influence and power of the prosecutor’s office. Thus, despite almost 20 years of independence and ongoing attempts to move

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the legal system further away from the influence of the previous Soviet system, prosecutors maintain an imbalance of power that can influence the outcome of cases. Although the 2004 Law on Advocates, a revision of the previous 1999 Law on Advocates and Advocate Activity (itself intended as a revision of the 1980 Provision on the Advokatura of the Azerbaijan Soviet Republic), in principle designed to restructure the Collegium’s monopoly control over which licensed lawyers can serve as criminal defense attorneys, in practice the Collegium has not been required to establish a clear and transparent mechanism for admitting new members. Consequently, the original 350 members admitted under the 1980 Provisions on the Advokatura, and another 150 subsequently admitted, preserve their monopoly control over criminal defense. Given the low number of criminal defense attorneys available to the public, approximately 500 for a population close to 8.5 million, it appears that Azerbaijan does not have sufficient criminal defense resources to serve its citizens. At the same time, the Collegium’s dependence on the prosecutor’s office leaves advocates susceptible to the influence of police, investigators, the prosecutor’s office, and political authorities. While legislatively Azerbaijan’s judiciary is independent of political control, in practice judges remain largely subject to the executive branch, leading to presumptions of likely corruption and influence peddling. Judges, acting on the instruction of executive branch officials, regularly sentence detainees to jail within hours of their arrest without providing access to a lawyer.

Crime Even as Azerbaijan’s oil-based economic development continues to expand, incidences of officially reported crimes have been increasing over previous years. According to official Ministry of Internal Affairs statistics for 2008, the total number of reported crimes, 21,692, was an increase of 16 percent over 2007 levels. More than 7,500 of these reported crimes involved personal injury, with close to 6,500 concerning theft and robbery and approximately


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6,000 committed against public security. While official statistics suggest that 816 crimes were committed against state authority, what constitutes such a crime is contested by a range of national and international commentators. Official statistics published in 2008 by Azerbaijan’s State Statistical Committee suggest that in 2007, there were 18,667 crimes with 17,734 convictions. Human trafficking violations reached 394 reported incidents in 2008, an increase of 111 since 2007. Reported drug possession, distribution, and selling charges reached 3,767, compared to 3,224 in 2007. The Border Control intercepted 350.5 pounds (159 kg) of illegal drugs while the Ministry of Internal Affairs confiscated 1,435 pounds (651 kg) within the country. On the other hand, 2008 also marked an apparent decline from 2007 in certain officially reported crimes, ranging from bribery (a reported decrease of 50%) and car theft (down 33%), to sexual assault (down 26%) and willful homicide (down 4.5%), as reported by the Ministry of Internal Affairs. While violence against women remains problematic throughout the country, and legislation provides for criminal prosecution of domestic violence and punishment for acts of rape (including spousal rape), comprehensive statistics concerning the scope of the problem are sketchy. Officially, there were 34 reported instances of rape and attempted rape in 2007, compared to a 12-year high reportedly set in 1995 of 70, according to an Organisation for Economic Cooperation and Development (OECD) 2009 report.

Finding of Guilt Four years after the Republic of Azerbaijan declared its independence, the Police Law was passed in 1995, formally instituting a centralized state police system. The country’s initial internal Special Forces unit, the Detachment of Police of Special Purposes (OPOR), played a significant role in early 1990s political and public life. However, after this military unit mutinied in the nation’s capital in 1993, its command was disbanded and subsequently Azerbaijan’s internal security forces were placed under the control of

the Ministry of Internal Affairs rather than the Department of Defense. Empowered to contain protests, processions, and unauthorized activities, these forces were called upon by the central government to keep a check on protests surrounding the results of the 2003 presidential elections. Police, the prosecutor’s office, and magistrates each can instigate identity checks and arrests; the prosecutor’s office and police can further order questioning of citizens. Police have the power to detain individuals for 48 hours but with a judge’s order can hold individuals in custody longer; police do not require a court order to conduct searches of persons and premises. With a court order, police are empowered to tap private telephone lines as well as bug public locations. Azerbaijan adheres to the presumption of innocence, a tenet ensured in principle by article 63 of the Constitution, the Criminal Code of Procedure, and the Code of Administrative Offences. In practice, according to a study commissioned by the Baku Office of the Organization for Security and Co-operation in Europe (OSCE) in 2006, the Prosecutor General, the Minister of Internal Affairs, representatives of the Presidential Apparatus, and the heads of other administrative bodies frequently refer to suspects in high-profile cases as “criminals” without a final court decision and will discuss evidence publicly. After a decade or so of the media’s growth and diversification, since assuming the presidency following his father in 2003, the government of President Aliyev has been increasing its formal and informal restrictions on freedom of expression. Consequently, the largely government-controlled media has been complicit in its broadcast of unproven allegations and accusatory speeches with apparently little regard for fact checking, further complicating the constitutionally protected right to the presumption of innocence. The Constitution ensures that every citizen who has been detained, accused, or arrested for a crime has the right to legal representation at each stage of his or her legal proceeding. The Constitution’s article 61 guarantees the right of every citizen to have access to a lawyer from the moment of detention,


Azerbaijan

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Police officers detain an opposition activist while dispersing an unsanctioned rally against President Ilham Aliev in downtown Baku, Azerbaijan, December 18, 2005. (AP Photo/Aida Sultanova)

accusation, or arrest for a crime, while article 67 directly provides that each accused, arrested, or detained individual will be advised of his or her rights immediately. The Law on Advocates and the Criminal Procedure Code each provide that an advocate and client will be given adequate time to meet in private. According to a study by ABA-CEELI (2005), however, for the most part neither jails, courthouses, nor police stations have or provide for private and separate meeting rooms. Further, consultations between client and advocate are commonly conducted either in the presence of law enforcement personnel or members of the court. While the Constitution provides the right of access to an advocate from the moment of arrest or detainment, individuals may be held for several days without access to a defense attorney, or until the accused has signed a confession.

Although the Constitution’s articles 57, 60, and 65 guarantee the general right of appeal, the appeal’s process in practice can be somewhat unclear, and the actual timeframe varies on a case-by-case basis.

Prison Azerbaijan’s prison system, administered by the Chief Department for the Execution of Court Decisions and overseen by the Ministry of Justice, consists of more than 50 penal institutions ranging from those for juveniles to maximum-security units. Like many other penal systems in Eurasia, Azerbaijan employs congregate rather than single-occupancy cells. Azerbaijan’s penal institutions are divided according to population. For example, certain facilities house juveniles while others are dedicated to


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former police officers and members of the civil service; one is reserved for women, and another for tuberculosis patients. The total prison population as of 2007 was 18,259 consisting of approximately 10 percent women, 4 percent repeat offenders, and almost 70 percent from the ranks of the unemployed. Of those convicted of a crime and serving time in 2007, sentences of two to five years were most common. There were 18 individuals sentenced to life imprisonment. The Parliament on June 24, 2008, voted to approve penitentiary legislation that called for the improvement of penal detention standards. These improvements included, among others, more family visits, allowance of food parcels brought in from the outside, and a reduction in the number of inmates per cell for those serving life imprisonment. Capital punishment was abolished in Azerbaijan in 1998, following a moratorium on executions applied in 1993. Jeremy Tasch

Further Reading ABA-CEELI. (2005). The Legal Profession Reform Index for Azerbaijan. Azerbaijan: American Bar Association and Central European and Eurasian Law Initiative. Abdullahzade, Cavid. (2007). “The Status of International Treaties in the Legal System of Azerbaijan.” Review of Central and East European Law 32: 233–256. “Human Rights Center of Azerbaijan Individual UPR submission—Azerbaijan, September 2008.” (2008): http://209.85.229.132/search?q= cache:aJYe60n5bCYJ:humanrightshouse.org/ noop/file.php%3Fid%3D10010+Human+Rights +Center+of+Azerbaijan+Individual+UPR+sub mission+-+Azerbaijan,+September+2008&cd= 1&hl=az&ct=clnk&gl=az&client=firefox-a. “Life Imprisonment and Conditions of Serving the Sentence in the South Caucasus Countries.” (2009). A Project of the Global Action to Abolish the Death Penalty, DDH/2006/119763: http://www.penalreform.

org/edith/South%20Caucasus%20Life%20 Term%20feb%2009.pdf. Ministry of Internal Affairs. (2009): http://www. mia.gov.az/?/en/content/29162/.

Bangladesh Legal System: Common/Islamic Murder: Medium Corruption: High Human Trafficking: Low Prison Rate: High Death Penalty: Yes Corporal Punishment: Yes

Background Bangladesh became an independent nation in 1971. It is located in South Asia and is nearly surrounded by Indian territory except for a small strip in the southeast, where it borders Myanmar. Formerly, Bangladesh was a part of British India and then of Pakistan from 1947 through 1971. The total land area is 147,570 square kilometers (56,977 square miles) and its population is 153,546,896 as of July 2008, which makes it the seventh most populous country in the world. The main religion in Bangladesh is Islam, and Bangla is the primary language. Muslims account for 88 percent of the total population, Hindus 10.5 percent, less than 1 percent Buddhist or Christian. Bangladesh has experienced an unstable political climate since its independence. This political instability has often resulted in emergency declarations of martial law, undermining the legal regime of personal liberty. The impact of such political regimes on the criminal justice system has been clearly demonstrated in the administration of courts and corrections (justice) in Bangladesh. For example, the increased use of preventive detention under the present emergency rule has caused unprecedented growth in prison population. Also, it produced an increasing number of convictions in special courts.


Bangladesh

The imposition of emergency on January 11, 2007, has significantly altered the political history of Bangladesh. Over the years enactment of special laws such as Special Powers Act, Anti-Terrorism Act, Public Safety Act, Speedy Trial Act, and more recently, Emergency Powers Ordinance 2007 and Anti-Terrorism Ordinance 2008 have greatly affected the administration of law and order as well as the protection of basic human rights in Bangladesh. At the same time, these legislative initiatives by the government have increased the punitiveness of the criminal justice system. The United Nations Development Programme (UNDP) 2002 report states that Bangladesh is facing a significant level of human insecurity with regard to access to justice, enforcement of laws, misuse of authority and abuse of power by some people. A study by Bangladesh Rural Advancement Committee (BRAC) found that “the administration of justice is underfunded, painfully slow and inefficient which results in excessive delays.” At the same time, the justice system is not accessible to a great majority of the population due to costs and time associated with litigation, lack of legal awareness, and fear of interaction with the police. After assuming state power on January 11, 2007, the caretaker government worked to ensure a good governance and corruption-free society. To implement this political agenda the government had adopted more than 60 ordinances and policies on legal and institutional reforms during the tenure of the government. The major ordinances and policies that were adopted by the caretaker government include separation of the judiciary from the executive and formation of the Supreme Judicial Commission to ensure the appointment of neutral and competent judges, National Human Rights Commission, Anti-Terrorism Ordinance, and Bangladesh Attorney Service. Since corruption became a great concern for the government, it reconstituted the Anti-Corruption Commission (ACC) to fight corruption effectively. More than 70,000 cases were filed with the ACC during the last 18 months. As a part of crackdown on rampant corruption, the military-backed interim

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government had detained immediate past prime minister Khaleda Zia and her two sons and another former prime minister, Sheikh Hasina. Both the prime ministers had to face charges of corruption and extortion. The ACC filed a large number of corruption cases against the top politicians. Accordingly, more than 160 political leaders, including former ministers and parliament members, had been detained, and many of them received jail sentences ranging from 3 to 13 years. Although the caretaker government made significant advances in its drive to bring corrupt politicians to justice, toward the end of its rule almost all the detained political leaders, including the two former prime ministers, had been released from the jail just to ensure the participation of the two major political parties in the national election held on December 29, 2008. It is important to mention that the caretaker government made reform in many constitutional bodies. For example, reform in the election system ensures that corrupt and convicted politicians could not take part in the election. And the government became more lenient toward corruptive and convicted politicians who were allowed to participate in the election. It appears that the caretaker government could not sustain the political pressure from the two major political parties, though many believed that the prosecution of corrupt politicians and other reform activities would bring a new political era. However, after the national election in which the Awami League came to state power with overwhelming victory, the newly elected government has already discarded many reform activities initiated by the caretaker government. Most importantly, some of the ordinances and bills were not even endorsed by the new Parliament. As a result, the political culture of Bangladesh remained largely unchanged due to unwillingness of the political parties.

Legal System Bangladesh inherited a colonial legal system from the British and Pakistani rule, thus the legal system is founded on English common law. Nevertheless,


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most laws in Bangladesh are statutory laws passed by the legislature and interpreted by the higher courts. The procedural laws offer an adversarial system of proceedings in which prosecution has to prove the guilt of the accused and the accused is presumed innocent until found guilty after trial. On the other hand, in a civil case the burden is divided between the litigating parties. All laws of the country are subordinate laws made by the elected Parliament in compliance with the principles of the Constitution. The judicial system remained the same until the enactment of the Constitution of Bangladesh on December 16, 1972. The two levels in the court system include the subordinate courts and the Supreme Court. The subordinate courts are divided into two broad classes: civil courts and criminal courts. The civil courts are created under the Civil Courts Act of 1887. There are five tiers of civil courts, which have jurisdiction to try all suits of a civil nature. There are two classes of criminal courts, Courts of Session and Courts of Magistrate. There are four tiers of judicial magistrates: chief metropolitan magistrate in metropolitan area and chief judicial magistrate to other areas, magistrate of the first class, second class, and third class. The Supreme Court is divided into two sections: the High Court and the Appellate Court. The High Court hears original cases and assesses cases from the lower courts. The Appellate Court has jurisdiction to hear appeals of judgments, decrees, orders, or sentences of the High Court or any other body. Verdicts of the Appellate Court are binding on all other courts. The High Court may proclaim any law incompatible with the fundamental rights as null and void. The Supreme Court is not only autonomous, but also acts as the keeper of the Constitution. In addition to interpreting laws made by Parliament, the Supreme Court can also enforce fundamental rights of the citizens. In addition there are administrative tribunals to decide service disputes of public servants and some special courts and tribunals such as family court, Artha Rin Adalat (Money Loan Court) to decide money claims of the banks and other financial institutions, Nari-o-Shishu Nirjatan Daman Adalats

to decide cases of crimes committed against children and women. Parliament can enact laws, but that must be consistent with the provisions of the Constitution. It appears that almost all the substantive laws creating rights and obligations are those endorsed during the British period, and are still in action with alterations over time. For example, the existing Criminal Codes and Procedures in Bangladesh result from the period of British rule, as modified by Pakistan and Bangladesh. Likewise, the fundamental documents such as the Bangladesh Penal Code, first promulgated in 1860 as the Indian Penal Code; the Police Act of 1861; Bengal Jail Code of 1864; the Evidence Act of 1872; the Code of Criminal Procedure of 1898; the Criminal Law Amendment Act of 1908; the Official Secrets Act of 1911; the Muslim Personal Law (Shariat) Application Act, 1937, relating to Muslim family affairs, are still in operation in Bangladesh.

Politicization of Police The state exercises strong control over police agencies. As a consequence many policy decisions regarding police are instigated for political purposes. Evidence indicates that politicians even manipulate preparation of charge sheets and final reports; as a result the “fall out” rate of arrest is high. Most importantly, the investigations of sensational cases have been redirected according to the will of the ruling party. It may be noted that after assuming state power each successive government brought major changes in different tiers of the police administration, including the appointment of new police chiefs. For example, during the tenure of Bangladesh Nationalist Party (BNP) government (October 2001–October 2006) a total of 65 senior (of them 6 additional inspector generals, 19 deputy inspector generals, and 4 additional deputy inspector generals) and 950 lower-ranking police officers were forced to retire, while 796 members of the police force were dismissed during the same period on political grounds. Similarly the new Awami League government also brought major changes in the police administration.


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In sum, the extent of politicization has been reflected in appointment, promotion, and academy training of the police officers. To improve the quality of police services in 2007, the caretaker government drafted a new police ordinance aiming at freeing police from extraneous influences and making them more accountable to the people. The ordinance entitled Bangladesh Police Ordinance, 2007 will replace the existing 148year-old Police Act. The goal of the new ordinance includes making police more service-oriented and people friendly and protecting human rights. Under the new ordinance any interference in police work will be treated as a criminal offense. Unfortunately, the caretaker government did not pass the draft ordinance and the new political government has yet to pass the ordinance as well.

Separation of Judiciary Although the Constitution grants an independent judiciary, the lower courts have remained a part of the executive branch since independence. In 1999, the Supreme Court gave a 12-points directive for separating the judiciary from the executive organ of the state. The directive came following a case— popularly known as the Masder Hossain case filed in 1995. Despite the repeated pledge, the successive political governments did not take any steps for separating the judiciary. Finally, on November 1, 2007, the interim government implemented the court’s directive for the separation of judiciary. Accordingly, all magistrates at subordinate courts started exercising their judicial functions under the authority of the Supreme Court that contributed to significant changes in the structure of criminal courts in Bangladesh. Moreover, the existing Code of Criminal Procedure 1898 has been revised. Truly, this is the major achievement of the past caretaker government.

Crime Control and Human Rights There have been allegations that two specific laws facilitate endemic human rights violations in Bangladesh: (1) the Special Powers Act, 1974 (SPA)

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and (2) the Emergency Powers Rules of 2007. The SPA allows arbitrary detention for long periods of time without charge, and Section 54 of the Code of Criminal Procedure facilitates torture in police or army custody. The limited safeguards provided in the act allow the government to abuse it to control freedom of expression and to suppress political opposition. Political parties have repeatedly promised to repeal the law when in opposition, but the law has been maintained so far. Each year, thousands of people are capriciously in custody under SPA, which rebuffs them from resorting to judicial remedies. The legal experts argue that a number of provisions in the Emergency Powers Ordinance and Emergency Powers Rules (EPR) 2007, providing death penalty and life-term imprisonment for violating these provisions and also any rules with retrospective effect, are against the fundamental structure of the country’s Constitution. For example, Rule 10(2) states that “all crimes committed under this law shall be cognizable, non-compoundable and non-bailable.” Also, Section 6(1) of the Emergency Powers Ordinance 2007 provides blanket impunity for all actions to state actors. In sum, the Emergency Powers Rules (EPR), enforced by the government in January 2007, suspended many basic rights, including freedom of press, freedom of association, and the right to bail. There were widespread allegations that in the prosecution of anticorruption cases in the newly established Special Judges’ Courts instead of regular courts, the due process rights of the accused were not maintained properly. Meanwhile, the present government has withdrawn a large number of corruption cases against the leaders of the ruling political party, arguing that all the cases were politically motivated.

Police The police in Bangladesh are a centralized national force. The Ministry of Home Affairs controls its functions while the operational responsibilities are vested in Police Headquarters. The inspector general is the chief executive of the police departments.


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Bangladesh police follow the British police system of the colonial era with some minor modifications. The Police Act of 1861 oversees the police administration, whereas operational parts are directed by the Police Regulation of Bengal (PRB), 1943. In addition, the Home Ministry has the authority to issue administrative regulations on personnel and police operations. The main branches in the police department include Traffic, Special, and Detective branches. In addition to that, there is the Central Investigation Department (CID), which deals with the high profile and serious cases, and Rapid Action Battalion (RAB). In recent years, Highway Police and Trafficking of Human Beings (THB) units have been introduced. Policing activities are carried out from a central office known as police station (Thana) in both urban and rural areas. There are presently 599 police stations in Bangladesh. The officer in charge (OC) of a police station is responsible for maintaining law and order and prevention and detection of crimes in his jurisdiction. The metropolitan police, a separate wing within the police department, are responsible for policing the major cities of the country. Police officers are classified as gazetted and nongazetted, roughly equivalent to commissioned and noncommissioned officers in the military services. The top four managerial positions are inspector general of police (IGP), additional inspector general, deputy inspector general (DIG), and superintendent of police (SP). The nongazetted category consists of inspector, sub-inspector (SI), and assistant sub-inspector (ASI). The superintendent (SP) of a district and officer in charge (OC) of a Thana are the two most powerful officers in the police administration. The lower echelons of the police are known as constables and constitute more than 70 percent of the police force. According to Police Headquarters, as of June 2008, the total manpower of Bangladesh police was 123,000.

Rapid Action Battalion (RAB): Policing by Military In the face of the rising crime problem, especially organized crime, the government has created a

specialized unit of police called the Rapid Action Battalion (RAB) in June 2004, based on the Armed Police Battalions (Amendment) Act, 2003. It is a composite force drawing its personnel from the police, paramilitary forces, and the various branches of the armed forces. Presently, 12 battalions of RAB are working throughout the country. In comparison to the police, RAB staff are better trained, well paid, and well prepared. The main functions of RAB include crime fighting, elimination of illegal arms, arrest of wanted criminals, controlling organized crime (e.g., women and child trafficking), Islamic militancy, and money laundering. Since its inception, RAB has played a very effective role in improving the law and order situation in the country. Its success stories include apprehension of top leaders of Islamic militants like Jamatul Mujahidin of Bangladesh (JMB), Horkatul Jehad, and some most wanted gang leaders. Despite wider public acceptance, its involvement in “extra-judicial killings,” popularly known as “crossfire,” has generated wide controversy among politicians and members of civil society groups at home and abroad. The U.S.–based Human Rights Watch reports that over the past four years, RAB members have killed more than 540 people as of June 2008.

Crime Classification of Crimes The major categories of crimes and their punishments are listed in the Penal Code and Schedule II of the Code of Criminal Procedure 1898, the country’s most significant and comprehensive penal decree. Among the listed classifications of more serious crimes are activities called offenses against the state, offenses affecting life, such as murder. Among other categories of felonies are offenses against the public tranquility (meaning unlawful assembly), rioting, and public disturbances; offenses relating to religion; and offenses against property, such as theft, robbery, and dacoity (robbery by a group of five or more persons). The age of criminal responsibility in Bangladesh is 16 years.


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Crime Statistics Bangladesh experienced a sharp increase in crimes in the early 2000s. A study by Kashem for the Bangladesh Center for Criminological Research found that over the years, the patterns of murders have changed significantly in terms of premeditation and brutality. And the use of firearms in committing crimes, especially murder, has increased in the past decade. The data provided by the Police Headquarters indicate that between 2000 and 2007, the number of reported crimes has increased by 44 percent in Bangladesh. While, during the same period, violent crime such as murder has increased by 13.6 percent. According to crimes recorded by police in 2007, there were 157,200 reported crimes and an overall crime rate of 91.5 per 100,000 population. The most typical crimes recorded by police in rural areas are theft, robbery, cruelty to women for dowry, while in urban areas the most typical crimes are burglary, mugging on the city streets, drug-related crime, and extortion at the city markets and business establishments. Most recent crime statistics (2007) are as follows: Dacoity (gang robbery) Robbery Murder Seedy Trail Act Rioting Cruelty to women Child abuse Police assault Burglary Theft Arms Act Explosive Act Narcotics Smuggling Kidnapping Others

1,047 1,298 3,863 1,980 263 14,250 967 278 4,439 12,015 1,746 232 15,622 5,202 774 93,224

Controlling Muslim Militancy In recent years the rise of religious militancy is a big challenge for the law-enforcing agencies of Bangladesh. It appears that since 1999, attacks by Islamist

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militants have been increasing. They have targeted opposition politicians, scholars, journalists, members of the judiciary, religious minorities, and so forth. Law-enforcement agencies have identified 29 Islamic organizations for suspected involvement in militancy. Of them only two major militant groups, namely, Jama’atul Mujahideen (JMB) and Harkatul Jihad-al-Islami (Huji), are active. Interviews of senior police officers suggest that controlling religious militancy is a difficult task, as the issue is linked to policy choice of the government. Most importantly, the law-enforcement agencies cannot get tough on them because of the religious issue. One leaflet of these organizations entitled “Islamer Prokrito Salah” (“Real Salah +9of Islam”) says that “jihad or military program or armed struggle is a must to establish the rule of Islam.” Using the verses of the holy Koran, it is reported that “if anyone leaves jihad or armed struggle, they shall not be accepted to Allah as a momen (devout/real Muslim).” Citing this example, one senior official of a law-enforcement agency observes: “As long as the government allows such campaigns or activities and does not prohibit such propaganda, we cannot consider it as an offence.” That is, existing laws are inadequate to fight against militancy. The government has so far banned four Islamist militant organizations. But police could not trace the many leaders of these militant groups because their activities are largely confined to mosques and madrassas (religion-based educational institutions).

Women and Child Trafficking Trafficking in human beings (THB) has been increasing in Bangladesh. The major factors behind the trafficking have been identified as poverty, illiteracy, landlessness, overpopulation, and low levels of income. There are no reliable statistics; however, according to United Nations Children’s Fund (UNICEF) since 2004, between 10,000 and 29,000 children are used for the purpose of prostitution in Bangladesh. In fact, the actual number of THB cases is higher than the recorded ones by the police. According to a U.S. State Department report (2005), Bangladesh serves as both the source and


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transit country for men, women, and children. They are used “for the purpose of sexual exploitation, involuntary domestic servitude, child camel jockeying, and debt bondage.” The U.S. State Department Trafficking in Persons Report 2008 revealed that Bangladeshi women and children were engaged in forced labor and prostitution in India and Pakistan. While boys have been used as camel jockeys in the Middle Eastern countries such as United Arab Emirates and Saudi Arabia, most of them were trafficked to these countries through fraudulent job offers by some Bangladeshi recruitment agencies. In a country like Bangladesh, clearly, the social consequences of trafficking are extremely serious, especially for the women and girls who are sold for the purpose of sexual exploitation. According to police officials, the investigation of trafficking cases is complex and time-consuming. Additionally, the police and judicial departments do not have sufficient capacities in prosecuting trafficking cases, which is a major obstacle in controlling trafficking. Recently, within the police department, a specialized THB unit has been set up to strengthen the fight against different types of trafficking.

Cybercrime Although cybercrime is still not alarming in Bangladesh, the growing number of Internet users poses a great threat to the country. So, Bangladesh police are now improving their capacity to combat cybercrime. They have identified the following sites: (1) illegal prostitution promotion sites; (2) use of the Internet for transmitting false and malicious information; and (3) use of the Internet for women and child trafficking. Interviews with police officers suggest that due to a lack of resources, trained investigators, and equipment, presently it would be very difficult for the police to control cybercrime in Bangladesh. Furthermore, in the absence of digital forensic laboratories for investigation and detection of cybercrime, the investigative capability of the police is limited. In identifying the major obstacles to controlling cybercrime, police executives argue that cybercrime is not a cognizable offense. On the other hand, the lack of legislation to extradite the offender is one of the major obstacles in dealing with

this problem. The establishment of a Cyber Appellate Tribunal is essential. At the same time, the level of Information Communication Technology (ICT) knowledge of judges must be increased for successful prosecution of cybercrimes.

Finding of Guilt Jury trial does not exist in Bangladesh. In the subordinate courts a single judge hears all the cases while in the Supreme Court, a judicial panel comprising two to three judges conducts the majority of the trials. Trials conducted under the SPA and the Women and Children Repression Prevention Act are analogous to normal trials, but these are tried without the prolonged deferments as observed in other cases. Under the provisions of the Speedy Trial Act (STA) and the Women and Children Repression Prevention Act, special tribunals hear cases and issue judgments. Cases under these laws have to be investigated and tried within specific time restrictions. For example, the Women and Children Repression Act, 2000 (Nari O Shishu Nirjatan Daman Ain, 2000) specifies a speedy investigation (generally within 60 days; with permission of the Tribunal within 90 days to 120 days—Section 18) and trial (within 180 days—Section 20).

Rights of Accused and Legal Aid The rights of the accused include the right to be represented by counsel, to review accusatory material, to call witnesses, and to appeal verdicts. Statefunded defense attorneys are seldom afforded, and there are few legal aid programs to offer financial assistance to poor plaintiffs. There is no mandated provision of counsel for accused indigents, but the government does appoint lawyers to represent individuals tried in absentia. In rural areas, individuals frequently do not have legal representation. In urban areas, legal counsel usually is offered if individuals can find the funds. Nevertheless, there are accusations that sometimes detainees and suspects in police custody were denied right of legal counsel. Legal aid in many countries, for example, the United States, United Kingdom, and India, has


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Prisoners look out from a prison van at the court premises in Dhaka, Bangladesh, August 4, 2009. Bangladesh launched a campaign to formally establish village courts in 500 rural administrative councils to settle small-scale disputes outside formal courts. (AP Photo/Pavel Rahman)

developed largely through private initiatives. The voluntary organizations such as legal aid societies, social service organizations, law school clinics, and bar associations have been playing an important role for the poor. In Bangladesh as well, some leading nongovernment organizations (NGOs) have come forward to provide legal aid, sometimes with the active assistance of different donor agencies. Among the most prominent organizations are Bangladesh Legal Aid and Service Trust (BLAST), Ain O Salish Kendro (ASK), Bangladesh National Women Lawyers’ Association (BNWLA), and Madaripur Legal Aid Association. Most of these NGOs render legal aid schemes to cover a particular area of the country, but some have been offering legal assistance all over the country. For example, BLAST has been providing legal assistance to the poor through legal aid clinics in the country. These organizations offer

training, mediation, legal awareness, and counseling schemes to help indigent people solve their legal problems. Besides that, since 1996, BLAST has been conducting a number of public interest litigations aimed at improving the legal empowerment of poor and marginal people. Under the Legal Aid Act of 2000, the government formed a National Legal Aid Organization to provide legal aid to poor litigants. Between 2001 and 2007, legal aid has been provided in 56,211 cases (civil and criminal) in 55 districts. Also, legal aid has been provided in 1,020 jail appeal cases.

Problems of the Court System A major problem of the court system is the devastating accumulation of cases, and prolonged trial process. Consequently, many accused persons are held


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in prison for many years. It is alleged that corruption occurs in the judicial process, prohibiting many persons from attaining a fair trial. A survey by the World Bank in 2005 found that the performance of judiciary was the worst among the participating countries in the survey. The average civil case in the district court in Bangladesh takes nearly five years to resolve, excluding the time taken for the appeals process. In some cases, especially land-related litigation, it is more than 15 to 20 years from filing in the trial court to decision by the appeal court. The data provided by the Supreme Court revealed that as of January 1, 2008, more than 1.6 million cases are pending in Bangladesh. Of them, the Appellate Division of the Supreme Court has 8,834, the High Court has 262,345, and the judicial magistracy has 602,173 cases. However, the disposal rate of cases has significantly increased since the separation of judiciary. Between November 2007 and April 2008, a total of 307,322 cases were disposed of. It appears that the rate of disposal of criminal cases in the courts of magistrates has increased by 51 percent in December 2007, as compared to the cases disposed of by the judicial magistrates in November 2007. Interviews suggest that the lengthy trial process and the shortage of judges in the court systems cause enormous delay in disposing of cases. To bring transparency to the judiciary, modern technology has been introduced in the management of court and cases in recent years.

Prosecution Bangladesh does not have an enduring prosecution service. The attorney general is the major law officer of the government. He or she is aided by the additional attorney general, deputy attorney generals, and assistant attorney generals. They stand for the state in the Supreme Court and conduct cases at courts on behalf of the state. Currently, there are 77 attorneys, including the attorney general for dealing with cases for the state. Additionally, at the subordinate courts, the prosecution division consists of public prosecutor (PP), government pleader (GP), and special public

prosecutor (SPP). Law officers are attended by assistants, whose numbers differ based on the number of courts in their jurisdiction, and the size and population of the district. They correspond to the state in the subordinate civil and criminal courts in the district and perform cases in these courts on behalf of the state. Law officers are appointed on the basis of their political affiliations. The recruitment process depends on the political selection of the ruling political party. Consequently, whenever a new party holds the power, all prosecutors are removed from their posts, and a new group substituted. Interviews with the court officials suggest that one of the major problems of this political appointment is that in many cases younger and lessexperienced lawyers are being appointed using their personal and political connections. It is noteworthy that a large number of these prosecutors often have insufficient knowledge of law and experience in legal practice. On the other hand, senior lawyers are unwilling to serve as prosecutors because of the lack of facilities and low payment. To improve the state of prosecutorial service, the past caretaker government has created the Government Attorney Department for dealing with cases in courts and performing other duties on behalf of the state. Under the new ordinance, the Attorney Department would directly recruit the law officers (prosecutors) through competitive examination with transparency, neutrality, and responsibility. But the new government did not endorse the ordinance in Parliament. As a result, the process of political recruitment remained unchanged. The use of police officers as prosecutors is another distinctive feature of government prosecution service. Under Sections 492(2) and 495 of the Code of Criminal Procedure, the government allocates police to conduct the prosecution in the magistrates’ courts, which deal with approximately 70 percent of all cases in the country. Typically, a police officer at the rank of sub-inspector handles the prosecution of cases before the court, even if these officers do not have law degrees or sufficient training in prosecution. Interviews with police officers, however, suggest that since police investigate the cases, they


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can plead the case better than the regular prosecutors to prove charges against the accused.

Investigation The most common preliminary step in the quest of justice is to file a complaint either with a police station or magistrates’ court in the jurisdiction where the offense allegedly happened. Complaints filed with police are classified as GR cases: those on the Government Register. Nevertheless, in many cases filing complaints with police stations is hard for the poor and politically weak, particularly if the complaints relate to wealthy and politically powerful persons. In such cases, the other selection is to file a complaint straight to a magistrates’ court. Such cases are categorized as CR cases: those on the Complaint Register. In either category of cases, police investigate, collect evidence, and take essential steps. It has been argued that successful prosecution of criminal cases requires a thorough and professional police investigation. A study by Kashem and Saadi reported at the Asian Association of Police Studies in 2007 found a “high fall out” rate. Between 2002 and 2006, the average conviction rate for the policesubmitted charge sheets was about 34 percent. The study also reported that political influence in police investigative work and improper use of the public prosecutors for personal benefit or some other reasons are largely responsible for this low conviction rate. The police chief (IGP) recently pointed out that police submit charge sheets in about 50 to 60 percent of the cases, while the rest end up in final reports (closing the inquiry without trial). The prosecutions of criminal cases in Bangladesh are heavily dependent on oral evidence and confession instead of physical evidences. Research on police investigations suggests that the amendments of various legal provisions in the Evidence Act of 1872 are essential to rectify the existing investigative practices of police. Specifically, changes in the rules regarding confessional and selfincriminating statements by the suspects before the police or magistrates are essential for efficient investigations of criminal cases. The lack of specially

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trained evidence technicians for crime scene processing also affects the quality of police investigation in Bangladesh.

Alternatives to Trial ALTERNATIVE DISPUTE RESOLUTION (ADR) Plea bargaining does not exist in the court system of Bangladesh. Thus, in the face of the judicial system’s million-case backlog, the government has been experimenting with the Alternative Dispute Resolution (ADR). ADR is a process to settle disputes through a consensual method chosen voluntarily by the parties. Three main types of ADR consist of negotiation, mediation (including conciliation), and arbitration. The Ministry of Law in 2001 began a pilot program offering ADR in various civil cases through mediation or arbitration. Since then, ADR is becoming a popular mode of dispute resolution by the litigants of civil cases. The concept of alternative dispute resolution in the form of mediation in family disputes was first introduced in the Family Court Ordinance of 1985. Accordingly, exclusive family courts were established in June 2000. Also, the judicial mediation program in the districtlevel family courts has been implemented in some selected jurisdictions, for example, in Dhaka and Chittagong. It is known that in view of the time and costs associated with traditional lawsuits, many favor ADR. Most importantly, it provides an opportunity for community involvement or participation in the dispute resolution process. Based on government reports, extensive use of mediation in civil cases has accelerated the administration of justice. The report, however, also pointed out that the majority of the general public and many lawyers at subordinate courts are not aware of this alternative method of dispute resolution.

VILLAGE SALISH Salish is an informal justice institution through which the rural poor attempt to resolve their conflicts in Bangladesh. Widely practiced at the village level, salish involves the resolution of a conflict by a method other than traditional litigation. Built on


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traditional models of popular justice, the salish is conducted by religious leaders, or other community figures of the village. The outcome of village-based salish mediation includes shaming and fines. However, it appears that the existing process of shaming through salish in many cases is disintegrative rather than reintegrative.

Truth Commission: A New Version of Guilty Plea in Bangladesh In the wake of the massive load of corruption cases and prolonged legal processes and convictions by courts, in May 2008, the caretaker government established the Truth and Accountability Commission (TAC) as an alternative for dealing with high-profile corruption suspects. TAC provided an opportunity for a graft suspect to admit his or her culpability and to be instantly penalized monetarily instead of going through prolonged legal processes. In other words, any person who earned wealth through corruption could avoid jail (get clemency) by confessing crimes, disclosing his or her wealth statement, and depositing ill-gotten wealth to the commission voluntarily. Many government officials, politicians, and business persons applied for voluntary disclosure. The commission heard cases within 14 days of submission and delivered its verdict in 30 days. Failure to comply with TAC rulings will result in five years’ imprisonment. People convicted by TAC will be barred for five years from contesting in elections to any public office toward the end of the caretaker government.

Juvenile Justice System The administration of juvenile justice in Bangladesh is governed by two exclusive acts, the Children Act, 1974 and the Probation of Offenders Ordinance, 1960 (amended in 1964). The Children Act contains both procedural and substantive components. The procedural component entails establishment of a separate juvenile court for children, whereas the substantive component depicts offenses committed by children and prescribes penalties. That is, the Children Act handles the trial, custody, protection, punishment, and treatment of juvenile offenders.

Juveniles were required by child laws to be detained in juvenile correctional facilities such as juvenile development centers or safe homes and can only be tried in the juvenile courts or court duly empowered to try the juvenile cases. Accordingly, a number of separate juvenile courts and three child development centers have been established in the country. According to the Children Act, after arrest, a police officer can release the juveniles on bail or produce before the magistrates’ court to release the juveniles on probation. However, in most cases, police have been producing delinquent children before the court and the court is sending them to prison instead of safe homes or the juvenile development centers where these juveniles are incarcerated with adults. Though in some cases age determination is a major problem for the police officer to process the juvenile offenders, in many cases police deliberately or negligibly claim a higher age of the child and forward the child to adult courts to avoid extra work. A recent press report revealed that about 412 juveniles are detained in different prisons across the country for years, violating the Children Act. It should be noted that the court has the discretion to send the juvenile offenders to juvenile development centers directly.

Punishment Following the Western model of corrections, a number of Asian countries (such as India, Sri Lanka, and Pakistan) have introduced probation, parole, home leave, work release, and suspended sentences in recent years. Thus, it is evident that as compared to other Asian countries, the Bangladeshi correctional system is still lagging behind. The major causes may be attributed to nonavailability of funds for correctional programs, lack of political supports, and lack of research on corrections. Although the Jail Commission Report of 1978 recommended the establishment of the system of probation, parole, and work release in Bangladesh, these recommendations have yet to be implemented, which means imprisonment is the only sanction for offenders. The certainty of punishment, the likelihood that a criminal will be punished for a serious crime, and the amount of time a criminal is likely to spend in


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prison are higher today than they had been in the 1990s. This is primarily due to enactment of various anticrime laws over the years, and more recently, the emergency rule from January 11, 2007, to December 2008. The typical punishment for various types of offense as prescribed in the Penal Code and the Code of Criminal Procedure, 1898 (as amended up to October, 2007) are shown as follows: • Dacoity (gang robbery): transportation for life or rigorous imprisonment for 10 years, and fine. • Murder in dacoity: death, transportation for life or rigorous imprisonment for 10 years, and fine. • Robbery or dacoity, with attempt to cause death or grievous hurt: rigorous imprisonment for not less than seven years. • Robbery: rigorous imprisonment for 10 years, and fine. • Theft: imprisonment for three years or fine or both. • Rape: death or life imprisonment. • Offenses against the state: punishable by death or imprisonment for 20 years. • Violence against women (acid throwing): death or life imprisonment.

Death Penalty Article 35(5) of the Constitution of the People’s Republic of Bangladesh precisely states that no person shall be subjected to cruel, inhuman, or degrading punishment. But the courts have been imposing the death penalty for various offenses. According to the data provided by the Prison’s Directorate, as of July 1, 2008, the total number of death row population in Bangladesh was 1,012. And between 2004 and 2008, Bangladesh executed a total of 31 prisoners.

Prison The nomenclature in Bangladesh makes no distinction between jails and prison. All institutions are referred to as jails in Bangladesh. The prison system of Bangladesh had its inception in the legislation of the Prison Act of 1894, which was basically

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derived from the England Prison Act of 1877. The correctional system is administratively centralized. The jail is the only correctional institution in Bangladesh, which holds inmates who are awaiting trial, undergoing trial, and serving sentences. Jails are controlled by the Ministry of Home and their operational responsibilities vested in the Prisons’ Directorate. Bangladeshi jails are still administered under the century-old colonial Prison Act. Presently, there are 67 jails, which vary greatly in size, as well as many other characteristics. They are divided into two categories: central and district jail. They are generally distinguished by their degree of security that relates to perimeter control and internal gates and bars, and the types of population they hold. As of 2008, there were 12 central jails and 55 district jails. Imprisonment is of two types: rigorous and simple. Persons admitted under sentence of rigorous imprisonment are required to work, while persons serving simple imprisonment have no such liability.

Prison Population Since imprisonment is the only legal sanction, this conservative ideology of punishment is responsible for the present crisis in corrections in Bangladesh. In the absence of any population-reduction strategy, a substantial increase in prison populations has been observed in Bangladesh. Evidence suggests that the use of imprisonment as a sanction for crime has accelerated rapidly after the 1990s. Since then, the number of offenders incarcerated in jails has increased every year from about 39,530 in 1993 to more than 87,000 in 2008. The prisons are becoming no more than warehouses. It seems that part of the growing problem of prison crowding is attributable to the shift in sentencing policy over the 1990s; for example, enactment of the AntiTerrorism Act of 1993, Public Safety Act of 2000, and Speedy Trial Act of 2002, and more recently, the Emergency Powers Ordinance of 2007. According to the data provided by the Prison’s Directorate, the prison population increased by about 55 percent between 1993 and 2008, reaching 87,011 as of July 1, 2008, which is more than 300 percent of official prison capacity. Bangladesh


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has the capacity to accommodate 27,386 inmates in jails across the country. Of the total population, only 25,173 (about 29%) were convicted prisoners and the remaining were under-trial (70.7 percent) or detained for investigation. Almost all the institutions are housing far more inmates than the design capacity. The daily population of Dhaka Central Jail on July 1, 2008, was 10,424. It appears that overcrowding of the under-trial prisoner is the main problem for the prison systems. In most cases, cells were so packed that prisoners had to sleep in shifts. More than anything else, it is the war on corruption that has caused this dramatic increase in prison population, especially during the regime of the immediate past caretaker government (2007–2008). Additionally, the courts and legislatures did indeed get “tougher” on offenders during this period and is the reason for the stunning growth in prison populations. In the face of serious overcrowding in jails recently, the government has decided to release some selected nonviolent offenders who already served half of their prison terms of seven years or less.

Prison Programs The jails in Bangladesh are primarily custodial institutions. The goal of imprisonment is to incapacitate and punish the offenders. Jail conditions seem consistent with that goal. Thus, no aspects of imprisonment in Bangladesh seem to be linked to rehabilitating prisoners. The problem of overcrowding has seriously affected both the safe running of the prison system and the rehabilitation of individual offenders. Institutional treatment programs such as individual or group counseling is totally absent. Educational and vocational programs that exist in the jails suffer from inadequate funding and administration. As a result, the existing prison programs cannot serve as an important tool in gaining marketable skills for the prisoners in their postimprisonment life.

subject to censorship. Visits from approved family members are allowed at specified intervals. According to the Jail Code, the ordinary inmates can write one letter every month and the division prisoner can write twice a month. Prison authorities do sometimes grant a short furlough for few hours to the Division I prisoner for emergency occasions such as a death in the immediate family. There are no dayrooms or dining facilities for the inmates in jails. The concept of conjugal visits is unknown in Bangladesh. It is important to mention that political prisoners are a privileged class and immune from the harsher confinement conditions. Despite the limited resources of the prison system, this category of prisoners receives better treatment in terms of housing, food, visitation, and other facilities than the ordinary prisoners.

Alternative to Imprisonment The Bangladeshi penal system provides just one alternative measure—probation. Where a person is convicted of an offense punishable with imprisonment for not more than two years, the court may, after considering the age and character of the offender and the nature of the offense, make a probation order. The penal laws of Bangladesh do not provide the system of parole.

Exchange of Prisoners Prisoners can be exchanged to other countries such as Myanmar and India. In August 2006, Bangladesh and Myanmar signed an agreement to exchange prisoners from their respective countries. And very recently, Bangladesh and India agreed to exchange each other’s prisoners. Mohammed Bin Kashem

Visiting Policies and Privileges

Further Reading BLAST: Bangladesh Legal Aid and Services Trust: http://www.blast.org.bd.

Prisoners do not have access to telephones and law libraries. In general, prisoners are not entitled to have a newspaper, except division prisoners that are

Kashem, Mohammed B. (1996). “Jails in Bangladesh.” International Journal of Comparative and Applied Criminal Justice 20(1): 31–40.


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Kashem, Mohammed B. (2004). “The Social Organization of Police Corruption: The Case of Bangladesh.” In Police Corruption: An International Comparative Perspective, edited by Dilip K. Das and Rick Sarre, pp. 237–246. Lanham, MD: Lexington Books. Ministry of Law, Justice and Parliamentary Affairs. Legal and Judicial Capacity Building Project: http://www.minlaw.gov.bd/ljcbp.htm. Strengthening Bangladesh Police. Police Reform Program: http://www.prp.org.bd.

Bhutan Legal System: Customary/Common Murder: Low-Medium Corruption: Low Death Penalty: No Corporal Punishment: Yes

Background Bhutan, meaning “Land of the Thunder Dragon,” is a small kingdom-state located in the eastern Himalaya Mountains of southern Asia. Landlocked between India to the south and the Tibetan region of China to the north, Bhutan has an area of 47,000 square kilometers (18,147 square miles), and its terrain is predominantly mountainous. Bhutan has been popularly described as the “last Shangri-la” or the only remaining Buddhist kingdom in the Himalayas. These narratives represent Bhutan as “a fairy-tale kingdom,” locked in ancient culture and tradition, untouched by modernization and globalization. Though these idyllic representations are exaggerated, indeed, Bhutan remained largely isolated from the rest of the world well into the early 1960s when Bhutan’s third monarch, King Jigme Dorji Wangchuck, began the process of cautious modernization. Since then, Bhutan opened its doors to regulated tourism in 1974, became a member of the South Asian Association for Regional Cooperation (SAARC) in 1985, and lifted a nationwide ban on television and the Internet in 1999.

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The rugged terrain of Bhutan makes transportation and communication between Bhutanese communities challenging. In fact, there were no telecommunications or roads in Bhutan until the 1960s. Though some roads and highways have since been constructed with the help of migrant workers from India, even today, a number of communities can only be reached by walking. Therefore, despite gradual modernization efforts, the Bhutanese people still remain largely isolated from one another and from the rest of the world. This seclusion is further enhanced by the government’s strict regulation of tourism and other forms of foreign influence to preserve the kingdom’s traditional culture. Today, Bhutan continues to be one of the poorest and most underdeveloped countries in the world. The vast majority of the Bhutanese people (more than 90%) live in rural communities and a large majority of the labor force (more than 60%) is employed in the agriculture or forestry industries. The government of Bhutan, however, has objected to assessment of the nation’s material wealth as a measure for overall quality of life. In 1998, the government abandoned Gross Domestic Product (GDP) as the primary measure of national prosperity and replaced it with Gross National Happiness (GNH), which prioritizes social, cultural, and spiritual well-being over material wealth. The Bhutanese government is very committed to preserving its national heritage and cultural traditions; however, Bhutan continues to take steps toward development and modernization. Bhutan is in the midst of social and political changes that have significant implications for the nation’s crime rates and the criminal justice system. Historically, Bhutan has reported very low crime rates; however, crime rates appear to be increasing in the last decade. Considering that the “first-ever crime wave” in the nation corresponds to the introduction of television, a number of Bhutanese officials have suggested a relationship between television and increasing crime, drug use, and the deterioration of traditional family values. As Bhutan has opened itself to foreign influence, it has also become particularly concerned about maintaining its cultural and religious traditions.


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As a result, since the late 1970s, the government of Bhutan has instituted many policies to forge a unified Bhutanese identity. Some of these policies are considered restrictive and even repressive of minority groups within the country and have caused some human rights groups to accuse Bhutan of ethnic cleansing. According to critics, the long-standing repressive policies may have incited recent terrorist attacks across the country. At the same time, the nation has made significant strides toward more democratic governance, including the adoption of a new Civil and Criminal Procedural Code in 2001, a new Penal Code in 2004, and the codification of basic rights in a new Constitution in 2008.

Government During the 19th century, Bhutan was under decentralized rule by a number of independent principalities that were in continuous competition and civil war. After several years of conflict, between the years of 1882 and 1885, Ugyen Wangchuck of Trongsa was finally able to unify the many decentralized local governments across Bhutan and achieve a peaceful truce among the parties. On December 17, 1907, respected community leaders of Bhutan selected Ugyen Wangchuck to be the first hereditary king of Bhutan and, thereby, established the Kingdom of Bhutan as an absolute monarchy. Bhutan’s modern political history is unique from most other nations in that it is one of the few nations in which the movement for democracy has been largely from the top-down. Though the monarchy continues to be very popular among the people of Bhutan and the majority of the general public has not been enthusiastic about political transition, Bhutan’s last few monarchs have been eager to institute gradual democratization. King Jigme Dorji Wangchuck, Bhutan’s third monarch, started the democratization movement in 1953 when he established the nation’s first legislature, the National Assembly, to promote a more democratic and inclusive form of governance. The National Assembly, under the guidance of King Jigme Dorji Wangchuck, enacted the first

comprehensive codified law code in 1959. The law code, known as the Thrimzhung Chhenmo, or, the Supreme Law, codified the civil and criminal laws of Bhutan. Though many sections have been amended by subsequent legislation, the Thrimzhung Chhenmo is considered to be the foundation for Bhutan’s legal system. During his reign, King Jigme Dorji Wangchuck also created a Royal Advisory Council in 1965 and established a Council of Cabinet Ministers in 1968. In 1998, King Jigme Singye Wangchuck, Bhutan’s fourth monarch, introduced significant political reforms in the government and transferred many of his administrative powers to the Council of Cabinet Ministers. One of his most significant reforms is that King Jigme Singye Wangchuck established a procedure by which the National Assembly could impeach the monarch by a two-thirds majority vote. During King Jigme Singye Wangchuck’s rule, the National Assembly enacted the Civil and Criminal Court Procedure of Bhutan in 2001 and the Penal Code of Bhutan in 2004. These legal codes established the appropriate protocols for civil and criminal procedures and outlined the classification of crimes and punishment for civil and criminal offenses. The codification of the court procedure and penal code were significant reforms for Bhutan’s justice system. In 2006, King Jigme Singye Wangchuck abdicated the throne in favor of his son, King Dasho Jigme Khesar Namgyal Wangchuck, who became the fifth monarch of Bhutan. During King Dasho Jigme Khesar Namgyal Wangchuck’s reign, on March 24, 2008, the country’s first-ever national elections took place, and Bhutan finally made the anticipated transition from an absolute monarchy to a constitutional monarchy. A draft constitution that had been unveiled during his father’s rule in 2005 was adopted after the elections, and the Supreme Court of Bhutan was established as the highest court of the land with the chief justice at its head.

Cultural Context Bhutan’s government prefers to portray the nation as homogenous; however, Bhutan is actually a


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multiethnic, multireligious society with three major ethno-linguistic groups: the Ngalung, the Sarchhop, and the Lhotshampa. The Ngalung, who migrated from Tibet in the 17th century and live predominantly in the northwestern region of the country, practice Drukpa Kagyu Buddhism and speak Dzongkha (an offshoot of Tibetan). The monarchy of Bhutan belongs to the Ngalung ethnic group. The Sarchhop, a native Bhutanese ethnic group, live predominantly in the eastern region of Bhutan, practice Nyingmapa Buddhism, and speak a native Bhutanese dialect. The Lhotshampa, an ethnic group of Nepalese descent, live predominantly in the southern region of Bhutan along the Indian border, practice Hinduism, and speak Nepali. The Bhutanese government, dominated by the Ngalung ethnic group, has instituted a policy of driglamnamja or “one nation, one people” and passed a number of laws in an effort to assimilate the Bhutanese population according to Ngalung cultural values and traditions. The government has been criticized for ethnic and religious discrimination against minority groups, particularly the Lhotshampa. The Bhutan Marriage Act of 1980, for example, restricted marriage with non-Bhutanese and denied Bhutanese citizens who married nonBhutanese state support such as land, loans, education, and health benefits. The act was discriminatorily applied to the Lhotshampa population to curb marriages with noncitizen Nepalis living in Bhutan. Furthermore, in 1985, the government passed a Citizenship Act that stipulated that Bhutanese citizens would be required to prove their residency in Bhutan for more than 10 years. Considering that members of the Lhotshampa ethnic group were more likely to include immigrants from Nepal, documentation of 10 years’ residency in Bhutan was more difficult for the Lhotshampa. The Citizenship Act also stipulated that citizens could lose their nationality if they left their farmland or broke the law. Again, these laws were targeted at the Lhotshampa, to limit their freedom of movement and political participation. In the 1990s, political tensions led the government of Bhutan to force more than 100,000 Lhotshampa

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and ethnic Nepalis out of the country into refugee camps in Nepal. Those refugees are still living in refugee camps awaiting a resolution that will allow them to come home. The refugee crisis will be discussed in more detail later. The long-standing ethnic conflict may help explain the fact that demographic data about the Bhutanese people are inconsistent and controversial. According to the government census of 2005, Bhutan has an estimated population of approximately 672,425, but other reports, such as numbers from the United Nations and the CIA, indicate that the population may be as high as 2 million. The discrepancies in population estimates may be due to the ongoing refugee crisis involving the Lhotshampa, since some population estimates do not include the refugees or ethnic Lhotshampa still residing within Bhutanese borders whereas others do. Conflicting numbers indicate that approximately 47–85 percent of the population are either Ngalung or Sarchhop and follow the Buddhist tradition, and approximately 15–53 percent, the ethnic Nepalese, follow the Hindu tradition. The religious and cultural traditions of Bhutan, both Buddhist and Hindu, serve to reinforce the predominant social value that all forms of life are to be considered sacred. The people of Bhutan are generally known to be a peaceful people and the overall crime rates in Bhutan remain very low, though Bhutan has seen some escalation in crime over the last decade. Though crime does not seem to be a major problem, there is insufficient data to conduct a systematic review of the nature and extent of crime in Bhutan. Nevertheless, it is perhaps fair to say that Bhutan’s most long-standing “criminal justice” problem has to do with the ethnic conflict and refugee crisis that has plagued the nation for almost two decades.

Legal System Bhutan’s legal system is based largely on Buddhist tradition, English common law, and the Indian legal system. Lower courts exercise original jurisdiction on cases within their territorial jurisdiction and appellate courts review appeals cases from the


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lower courts. The Supreme Court was established as the highest court of Bhutan with the adoption of the Constitution in March 2008 and will be presided over by the chief justice of Bhutan. Prior to 2008, the Bhutanese legal system had a three-tier court system. The High Court, established in 1968, was the highest court of Bhutan. The High Court is made up of three benches that each consist of a minimum of two judges. The Dzongkhag, or district courts, are the next level of courts. The first district court was established in 1961, and there are currently 20 across Bhutan. The Dungkhag, or local court, was established in 1978, and there are currently three local courts in Bhutan. The registrar general of the High Court heads the administrative division of the courts and is appointed by the chief justice for a period of three years. The registrar general serves at the pleasure of the chief justice for one term. Recent procedural reforms in the administration of the court system have reduced the cost of litigation in Bhutan, and the National Assembly has asked the High Court to develop guidelines to limit the fees of jabmis (counsel) to make litigation more affordable and accessible to all citizens. The time to disposition for the majority of all legal cases, and virtually all criminal cases, is within 108 days. The Bhutanese legal system is based on the adversarial principle, though there are some elements of the inquisitorial system as well. The courts are supposed to be impartial participants in the proceedings, and judges are responsible for ensuring procedural fairness during trial. Defendants may choose to defend themselves or may select a jabmi to represent them in front of the court. In cases in which the defendant is indigent and cannot afford to retain the services of a jabmi, the court can appoint legal counsel for the defendant. The litigants or their counsel may present relevant information to the court and answer questions posed by the judges. The courts are charged with deciding cases based on the facts submitted by the parties. Defendants are presumed to be innocent. For criminal cases, the prosecution has the burden of proof to prove guilt beyond a reasonable doubt. For civil cases, the plaintiff has the burden to prove his or

her case by a fair preponderance of the credible evidence.

Police Bhutan’s security forces include a national militia, the Royal Bhutan Army, and the Royal Bhutan Police. The national militia was established in 1958, and shortly thereafter the Royal Bhutan Army was established in 1963. In 1965, the Royal Bhutan Police was established on September 1, and this date continues to be commemorated and celebrated annually as Police Day. The Royal Bhutan Police serves as the national police force and is organizationally inferior to the Royal Bhutan Army. The nation’s first police officers were a few hundred army personnel who were reassigned to the new police force. By the late 1970s the police force had expanded to more than 1,000 constables and officers, and by the mid-1990s the police force had grown to about 5,000. Police recruits, at a minimum, are required to have completed a sixth-grade education, and the Royal Bhutan Police is the only security force in Bhutan that recruits women. Until 1981, all new recruits were trained at the Police Training Centre in Zilnon Namgyeling, Thimphu District. In 1981, a new police training center opened in Jigmiling, Geylegphug District, and police officers are now trained at that location as well. The police training curriculum includes weapons training, tae kwon do, physical training with and without arms, legal training, simple investigation techniques, check-post duties, traffic control, and public relations. Some officers are chosen for advanced training in criminology, traffic control, and canine corps and are sent to India for those training programs. Police officers are required to perform a variety of functions that go beyond standard policing practices. Officers serve as border guards, corrections officers, firefighters, and first aid providers. Some critics have noted that there may be issues of conflict of interest in requiring police officers to participate in such a diverse set of functions; however, the government of Bhutan has not been particularly concerned with specializing these functions or


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separating the police from these other service and enforcement functions. The Royal Bhutan Police has been cognizant of development and modernization programs and has made gradual adaptations to those changes. Construction of roads and the increasing number of motor vehicles in use has resulted in increasing numbers of traffic accidents. In response to the changing circumstances, the Royal Bhutan Police established a mobile traffic court staffed by police personnel and a judicial official to facilitate on-thespot legal decisions. In 2007, the Royal Bhutan Police established a new Women and Child Protection Unit in the capital, Thimpu. This new unit is one of the first steps in developing women and child friendly police and judicial procedures. The unit is run by women police officers in collaboration with the National Commission for Women and Children (NCWC) and provides a safe environment for female victims and witnesses to come forward. It is the first unit of its kind in the country and, based on support from the United Nations Development Program, will likely be replicated in other regions in the near future. A procedural code has also been established that stipulates that police officers may not arrest an individual without an arrest warrant or specific cause and that an arrestee must be brought before the court within 24 hours, not including travel time from the place of arrest. These reforms are relatively new, and, in practice, these legal protections are not systematically applied, primarily because of deficiencies in police training and some gaps in the procedural codes that will hopefully be addressed in the next few years.

Crime Classification of Crimes Bhutan’s Penal Code came into effect on August 11, 2004. The Penal Code consolidated and clarified existing legal codes on the culpability and punishment for criminal acts committed in Bhutan. According to the Penal Code, the age of criminal responsibility for adult offenders is 18. Juvenile offenders cannot be held responsible for any criminal acts committed

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under the age of 10; however, juveniles between the ages of 10 and 18 may be held responsible for criminal acts and sentenced to appropriate punishment, though punishment is scaled lower for juveniles than adults. The Penal Code classifies criminal acts into four categories ordered by severity of offense: felony, misdemeanor, petty misdemeanor, and violation. Felony crimes are the most serious category of criminal offenses and are further classified into four degrees of severity. First-degree felonies are the most serious offenses and include such crimes as murder, treason, terrorism, defilement of national monuments, and the illegal manufacturing of weapons of mass destruction. Second-degree felonies include such crimes as the illegal transaction of a controlled substance, the rape of a child under the age of 12, and the trafficking of a minor for prostitution. Third-degree felonies include such crimes as gang rape, the trafficking of adult women for prostitution, torture that causes physical disability, extortion, and armed robbery. Fourth-degree felonies include such crimes as rape, the illegal sale or purchase of a firearm, the unauthorized opening of another person’s mail, trafficking of humans for labor, child molestation, torture that does not cause physical disability, the illegal sale of national or cultural heritage property, robbery, burglary, and arson. Misdemeanor crimes include such crimes as eavesdropping through unlawful wiretapping, patronizing a prostitute, assisting in suicide, sodomy, and abortion. Abortion is legal only under the following circumstances: the mother’s life will be put at risk to carry the unborn child to term, the child is the product of rape or incest, or the mother is of unsound mental condition. Otherwise, abortion is illegal and is treated as a misdemeanor crime, as are “unnatural” sex acts such as sodomy. Petty misdemeanor crimes include such crimes as battery, sexual harassment, pollution, illegal hunting and fishing, abandonment of a person in danger, failure to report a crime, and gambling. Violations include such crimes as disorderly conduct, assault, public intoxication, and the use of tobacco. Bhutan banned the use of tobacco in 2004 and is currently


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the only nation to have completely banned smoking in public.

Human Rights Issues The government of Bhutan has passed a number of laws to give life to the “one nation, one people” policy and to preserve Bhutan’s traditional culture. For example, in 1989, a royal decree made it compulsory to wear the national dress at formal gatherings and government institutions, including schools, to preserve and promote Bhutanese culture. For men, they must wear the “gho” or a wrap-around, coatlike, knee-length garment with a narrow belt. For women, they must wear the “kira” or an anklelength dress made of a rectangular piece of cloth held at the shoulders with a clip and closed with a woven belt at the waist over a long-sleeved blouse. Failure to the wear the required dress results in fines of three days’ wages (approximately equivalent to US$10 to US$55) or up to a month in prison. The government has also established a language policy requiring use of the official language, Dzongkha, in schools and public offices, a policy that has marginalized the Nepali-speaking minority. Furthermore, religious freedom is minimal, and the law forbids religious conversions and penalizes those who attempt to convert others. The government has also enacted a number of laws pertaining to marriage and family life. The Marriage Act of 1980 legislated punitive measures against Bhutanese who marry non-Bhutanese nationals. From the day of such a marriage, the Bhutanese citizen is denied promotion in government services, is ineligible for employment in national defense, cannot run for election, and is deprived of many privileges, including land, loans, education, and medical treatment. In 1990, the government also imposed a policy of compulsory birth control. If a couple has more than two children, the government may compel one of the parents to undergo a sterilization operation. These drastic birth control measures, however, have been implemented discriminatorily against minorities, and, according to critics, violate human rights. Meanwhile, polygamy is legal in Bhutan on

the condition that the first wife gives permission to her husband to take a second wife. Divorce is also legal and fairly common in Bhutan, and the legal code favors women in matters of alimony and child custody.

Crime Statistics Bhutan has not reported any crime statistics to the United Nations and the official crime statistics are not available to the public. Most reports, including estimates from the U.S. Department of State and the Central Intelligence Agency, suggest that there is relatively little crime in Bhutan. Of crimes committed in Bhutan, the vast majority tends to be nonviolent crimes. Violent crime rates are estimated to be very low; however, there is not sufficient data for precision. Homicide rates for 2004 are estimated to be between 2.4 and 4.3 homicides per 100,000 population, according to the United Nations Office of Drug Control. Although Bhutan has not experienced a serious crime problem, according to news reports, crime has been gradually increasing in the last decade. Bhutan’s courts have made public the number of cases reviewed by the courts over the last 15 years. Based on the official data, there has been a general trend of rising numbers of cases filed in the courts over the last decade. For the years 1991 and 1992, the courts decided a total of 3,136 cases. These numbers grew to a total of 8,804 cases in 2002, 10,376 cases in 2006, and 11,501 cases in 2007. The numbers, however, do not indicate the type or severity of the cases, though some reports indicate that the majority of cases were related to loans, land disputes, and marital issues. The judiciary of Bhutan is working toward technological improvements to automate its record keeping so that it is able to generate better case tracking statistics and improve the overall judicial system. According to news reports, April 2002 was likely the “first-ever crime wave” in Bhutan. There were several incidents of fraud, violence, and even murder. Some residents of Bhutan blame increasing problems with crime, drugs, and alcohol on television. The government of Bhutan lifted the ban on


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television in June 1999. Bhutan opened its first and only local television station shortly thereafter, and international television channels also became available for viewing via satellite dishes. There is significant concern in Bhutan that exposure to satellite television has resulted in harmful cultural changes, especially among the youth population. Based on qualitative research, an independent group of Bhutanese academics found a correlation between exposure to satellite television and cultural changes, including increased participation in crime, corruption, and less conventional romantic relationships. Some critics have even asserted that television can be blamed for increases in drug use and family break-ups. Whereas the Bhutanese people have traditionally shied away from killing even insects, now they are exposed to extreme violence as well as ultraliberal sexual mores on television. In addition, discos and nightclubs have recently opened and are considered to be threatening the traditional values and peaceful culture of Bhutan. There are no official statistics on drug use in Bhutan; however, the government recognizes it as a growing and potentially serious problem. Bhutan is an active participant in regional initiatives to combat drug trafficking and substance abuse and is a signatory on the SAARC Convention on Narcotics Drugs and Psychotropic Substances (1990). Bhutan also joined International Criminal Police Organization (INTERPOL) in 2005. Bhutan has no pharmaceutical industry and relies on the import of licit drugs from India. Bhutan’s trade relationship with India allows for free and unregulated trade between the neighboring countries. The relatively open and insecure borders between Bhutan and India make Bhutan vulnerable to international drug trafficking across the border. Anecdotal data suggest increasing use of amphetamines smuggled in from India, and there are some estimates of approximately five to six deaths from morphine overdoses each year. Use of heroin and injecting drug use, however, is considered to be minimal. Before the introduction of television, cannabis plants, which grow freely in Bhutan, were used to feed pigs. In recent years, however, the police have arrested hundreds for smoking marijuana.

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According to official sources, most drug users in Bhutan are young males under the age of 25. As a result, there is significant concern about young people’s propensity for drug use as well as their risk for HIV. As of 2005, there were 144 officially reported cases of HIV in Bhutan and some estimates indicating that there could be approximately 500 people living with the disease by the end of that year. Concerns about increasing levels of drug use and HIV prompted the National Assembly, in 2005, to pass the Prevention and Control of Drug Abuse Act and create a new Narcotics Control Agency. The National Assembly specifically called for joint efforts by the government and local communities to enhance preventive education measures and to collaborate for improvements in the quality and availability of effective treatment, rehabilitation, and social reintegration when prevention fails.

Violence against Women Bhutan ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1981 without any reservation and has drafted a National Plan of Action for Gender (NPAG) that was spearheaded by the National Commission for Women and Children and will be rolled out from 2007 to 2013. Though the actual extent of the problem is not known since most cases of family violence go unreported, anecdotal evidence suggests that domestic violence is a problem in Bhutan. In response to the problem of domestic violence and gender violence in general, Her Majesty Queen Ashi Sangay Choden Wangchuck started a nonprofit organization for women called Respect, Educate, Nurture and Empower Women (RENEW) in 2004. RENEW seeks to be the leading institution in shaping the role of women in Bhutanese society, and its mission is to empower disadvantaged girls and women to be independent and socially and economically productive members of society. According to RENEW, reported cases of assault against women and girls that were prosecuted in court grew from 56 in 2000 to 99 in 2003. Police reports indicate that of the 347 cases of assault


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against women and girls that went to court from 2000 to 2004, 43 percent involved the woman’s intimate partner. The problem is exacerbated by the fact that there are currently no emergency shelter or support services available in Bhutan for women trying to escape from violent and abusive relationships or situations. Many women, especially those who are financially dependent on their husbands, have nowhere to go for counseling, therapy, or information on how to become independent. RENEW’s Web site also reports that although accurate statistics are not yet available in Bhutan, hospital staff and the police are seeing increasing incidence of sexual and physical abuse of women and girls. As the government has made public education more widely available and has encouraged the schooling of girls, more and more girls are sent to schools away from their families. A serious issue of concern is the sexual abuse of girls and young women who are sent away to schools. Many educators who responded to a limited confidential study on female students in their schools replied that sexual abuse of girls is a problem. The government of Bhutan is also concerned about the problem of human trafficking. Bhutan is known to be an origin and transit location for human trafficking. Bhutanese women are often trafficked to neighboring Nepal, and children are trafficked through Nepal and India to Pakistan.

Finding of Guilt The Civil and Criminal Code of Bhutan ensures equal justice under the law without discrimination on the basis of sex, race, religion, or any other reason. Citizens accused of crimes are to be tried by ordinary courts, not by any ad hoc tribunals. In criminal proceedings, the accused are afforded the right to a trial by judicial panel on the appropriate court’s current bench, and the trails are intended to be fair and public trials. In some circumstances, there may be exceptions made regarding public trials when there are concerns about public order, national security, or privacy of the parties. Defendants may plead their cases or defend themselves in person or may select a jabmi, legal counsel, for assistance.

Defendants may waive their right to have a jabmi if they do so competently and intelligently. While there is no separate court system for juveniles, juvenile offenders may have their parent or guardian present with them during trial proceedings and may have their privacy protected by the court. Only indigent defendants who cannot afford to secure their own legal counsel may be offered free legal services by the court. If a defendant is not satisfied with the decision of a court, he or she may file an appeal within 10 days of the initial judgment.

Punishment Types of Punishment The Penal Code’s stated objective is to reinstate dignity to victims of crime and increase the possibilities for rehabilitation of offenders. Those who are convicted of criminal offenses may be imprisoned, released on probation, made to pay fines to the state, made to pay compensation as restitution to victims or victims’ families, or a combination. Mutilation as punishment was abolished in 1965. Exile was once an official punishment; however, it is no longer used as a form of punishment. Furthermore, capital punishment was abolished by royal decree on March 20, 2004. The Penal Code is largely based on the rehabilitative ideal, though in recent years, some policy makers have advocated for harsher punishments, particularly for sexual crimes. Juveniles under the age of 10 are not held responsible for criminal conduct. Juveniles between the ages of 10 and 18 are held responsible for their acts and are liable to punishment, though juveniles receive punishment scaled lower than adults for similar offenses. In fact, juveniles are to receive a minimum of half the sentence that would otherwise be imposed if the offender had been an adult when committing the crime. In 1997, the Youth Development and Rehabilitation Center was established for juvenile offenders with the primary goal of rehabilitation. Nevertheless, in some cases in which a juvenile may face imprisonment, the court may choose to assign an alternative sentence. Children are a high priority in Bhutan, and the country was one of the first to ratify the Convention on the Rights


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of the Child in 1990 and has since been investing steadily in services to benefit children. Bhutan’s justice system tends to be more lenient toward juvenile offenders and is primarily concerned with rehabilitating them. Felony crimes are the most serious category of criminal offenses and are punishable with a minimum of three years of imprisonment to a maximum of life imprisonment. First-degree felonies are punishable with a minimum of 15 years of imprisonment to life imprisonment. Second-degree felonies are punishable with 9 to 15 years of imprisonment. Third-degree felonies are punishable with 5 to 15 years of imprisonment. Fourth-degree felonies are punishable with three to five years of imprisonment. Misdemeanor crimes are punishable with a minimum of one year of imprisonment to a maximum of three years. Petty misdemeanor crimes are punishable with a minimum of one month of imprisonment to a maximum of one year. Violations are punishable with fines for up to 90 days at the national minimum wage rate. Offenders convicted on a repeat offense are punishable with enhanced sentences. Typically, these offenders are sentenced as if they had committed a crime one degree higher than their actual offense. The Penal Code does allow the court to consider mitigating and aggravating circumstances. Mitigating circumstances include that the defendant has no criminal record, the defendant committed the crime under extreme mental or emotional distress, the crime was committed accidentally, the victim consented to the criminal conduct, the crime was conducted because the defendant believed there was reasonable justification for the act, the defendant was only an accomplice in a crime committed by someone else and his or her participation was minor, the defendant acted under duress, or, at the time of the offense the defendant’s capacity to appreciate the wrongfulness of the conduct or to conform to the requirements of the law was impaired on account of mental disability or intoxication. Aggravating circumstances include that the defendant had previously been convicted of a crime, the defendant committed another crime at the same time as the current offense, the defendant knowingly

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created a grave risk of death or serious bodily injury to another person, the defendant negligently caused bodily injury to another person with a deadly weapon, the crime was essentially heinous, atrocious, or cruel and represents exceptional depravity on behalf of the defendant. In some circumstances, and according to the court’s discretion, the court may make an order that the defendant pay a fine or perform community service in lieu of imprisonment. Typically, these considerations are afforded to nonfelony offenders provided that the offender is not a recidivist or habitual offender. According to the Penal Code, those who are found to be mentally insane may be sentenced to civil commitment in lieu of imprisonment. There are, however, no mental hospitals or community residential facilities in Bhutan, and forensic cases are typically kept in police custody. Residential facilities that are available include a 50-bed facility for juvenile delinquents, a 15-bed facility for drug detoxification and rehabilitation, and a 5-bed residential facility for the elderly. Furthermore, according to the Ministry of Health, a residential facility for victims of domestic violence and rape is currently under construction. For some felony cases, the court may order the defendant to pay compensatory damages to the victim or victim’s family in addition to imprisonment. For example, for some murder and rape cases, the court may order compensation to the victim or victim’s family for up to 10 years. Similarly, for most property or monetary crimes, such as bribery and fraud, the court punishes offenders based on valuebased sentencing and attempts to compensate the victim with comparably valued damages. The monarch retains the power to grant amnesty or commute any criminal sentences.

Prisons In Bhutan, prisons are under the jurisdiction of the police. Police officers administer the prisons and serve as correctional officers. Bhutan does not publish prison figures and according to the World Prison Population List (8th edition), there are currently no


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reliable statistics available on the number of prisoners incarcerated in Bhutan’s prison system. In the 1990s prison conditions were widely known to be poor, with inadequate hygiene, unhealthy food, and prevalent overcrowding that allegedly resulted in the deaths of detainees. The government ended the use of shackles in 1992 as a result of pressure from Amnesty International. Representatives from the International Committee of the Red Cross (ICRC) began visiting prisons in 1993, and, according to ICRC, prison conditions in Bhutan are now satisfactory. Furthermore, the opening of a new prison camp in Chemgang and a new prison in the capital city, Thimpu, in 1994 improved the conditions of detention. Medical treatment in prisons is provided by the Basic Health Unit (BHU). These units are normally staffed by a medical officer, health assistant, assistant nurse, and two nonmedical staff members. Health records of the individual prisoners are kept and minor illnesses of the prisoners are treated at the BHU. The medical officer visits the BHU on one occasion a week for custom check-ups of prisoners. In terms of mental health services, Bhutan’s prisons offer very little. According to the Bhutan Ministry of Health, less than 4 percent of prisoners suffer from psychosis or mental retardation. Therefore, the need for mental health services is not dire. Nevertheless, Bhutanese prisons have at least one prisoner per month in treatment contact with a mental health professional. As for training, some police officers (21%–50%) and a few (1%–20%) judges and lawyers have participated in educational activities on mental health in the last five years.

The Refugee Crisis Opposition to the government’s “one nation, one people” policy and the cultural protection laws resulted in mass demonstrations in September and October 1990. Up to 18,000 protesters participated in the demonstrations and the government moved decisively to suppress the movement. Demonstrators were labeled as “ngolops” (antinationals) and the National Security Act of 1992 made antinational activities into criminal offenses. From 1989

to 1992, police and army forces arrested thousands of ethnic Nepalese suspected of supporting a rebellious movement. Some were detained and others simply disappeared. The government has denied accountability for any disappearances; however, in the past several years, the government has freed from detention at least 1,666 ethnic Nepalese under official amnesties. According to local human rights groups, widespread human rights abuses were reported during 1989–1992 and were likely committed as part of an effort to drive out ethnic Nepalese. These policy initiatives suggest that the government tacitly condoned the abuse of ethnic Nepalese. Several thousand people were imprisoned for months in what some allege to have been substandard conditions. The United Nations High Commission for Refugees detailed 2,200 allegations of torture in the government prisons of Bhutan. Victims reported severe beating and kicking, exposure to extreme heat and cold for long periods, scalding, light depravation, electric shocks, chepwa (pressing the thighs between iron rods or logs), nails in the flesh, hanging people upside down, and rape of women. Military officers were stationed in the southern districts and allegedly forced village headmen and others to provide local teenagers for sexual favors. According to the Coalition against Trafficking in Women Factbook on Global Sexual Exploitation (1999), in 1991, an estimated 12,000 Bhutanese women refugees fled to western Nepal as a result of sexual violence perpetrated by the Bhutanese military. The Human Rights Organization of Bhutan (HUROB), the People’s Forum for Human Rights, Bhutan (PFHRB), and the South Asia Human Rights Documentation Center (SAHRDC) published dozens of sworn statements from victims of torment and rape who escaped to refugee camps in Nepal. Human Rights Watch alleges that children were forced to commit atrocities against their families and neighbors so as to ensure that they would be stigmatized and unable to return to their communities. Bhutan is, in fact, the source of more refugees fleeing their homeland to escape persecution than almost


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any other country in the world. Bhutanese refugees live in seven refugee camps in Nepal, and their numbers range from 100,000 to 130,000. Several nongovernmental organizations (NGOs) offer rehabilitation services to victims of torture for those refugees. Meanwhile, the Bhutanese government has instituted a resettlement program that brings people from other parts of the country and settles them on the land formerly owned and occupied by the refugees. In essence, the government policy is a deliberate attempt to make it more complicated and difficult for refugees to return to Bhutan. By 2003, 70 percent of the land of those in exile had been resettled. Those who resettled were given cash incentives for the move. About 13 percent of the population of Bhutan, or approximately 82,000, were considered to be nonnationals and were ineligible to vote in the historic 2008 elections. A few months before the elections, on January 20, 2008, coordinated bomb blasts in Thimpu and three other locations generated political shock in Bhutan. The police suspected Nepal-based exile groups, and the previously unknown United Revolutionary Front of Bhutan claimed responsibility for the attacks. The organization expressed the grievance that the move toward democratization should be inclusive of all Bhutanese. More bomb blasts occurred in February and March 2008. Certainly, if Bhutan wants to move into a new era of democratic governance, it will need to take steps to resolve the refugee crisis and the treatment of minorities within its borders. Julie Ahmad Siddique Further Reading Giri, B. R. (2004). “Bhutan: Ethnic Policies in the Dragon Kingdom.” Asian Affairs 35: 353–364. Lamsang, Tensing. (2008, April 12). “A Decade of Crime in Bhutan.” Kuensel: http://www.kuenselonline.com/modules.php?name=News&file=arti cle&sid=10194. National Portal of Bhutan: http://www.bhutan. gov.bt/government/index_new.php. Rizal, D. (2004). “The Unknown Refugee Crisis: Expulsion of the Ethnic Lhotsampa from Bhutan.” Asian Ethnicity 5: 151–177.

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Brunei Darussalam Legal System: Islamic/Common/Customary Murder: Low Prison Rate: Medium Death Penalty: No Corporal Punishment: Yes

Background During the 14th and 16th centuries, Brunei was ruled by a powerful sultanate. In 1847, the sultan concluded a treaty with Great Britain and Brunei Darussalam officially became a British protectorate in 1888. In 1906, the Residential System was established, which allowed for a system of indirect British rule or protection for Malay states. A British resident was appointed to represent the British government. He advised the sultan in all matters, with the exception of Malay customs, traditions, and religion. However, the resident had no police or army support from Britain, and no specific set of guidelines to follow, so the sultans and followers resisted change for several centuries of traditional rule. The resident’s success or failure depended on his relationship with the sultans and his Malay chiefs. In 1959, Brunei Darussalam received its own constitution and self-governance. In 1967, Sultan Haji Sir Muda Omar Ali Saifuddien, gave up his throne and his son Penigran Muda Mankota Hassanal Bolkiah became the 29th ruler of Brunei Darussalam. After giving up his throne, Omar Saifuddien became the defense minister and Brunei received full internal independence, in 1971, with the exception of defense and external affairs. Then in 1984, Brunei Darussalam gained full independence. Subsequently, the sultan became known as the prime minister, finance minister, and home affairs minister. He presided over a cabinet of 6, and this cabinet increased to 11 members in 1986. His Majesty Sultan Haji Hassanal Bolkiah remains sultan today. Located in southeastern Asia, neighboring Malaysia, Brunei Darussalam is situated on the northwest island of Borneo. Brunei Darussalam is divided into four districts, Brunei/Muara, Tutong, Belait,


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and Temburong. Bandar Seri Begawan is the capital of Brunei. Brunei Darussalam has a total area of 5,765 square kilometers (2,226 square miles). As of July 2008, Brunei has a total population of 381, 371. Not long after Brunei received full independence, Brunei joined the Association for Southeast Asian Nations (ASEAN). Many of the citizens were resistant, first to the changes that came with independence and second on becoming a member of ASEAN. Brunei went back and forth between different powers for many years. Merging with a larger entity would have ensured Brunei’s political survival; however, political groups and the monarchy wanted to keep Brunei as a separate entity. This was primarily because Brunei had become oilrich, and Brunei officials, particularly the monarch, wanted to remain in power and continue to control its oil, and wealth. With the emergence of full independence, Brunei Darussalam became the center of media attention on its National Day of celebration not only because of its extravagance as one of the richest nations, but also the spectacle of the sultan’s 1,778-room palace, which was reported to have cost $300–$500 million. With the formation of the new government, governmental responsibilities were given to other members of the sultan’s family, revealing a clear commitment to remain a ruling monarchy. With this form of government, losing touch with the population and corruption were risks. Other government officials saw an opportunity, because for the leaders it was sometimes hard to distinguish between personal and governmental funds, thus providing opportunities for corruption.

Police Established in 1921, the Royal Brunei Police Force has several departments, each with its own function. For example, the Department of Administration and Finance’s function is the administration of personnel and preparation of the Royal Brunei Police Force’s annual budget. The total workforce consists of 3,594, plus 204 civilian employees, which include gardeners, cleaners, technicians, clerical staff, and confidential secretaries. Some of the other departments include the Department of

Operation, Department of Criminal Investigation and Intelligence, Department of Logistic, Department of Traffic Investigation and Control, and the Commissioner of Police Secretariat and Public Relations. Also, under the Department of Operation, are the Immigration Department, Royal Customs and Excise, Royal Guards, Airport Police, and the Narcotic Control Bureau. Not only does Brunei have a police force of its own, but it is also affiliated with two international police forces. Those two international police forces are the Association of South East Asian Nations Police (ASEANAPOL) and International Criminal Police Organization (INTERPOL). The reason for these memberships is to maintain good international relations.

Crime Since the Special Investigation Unit was formed in 1993, it has handled 32 cases, which include murder, suspicious death, armed robbery, and arson. Fourteen of the 32 cases have been solved while the others are still under investigation. In 1997, it solved five murder cases. Although there are no signs of terrorism, the government monitors terrorist groups to prevent terrorism. A Women and Child Abuse Unit has also been set up under the Investigation unit. Its responsibilities include investigating women and child abuse, rape cases, and to prevent and suppress prostitution.

Drug Offenses According to the United Nations report on Drugs and Crime in 2001, the number of drugs entering and leaving Brunei is minor; however, there has been an increase in the number of drug-related arrests. The types of drugs have also changed over the years. In the 1990s heroin, cannabis, and cough mixture were the most dominant drugs, while methamphetamines, also called Syabu, were minor drugs. In 1997, the amount of heroin seizures was calculated at 1.35 grams, which is less than 2 grams, and had decreased to 0.0011 grams by the year 2000. Syabu seizures in 1997 amounted to 122.82 grams and increased in 2000 to 1,649.73 grams. In 2000,


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there were 54.39 grams of cannabis seized. Most drug users arrested in 2000 were between the ages of 21 and 30 years old. The Misuse of Drugs Act Chapter 27 is the principal legislation for drug trafficking and possession. For possession of drugs of a certain amount, the penalty could be the death penalty, although there have been no executions in Brunei since 1957. In 1996, the annual prevalence of abuse, among the population of 15- to 64-yearolds, for cannabis was 0.02 percent. In 1998, it was 0.01 percent for opiates, and in 2006, it was 0.3 percent for amphetamines. Amphetamines and cannabis, in 2006, were the primary drugs of abuse among those treated for drug problems. The number of people treated in Brunei for drug problems was 57; of those, 98.2 percent were treated for amphetamine abuse and 1.8 percent were treated for cannabis, according to the United Nations Office on Drugs and Crime’s “2008 World Drug Report.” There are two drug rehabilitation facilities, which assist approximately 250 voluntary and involuntary residents. The names of the facilities are the Al-Islah Rehabilitation Centre and the Al Islah Intoxicating Substances Rehabilitation Centre. These facilities are under the control of the Prisons Department and the Ministry of Home Affairs. There are three ways of admission, court order, minister’s order, and voluntary order. Detoxification treatment is for a period not exceeding 14 days. After conviction by the court and release from prison or rehabilitation, an individual must be enrolled in a supervision scheme.

Crime Statistics

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these news reports, crime statistics released by the Royal Brunei Police Force in 2004 were the highest since 1996; however, in 2005 there was a drop in the number of crimes reported to police and another drop again in 2006, a drop of 170 cases was calculated for the two years. Brunei has an estimated population of 381,371 people as of July 2008, and the crime ratio was 593 crime cases to 100,000 people, based on crimes recorded by police. Miscellaneous crimes dropped 21 percent during 2005 and 2006, overall crime dropped 4 percent, the rate of apprehensions and arrests dropped 3.4 percent, and fraud cases decreased by 183 percent. The crimes that showed an increase were cases of house breakins and burglaries. There was an increase of 145 break-ins and burglaries. Most of the break-ins occurred in the Brunei Muara district. Car thefts also increased by 6 percent, and out of the 169 stolen vehicles (mainly Toyota brand), 106 were recovered. The number of arrests increased by 0.05 percent in 2006, and 10.5 percent of those arrested were below the age of 18 and generally involved in thefts and burglaries. The United Nations report on drug statistics for 2001 showed a 21 percent increase in drug-related arrests, an average increase of 46.5 arrests per month to 56.4 between 1999 and 2000. The majority of drug-related arrests were male, but the number of females has increased. In 2007’s statistics, 4,519 crimes were reported. The Royal Brunei Police Force handled 3,370 of those cases. In total, there were 1,136 arrests made and 1,046 criminal cases solved.

Finding of Guilt

Crime statistics for Brunei Darussalam are hard to find because not all of the official records of crime statistics are up to date or made available. As reported by http://www.bruneiresources.com. in 2003, the total number of criminal cases was 4,075; in 2004, the number was 4,796; and in 2005, it was 2,207. For the entire time period, by far the major portion of cases reported to police were for property crime, followed by crimes against the person and drug crimes. According to news reports, crime rates in Brunei have been decreasing for many years. According to

Criminal Prosecution There are two court systems in Brunei Darussalam, a national system that deals with laws in the Constitution, and another system that deals with Islamic law. The National System is composed of three courts, the Subordinate Court, the Intermediate Court, and the Supreme Court. Most cases appear in the subordinate court, which is also called the magistrates’ court. In the intermediate court, the more serious criminal and civil matters are seen. However, the intermediate court does not handle


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capital offenses. The Supreme Court includes the High Court and the Court of Appeals. This court also tries cases that carry capital sentences. The other court system is the Syariah Courts. This court coincides with the Supreme Court and only handles matters of Islamic law. Criminal prosecutions and proceedings are under the direction and control of the attorney general, who is also the public prosecutor. Occasionally, His Majesty will appoint a deputy public prosecutor who is under the direction of the public prosecutor. The police conduct investigations, and they have the power of search and seizure; however, they must document what has been seized. The owner of the property, who must be present during the search, as well as the officer, must sign the document. The officer may also question witnesses, and witnesses then write and sign their statement. The officer then reads the statement to the witness, who then signs it. These statements can be submitted as evidence in a trial. When an officer interviews a potential defendant, the officer is required to read the defendant his or her rights. Silence is not a right in Brunei Darussalam since the courts may see this as a detrimental factor for the defendant. Once a suspect is arrested, he is either placed in remand or released on bail. If remanded by the magistrate, the defendant cannot be retained for more than 15 days. If the court ordered the arrest, there is no time limit. Preliminary inquiries are held for offenses against the state, in addition to murder or any offense that carries a death sentence. The magistrate at this stage determines if there is enough evidence to submit the case to the High Court; however, drug trafficking and rape cases go straight to the High Court, while other cases are tried summarily in the magistrate court. Charges against a defendant may be dropped any time before a judgment is made, and only the prosecution can withdraw the charge. Defendants have the right to counsel, if they cannot afford counsel the court does not provide one unless it is a capital case. In noncapital cases, defendants may act as their own counsel. Defendants also have the right to a speedy trial and the right to confront their accusers. The number of judges presiding over the trial varies; it can be either one judge or a panel of judges. At the trial, the defendant is read the

charge and asked to enter a plea of either guilty or not guilty. If the plea is guilty, it is recorded, and he or she may be convicted on that plea; however, the judge makes sure the defendant know the consequences of his or her plea. If the plea is not guilty, a trial will be held and witnesses and evidence will be seen before a judge. If the defendant is found not guilty, the court appoints an acquittal. If the defendant is found guilty or has pleaded guilty, the court then sentences the defendant. Defendants are allowed to appeal. However, the appeal will be heard in the High Court. If the defendant appeals the High Court’s decision, the Court of Appeal hears the appeal. The magistrate court handles civil court proceedings, and the cases viewed involve matters between people concerning breaches of contracts and compensation. These trials are heard in public; however, the magistrate may request that the hearing be in the presence of the parties alone. The High Court cases are initiated by writ, summons, motion, or petition. In these cases, if a defendant wants to avoid a hearing, he or she may pay the court the amount of money a plaintiff claims. If the plaintiff accepts the money, notice must be given to the defendant. In High Court cases, offers to settle and summary judgments may be made.

Juvenile Offenders Originally, the age of criminal responsibility was seven years old; however, after some controversy, the law was changed to 12 years of age. The courts have limited powers when dealing with juveniles. Under the Criminal Procedure Code, the court may impose several alternative sentencing options, instead of imposing fines or imprisonment on a youthful offender. Those alternative sentencing options include: (1) discharging after admonition, (2) delivering the offender to a guardian, nearest relative, or another person who is responsible for the juvenile for a period not exceeding 12 months, (3) ordering the offender to be released on probation of good conduct on the entering into a bond, and to appear and receive judgment if and when called upon by the court, and (4) in the case of the High Court, committing the offender to custody in the detention facility of Jerudong Prison, for one to


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five years. Other alternatives are to inflict a fine of $1,500 on the offender’s guardian should the court consider that the guardian has contributed to the misconduct through neglect of care or other reasons. Offenders under the age of 18 may not receive the death penalty.

Punishment Some of the most common punishments in Brunei Darussalam are expulsion from the country, caning (whipping), death penalty (no longer inflicted), life imprisonment, fines, and payment of compensation. In sentencing hearings, where the death penalty may be imposed, there must be two judges present, and they both must agree with the decision. Women who are pregnant are not sentenced to the death penalty; instead, they receive life imprisonment. Life imprisonment means the defendant will spend the rest of his or her life in prison. Besides life imprisonment, prison terms can carry long sentences. Caning has been in use since 1988, and is a mandatory punishment for 42 different criminal cases. An adult who is sentenced to caning or whipping usually receives a maximum number of 24 lashings. Defendants below the age of 18 receive a maximum number of 18 lashings. Women and men above 50 years old, and those sentenced to death, are exempt from caning. Canings must be conducted in the presence of a doctor, who for medical reasons can stop the caning at any time. Offenders prefer this method to long-term punishment. Fines are assessed according to the relevant law, and if there is no relevant law, the court may decide on the appropriate amount. In addition to the punishments imposed, the court can also order the defendant to pay compensation, if he or she can afford it. If a defendant can pay the compensation amount but defaults on the payment, the result is imprisonment or additional imprisonment. Caning is used as a punishment in nearly 80 percent of criminal convictions. Under Brunei’s penal code, murder is punishable by death. Those convicted of rape are sentenced up to 30 years in prison and shall be punished with caning, as well. Those who have sexual intercourse with a woman less than 14 years of age without her consent could receive

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a prison term not less than 8 years but not more than 30 years, and shall be punished with caning not less than 12 strokes. For theft, a criminal could be punished with imprisonment for a term up to three years, with a fine, or with both. Other types of theft could see up to seven years in prison. Theft that causes harm, fear of harm, or death could see as much as 15 years in prison and receive a caning. Those who commit robbery could receive as much as 30 years in prison and, with whipping, no less than 12 strokes. There are very severe penalties for illegal drug offenses. For possession of certain amounts of narcotics, there is a “mandatory” death penalty. Possession of heroin, Ecstasy, and morphine derivatives of more than 15 grams; cocaine of more than 30 grams; cannabis of more than 500 grams; Syabu or methamphetamine of more than 50 grams; or opium of more than 1.2 kilograms carries the death penalty. Possession of lesser amounts is considered minor drug possession, and charges are known to carry a 21-year sentence and/or heavy fines. There is a presumption clause, which states that anyone in possession over a certain amount of controlled drug is assumed to be trafficking. Drug trafficking of other amounts of narcotics is punishable with a minimum of 1 to 30 years in prison, and 1 to 15 strokes of whipping. Prostitution is illegal, and women who move to Brunei solely for prostitution are deported. As noted above, in Brunei, the death penalty is allowed; however, Brunei can be considered abolitionist in practice because it has not executed anyone since 1957, and is believed to have a practice of not carrying out executions. Sharia law is only applied to Muslims. Sharia law punishes individuals who commit crimes against the Islamic law; however, it does not apply to nonMuslims. It provides punishment for moral crimes such as adultery, fornication, alcohol use, as well as many other crimes. These crimes are included in a group of punishment called “hudud” crimes. These crimes are considered crimes against Allah. Under the sharia law, robbery crimes are punishable by cutting off the hand of the thief, while fornication by unmarried persons and alcohol consumption are punishable by caning. Being stoned to death is the punishment for adultery. Other crimes, such


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as murder and assault, are punished severely, with murder being punished by the death penalty, and assault being punished using the “eye for an eye, tooth for a tooth” principle. Through negotiation, in an Islamic court, an individual can escape such punishments by providing compensation.

Prison Until 1998, Brunei only had one prison. The Jerudong Prison was established in 1954. This prison was built to accommodate all categories of prisoners, ranging from those sentenced to one day of prison to life terms and death penalties. The purpose of the prison is to rehabilitate offenders into law-abiding citizens, as well as protect society by holding and guarding criminals. Rehabilitative programs were established to reintegrate offenders back into society. Religious and social counseling, physical training, and vocational courses are just a few of the opportunities provided by the programs. It is mandatory that prisoners work to build ethics and discipline. The rehabilitative process uses a Progressive Stage System, which has five stages. In the first stage, a prisoner is allowed to send and receive one letter every two months and get one 15-minute visit every two months. This is for prisoners serving less than six months. In the second stage, a prisoner is allowed to send and receive one letter every two months; however, this is for prisoners serving more than a six-month sentence. With good behavior, they can be promoted to the third stage. In the third stage, the prisoner is allowed to send and receive letters every three weeks. Prisoners are also allowed to receive earnings and can have 20-minute visits every six weeks. In the fourth stage, the prisoner is allowed to send and receive one letter every two weeks and have 30-minute visits every month, but only with good behavior. In stage five, called the Special Stage, prisoners are honored with a special blue uniform. Prisoners can send one letter every month and receive unlimited amounts of letters and have a 30-minute visit every two weeks. There are no reported cases of police misconduct with prisoners, and the prisons are said to meet the minimum international standards. In 1998, a new prison was

established to accommodate the increasing numbers of prisoners. Overcrowding is not a problem in the prisons. Prisoners are allowed visits from their family, and they are allowed to bring food into the prison. The number of inmates incarcerated during 2003 was 443 prisoners. In 2005, there were 492 prisoners. The percentage of female inmates was 7.5 percent. In 2007, the United Nations Development Program reported that the total number of prisoners was 529, with only eight female prisoners. Pamela Shultz Further Reading About ASEAN. ASEAN Secretariat. Association of Southeast Asian Nations: http://www.ase ansec.org. The Government of Brunei Darussalam Official Web site: http://www.brunei.gov.bn. Laws of Brunei. Chapter 22 Penal Code. Attorney General’s Champers Web site: http://www.agc. gov.bn/LOB/PDF/Cap22.pdf. Legal Procedure in Brunei Darussalam. Legal Systems in ASEAN. ASEAN Law Association Web site: http://www.aseanlawassociation.org. Sharp, A. M. (2006). “Brunei Darussalam.” In The World Police Encyclopedia, edited by D. K. Das and M. Palmiotto, pp. 131–134. New York: Routledge.

Cambodia Legal System: Civil Murder: High Burglary: High Corruption: High Human Trafficking: Medium Prison Rate: Low Death Penalty: No Corporal Punishment: No

Background Cambodia is a small Southeast Asia nation bordered by Laos in the north, Vietnam in the east,


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Thailand in the west, and the Gulf of Thailand in the south. During the last quarter of the 20th century, Cambodians have suffered civil war, foreign aggression, and genocide. At peace since 1998, one of the characteristics of the population, which was about 13 million in 2005 and growing at a rate of 2.4 percent per year, is its youthfulness: 60 percent are under 25 and 40 percent are less than 15 years old. Cambodia comprises 24 provinces, 84 percent of the population reside in rural areas, many subsisting on less than US$1 a day. Close to 60 percent of the remaining 16 percent of urban dwellers reside in the capital Phnom Penh. The population is 95 percent Buddhist and ethnic Khmer. For centuries the Khmer were ruled by revered god kings; most famously, during the Angkorian period, in which cultural brilliance between the 9th and 13th centuries has not been surpassed. Cambodia suffered recurring territorial and political conflicts with its Vietnamese and Thai neighbors, until the modern period when Cambodia was engulfed in the imperialist pursuits of French colonialism. In 1863, Cambodia was established as a French Protectorate, which lasted until independence in November 1953. In 1954, Cambodia became a constitutional monarchy led alternatively as king or prime minister by Prince Norodom Sihanouk. In the 1960s, Cambodia was gradually enmeshed in the civil war in neighboring Vietnam. In 1970, Sihanouk was ousted by a U.S.-supported coup led by General Lon Nol. Cambodia was declared a republic and entered a period of civil war, which was rendered even more destructive by the heavy and illegal U.S. bombing targeting Vietcong supply routes inside the country. This conflict boosted the popularity and power base of groups opposed to the Lon Nol regime, among whom the dominant groups were royalists and a revolutionary movement known as the Khmer Rouge led by Pol Pot. In 1975, the Khmer Rouge (KR) defeated the republican army and entered Phnom Penh. Once in power, the KR emptied the cities, and established a Chinese-backed utopian regime of agrarian revolutionary terror, which killed (through starvation and murder) close to 3 million people and ended in 1979 with a military occupation by the Vietnamese. The

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Vietnamese army of occupation installed a socialist regime called the People’s Republic of Kampuchea (PRK), led successively and briefly by a number of former KR defectors, and six years later by Hun Sen, himself a former KR defector. In 1989, when Vietnam withdrew its troops from Cambodia, the regime was renamed the State of Cambodia (SOC). In 1979, a second civil war (with strong nationalist anti-Vietnamese overtones) commenced. The combatants comprised PRK/SOC forces supported by Vietnam and the Soviet Union on one side, and KR and royalists forces supported by the United States and China on the other. In 1991, a United Nations intervention resulted in a peace settlement known as the Paris Accords and the establishment of the United Nations Transitional Authority in Cambodia (UNTAC). In 1993, UNTAC oversaw the adoption of the present constitution and implementation of the first free elections. The royalist party (FUNCIPEC) won a majority but, in the hope of preserving a fragile peace between former warring factions, was forced into an inherently unstable governmental alliance (a joint prime ministership) with the Cambodian People’s Party (CPP) led by Hun Sen. This precarious peace was indeed seriously threatened by armed clashes between the CPP and royalist forces in 1997, which led to a significant number of casualties and the end of the co-prime ministership with the defeat of the royalists’ military capability. After the second elections of 1998, the CPP/FUNCIPEC governmental alliance was eventually reinstated, but with a greatly weakened FUNCIPEC. However, this arrangement was accompanied by continued periods of political uncertainty and violence. Remaining pockets of KR resistance ended in 1998, which also coincided with the death of Pol Pot. Efforts to bring to justice the leaders of the KR responsible for the genocide and atrocities of the revolutionary period have been long delayed by a government reluctant to disturb pragmatic arrangements that encouraged defections from the KR. At the time of writing, a tribunal of Cambodian and international jurists is leading a trial against the few remaining aging leaders of the KR. After four rounds of national elections in 1993, 1998, 2003,


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and 2008, the CPP has consolidated its dominance over government, and its leader, Prime Minister Hun Sen, has steadily increased his grip on power.

History of the Legal System Before the Protectorate, the Cambodian legal system was essentially a customary law system with widespread use of mediation and reparation to settle local disputes and crime. During the Protectorate, an official legal system patterned after the laws and courts of France was imposed (hence inquisitorial in relation to the criminal law). After the Protectorate and until 1975, the official legal system and informal practices in use during the Protectorate were maintained. The Khmer Rouge regime of terror (1975–1979) destroyed the legal system, judicial officials were murdered, and traditional informal mediation practices were undermined. During the PRK/SOC regime (1979–1991), a Soviet-style legal system was imported from Vietnam and staffed according to political allegiance rather than expertise in the field of law and criminal justice. Many police were trained in Vietnam and Russia and focused mostly on internal security and intelligence rather than on law and order and crime control. Regarded as a security agency of the government with minimal commitment to civilian peacekeeping, the police and the whole criminal justice system (CJS) had a very low standing in the community. Recourse to the formal justice system was rare as people continued to use traditional mediation and resolution to deal with crimes and conflicts at the commune and village level. While a court system, styled as People’s Revolutionary Courts, had been re-established in May 1980 and formalized by the enactment of the Constitution of June 1981, judges and prosecutors were generally unqualified, poorly educated, and subject to military control. There was no independent appellate body. Any review of verdicts and sentences pronounced by the courts was thus in the hands of the executive branch. Further developments, such as the enactment of the Law Concerning the Organization of the Courts and Prosecutors and the establishment of the Institute of Public Administration and Law (IPAL) in 1982, the People’s Supreme Court in

1985, or even the new SOC Constitution in 1989, did not bring any significant changes to the system and its standing in the community. Since the Paris Accords in 1991, the official system has remained inquisitorial and is primarily based on a civil law mixture of French-influenced codes from the period of UNTAC, royal decrees, and acts of the legislature, with influences of customary law and remnants of communist legal theory. However, most cases continue to be dealt with informally at the village or commune level. In addition to a new constitution, 2007 saw the passage of the Law on Criminal Procedure, which defines the roles and functions of the police, courts, and prisons. Agencies in the Cambodian CJS include the Ministry of Interior (MOI), the National Police Department, the Gendarmerie Militaire, and the Department of Prisons. The Ministry of Justice (MOJ) is responsible for the court system, and the Supreme Council of Magistracy for the management of judges and prosecutors. Some international donors such as the Australian government (AusAID) have focused their aid on rebuilding a legitimate Cambodian CJS. However, in spite of several years of ongoing assistance, many Cambodian people continue to regard the current CJS as having little legitimacy, because in the three branches of the system (police, judiciary, and corrections), regime capture (lack of independence) and corruption is endemic.

Role of Police The Cambodian Police comprises the Gendarmerie and the Cambodian National Police (CNP). The Gendarmerie is primarily a military police force and does not have the rural policing function that it generally plays in France and francophone countries. However, in its 2007 reports, the Cambodia Criminal Justice Assistance Project (CCJAP) noted the overlapping of functions between the CNP and the Gendarmerie: the latter has become increasingly visible deploying to district level in rural areas as well as in towns and cities, performing “national security” roles. The new Criminal Procedure Law provides the Gendarmerie with the same powers of arrest held by


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the judicial police, although such powers have long been exercised by them under the general provision for arrest in the UNTAC penal code. The structure of the Cambodian National Police includes a number of central departments such as Traffic, Training, Scientific and Technical, Human Trafficking and Child Protection, Public Order Police, Border Police, Security Police, and judicial police. In all provinces the CNP structure is replicated at the various administrative strata down to the commune level (Police Post). However, the provincial commissioners must comply with the national policies and procedures laid down by the MOI, which is responsible for salaries and operating expenses but takes direction from the deputy governor (who, in theory but rarely in practice, is responsible for infrastructure and other resources) about provincial policing priorities. The role of the judicial police and its Central Department of Criminal Police is similar to the role performed by traditional policing agencies in many other countries (i.e., mediation, complaint handling, investigation, and arrests). One of the functions of the Scientific and Technical Office, under the control of the judicial police, is to record and classify reported crimes as well as offenders and fingerprints. According to the law, the judicial police can also act as prosecutors and are often appointed to conduct investigations, but in this role they have limited powers of arrest and must seek authority from a prosecutor. As in most inquisitorial systems, the investigating judge appointed to the case can conduct further inquiries. However, CCJAP points out that poor training of the police force and the judiciary often prevents the proper application of and compliance with the laws of Cambodia. For instance, many police interrogations end up in confessions with little supporting evidence. As part of its regular monitoring of prison conditions in Cambodia, the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) conducted interviews with prisoners in 18 prisons, and found that from 1999 to 2006 between 450 and 163 inmates had been tortured in police custody. However, it is worth noting that in 1999 reports of torture in police custody represented 13.7 percent of the population of the

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surveyed prisons but that they have steadily fallen to represent only 1.8 percent by 2006. Other problems reported by CCJAP, affecting the CNP in general and the judicial police in particular, are poor management and supervision and lack of strategic planning and equipment: According to CCJAP, the creation of the Offices of Human Trafficking and Child Protection under the responsibility of the judicial police is a positive response, but its effectiveness is impaired by a “lack of proper definition of function, staffing requirements, training requirements, and a plan for how these Offices will actually function.” Decades of conflicts have resulted in an overstaffed National Police Department, which was used to absorb demobilized military personnel with little sense of their civilian mission and the provision of services to the community. This contributes to a widespread feeling of mistrust, reflected, for instance, in the very low reporting rates of criminal victimization to the police. Given the level of corruption in the police and in most other institutions, there is also cynicism about impartiality and fair treatment by such agencies. For instance, it is not rare for the judicial police to seek between 20–50 percent of the cost of a stolen motorbike up front before they begin an investigation. While streetlevel police corruption of this kind has generally decreased between 2000 and 2007, in many locations public cynicism about police corruption has grown despite reductions in its incidence. It is difficult to obtain reliable information about the number of CNP in Cambodia. CCJAP estimated more than 65,000 police in 1996 and 64,000 in 2001. There was a national plan to reduce the 1996 staffing by 24,000 in five years, but by 2000 the numbers appear to have reduced by only 11,630. In 2001, the judicial police had between 8,000 and 9,000 officers, but only 800 were female. More recent estimations (2007) put the CNP number at 70,000. Yet, a report by the National Police Commissioner (dated January 22, 2007) indicated that the total number of the national law enforcement officers as of November 2006 was 50,824 (1,993 females), comprising middlerank officers of 12,658 (789 females) and local law enforcement officers of 38,166 (1,204 females).


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Crime Police crime statistics provided by the MOI distinguish between a “serious crime situation,” also referred to as a “felony,” with four categories: robbery (threat/nonfatal and robbery-murder), murder (successful and attempted), terrorism (kidnapping, confinement, grenade attack, organized crimes), and sexual offenses (rape, rape-murder, human trafficking); and a “minor crime situation,” also referred to as “misdemeanor,” with five categories: theft (stealing and pickpocketing), fraud/breach of trust, battery with injury, use of illegal weapon, and others. While article 21(1) of the UNTAC code stipulates that children under the age of 13 must not be placed in detention, there is no age of criminal responsibility in Cambodia.

Kem Sokha, Director of the Cambodian Center for Human Rights, below, and his deputy director put palm prints on the black cloth hung on a truck to symbolize “no corruption,” Phnom Penh, Cambodia, September 4, 2006. Cambodian police have prevented prominent human rights groups from holding anticorruption demonstrations. (AP Photo/Heng Sinith)

Corruption is endemic in Cambodia and affects many government and nongovernment institutions and businesses. However, street-level corruption by officials has abated since 2000. For instance, two sweeps of the United Nations International Crime Victim Survey (UNICVS) conducted in three provinces in 2000–2001 and 2006–2007 showed that the estimated rates of rent seeking by officials had reduced from 27.8 percent to 18.2 percent in Phnom Penh, and from 15.6 percent to 12.9 percent in Kampong Cham. In the third province, Kandal, the rates (18.3%) had not changed. The actual experience of corruption had also decreased in respect to police (except in Kandal). In Phnom Penh, the proportion of victims of police corruption reduced from 10.1 percent in 2000 to 5.7 percent in 2005 and represented 31.2 percent of all victims of corruption compared to 36.5 percent in 2000. In Kampong Cham the proportion reduced from 4.5 percent in 2000 to 2.5 percent in 2006 and represented 20.2 percent of all victims of corruption compared to 29.1 percent in 2000. In Kandal, however, the experience of corruption by police officers had increased, from 3.5 percent in 2000 to 4.4 percent in 2005 and represented 24.1 percent of all victims of corruption compared to 18.9 percent in 2000. In the three provinces, the most frequently cited offenders by victims of corruption both in the first and second sweeps were elected commune officials. It is more difficult to estimate the extent of corruption by the elites, but it is clear that many high-ranking government officials have amassed fortunes unrelated to their legitimate salaries. Commercial fraud affecting ordinary consumers is still widespread, although the rates have declined between 2000 and 2006, from 39.6 percent to 25.4 percent in Phnom Penh, 31.8 percent to 18.7 percent in Kandal, and 29.8 percent to 22.0 percent in Kampong Cham. Human trafficking, including children, for illegal labor and prostitution in neighboring countries (e.g., Vietnam and Thailand), is often cited as a serious criminal activity. However, there is a scarcity of empirical research on the extent and dynamics of this illegal trade. A recent report by the national police commissioner indicates that drug trafficking (heroin and


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particularly methamphetamines) is rising and that “the demand for illegal drugs among youth, students, and other citizens has remarkably increased.” The report mentions that in 2006 the quantity of heroin and methamphetamines (ice) trafficked to Cambodia was three times higher than in 2005. While the rates of robbery, including robberymurder, have declined since 1992, the number of robbery-murders is still relatively high. In rural Cambodia, livestock theft is the most prevalent crime and can have dramatic consequences for both the victim(s) (i.e., serious impoverishment) and the offender(s) (i.e., high risk of being killed by villagers if caught in the act). Given that more than 80 percent of the Cambodian population makes a meager living through farming activities, this crime affects a large number of citizens.

Drug Offenses The production, use, and sale of illegal drugs are a criminal offense in Cambodia, although drug use appears to be classified as a misdemeanor and trafficking as a felony. The same types of drugs (e.g., heroin, cocaine, cannabis, methamphetamines, Ecstasy, etc.) as in most Western countries have been declared illegal. According to article 98, personal consumption, and production for the unique purpose of personal consumption, of any of the prohibited drugs is punished by a fine ranging from US$25 to US$250. Article 36 stipulates that the offense of selling or providing any of these drugs to a person for his or her personal consumption “shall be punished to imprisonment from one month to one year and with a fine from 1,000,000 (about US$250) to 5,000,000 riels (about US$1,250), or to either one of the two penalties.” Article 86 provides a more severe penalty of one year to five years in prison and with a fine of about US$2,470 if the drugs are made available to minors. Any other drug offenses for the eventual intentional purpose of trafficking incur a penalty from 5 to 20 years’ imprisonment with fines up to 50,000,000 riels (about US$12,500). In his January 2007 report, the national police commissioner commented that Cambodia had been used as a safe haven for the transit and distribution of illegal

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drugs from the Golden Triangle to other countries in the regions.

Crime Statistics The official national statistics of crime recorded by the police in 2007 and provided by the Ministry of Interior (MOI) are presented below (rates per 100,000): • • • • • • • • • •

Murder: 2.32 Attempted murder: 0.75 Robbery-murder: 0.55 Rape-murder: 0.09 Grenade attack (considered lethal): 0.11 Combined homicide (murder, robbery-murder, rape-murder, and grenade attack): 3.07 Robbery: 4.32 Rape: 1.80 Theft: 8.93 Drug trafficking (based on number of arrested offenders provided by national police commissioner in 2006): 3.94

At this stage we need to emphasize that in Cambodia there is an enormous “dark figure” of crime. The two sweeps of the United Nations International Crime Victim Survey (UNICVS) revealed that most victims of crime do not report their victimization to the police, who in addition only record a fraction of the reported offenses. For example, if we compare the rates based on police records in 2005 with the estimated rates based on the UNICVS in Phnom Penh, very large differences are observed. Instead of a rate of 29 for nonfatal robbery based on police records, a rate of 1,831 per 100,000 is estimated by the UNICVS; for nonfatal rape, instead of 0.7 based on police records, a rate of 92 per 100,000 is estimated. Again, for assault with injury, instead of 6.5 per 100,000 based on police records, 1,465 per 100,000 is estimated by the UNICVS; for all theft (including vehicles, livestock, burglary, and pickpocketing) instead of 18.4 per 100,000 based on police records, the UNICVS estimated a rate of 33,700 per 100,000, and for fraud instead of 0.62 per 100,000, 25,366 per 100,000. The same order of


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magnitude in the difference between rates based on police records and the UNICVS was found in Kandal and Kampong Cham in 2000 and 2005. Although actual crime rates are far higher than the official crime rates, they have dramatically reduced since 1998. Analyses of press reports, interviews with judicial police, and hospital data confirm the declining trends of the rates of homicide, and the UNICVS sweeps show a significant decrease in both property and violent crime.

Crimes in Rural Areas As mentioned earlier, the UNICVS shows that livestock theft is the most prevalent crime in rural areas. In 2001, in two of the surveyed rural provinces, Kampong Chhnang and Kampong Speu, the one-year prevalence rates of livestock theft were close to 35 percent and reached 25 percent in Kampong Cham. In 2006, the rate had declined to 11 percent in Kampong Cham, but was still one of highest rates apart from fraud and corruption (Kampong Chhnang and Kampong Speu were not surveyed in 2006). On the other hand, police statistics show that rates of homicide tend to be higher in many rural areas compared to the capital Phnom Penh.

Crimes in Urban Areas Until 2005, the rate of robbery was significantly higher in the capital Phnom Penh than in other provinces. For instance, of all the robberies recorded nationally by the police over seven years (1996–1999 and 2001, 2003, 2005), a third occurred in Phnom Penh whose population during the same period was only about 9.5 percent of the national population (hence, an average rate of 33.16 per 100,000). However, in 2006 the number of robberies (including robbery-murders) recorded in Phnom Penh by the police had significantly declined to reach a rate of only 14.79 per 100,000, which was lower than the rates in a few semirural and rural provinces (Sihanoukville, Kong Kep, and Pailin). The UNICVS also revealed that, although reduced, the prevalence of robberies as well as street-level

fraud and corruption was higher in Phnom Penh than in Kandal and Kampong Cham. UNICVS (but not police statistics) showed higher rates of burglary in Phnom Penh, and both police statistics and UNICVS showed higher rates of pickpocketing in Phnom Penh than in rural areas.

Finding of Guilt Rights of the Accused Although the principle of presumption of innocence is enshrined in the Cambodian constitution, the way the inquisitorial system is practiced in Cambodia mostly ensures that a person is presumed guilty by the time he or she appears before the court. Guilt or innocence tends to be determined during a pretrial stage, which takes place before prosecutors whose enquiries are not open to the public. The Law on Criminal Procedure does specify a number of basic rights for the accused, such as the right to be informed of the imputed criminal act, the right to answer or not to answer the investigating judge without the assistance of a lawyer or defender chosen by the accused, the right to communicate privately with defenders, and the right to appeal a court decision. However, there is no provision for the right to remain silent and to have an attorney present during police interrogations. There is no trial by jury in Cambodia or a right to plead guilty to a lesser offense. As for a speedy trial, it is not a right provided to the accused but a provision of the Law on Criminal Procedure allowing the prosecutor to send an accused direct to trial (i.e., without relying on the work of the investigating judge) when the offense is a misdemeanor incurring a penalty of no more than a year of imprisonment or a misdemeanor incurring more than a year of imprisonment in the case of flagrante delicto (i.e., when the accused was caught red-handed in the act).

Assistance to the Accused Because the criminal justice system and the legal profession were decimated during the Khmer Rouge dictatorship, there is a scarcity of trained and competent lawyers in Cambodia. In theory,


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and according to the Law on Criminal Procedure, an accused person has the right to be assisted by a lawyer or a “defender” as soon as the prosecutor lays charges and during interrogations conducted by him or her or the investigating judge, up to and including the trial. Article 76 of the Law on Criminal Procedure stipulates that the automatic appointment of a lawyer shall be made by the presiding judge (other provisions mention the investigating judge rather than the presiding judge) in the following cases: • The victim is a minor without defense. • The accused person is a minor without defense. • The accused person is mute, deaf, blind, or has a mental disorder. • The accused person is not able to afford a defender. Funded by U.S. donors, the Cambodian Defenders Project (CDP) was set up in the mid-1990s to train a group of defenders whose role was to represent those accused of crimes in the court. They formed themselves into an organization that now provides legal aid from offices in Phnom Penh and a number of provincial towns. In 2001, it comprised 30 lawyers, 30 supporting staff, and 17 law interns. According to CCJAP, defenders were sometimes regarded with suspicion by judges, prosecutors, and court clerks and even forbidden to appear; however, as trained lawyers, they raised the standard of court procedures. Yet, CCJAP reported that despite being paid decent salaries, “some of them have succumbed to the pervading corruption found in the court system.” Legal Aid of Cambodia (LAC) was set up shortly after the establishment of the CDP, as the latter split into two distinct groups. Funded by several European assistance projects, in 2001 LAC had offices in Phnom Penh and nine provinces and was staffed by 18 lawyers and 18 legal assistants. In addition to the CDP and LAC, in 1995 a statute established the Cambodian Bar Association and stipulated that only members of the association could practice law in Cambodia. The association, which in 2000 had 216 members, includes lawyers in

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private practice and those in the legal aid/defender bodies. Although generally not offering legal services, a number of NGOs specialized in justice issues (e.g., Cambodian League for the Promotion and Defense of Human Rights [LICADHO], Cambodian Human Rights and Development Association [ADHOC], Cambodian Law and Democracy Project, Cambodian Legal Resources Development Center, Cambodian Women’s Crisis Center) provide training and advice to CJS personnel and advocate on behalf of the rights of victims and accused persons.

Prosecution and Case Investigation Because of the legacy of the French Protectorate, particularly in relation to the inquisitorial nature of the criminal justice procedure, there are a number of similarities between the prosecution of criminal cases in France and Cambodia. A notable similarity is the extensive role of the juge d’instruction (investigating judge). Two distinct, yet closely collaborating, groups therefore conduct the prosecution and investigation of a criminal case: prosecutors and investigating judges. Each province has a public prosecutor department whose role is to supervise the case brought by the judicial police. In principle, the usual route for the prosecution, investigation, and adjudication of a criminal case starts with the judiciary police. The latter receive denunciations or complaints relating to crimes, misdemeanors, and minor offenses; gather evidence; may decide on the detention of suspects for a maximum of 48 hours; and then make reports to the prosecutor of the competent jurisdiction. Then, the duty of the prosecutor is to immediately open a judicial inquiry, that is, to make a charge called “introductory requisition,” which indicates the offense in accordance with the law, and, unless it is a flagrante delicto offense (in that case prosecutors can proceed with the investigation by themselves), send it to the investigating judge. According to article 38 of the Law on Criminal Procedure, there is at least one judge responsible for investigating criminal cases in each provincial court. Investigating judges are given extensive powers to conduct their inquiry. They may


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reach different conclusions as to the charge laid by the prosecutor and must therefore maintain a close communication with the latter. When both the investigating judge and the prosecutor are satisfied that there is a case to answer, the prosecutor refers the case to the competent provincial or municipal “criminal tribunal.” In principle, there is an absolute incompatibility of office between a trial judge and a representative of the prosecution department or the investigating judge. In practice, due to customary traditions and a profound distrust of the corrupt and costly official judicial system, most victims do not report crimes to the police but to village and commune chiefs. However, village and commune chiefs only play an informal role in conflict mediation geared toward reparation and compensation rather than a formal prosecuting or investigating function.

Alternatives and Outcomes of Prosecution Apart from this informal system, which appears to process and “solve” many cases, there are no formal alternatives to going to trial, and the official system does not include provisions such as plea bargaining or any kind of medical or other types of supervised or unsupervised treatment. The majority of criminal cases, apart from the most serious ones, are therefore “resolved” through the informal system. Serious cases go to trial, in principle, following the procedure mentioned above (in practice, due to lack of proper training and corruption, many aspects of this procedure are not observed). There is no trial by jury; after hearing the prosecution and the defense, the presiding judge (or trial judge) decides on guilt or innocence, and if the accused is judged guilty, decides the penalty to be imposed. Incarceration before or awaiting trial is allowed and regulated by the UNTAC Criminal Code. Article 14(4) stipulates that time held in detention without trial should be no more than four months, which can be extended to six months by a judge with appropriate reasons given. Article 21(1) specifies that accused persons must be tried no later than six months after arrest, that children under the age of 13 must not be placed in detention, and for

children between the ages of 13 and 18, no longer than one month, which can be doubled if the child is charged with felony. However, CCJAP reported that very often the courts do not comply with these rules and that many accused persons were kept in detention before trial for longer periods than required by law.

Scope of the Criminal Courts There are 22 courts in Cambodia, one in each province and one in each of the two municipalities (Phnom Penh and Sihanoukville). There is also one Appeal Court and one Supreme Court, both located in Phnom Penh. On January 1999, a total of 89 judges, 47 prosecutors, 368 court clerks, and 233 other officials were attached to these courts. Currently, there are about 250 judges in place. In 2001, no training institution existed for the magistracy and court clerks, and apart from uncoordinated and inadequate programs provided by some NGOs, training courses for judges and prosecutors before or after appointment were virtually nonexistent. While some judges had received university education, very few were legally qualified, including the majority of provincial courts presidents and prosecutors. Even the president of the Appeal Court was not a qualified lawyer; the only exception was the president of the Supreme Court, the highest court in Cambodia. There have also been changes in a number of Supreme Court judges, increases in the pay of judges, improved training, and further oversight of judges by the Council of Magistrates.

Juvenile Justice There are no separate courts for juveniles in the Cambodian CJS, and juvenile cases are processed and eventually heard in provincial courts in the same way as adults. The law, however, requires that penalties for juveniles be half of those for adults and prohibits the detention of minors younger than 13 years; two rules, which according to LICADHO, the judges normally apply. Despite the absence of juvenile courts and separate prisons, no specialist


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training in relation to the treatment of juveniles as victims, witnesses, or offenders is provided to officials in the court system. As there are no alternatives to imprisonment for minors, in 2007, the latter represented 5.5 percent of the prison population, a rate that has steadily increased since 1999 (3.9%). The same prison rules (e.g., recreation time) apply for adults and juveniles and no schooling is provided.

Punishment Officially, degrading treatments such as corporal and public punishment are not allowed in Cambodia. Fines and prison are the most common types of punishments imposed by the courts. According to CCJAP, there is a lack of alternatives to imprisonment. Noncustodial sentences are limited to fines, suspended sentences, and conditional release. There are no legal provisions for community work orders, supervised probation and parole systems. The courts can also impose reparations and compensation, but their greatest use probably occurs in the informal system.

Punishment for Serious Crime MURDER Capital punishment has been abolished in Cambodia since 1989 and no legal executions have taken place since then. Nevertheless, the law imposes heavy penalties of imprisonment for serious crime. Limited details about the length of prison sentences are provided by the MOI. Article 31 of the Criminal Code stipulates imprisonment for a term of 10 to 20 years for murder.

RAPE Article 33 specifies a prison sentence of 5 to 10 years, which cannot be suspended (but can, under article 68, be reduced by half for offenders under 18). However, according to a report by LICADHO, judges often apply the law “incorrectly and inconsistently, giving convicted rapists suspended sentences when the law prohibits it.”

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THEFT, BURGLARY, AND ROBBERY The Criminal Code classifies burglary as robbery. Article 34 stipulates a prison term of six months to five years for theft, depending on the circumstances; for robbery a prison term of 3 to 10 years that varies according to the amount of force or weapon used.

DRUG TRAFFICKING As noted earlier, long prison terms and heavy fines are prescribed by the Criminal Code, and it seems that these long prison sentences are indeed often inflicted. Travel advisories of various foreign governments warn travelers of the severe prison sentences inflicted for drug trafficking.

Prisons CCJAP reported a national figure in March 2001 of 5,500 detainees and prisoners (300 females and 250 juveniles). There were 1,300 prison officers (75 females). The smallest prison housed 100 inmates and the largest (one of the national prisons, Correctional Center I [CC-I]), 1,350. On January 26, 2001, CC-I (which is an adult male-only correctional facility) had 1,314 inmates (796 convicted males and 518 males awaiting trial, 122 of the latter held beyond the legal six-months period) and was staffed with 100 officers. According to the national prisons data collected by the Department of Prisons in the Ministry of Interior, there were 6,346 prisoners in Cambodia in January 2004; of these, 266 were child prisoners and 47.7 percent of these children were pretrial detainees. The National Prison Agency attended the Asia and Pacific annual conference of Correctional Administrators and reported 6,778 prisoners in mid2004 (a rate of 47 per 100,000 population). In January 2006, figures provided to LICADHO by CCJAP indicated a total number of 9,373 prisoners in Cambodia. During the last 13 years, the estimated rates of imprisonment have escalated significantly from 21.6 to 73.7 per 100,000. The estimated proportions of female prisoners have ranged between 4.7 percent in 1995 and 6.9 percent in 2006 of the prison population (about 5.9% in 2007). As


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reported earlier, between 1999 and 2007, the proportions of incarcerated juveniles have risen from 3.9 percent to 5.5 percent of the prison population. In 2007, 25 prisons (3 national and 22 provincial/municipal prisons) operated in Cambodia. The Department of Prisons’ headquarters is located in the MOI in Phnom Penh. Two of the national prisons, CC-I and CC-II, are situated 12 kilometers (7.5 miles) from Phnom Penh, and CC-III near the Vietnamese border. Most Cambodian prisons are overcrowded. In its survey of 18 prisons, LICADHO reported a housing capacity for 6,410 prisoners, but in 2004 these prisons on average operated at 123 percent, and in 2006, at 138 percent of their capacity. In CC-I, which is considered to be one of the better prisons compared to provincial facilities, between 22 and 25 men may share a cell that is about 64 square meters (688.90 square feet). Since 1999, CC-II houses only female and juvenile prisoners. In 2006, 256 females and 285 juveniles, as well as 14 babies and infants living with their mothers in prison, were incarcerated at CC-II (operating at 155% of its capacity). CC-II is the only facility of this sort in Cambodia. All the other prisons, apart from the alladult male CC-I, house both male and female prisoners in more or less well-separated quarters. In addition to overcrowding, health problems are frequent in Cambodian prisons. The Prisons Department is allocated only 1,500 riels (about US$0.38) per prisoner per day to cover not only the cost of feeding the prisoners, but also transportation, sanitation, cooking fuel, water, electricity, and administration. According to LICADHO, the daily nutritional requirements stipulated in article 4.1 of Prison Procedure, would cost, even using the lowestquality ingredients, at least 1,700 riels (about US$0.41) in the Phnom Penh Market. Because of widespread corruption in the prison system, inmates with enough money can purchase nutritious meals while many others are malnourished and suffer from poor health. The number of deaths in the prisons monitored by LICADHO varied from 43 in 2002 to 100 in 2005, that is, between 0.8 percent and 1.2 percent of the prison population. The highest rates of death in custody occurred in provincial facilities. Prison

escapes are common. In its survey, LICADHO reported 72 escapees in 2005 and 53 in 2006 (respectively 0.87% and 0.60% of the population of the 18 surveyed prisons). Most of them involved group escapes. In 2005 and 2006, respectively, 25 percent and 23 percent of these escapees were killed during their attempts, and only 31 percent and 45 percent were recaptured (i.e., 44% in 2005 and 32% in 2006 were successful escapes). Correction Center I (CC-I), which is a new prison located (10 kilometers) from the capital city and one of the only three prisons under the direct management of the General Department of Prisons, is the largest correctional facility in Cambodia with a capacity for 1,500 prisoners. Built on (10 hectares), CC-I houses only adult male prisoners. Like most Cambodian prisons, CC-I is overcrowded and in 2006, with 2,132 inmates, it operated at 142 percent of its maximum capacity and employed more than 150 staff. Although security in CC-I is exceptionally tight, in June 2006, a group of 12 prisoners managed to escape and only one of them was recaptured. The number of deaths in custody was 17 in 2002, 13 in 2003, 22 in 2004 (1.4% of CC-I population), and 18 in 2005 (in 2006, CC-I did not provide information on prison deaths to LICADHO). The prison employs an administrative system that centralizes all decisions in the hands of the wardens. Officially, family visits are on every Saturday and public holidays from 7:30 a.m. to 10:30 a.m. and 2:00 p.m. to 4:00 p.m. While Prison Procedure (no. 8, article 4.1[n]) “expressly forbids the collection of goods or money from visitors by any prison official for the privilege of visiting a prisoner” and stipulates that “all prisoners have the right to receive visits from families or friends for at least one hour each week at times designated in the prison rules by the prison chief,” in CC-I the no-fee rule seems to be respected only during official family visit days. Thanks to corruption, it is possible to visit prisoners any day but visitors have to pay a fee of at least 5,000 riels (about US$1.25). The places where the visits occur and the privileges accorded during the visits also depend on the amount of bribes visitors are willing or can afford to pay. No payment is required if the


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visit happens via a phone in a room where visitors and prisoners are separated by glass and iron bars. In another room, where they are only separated by iron bars and can touch each other, a payment of between 10,000 riels (about US$2.50) and 40,000 riels (about US$10) is necessary. A “gold-class” visit area, away from the inner core of the prison where cells are located, allows visitors and prisoners to sit together on a concrete lounge, but for this privilege visitors have to pay a minimum of US$10. Unlike many other Cambodian prisons, and despite a level of overcrowding that often results in more than 20 inmates having to share a 64-square-meter (688.90square-foot) cell, CC-I only allows prisoners to go out of their cells for a short period of time once a week or two. However, prisoners who can bribe officials are allowed to leave their cells every day for a long period of time to do minimal work around the interior compound. In 2001, CCJAP mentioned plans to assist in the development of vocational training, literacy, and numeracy programs for detainees. Some of these programs may have been implemented in the prison located in the site where CCJAP has focused its attention, but in the main, as reported in 2003 by the 23rd Asian and Pacific Conference of Correctional Administrators “[n]o formalized programs exist within prisons for the rehabilitation of prisoners to return to society at the end of their sentence.” Between November and December 2007, one of the authors visited seven major Cambodian prisons and found that most of them did not have workshops, and when they did, these workshops were small and did not provide any significant skills, mainly sewing for females, and carpentry and gardening for males. While generally inmates are not officially required to work, an informal trade system exists where there are many jobs that can be done by prisoners for prison staff or other prisoners in exchange of money, food, or privileges. Two other privileges include prison transfer and reduction of prison terms. An official reason for prisoners requesting a prison transfer is to be close to their homeland and make family visits more convenient. Because prison conditions, such as building environment and rules, vary greatly in Cambodia,

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unofficial reasons would include moving to a better facility. The transfer process requires approval from the heads of the relevant prisons and the general director of the Prison Directorate. The payment of bribes would expedite this process. Normally, each prison has a committee chaired by the warden, which monitors and reviews prisoners’ behavior and performance and can propose a sentence reduction or abolition. By law, the committee must submit such request to the king. For prisoners sentenced up to a year maximum, the request can be made after half the sentence has been served, and for those sentenced to more than a year, after at least two-thirds has been served. This privilege provides ample opportunities for corrupt conduct, as members of prison committees, especially wardens, can make significant income from relatively wealthy prisoners who in exchange would be proposed for a sentence reduction. Many more “unofficial” privileges in relation to cell allocation, treatment by prison guards, food rations, relative freedom within the prison, recreation, opportunity to make money, and sex are available for those who can pay their way in the corrupt prison system. A prisoner transfer agreement was signed with Australia in October 2006. At the same date, no such agreement existed with the United Kingdom. The Cambodian government also signed an extradition agreement with Thailand in 1999, China in 2000, and Laos in 2005. Roderic Broadhurst, Thierry Bouhours, and Chenda Keo Further Reading AusAID. (2001). “Cambodian Criminal Justice Assistance Project: Feasibility Study Phase II.” Unpublished report. Canberra: AusAID. Broadhurst, Roderic, and Thierry Bouhours. (2009). “Policing in Cambodia: Legitimacy in the Making?” Policing and Society 19(2): 174–190. Cambodian League for the Promotion and Defense of Human Rights (LICADHO): http:// www.licadho-cambodia.org/. Chandler, David. (2007). A History of Cambodia. 4th ed. Boulder, CO: Westview Press.


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China (People’s Republic of China)

Royal Cambodian Embassy in Washington, Constitution of the Kingdom of Cambodia: http://www.embassy.org/cambodia/cambodia/ constitu.htm.

China (People’s Republic of China) Legal System: Civil/Socialist Murder: Medium Burglary: Medium Corruption: Medium Human Trafficking: Medium Prison Rate: Medium Death Penalty: Yes Corporal Punishment: No

Background China is a socialist country under the uniform leadership of the Chinese Communist Party (CCP). It has a total land area of 9.6 million square kilometers (3.7 million square miles) and about 1.3 billion people, which amounts to one-fourth of the world population. Administratively, China has 4 municipalities directly under the leadership of the central government, 23 provinces, 5 autonomous regions, and 2 special governing zones (i.e., Hong Kong and Macau). China has a civil law system with only statutory law, not case law. It also has substantial elements borrowed from the former Soviet Union and inherited from traditional Chinese law. Written statutes and customary laws can be found in each Chinese dynasty or regime. The law promulgated in the Tang dynasty in the seventh century c.e. is one of the oldest legal codes that provided a foundation for the later legal codes in Song, Yuan, Ming, and Qing dynasties. The law created by the emperor had legal power for all residents except the emperor himself. The emperor could determine the guilt of accused individuals, dictate the penal sentence, or change the decisions by lower judicial authorities. Efforts had been made to modernize the legal system during the late Qing dynasty at the beginning

of the 20th century and continued until it was overthrown in 1911 when by the Kuomintang. The regime enacted a Constitution (1912, 1923, 1947), Civil Law (1929), Criminal Law (1928, 1934), Civil Procedure Law (1931, 1935), and Criminal Procedure Law (1928, 1935). All these laws had a strong Western orientation. When the Chinese Communist Party (CCP) took control of China in 1949, it abolished the laws enacted by the Kuomintang regime. During the 1950s, several major laws were adopted. The first socialist Constitution was adopted by the National People’s Congress (NPC) in 1954. In the same year, the legislation Reform through Labor on rehabilitating offenders was passed. In 1957, the first Police Law was adopted. The NPC had also drafted Criminal Law, Civil Law, Criminal Procedure Law, and Civil Procedure Law, which reflected the communist ideology during the time period. The Cultural Revolution initiated by Mao in 1966 is viewed as a lawless period in which the criminal justice system was entirely paralyzed. In 1978, the Third Plenary Session of the CCP 11th Central Committee officially ended the Cultural Revolution and started reconstruction of the legal system. In the following year, the Second Session of the Fifth National People’s Congress passed the Criminal Law and the Criminal Procedure Law. The Criminal Law was further amended in 1997 and again in 2002, and the Criminal Procedure Law was revised in 1996. China’s criminal justice system has four major components including police, procurators, courts, and correctional institutions. The Supreme People’s Court, along with the Supreme People’s Procurator, is the highest judicial agency in China. It has the power and authority over the administration of justice in the Basic People’s Courts and People’s Tribunals, Intermediate People’s Courts, and Superior People’s Courts. In theory, all courts and procurator offices should have independent legal and judicial power and authority. However, their judiciaries are subject to the Communist Party’s directives and guidance. The Ministry of Public Security and the Ministry of Justice of the Chinese central government control and manage China’s police forces and



correctional institutions, respectively. All these government agencies are under the uniform leadership of a special central committee of the Communist Party on comprehensive management of public security and safety, which is led by a member of the Central Standing Committee of the party. The Chinese police system has five components including the public security police, state security police, the prison police, judicial police in the People’s Procurators, and judicial police in the People’s Courts. Under the uniform leadership of the Ministry of Public Security, police forces in the five components have a similar administrative system in ranking and adopt the same police uniforms and badges. However, each component functions independently and performs specifically designed tasks. Historically, the public security police are the major police force in China. The administration of the public security police is a combination of the power of central and local governments. All the police forces fall under the uniform leadership of the Ministry of Public Security (MPS) of the central government. At the same time, they are also subject to control and directive of provincial and local governments. Each province, county, city, and town has police departments, and the grassroots police agency is the neighborhood police station. The MPS also has special police units including railroad police, transportation police, civil aviation police, and forestry police.

Crime China adopted its Criminal Law in 1979 and amended it in 1997 and 2002. According to the law, crime is any human act that endangers society and is subject to punishment. However, an act that endangers society may not be deemed a crime if the circumstances are obviously minor and the harm of the act is not serious. Such an act shall be referred to as an unlawful act. China’s Criminal Procedure Law (1996) defines the procedures in investigating and prosecuting criminal behaviors. In contrast, any unlawful acts are defined by administrative laws and regulations, punished by administrative agencies, and subject to administrative penalties.

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The Criminal Law defines 10 categories of criminal offenses: (1) threatening and harming national security such as treason, espionage, and mass rebellion; (2) endangering public security and safety such as arson, explosion, poison, and trafficking of guns or ammunition; (3) endangering economic order such as fraud, smuggling, and embezzlement; (4) infringing upon citizens’ legal and civil rights, such as homicide, aggravated assault, rape, and forcing women into prostitution; (5) infringing upon citizens’ property such as robbery, stealing, and extortion; (6) damaging public safety and security such as disrupting public affairs, harboring criminals, concealing stolen goods, and gambling; (7) endangering national interests such as destroying national defense facilities and disrupting military tasks; (8) corruption and bribery such as using official power to receive personal payment and bribing government officials to gain personal interests; (9) malfeasance such as abuse of official power and authority and betrayal of state secrets; and (10) violation of military duty and administration such as stealing and betrayal of military secrets. The age limit of full criminal liability is 16 years old. However, a person who is in the age range of 14 to 16 shall bear full criminal responsibility if he or she commits homicide, aggravated assault, robbery, arson, repeated theft, or any other crime that seriously undermines public safety and security. The severity of punishment can be reduced because of age. Death penalty is not applicable to a minor under the age of 18. If a minor is not criminally liable because of his or her age, his or her parents or guardians should have legal responsibility to provide discipline to the minor. When it is necessary under certain conditions such as incapable parental guardianship, the minor may be referred to a shelter or a rehabilitation program operated by the local government. Most crimes have surged in China since the early 1980s. Bribery and official corruption have been a major challenge to the Chinese government and the criminal justice system. With regard to the street-level offenses, property crimes such as bicycle theft and household burglary have become more prominent.


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In 1990, the NPC adopted legislation on drug prohibition that outlaws any drug possession, manufacture, transportation, and sale. The criminal penalty for drug-related offenses ranges from fines to the death penalty. The 2002 amended Criminal Law has similar legal stipulations. Illicit drugs defined in these legislations include opium, heroin, morphine, marijuana, cocaine, and other addictive drugs. The most prevalent illicit drugs are heroin and opium as reported in China. Official reports indicate that China has more than 1 million registered drug users, about 600 mandatory drug treatment centers with 110,000 beds, and about 250,000 drug users receive treatments in the centers each year. Law enforcement agencies cracked down on 500,000 drug-related criminal cases and confiscated 51 tons of heroin, 14.8 tons of opium, and 1,464 tons of other drugs between 1998 and 2003. Also, there are about 100,000 drug trafficking–related criminal cases each year. The numbers of criminal cases and convictions handled in Chinese courts have gradually increased since 1980s. In 1987, approximately 300,000 criminal cases were tried and more than 300,000 individuals were convicted. In 1999, courts tried about 540,000 criminal cases and convicted 539,335 cases. Property offenses accounted for 44 percent of all the tried criminal cases in that year. In 2005, a total of 684,897 criminal cases were tried in courts and 683,997 were convicted. Property crimes also accounted for about 44 percent of all convicted criminal cases in this year. In 2006, 889,042 suspects were convicted by courts at all levels across the country and 153,724 received sentences longer than five years, including life imprisonment and death penalty. A common practice of Chinese courts is to adjudicate approximately 40 percent of the offenders to five or more years’ imprisonment, life imprisonment, or the death penalty.

Finding of Guilt Criminal procedure in China is divided into three legal stages as defined in the Criminal Procedure Law (CPL): investigation, prosecution, and trial. There are three corresponding institutions in charge of each of these stages: the investigative agencies,

mainly police agencies, the procuracy, and the courts. The police, the procuracy, and the courts exercise their powers independently and function free of any interference by any other administrative agencies, public organizations, or individuals (CPL, Art. 5). The relationship between these three legal institutions is that they divide responsibilities, coordinate their efforts, and check on each other to ensure effective and efficient enforcement of the law (CPL, Art. 7). In collaboration with the procurator, police agencies are responsible for criminal investigation and evidence collection after a criminal incident is reported. The process involves preliminary investigation to assess the reported criminal activity, filing a criminal case upon discovering criminal evidence (CPL, Art. 83), issuing an order to require a suspect to appear in the police station for questioning, detaining a suspect if incriminating evidence is found, and arresting a suspect upon confirmed evidence. The police agency provides recommendations based on its investigation and collects evidence for prosecution. It sends the recommendations along with their investigation files and evidence to the procurator office at the same administrative level for review. The procurator office reviews the case and police reports to make a decision whether or not the suspect should be prosecuted. If a prosecution decision has been made, the procurator will initiate a court hearing. The court reviews the case to determine a court hearing in which the suspect is formally brought to a trial. There are few alternatives to going to a full trial such as plea bargaining. Under Chinese law, a suspect has no right to remain silent. He or she has a duty to answer questions truthfully when asked by investigators but may refuse to answer questions that are irrelevant to the case (CPL, Art. 93). There is no legal duty for the suspect to assist police investigations under Chinese law. It is an offense only when a person knowingly gives false testimony in criminal proceedings, which is punishable by a maximum sentence of three years’ imprisonment. Police agencies have discretion to recommend a case to a reeducation-through-labor (laojiao) committee (a branch of local government), which may send the offender to a reeducation-through-labor



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A cook shovels rice into a bowl, right, as another stirs food in a wok at the Masanjia reeducation-through-labor camp in northeast China’s Liaoning Province, May 22, 2001. The camp has been nominated as a model correctional facility because of its success in “transforming” practitioners of falun gong, the spiritual movement that China banned in July 1999. (AP Photo/John Leicester)

camp for rehabilitation up to three years. The committee reviews the recommendation and makes a final decision without judicial proceeding. Although the individual has a right to challenge the decision in court after it has been imposed, the chance to repeal is usually small. According to an official report, approximately 230,000 offenders were accommodated in 280 reeducation-through-labor camps in 1998. If a suspect is detained, police must conduct an interrogation of the detainee within 24 hours after he or she was held. If no grounds are established for detention, the suspect should be released immediately. For arresting a suspect, a police agency should request a warrant from the prosecutor’s office within three days after the detention. The prosecutor shall

make a decision whether or not a warrant should be issued. If a warrant is not issued, police shall release the detainee immediately. Also, the period for holding a suspect in custody may not exceed two months. However, it may be extended to one more month for cases with complex circumstances. Due process rights are provided in China’s 1982 Constitution, but the application is limited. According to the 1996 Criminal Procedure Law, all trials are open to the public with an exception for cases that involve state secrets, juveniles, or personal privacy. Cases are typically processed rapidly and the conviction rates are high. There is a bail procedure in which a defendant may be granted bail with a guarantor to await trial without custody or to stay home under security surveillance. Specifically, a


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female defendant or a defendant who is pregnant, who has an infant, or who has serious illness, may be granted bail.

Court System There are four levels of courts that have legal authority to process and adjudicate criminal cases. They are the Supreme People’s Court, the Superior People’s Courts, the Intermediate People’s Courts, and the Basic People’s Courts. The Supreme People’s Court serves as the highest judicial branch of the state for serious criminal cases and cases that have appeals against the decisions from the Superior People’s Court and the People’s Military Court. Cases with appeals brought by the Supreme People’s Procurator are also handled by the Supreme People’s Court. In addition, the Supreme People’s Court has the authority to supervise and monitor the operation of lower courts. There are more than 3,000 Basic People’s Courts at the county level, about 20,000 people’s tribunals located in towns and villages, 376 Intermediate People’s Courts, and 31 Superior People’s Courts at the provincial level. There are a total of about 200,000 judges at different levels of courts. In 1995 China promulgated the Judge Law, which contains 17 chapters and 42 articles. According to the law, the minimum qualifications of being a judge are that the individual shall be a citizen of the People’s Republic of China; be at least 23 years old; accept the Constitution of the People’s Republic of China; have high political, professional, and moral standing, and be in good health. The educational requirement is a law degree from a higher education institution. An individual may be qualified with a nonlaw degree from a higher education institution if he or she has solid knowledge and understanding of laws and two years of working experience in the legal system. Working experience in the legal system is not a requirement for those who have a master’s or a PhD degree in law. Courts’ presidents at various levels are elected by the People’s Congress at the corresponding administrative levels and the tenure of a president is the same as that of the People’s Congress. The elected

president nominates the vice president, members of the judicial committee, presiding judges, deputy presiding judges, and general judges for appointment by the Standing Committee of the People’s Congress at the same level. Primary and assistant judges are recruited through civil examinations.

Rights of the Accused Chinese law has no clear stipulations on the presumption of innocence and the burden of proof. The concept itself has been criticized as capitalist. Since China’s socialist legal system has adopted the principle of “deciding a case according to facts,” presumptions of innocence and any related procedural rules are not a significant component in the criminal law, but there are certain stipulations that protect suspects and defendants’ rights—rights to legal representation, cross-examination, against torture and forced confessions, and so forth. In a rigorous pursuit of “truth,” legal stipulations protecting the rights of the accused are often swept aside. The 1996 Criminal Procedure Law (CPL) gives the court exclusive authority to determine the guilt or innocence of the accused. Article 12 of the CPL provides that no one shall be guilty of a crime without a judgment of the people’s court. In 1996, the National Peoples’ Congress adopted new legislation in an effort to reform the criminal procedure and the legal profession. It was the first time that the new legislation recognized that lawyers represented their clients, not the state. Under the new legislation lawyers may establish their private law firms. As the 1996 Criminal Procedural Law defines it, the accused has the right to defend himself or herself. Also, a defendant may authorize the following people to represent him or her in defending: (a) lawyer; (b) representative from a social organization, or from the defendant’s work unit; or (c) a close relative or guardian of the defendant. The defendant also has several other legal rights: (1) the right to know the nature of the accusation, (2) the right to participate in proceedings using his or her native spoken and written language, (3) the right to request new investigation during the court hearing, (4) the right to ask questions of witnesses,



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(5) the right to make a final statement after closing the cross-examination, and (6) the right to request members of the judicial panel, the court clerk, the public prosecutor, expert witness, or interpreters to withdraw from the case proceeding. After a judicial decision has been made, the accused also has the right to appeal and the right to file a petition for the legal decision. If the defendant cannot have a representative, the court has authority to assign one to the defendant.

nationwide. A juvenile offender who is under the age of 18 may be referred to a juvenile court. There is no waiver procedure by which a juvenile can be transferred to an adult criminal court. A juvenile court shall act as a “parent” and the trial in a juvenile court is closed to the public. Education is a major component of the juvenile court proceeding. In 2005, juvenile courts processed 82,721 cases that were involved with suspects who were under the age of 18.

Criminal Procedure

Punishment

As defined in the 1996 Criminal Procedure Law, a criminal case is commonly tried by a legal panel consisting of three judges or a judge with two representatives elected from local residents. The legal panel has authority to decide whether or not the defendant is guilty and the possible penalty. Such a legal panel is the basic unit in a court. It is not a permanent legal body but organized to adjudicate an individual case. The number of a legal panel must be odd. Minor criminal cases can be handled by a single judge rather than a legal panel. However, cases in a second trial must be tried by a legal panel. The chief judge in a panel is appointed by the court’s president or the division chief in the court. A president or division chief shall be the chief judge if he or she participates in a trial. The parties to litigation may use the trial supervision procedure to challenge the final decision. Such a challenge may be made to an appellate court or a higher court. After reviewing the complaint, the chief judge in an appellate court or a higher court may request a judicial committee to make a decision whether or not the appeal is valid and a retrial is necessary. The appellate court may order a retrial when it is necessary. However, the retrial cannot suspend the enforcement of the court decision that has been challenged.

Juvenile Offenders The first juvenile court in China was initiated as part of the Basic People’s Court of Changing District in the city of Shanghai in 1984. Since then, more than 3,300 juvenile courts have been established

Five major penalties and three supplemental penalties are provided in the 2002 Criminal Law. The major penalties are (1) surveillance (Guan Zhi); (2) detention (Ju Lu); (3) fixed term imprisonment (You Xi Tu Xing); (4) life imprisonment (Wu Qi Tu Xing); and (5) death penalty (Si Xing). Supplemental penalties include fine, deprivation of political rights, and expropriation. Surveillance is a penalty for minor offenses. For such a penalty, the offender remains in the community under the surveillance of a law enforcement agency. The offender is required to report to the agency on a regular basis. The length of such a penalty may be three months to two years. Detention is a penalty also for minor offenses for which the offender is confined in a detention center rather than a prison. He or she is allowed to go home for one or two days each month and can be paid for work in the center. Such a penalty may be held for one to six months. Offenders who have a fixed term imprisonment may serve their prison time for 6 months to 15 years. However, the term may be up to 20 years if other penalties are added on. In Chinese law, the death penalty is used only for the most serious crimes such as murder, rape, or serious property crimes. It cannot be applied to juvenile offenders under the age of 18 or women who are pregnant at the time of adjudication. If the death penalty is applied but the offender may not deserve immediate execution in terms of the offense seriousness, a two-year suspension of execution may be applied to the offender. The 1979 Criminal Law defined 26 offenses punishable by the death penalty. In


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1997 the Amended Criminal Law raised the number to 65. China relied solely on firing squads to execute offenders for death penalty in the past. Recently, it began using lethal injections, particularly in highprofile cases such as the execution of gangsters and corrupt officials. The Chinese authority is planning to increase the use of lethal injections to make executions “more humane.” There is a verification system for death penalty cases. The People’s Court Organization Law and the Criminal Procedure Law provide that all death penalty cases, unless handled by the Supreme People’s Court, shall be reported to the Supreme People’s Court for verification and approval. The Supreme People’s Court, if necessary, may authorize the Superior People’s Courts at the provincial level to exercise that power for death penalty cases involving homicide, rape, robbery, explosives, or other serious offenses. Death penalty cases with a two-year suspension of execution ruled by intermediate courts shall be verified and approved by higher courts. Death penalty cases ruled by intermediate courts shall be first verified and approved by higher courts before being submitted to the Supreme People’s Court for approval. The 1996 Death Penalty log published by Amnesty International on China reported that 6,145 people were sentenced to death and convictions were known in 4,490 cases. Of the 4,490 death penalty cases, 66.4 percent involved violent crime such as murder, rape, and robbery, 2.9 percent were economic and corruption-related cases such as graft and fraud, and about 13 percent, drug trafficking– related. Recently, the 2007 Amnesty International report estimated that at least 1,010 people were executed and 2,790 sentenced to death during 2006. The Ministry of Justice of the Chinese central government controls all prisons across the country. There are five main types of correctional institutions: (1) prisons, (2) reform-through-labor camps, (3) juvenile rehabilitation centers, (4) detention centers, and (5) jails. It was estimated that there were about 1,250 prison units including reform-throughlabor camps in 1998. Also there were about 2,000 jails of various sizes, some of which might hold sentenced prisoners for a year. Official reports indicate a

total number of 5.92 million prisoners between 1979 and 1998. The overall ratio of custodial personnel to prisoners is no more than one for every five prisoners, and there were about 300,000 such personnel in the Chinese prison/reform system. The rate of imprisonment seems to be 160 per 100,000 population. Inmates who are healthy must work during incarceration. Since 1981, inmates began to be included in China’s national education program, which requires correctional institutions to provide both educational and vocational programs to inmates. Each program has a director, instructors, and curriculums. Inmates usually study in the program for about two hours per day. Inmates who have completed the program requirements receive certificates that are equivalent to those issued in normal educational institutions. Inmates have a right to receive letters from family members, relatives, and friends and send letters to them. Family members are encouraged to provide help for inmates’ rehabilitation, and they are permitted to visit and meet with the inmates twice a month. However, special visits and meetings may be set up for family members to provide help and assistance to inmates’ correction and rehabilitation. Inmates have a right to maintain their health. They receive medical treatment in correctional institutions or in community hospitals when they are ill. They also receive a routine medical check once a year. Group therapy and counseling is also available to inmates for their mental health. During incarceration, inmates have a right to file petitions to procurators or courts. Any prisons shall set up a complaints’ box and designate a special staff member to collect complaints. There are noninstitutional services to offenders. During the suspension of execution of sentence or after release on parole policy, agencies provide supervision over the offenders. Probationers and parolees are turned over by police agencies to a communitybased organization such as a help group (Bangjiao). The police officer who has the responsibility for the safety and security of the community supervises and monitors the offenders’ daily life, work, and other routines, and helps them to become law-abiding citizens. Meanwhile, the police officer shall maintain


Georgia

regular contacts with the neighborhood committee (a semiofficial organization that manages community daily affairs) in an effort to monitor a probationer’s or parolee’s behavior. Lening Zhang Further Reading Borge, Bkken, ed. (2005). Crime, Punishment, and Policing in China. Lanham, MD: Rowman and Littlefield. Jianhong Liu, Lening Zhang, and Steven Messner, eds. (2001). Crime and Social Control in a Changing China. Westport, CT: Greenwood Press. Supreme People’s Court of the PRC: http:// en.chinacourt.org/. Troyer, Ronald, John P. Clark, and Dean J. Rojek. (1989). Social Control in the People’s Republic of China. New York: Praeger. Zhang, Lening, Steven F. Messner, and Jianhong Liu, eds. (2008). Crime and Criminal Justice in China: The Current Knowledge Base and Prospects for Future Research. A Special Issue of Crime, Law and Social Change: An Interdisciplinary Journal 50(3). Note: The author thanks Hong Lu for her valuable comments on an early draft of the chapter.

Georgia Legal System: Civil Murder: Medium Burglary: Medium Corruption: Medium Human Trafficking: Low Prison Rate: High Death Penalty: No Corporal Punishment: No

Background After the Russian Revolution in October 1917, Georgia declared its independence on May 26,

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1918. On June 11 of that year, a commission was created to write the first Georgian Constitution, which went into effect in February 1921, four days before the occupation of the country by the Russian army on February 25, 1921. Under the influence of the Soviet Union, the first Constitution as the Socialist Republic of Georgia was adopted. The Constitution was revised in 1937 and again in 1978, as Georgia was a part of the Soviet Union. As the decline of the Soviet Union approached (the end of the 1980s), more and more national-oriented politicians were elected for Parliament. After the collapse of the Soviet Union, the newly elected Parliament of Georgia declared independence on April 9, 1991, and changed the Constitution of 1978. After the civil war in 1992, a military council was established, and the Constitution of the independent Georgia of 1921 went into force once again. In 1995, a new Constitution was passed, which continues today but was revised by the governing parties after the Rose Revolution in 2003. At the present time, a new constitution is in preparation. According to the Constitution, Georgia is a democratic republic with a strong president system and a centralized administration. From 1801 on, Georgia was, with the exception of the period from 1918 to 1921, part of the Russian Empire and did not have its own law. However, like the Georgian Constitution, the Penal Law is clearly influenced by the Soviet model. The first Penal Law of Georgia is from 1922, the time of the Soviet Union. Between 1928 and 1960, the Penal Law was revised fundamentally under Soviet influence. The General Part of the Georgian Penal Law was largely adopted from the Russian Penal Law. Like other Soviet Republics, Georgia had no possibility to change basic principles of the Soviet Penal Law. The last version was in power with changes, which were partly arranged by the Georgian Constitutional court. Not until July 22, 1999 was the first new Penal Law of independent Georgia decided, and it was put into effect on June 1, 2000. This version is valid today, though with some fundamental changes. The new Penal Law, especially the General Part, was influenced strongly by the German Penal Law. Special protections of human rights were


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Georgia

formulated, which was not the case in the Russian law. The Russian Penal Law protected the property of the state more than private property. Thus, theft was divided into two parts: theft of public property (art. 91) and theft of private property (art. 150). Theft of public property (state property) was punished more severely than theft of private property. In the Special Part of the Penal Law, some important improvements were made such as new definitions of crimes that took into account the political and social changes of society. There are also influences from Anglo-American law that especially affect Procedural Law. This is the case for the ongoing revision of the new Procedural Law of Georgia. The first Procedural Law of Georgia derives from 1923, the second from 1960, and it has been frequently changed since then. The current valid Procedural Law was put into effect in 1998. According to this law, the legal system is mixed, which includes accusatorial and inquisitorial parts. The duty of opposing sides in the trial is to present their proof to the judge. The judge has the right to collect evidence independently, but should be reserved in doing so (art. 439 Penal Law). The new development in Penal Law is strongly influenced by members of the Georgian universities. The first university was established in Georgia in 1918, Tbilisi State University (today known as the Iv. Javakhishvili State University of Tbilisi). Until the 1990s this was the only university in the country teaching law. Tbilissi today has 3 state universities and more than 20 private ones, which also offer law instruction. In addition to the universities, the Institute for State and Law in Tbilissi had a strong influence on the development of law. The institute was established in 1957, and today it is part of the Ministry of Education. The institute has Departments of Theories and Methods of Law, International Law and History of Law, Civil Law, and also a separate Department of Penal Law and Criminology.

Crime

or intentional crimes that are punished by a prison sentence of up to 5 years. Severe criminal offenses are intentional crimes that are punished from 5 to 10 years or negligent crimes punished by a prison sentence of more than 5 years. Very severe crimes are intentional crimes punished by a prison sentence of more than 10 years or life imprisonment. After the Rose Revolution of 2003, the Georgian Penal Law was severely changed on the grounds of a new penal law politics—“Zero Tolerance” against criminals. The punishment was extended to the preparative actions of crimes; the definitions of crimes were changed and the probation restriction became much sharper. Those changes resulted in a strong increase of prisoners to more than 18,000 as of the end of 2008, which is triple that of 2003 (6,274). Also, the number of acquittals reduced sharply. In 2005 there were 83 acquittals but only 30 in 2008. The attitudes of the judges have apparently changed with the political climate. According to a 2003 survey, 65 percent of the judges perceived that the Georgian population felt that only imprisonment is a real punishment. Police play an important role in implementing the politics of Zero Tolerance. After the Rose Revolution, the police were drastically reformed, and the very high corruption rate among the police was reduced. Special seminars for education in this topic were held; the salary of policemen was increased, and the job they were doing was controlled more rigidly. It resulted in a clear reduction in corruption and better police work. Today, police are a part of the Ministry of Internal Affairs, which also includes the Department of State Security. The ministry has special departments, which include, for example, Criminal Investigation Division, Traffic Police, Information-Analytical Division, Division for Extraordinary Emergency Cases, Division for Protection of the Constitution, and National Bureau of INTERPOL. There are subdivisions of the ministry in different regions of the country (like the capital Tbilissi, Adjaria, Guria, Batumi, or Kobuleti).

Classification of Crimes According to article 12 Penal Law of Georgia, a crime can be classified as less severe, severe, and very severe. Less severe criminal offenses are negligent

Crime Statistics Georgia provides limited statistics about crime and punishment, most of which are produced by


Georgia

the police and courts or the special departments in the respective ministries. The central problem of these statistics is their lack of validity. According to police crime statistics, in 2008, there were 44,644 crimes (964 per 100,000 inhabitants). The real number of crimes is estimated to be much higher. Research into this problem is only just beginning. In 2008, 263 murders were registered, but only half of them were cleared. This low clearance rate may be attributed to mistakes by police. In addition, the clearance of these cases was often hindered by high-ranking members in government because their own interests were connected to these cases. Only 100 rapes in 2008 were registered, and 66 percent could be cleared. In the same year, 14,814 thefts were registered, and from these, only 24 percent were cleared. According to article 177 Penal Law, a severe theft is defined as when the loss is more than 150 Lari (about €60 or US$88). On the basis of this definition, nearly every fourth theft or nearly every second property crime is defined as severe. There were 8,699 registered drug cases, which, in quantity, is second only to property crimes. The relatively high number of drug crimes is attributed to the relatively high number of poor people, who often try to get more money by dealing with illegal drugs. The low clearance rate is also influenced by the lack of trust in the crime prosecution administration. This influenced the reporting rate, which resulted in an enormous dark figure (i.e., unreported) of crime. Most registered crimes are property crimes and illegal drugs. Crimes like money laundering, terrorism, and corruption reduced noticeably on the grounds of specific measures of prosecution. Money laundering and corruption, especially, is done by organized groups which, as single cases show, have connections with parts of the government. The prosecution of these crimes is made more difficult because of the lack of special police squads. In 2007, 120 police officers were accused of corruption. Since then, there were no official cases of money laundering. Due to a dramatic increase in the official registered crime rate, the courts are overloaded. In 2008, there were 15,367 new penal cases of criminal proceedings that were brought to the courts of the 11

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regions in the country. Among these cases, 6,435 cases (42%) were registered at the courts in Tbilissi, 1,771 cases (12%) were registered at the courts in Imereti, 1,604 cases (10%) in Adjaria, and 1,581 cases (10%) were registered in Kvemo Kartli. At the beginning of 2008, there were 6,715 pending cases from the prior year. As of 2008, 18,161 cases were finished (decided). A big problem today is the high traffic accident rate, which is influenced by bad road conditions and an increasing number of fast freight cars. To control the traffic, more and more video cameras have been installed. There were no less than 500 in Tbilissi and 65 in Batumi. Another problem is that the group of organized criminals from the Soviet era, the “Thieves in Law” (the majority of organized crime ringleaders in Russia are said to be Georgian compatriots) who have been active in Georgia, needs to be reduced considerably.

Juvenile Crime The age of criminal responsibility in Georgia is 14 years old. However, children of 12 years and above can be punished by criminal courts if they commit a very severe crime. These are based on article 33 Penal Law: murder, homicide, robbery, theft in public spaces (article 178 Penal Law)—the offender commits the theft, for example, in a bus or on the street. These crimes are seen as very severe and thus punished more harshly. Examples of severe crimes include if the damage is not less than 150 Lari (about €60 or US$88), severe bodily injury, rape, or having a weapon with the person. Having a bigger knife with the person in cases of juveniles (under 21 years) is considered a crime (article 238 I Prime Penal Law). According to a new regulation of the Penal Law, which was put into force on July 1, 2008, children between 12 and 14 years old are not allowed to be incarcerated in a regular prison. At present, they can only be punished by a fine because of the country lacking special institutions (such as foster homes) for offenders aged 12 to 14. The only chance to help them is in schools. However, they are not prepared for these problems. Special educational or treatment programs for these children are nonexistent.


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Finding of Guilt With few exceptions, crimes are, according to article 62 Procedural Law, investigated by officials of the Ministry of Internal Affairs. The investigator has to charge the person within 48 hours, and within an additional 24 hours, a court has to make a decision. The investigation of the crime has to be finished within four months. During this time the investigator has to coordinate with the prosecutor to accuse the crime before court or to release the suspect if he or she is in pretrial detention. The accused is seen as innocent unless he or she is proven guilty by the court. According to the Procedural Law, the suspect has the right to have a defender and also have the chance to defend himself or herself. The person under suspicion must have a defender if the person is a juvenile, if a lifelong sentence is imposed, if the person does not speak the language of the court, if the person cannot defend himself or herself because of psychological or physical problems (illness), or if there is a procedural agreement between the person under suspicion and the prosecutor. As a result of justice reform, the prosecutor is located in the Ministry of Justice. The Minister of Justice is also the general prosecutor of the country. The duty solicitor is paid by the state. There is no alternative to the penal procedure in criminal cases. The penal procedure can be shortened if there are agreements between the defendant and prosecutor. The possibility to do agreements during the penal procedure was introduced in 2006. According to the Procedural Law, it is within the capacity of the prosecutor. The prosecutorial statistics show that, as of today, such agreements are done in about half of the criminal procedures. Agreements regularly end with fines. There are no limitations for procedural agreements (plea agreement) so that the prosecutor can use them in all cases. Pretrial detention is used in nearly half of the charges. In 2008, the prosecution presented 8,197 cases to the responsible courts and asked for a pretrial detention. Almost all of these cases, 96 percent, were approved by the court. This suggests that judges have less independence in comparison to prosecutors.

Beside the Courts of the First Instance, there are two Courts of Appellation (in Tbilissi and Kutaisi) and a Supreme Court in Tbilissi. The judges of the First Instance are not specialized with the exception of those in Tbilissi. There are three specialized courts for civil law, administrative offenses, and penal law in Tbilissi. In the other regions of Georgia, the judges are not specialized as they hear different parts of law at the same time as penal lawyers. The judges in Georgia are appointed by the High Council of Justice. According to the Constitution, a judge can be a person who successfully completed the study of law, is at least 28 years old, has professional experience of five years or above, and has passed an examination for judges. As of 2009, Georgia has 273 judges (144 males and 129 females). There are about 85 penal judges in the First Instance, 21 in the Second Instance, and 5 in the Third Instance courts. There are no specialized courts for juveniles. Judges who treat with cases of juveniles must have, according to the Code of Criminal Procedure, a proof of their qualification in pedagogy and juvenile psychology. This proof is regularly obtained by participating in a weekend seminar. Nevertheless, it is questionable if the judges can get the necessary knowledge from these seminars.

Punishment Types of Punishment According to article 40 of the Code of Criminal Procedure, punishments include the following groups: fine (art. 42); disbarment from profession or removal from office (art. 43; according to art. 41, these two sanctions can be given as a main punishment but also as an additional punishment); community service (art. 44); labor camp (art. 45); work reduction for members of military (art. 45; in practice, very seldom used); restriction of freedom (art. 47); time-limited custodial sanction (art. 50); lifelong custodial sanction (art. 51; all these sanctions are main sanctions); confiscation of personal property (art. 52; is an additional sanction). The death penalty was abolished in 1997. According to the statistics of the Supreme Court of Georgia,


Georgia

sanctions usually used are custodial sanctions (including probation) and fines. According to article 45 Administrative Offence Act, first-time illegal drug users or offenders who possess only small quantities of drugs are punished by a fine of 500 Lari (about €220 or US$295) or 30 days in custody. In case of recidivism, according to article 273 of the Code of Penal Law, the offender is punished by a custodial sanction up to one year or with a fine or community service up to 180 hours. According to article 260, an offender who cultivates drugs or materials for producing drugs without special permission, buys, stores, transports, sends, or deals with such materials is punished by a custodial sanction up to 11 years. According to article 260 III, the punishment is from 8 to 20 years or with life imprisonment if the amounts of drugs are large (e.g., 1 gram of heroin) or if the offense is committed by organized groups. According to article 261, the punishment is a fine, labor camp up to two years, or with a custodial sanction up to three years if the offender unlawfully cultivates psychotropic plants or substances, produces, buys, stores, transports, sends, or deals with these materials. In the first three months of 2009, 223 juveniles were registered as offenders. Among these, 1 person is 12–13 years old, 63 persons are 14–15 years old, and 159 persons are 16–17 years old; 110 were accused of theft, 24 of robbery, and 10 of murder. The punishments for these juveniles are as follows: 122 were punished by probation, 80 were punished by a custodial sanction of under 10 years, and 12 were punished by a custodial sanction of 10 to 15 years. In 2008, 20,804 criminal procedures were initiated. The sentences included 10,601 probation sanctions, 8,846 time-limited custodial sanctions, 1,010 fines, and 10 life imprisonments. Other additional sanctions were also given, which included 3,278 disbarments from profession or removals from office, and 79 confiscations of personal property. Additionally, 321 persons were punished in cases of murder, 4,111 in cases of theft, and 593 in cases of robbery. The typical sanction for murder is a time-limited custodial sanction of 7 to 15 years (art. 108); in severe cases, a custodial sanction up to 20 years or life imprisonment (art. 109) can be

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imposed. In cases of rape, severe theft, burglary, robbery, or drug crimes, regularly time-limited custodial sanctions are imposed. In cases of severe drug crimes, a life imprisonment can be given (art. 260). In the new Georgian Penal Code, life custodial sanction is the most severe punishment for crimes such as murder, rape, serious drug crimes, crimes against the safety of the state, treason, threat of the state of law or the inner security.

Prison Imprisonment is regulated by the Law of Arrest, July 22, 1999, and by the rules of Procedure Law on Penalties and Probation, June 20, 2001. As of the end of 2008, there were 18,664 prisoners, a rate of 403 per 100,000 population. This represents a 280-percent increase since 2004, when there were just 6,654 prisoners. In comparison to Western industrialized countries, the prison rate is very high. Nevertheless, it is, in comparison to former Soviet countries, only medium. Of the prisoners, 16 percent are pretrial detainees/remand prisoners, 4.1 percent are females, 1.5 percent are juveniles/minors/ young prisoners, and 0.9 percent are foreign prisoners. There are 67 (0.4%) who have a lifelong custodial sanction. Georgia has 17 prisons with an official total capacity of 18,700 places. That means that the prisons currently are fully occupied. With regard to incarcerated women, the number of female prisoners increased from 184 (2004) to 764 in 2008 (a growth of 415%). For juveniles, the increase is from 84 (2004) to 279 in 2008 (a growth of 332%). Also, the number of probationers has dramatically increased from 8,652 in 2006 to 23,500 in 2008 (a growth of 272%). The reason for the increasing overcrowding of prisons is the high percentage of custodial sanctions of all criminal sanctions. For example, in Georgian Penal Law, the minimum penalty for theft with a loss of 151 Lari, that is, €60 or US$89, is three years’ imprisonment. The judges are bound to the minimum sanction. There is little use of alternative sanctions. Custodial sanctions and probation are usually imposed. In cases of probation, an additional fine is regularly given. If the fine cannot


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be paid, the sanction must be served as custodial sanction. As shown by the Parliamentary Reports of the Public Defender, the situations in the prisons of West Georgia are worse than in the eastern part of the country (Tbilissi or Rustavi). In some of the overcrowded prisons, there are not enough places for inmates to sleep in their cells. Thus, prisoners have to take turns to sleep. In general, prisoners have the obligation to work. Officially there are educational programs for prisoners. However, they are not practiced regularly because of a lack of facilities. Prisoners can have visits from outside. Foreign prisoners can be extradited according to article 6 of the Penal Code on the grounds of special regulations. The bigger and newer prisons of Georgia are in Tbilissi (3,729 places for prisoners) and in Rustavi (2,022 places). Many of the existing prisons are totally outdated. Currently, two new, big prisons with 3,500 places are under construction (Region Kacheti and Guria). Among the 17 prisons, one is a prison for juveniles (with 167 places in Tbilissi), one is a prison hospital and a prison for prisoners with tuberculosis (with 537 places in Mzcheta). The exact number of prisoners with tuberculosis is not available. According to nonofficial estimations, about one-sixth of all prisoners have tuberculosis; about 1,000 prisoners are in treatment. Helmut Kury, Moris Shalikashvili, and Edisher Phutkaradze Further Reading Courts: http://www.supremecourt.ge/default. aspx?sec_id=40&lang=2. Crime data: http://www.police.ge/en/statistika. aspx. Falishvili, A., ed. (2002). Strafprozessordnung Georgiens. Ein Lehrbuch. Tbilissi. (Criminal Procedure Code of Georgia). Kury, Helmut, and Khatuna Kapanadze. (2004). Strafvollzug und Sanktionen in Georien aus westlicher Sicht. Kartuli Samartlis Mimoxilva, 2–3, pp. 280–306. (Penal System and Sanctions in Georgia).

Parliament of Georgia. Constitution of Georgia: http://www.parliament.ge/index. php?lang_id=ENG&sec_id=68. Phutkaradze, Edisher. (2007). Strafrechtliche Sanktionen und ihre Anwendung in der Praxis der georgischen Gerichte. Osteuroparecht 2, pp. 96–99. (Application of Criminal Sanctions in Georgia). Prisons: http://www.dep.gov.ge. Public Defender of Georgia. (2009). State of Human Rights in Georgia. Parliamentary Reports of the Public Defender. Tbilissi. Turava, Merab. (2008). Strafrecht. Allgemeiner Teil. Tbilissi, 7. Auflage. (Penal Law. General Part).

Hong Kong Legal System: Customary/Common Murder: Low Burglary: Low Corruption: Low Human Trafficking: Low Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background Hong Kong, officially known as the Hong Kong Special Administrative Region of the People’s Republic of China (hereafter referred to HKSAR), is a territory located on China’s south coast on the Pearl River Delta. It faces the South China Sea in the east, west, and south, and borders China’s Guangdong Province in the north. The total land and sea area of Hong Kong is about 1,092 square kilometers (422 square miles), and as of July 2008, it had a population of 7,018,636, making it one of the most densely populated areas in the world. As of 2006, the Hong Kong population was mostly Chinese (95%) but also 1.6 percent Filipino, 1.3 percent Indonesian, and 2.1 percent other ethnicities. Consequently, the spoken language is primarily


Hong Kong

Cantonese, one of the Chinese dialects, but the official languages are both Chinese and English. Hong Kong was ceded to the United Kingdom in 1841 by China, a result of a series of AngloChinese wars and their “unequal” treaties, including the Treaty of Nanjing in 1842, Convention of Beijing in 1860, and the Second Convention of Beijing in 1898. The two major constitutional documents handed down by the Queen were the Hong Kong Letters Patent and Royal Instructions. These outlined the constitutional arrangements, including the powers and responsibilities of the governor and different branches of the government. The governor of Hong Kong was appointed by the Queen, and he was assisted by a group of senior civil servants, including a chief secretary, financial secretary, attorney general, and a group of secretaries responsible for various functions such as education, health, social welfare, and transport. Some of these key positions were British expatriates and others were recruited locally as senior civil servants to work for the colonial Hong Kong government. On July 1, 1997, Hong Kong’s sovereignty was returned to the People’s Republic of China. Until 1997, its legal system and criminal justice institutions were largely modeled after the British system, and despite its return to the Chinese administration, Hong Kong has maintained a high degree of autonomy from China in all issues except foreign and national defense affairs. Like England and Wales, Hong Kong still has no written statement of the principles of criminal justice. However, the principles underpinning criminal justice procedure and administration are outlined in various legal documents and ordinances such as the Basic Law, Hong Kong Bill of Rights Ordinance (Cap. 383), Police Force Ordinance (Cap. 232), and Criminal Procedure Ordinance (Cap. 221). Article 8 states that the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, and customary law shall be maintained, except for any that contravene the Basic Law, which are subject to any amendment by the legislature of the HKSAR. Until 2047, which will be 50 years after its break from British rule, the previous capitalist economic and social systems will remain intact. China’s

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socialist system, therefore, is not practiced in the HKSAR. In many respects, since the 1997 handover, the Hong Kong criminal justice system has still preserved the British political, social, and economic systems; however, several remarkable changes to the government have been made. First, the governor is now replaced by a chief executive who is elected by a representative Election Committee in accordance with Annex I of the Basic Law, and then appointed by the Central People’s Government in Beijing. The chief executive is responsible for implementing the Basic Law, signing bills and budgets, promulgating laws, making decisions on government policies, and issuing Executive Orders. Second, the attorney general is now called the “secretary for justice.” The secretary for justice, now appointed by the Central People’s Government upon nomination by the chief executive, is the principal legal advisor to the chief executive, the government, and the individual government departments and agencies. Third, the Court of Final Appeal, headed by the chief justice, was established to replace the United Kingdom’s Privy Council as the highest appellate court. Other than this change, the judiciary enjoys its independence and is not subject to the interference of the chief executive and Executive and Legislative Councils. Other features of the government have remained basically the same. The legal system of Hong Kong is different from the legal system of Mainland China. The sources of Hong Kong law are mainly the common law and rules of equity, supplemented by local ordinances enacted by the local legislature of the HKSAR, international treaties, and the Basic Law. Due to the colonial origin, the Hong Kong legal system is based on the common law systems used in England and Wales and other commonwealth countries. The law of Hong Kong relies extensively on the rule of law and the independence of judiciary. The rule of law has been regarded as a cornerstone of Hong Kong’s success as a leading international commercial and financial center since colonial days. The rights and freedom of citizens are protected, and the rule of law is upheld by the independence of the judiciary. Article 85 of


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the Basic Law emphasizes that “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.” In addition to the rule of law and the independence of judiciary, the two major principles of criminal justice in Hong Kong are adversarial justice and the due process rights of defendants. These principles determine how guilt should be established and whether a suspect, defendant, or convicted person has rights to be treated fairly by the law enforcement agencies and authorities. As opposed to the inquisitorial system, the adversarial system relies on the skill of advocates or lawyers who represent their clients and the prosecutors to determine the truth of the case in the trial where the judge or jury is the adjudicator. In criminal trials in Hong Kong, and generally all of the common law countries, the burden of proof lies in the hands of the prosecution, and the standard of proof is “beyond the reasonable doubt.” Several provisions in Hong Kong law are concerned with the due process rights of the suspects. For instance, article 28 of the Basic Law specifies that no one shall be subjected to arbitrary or unlawful arrest, detention or imprisonment, and arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. As highlighted by the Department of Justice, “A number of principles of defence, which are in accordance with article 14 of the International Covenant on Civil and Political Rights (which has been applied to Hong Kong by the Hong Kong Bill of Rights Ordinance [Cap. 383]), have been incorporated in the Criminal Procedure Ordinance (Cap. 221), Legal Aid in Criminal Cases Rules (Cap. 221D), or absorbed into the common law.” To be specific, the rights that are preserved by laws in Hong Kong are equality before the courts, the right to a fair and public trial by a competent, independent and impartial tribunal established by law, the presumption of innocence, the right to legal representation, the right to be tried without undue delay, the right to call witnesses and secure their presence in court, the right to have the free service of an interpreter, the right to remain silent in court, and the right to appeal against conviction and/or sentence.

Police The Hong Kong Police Force was first established in the mid-19th century by the British government, and developed into a paramilitary colonial force to suppress patriotic protests. Following the independence of India and then Pakistan in 1947, most of the rank-and-file police officers in these two countries returned home, and an increasing number of locals began taking up the position. In the 1970s the colonial administration was committed to dealing with police corruption within the police organization by adopting a shift in governance style, and turned the paramilitary style of policing to the police force, which focused on maintaining public order and fighting crime. In addition to these two focuses, the contemporary police force adopted the model of community policing, which explicitly stresses the police-public cooperation by promoting community interaction and support since the 1990s.

Crime Hong Kong is regarded as one of the safest cities in the world in terms of its overall recorded crime per capita in the Seventh United Nations Survey on Crime Trends and the Operations of Criminal Justice Systems. Two main types of crime measurement have been used to study the nature and extent of crime and victimization in Hong Kong, official statistics and crime victimization surveys. In addition to these, there are regular surveys of public opinion, which tend to show a high degree of public confidence in the police and the anticorruption body. Also, self-reported studies on delinquency and drug abuse among young people have been conducted to examine both reported and unreported criminal and delinquent behavior, though these studies are not carried out on a regular basis. Admittedly, none of these measurements are without problems, but they are able to give us a rough picture of the trends, nature, and prevalence of crime as recorded by the authorities and reported by crime victims. According to annual departmental reports, the Hong Kong Police Force classifies crimes into 10 types, which are listed as follows, including the numbers recorded by police for 2007:


Hong Kong

Violent crime against person Violent crime against property Burglary and theft Fraud and forgery Sexual offense Serious narcotics offense Offenses against lawful authority Serious immigration offense Miscellaneous crimes Preventive crime Grand total

12,513 2,421 41,453 5,967 995 2,769 763 765 11,876 1,274 80,796

It can be seen that the most common type of crime reported to the police was burglary and theft in both years. The annual police departmental review indicates that the largest number of crimes reported were classified as “other miscellaneous thefts,” followed by shoplifting. The total number of recorded crimes increased from 76,771 in 1999 to 81,125 in 2007, and crime reports on fraud and forgery drastically increased by 37.4 percent between 1999 and 2007. Of the total crimes reported, 45.6 percent were detected. The detection rate for attempted murder, manufacturing of dangerous drugs, other serious narcotics offenses, possession of arms and ammunition, and unlawful pawning offense was 100 percent in both years. The specific forms of crime that have had the lowest rate are burglary with breaking (7.7%) and criminal damage (19.3%). In addition to detection, one of the key responsibilities of the police force is to arrest suspects of crime when appropriate. In 2007 the total number of persons arrested was 43,000, of which approximately 25 percent were females. In general, the major group of those arrested were young adults. Persons were arrested most often for burglary and theft (9,369 men, 5,325 women), closely followed by violent crimes against the person (7,657 men, 1,737 women). While the Hong Kong Police force deals with crime statistics, other law and order statistics such as money laundering, drug abuse, corruption reports, number of consumer protection investigations, number of illegal immigrants appended, and penal population in institutions are compiled by

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different law enforcement agencies. For instance, the Joint Financial Intelligence Unit is run by staff of the Hong Kong Police Force and the Hong Kong Customs and Excise Department, and it deals with reports of suspicious financial activity and transaction reports related to terrorist property. Its statistics show that the number of persons convicted of money laundering has increased from 49 in 2004 to 179 in 2007, and the value of assets restrained has also increased from HK$68,818,082 in 2004 to HK$723,764,771 in 2007 (the equivalent then to US$887,798 to US$93,389,002). In addition to the Hong Kong Police Force and the Customs and Excise Department, several key government departments are responsible for maintaining law and order, fighting crime, enforcing the law, and rehabilitating offenders. These include the Department of Justice, the Immigration Department, the Independent Commission against Corruption, the Labour Department, the Fire Services Department, the Legal Aid Department, the Social Welfare Department, and the Correctional Services Department. Each of these law enforcement agencies provides and compiles updated information about the work they are responsible for, thereby giving the public some idea of the volume of crime, and number of convictions and sentences given on an annual basis. Crime victimization surveys have been conducted seven times in Hong Kong under the auspices of the Fight Crime Committee to measure and estimate the risk of criminal victimization. They were taken in 1978, 1981, 1986, 1989, 1994, 1998, and 2005. The aim of these surveys is to provide the administration of criminal justice with information on the nature and extent of crime, as well as the reasons for reporting or not reporting to the police, data not otherwise available from official records. A total of 20,100 households within a representative and random sampling were interviewed in the latest survey conducted in 2005, with a response rate of 83 percent. The scope of this survey was limited to two types of crime, namely crimes of violence (e.g., indecent assault, wounding and assault and criminal intimidation) and crimes against household (e.g., theft of vehicle and criminal damage to property). The estimated number of crime victimizations in


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2005 was 358,800, which showed an increase of 1.9 percent when compared with 352,200 of 1998. It is not surprising to note that persons aged between 12 and 19 had the highest overall victimization rate of 46.7 per 1,000 among all ages, and females aged 12 and over (37.0 per 1,000 persons) are more likely than males of the same age (33.4 per 1,000 persons) to experience victimization. About 19.1 percent of crime victimizations were reported to the police in 2005, which is a much lower percentage than in 1998 (29.3%). The three major reasons for reporting to the police were “the victims hope to catch the offenders” (51.5%); “reporting was a prerequisite of getting a replacement of documents or claiming insurance” (13.4%); and “the victim’s duty as a citizen to report to the police” (13.1%). The three major reasons for not reporting to the police were “the victims suffered not much” (30.3%); “the case lacked evidence” (23.9%); and “reporting procedures are too cumbersome” (9.7%). The Census and Statistics Department has emphasized that the reliability of these findings depends upon the willingness of respondents to cooperate and their honesty, and therefore these findings should be treated with care.

Finding of Guilt Arrest and Prosecution The two major actors in the pretrial stage of the criminal justice system are the police and the prosecutor, which are often referred to as the “gatekeepers” of the criminal justice system. According to the Police Force Ordinance (Cap. 232), police officers are given the power to stop, search, and arrest a person; request to see the person’s proof of identity; and interrogate a person if he or she is under suspicion of committing or involvement in crime. Among other powers, a police officer, usually in the senior rank, can decide if there is sufficient evidence to lay a charge against a suspect, whether or not it is necessary to seek the advice of the Department of Justice about his or her decision to prosecute and can exercise discretionary power to divert a suspect from prosecution. On behalf of the secretary for justice, the Prosecutions Division of the Department

of Justice has the overall responsibility for the conduct of prosecutions in Hong Kong, and its primary duty is to determine if a particular case or class of cases should be prosecuted by the government. The Hong Kong Police Force and other relevant law enforcement organizations such as the Department of Immigration and Customs and Excise Department seek advice from the Prosecutions Division when involved in prosecuting serious or complicated cases. In this respect, both the police and prosecutor make important decisions regarding the treatment of a suspect or defendant after being arrested and before appearing before the judge or jury. Even though police may arrest offenders, this does not mean that they will necessarily be prosecuted. Once a crime is reported or detected, the police must investigate the circumstances of crime scene to see whether evidence is sufficient to lay charges against the suspect. There are generally three possible outcomes after the police investigation is completed. The first outcome is that the case is discharged due to the fact that it lacks sufficient evidence. The second outcome is that the case will not be prosecuted simply because it is petty in nature. These cases, especially those aged between 10 and 18, will escape prosecution by instead being issued a caution under the Police Superintendent’s Discretionary Scheme. To be eligible for cautioning, juvenile and young suspects voluntarily confess to their criminal behavior, and most important, are usually first-time or second-time offenders. The third outcome is that the case is prosecuted. The suspect is required to appear at court on a certain date, and while waiting for the court hearing may be required to be on police bail or remanded in custody. It is also important to note that on some occasions the prosecutor may advise the police or law enforcement agencies not to continue the prosecution in the pretrial process. According to the Department of Justice, two issues that determine whether or not to prosecute are the strength and sufficiency of evidence to justify the institution of proceedings and the public interest test. On behalf of the Secretary for Justice, the prosecutors should not be subject to any instructions or directions from the executive. In general practice, all prosecutions


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at the summary level that are simple cases are often processed by the police force or other law enforcement agencies instead of getting the secretary for justice involved.

Trial Once the decision to prosecute has been made by the police, either court prosecutors or lawyers from the Prosecutions Division of the Department of Justice are in charge of initiating, conducting, and finalizing prosecutions. Court prosecutors deal mainly with the majority cases before magistrates, whereas the lawyers from the Prosecutions Division appear before magistrates in important cases and in the trials held in the district court and Court of First Instance. In Hong Kong, the criminal trial courts consist of the magistrates’ court, district court, and Court of First Instance; and the criminal appeal courts consist of the Court of First Instance, Court of Appeal, and Court of Final Appeal. Each of these courts takes its powers from its enabling ordinance. All criminal cases start in the magistrates’ court where a defendant first appears. The case is then either dealt with in the magistrates’ court or transferred to the district court or the Court of First Instance, depending upon the decision made by the magistrate. The prosecutor plays a significant role throughout criminal proceedings. As a minister of justice, the prosecutor must be firm and fair and should not press for a conviction at court. More specifically, The Statement of Prosecution Policy and Practice states that the prosecutor is as independent as the judge. In addition, the prosecutor must assist the court to avoid an error in the appeal. If there is an appeal against conviction or sentence, the duty of the prosecutor is to ensure that a just disposal of the appeal is achieved. As discussed earlier, one of the rights of the defendant is the right to legal representation or access to justice in both pretrial and trial stage. It is indeed guaranteed by the provisions of the Basic Law and Hong Kong Bill of Rights Ordinance (Cap. 383). In Hong Kong, both the Duty Lawyer Service

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and the Legal Aid Department provide legal representation in criminal cases to any person who needs legal services for pursuing or defending a legal action and is unable to have access to a lawyer due to lack of means. The Duty Lawyer Service is subsidized by the HKSAR government but operated independently by the Law Society of Hong Kong and the Bar Association. The Duty Lawyer Scheme within the Duty Lawyer Service provides legal representation to defendants who are charged and brought before all magistrates’ courts and Juvenile Courts. The defendant has to pass both the means and merit tests to be eligible for Duty Lawyer Scheme and must be able to pay a handling charge of HK$400 (the current equivalent of US$51.6). The Department of Justice reports that in 2007, a total of 38,640 defendants were assisted under the scheme, involving 1,549 barristers and solicitors to provide legal assistance. Likewise, the Legal Aid Service is funded by the government, and lawyers of the Legal Aid Department are responsible for assessing the applications for legal aid based upon the means and merit tests. The financial resources of the applicant should not exceed the limit of legal aid, which is HK$165,700 (the current equivalent of US$21,380). The merit tests refer to the Director of Legal Aid’s decision regarding the desirability in the interests of justice to grant the applicant legal aid. Those who have been granted legal aid would then be assigned to the lawyers from the Legal Aid Department or solicitors or barristers in private practice. Legal aid covers all criminal cases in the district court, the Court of First Instance, and all appeals against decisions of magistrates and to the Court of Appeal and Court of Final Appeal. Those who are not granted legal aid may choose to represent for themselves in the trial or hire a legal counsel for legal representation at their own expense. In an adversarial system, the defense lawyer has a duty to act according to the best interest of the defendant in the pursuit of justice throughout the criminal proceeding. The magistrate and judge, who is regarded as an “umpire,” play a significant role in the courtroom, as they determine whether or not the accused is guilty. This indeed is not an easy task because the


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decision may affect how the suspect is further processed in the formal justice system. Therefore, the magistrate or judge is expected to be neutral, impartial, and knowledgeable of the law and procedure in trial. Magistrates are appointed because of their professional legal training and work experience as solicitors or barristers. All summary cases are tried before one magistrate or one judge in the district court or the Court of First Instance. Trial by a judge, sitting with a jury of seven people, is reserved for the most serious criminal cases such as murder, manslaughter, rape, armed robbery, and certain drug offenses in the Court of First Instance. Depending on the number of jurors in a trial, the judge will urge a jury to strive for a unanimous verdict or a majority verdict of five to two or seven to two. To be eligible to serve as a juror, a person must have reached the age of 21 but not yet 65, be of a sound mind and have no hearing or visual impairments that might prevent him or her from serving as a juror, be of good character, and have sufficient knowledge of the language used in the court proceedings. The majority of the criminal cases tried in the magistrates’ court in Hong Kong are conducted in Chinese, whereas English is commonly used in higher courts such as the Court of First Instance and Court of Appeal. The conviction rate is one of the key performance indicators of the Prosecution Division of the Department of Justice. The division is proud of its relatively high conviction rates, which were, in 2007, 76.6 percent in the magistrates’ court, 90.5 percent in the district court, and 93.4 percent in the Court of First Instance.

Punishment After finding guilt, another important function of the court is to impose appropriate sanctions or punishments to the individual for a criminal offense. The ultimate aims of sentencing are to reintegrate offenders into the community and to turn them into law-abiding citizens. There is a range of sentencing measures available for the magistrate or judge to choose from, depending upon the levels of court. There are three main types of sentencing options, namely unsupervised (such as fines and

binding over order), supervised (such as probation order and community service order), and custodial sentences (such as detention center order and imprisonment). Corporal punishment and the death penalty were abolished in Hong Kong in 1989 and 1993, respectively. In trying to arrive at a fair and just sentence, the sentencing magistrate or judge has to take several factors into consideration, including the seriousness of crime, the harm done to the victim, mitigating and aggravating factors, constitutional rights of the offenders, and the interests of the public. Different ordinances usually specify a maximum penalty for different forms of crime. For instance, Section 118(1) of Crimes Ordinance (Cap. 200) stipulates that a man who rapes a woman shall be liable upon conviction or indictment to imprisonment to life. The Dangerous Drugs Ordinance (Cap. 134) also specifies the maximum penalties of various drug-related offenses. Lo, Dobinson, and Chui, writing in the Hong Kong Law Journal, provide a comprehensive overview of the sentences handed down by the courts over the past decade for various offenses involving drugs such as cannabis, opium, heroin, cocaine, methaqualone (mandrax), methamphetamine hydrochloride (ICE), and methylenedioxy methamphetamine (MDMA or Ecstacy). In those cases involving juvenile and young offenders, information about their character, physical and mental conditions, schooling, employment, and family circumstances are collected by the sentencing magistrate or judge through a number of reports. The social enquiry, suitability, or presentence reports prepared by probation officers, prison officers, psychiatrists, and medical officers also contain their recommendations regarding the type of sentence that is appropriate for the offender. The right to an appeal or a review of the conviction and sentence is also granted according to Hong Kong law. For instance, article 11(4) of the Hong Kong Bill of Rights Ordinance (Cap. 383) states that everyone convicted of a crime shall have the right to the conviction and sentence being reviewed by a higher tribunal. The three types of court with appellate jurisdiction over criminal matters in Hong Kong are the Court of First Instance, Court of Appeal, and Court of Final Appeal. Examples of the grounds for appeals against conviction and sentence


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are cases involving the question of fact and law and inappropriate as well as excessive punishment.

Corrections The ethos of rehabilitation is the dominant sentencing theory and the main intervention method of dealing with offenders in Hong Kong, other than retribution, deterrence, incapacitation, and restoration. In the posttrial stage, governmental departments who work with offenders in the community and prison are the Social Welfare Department and Correctional Services Department. While the former administers two community sentences, including probation order and community service order, the latter is responsible for operating and managing correctional institutions in Hong Kong. In contrast to other noncustodial sentences such as fines, disqualification, and compensation, the two community sentences involve both an element of active participation by the offender and close supervision or monitoring by a designated authority figure from the Probation Section within the Social Welfare Department. The intended goal of the community sentence is to “help offenders reintegrate into the community as law-abiding citizens” through counseling, proper supervision, and social skills training. Probation is the most common form of community sentences in Hong Kong, as can be seen in the listing of cases by the Social Welfare Department for the 2005–2006 period: Probation supervision Community service order Probation home and hostel Reformatory school

2,907 883 109 32

Community Support Services Scheme: (Youth members) (Parents members) Postrelease Supervision of Prisoners Scheme

624 298 526

The Social Welfare Department operates probation homes for juvenile offenders aged between 10 and under 16 who are required by the court to receive residential training as a part of the probation sentence. Reformatory school is a custodial

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sentencing option for young offenders under the Reformatory Schools Ordinance (Cap. 225). The Community Support Services Scheme is available for those offenders aged under 25, and their parents, under Probation Order, Community Service Order, or Reformatory School Order. The community sentence is a nonpunitive approach, targeting first-time, nonviolent offenders who pose little threat to society, and is considered as an alternative to custody. Major justifications for community sentences are diversion or deinstitutionalization, reintegration (or rehabilitation), and reparation. The Social Welfare Department is staffed by registered social workers to promote prosocial behavior among those being given community sentences. The Probation of Offenders Ordinance (Cap. 298) details the responsibilities and core tasks of probation officers and how an offender should be supervised in legal terms. The probation order applies to all ages of 10 or above. It must clearly specify the period of probation, which should be no less than one year and no longer than three years. An empirical study with 115 adult probationers aged between 18 and 35 found that the probation service places an emphasis on an individualized casework treatment approach to the probationer. Section 4(1) of the Community Service Orders Ordinance (Cap. 378) enables the court to order that those convicted of an offense be punishable with imprisonment, for any number of hours with a maximum of 240 within a period of 12 months. The court shall not make the order against an offender unless the offender consents to the making of such an order, and the court is satisfied after considering a social enquiry report as to the offender’s suitability to be made the subject of such an order. The offender on community service order has to make reparation to the public through unpaid work and learn to be responsible for the harm caused to others.

Prisons The custodial sentence requires the offender to be locked up in the correctional institution. According to the sentencing tariff, prisons are suited to those who have committed serious offenses. In contrast to the social welfare approach adopted by the


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Social Welfare Department, the Correctional Services Department is a disciplinary force, administering a detention center; drug addiction treatment centers; rehabilitation centers; training centers; and minimum, medium, and maximum security prisons for offenders aged 14 years of age or above. In addition, its halfway houses offer temporary shelter for young offenders during their adjustment period after release. The total population in major penal institutions in 2007 was 10,946, of which 2,178 were females. Breakdown of prisoners in different types of institutions were as follows: Prisons Drug addiction treatment center inmates Training center inmates Detention center inmates Rehabilitation center inmates Remanded persons

8,238 608 270 123 187 1,790

Since January 1998, the Correctional Services Department has set up a Rehabilitation Division to oversee the rehabilitation services for offenders, which comprises five major units: Rehabilitation Unit for Assessment and Supervision, Rehabilitation Unit for Welfare, Counseling and Supervision, Education Unit, Vocational Training Unit, and Psychological Services Section. While the vocational training unit is available to those prisoners under the age of 21, industrial employment is available for inmates covering 13 trades such as garment making, leather products, sign making, metalwork, bookbinding, and printing. About 6,000 inmate workers are currently engaged in these types of industrial work every day, and these products are then supplied to government departments and tax-supported bodies. The Correctional Services Department has identified four important factors that contribute to the successful offender rehabilitation in an inclusive society: quality custodial services, comprehensive rehabilitative services, offender’s motivation and determination to change, and community support. In this respect the department is committed to finding strategies to improve the quality of the correctional services. Depending upon the custodial sentence, the length of statutory

supervision or postrelease supervision varies, and the provision of aftercare services is not always required. Various schemes such as the Release Under Supervision Scheme, Pre-release Supervision of Prisoners Scheme, Conditional Release Scheme, and Supervision after Release Scheme ensure that the necessary continued care and support is given to those who are released from the penal institution. Regular face-to-face contact and home visits are arranged to ensure a gradual transition from institution to the community.

Emerging Issues In this concluding section, three controversial issues surrounding the contemporary criminal justice system are discussed, with the aim of highlighting the current concern of the public and policy makers in Hong Kong. These three issues are the proposal of introducing sex offender registers, the proposed use of coercive drug testing in the high school, and the reluctance of grant the prisoner’s right to vote. In July 2008, the Law Reform Commission of Hong Kong consulted the public’s opinion on setting up a sex offender register to protect children and vulnerable adults, including the mentally disabled, from being abused. The major intention of the register would be to allow the public, especially employers in child-related activities, to have access to the history of sexual offenses of their prospective job applicants and employees. As indicated in the consultation paper, the inclusion of sexual offenders on the register would be based upon the designated offenses. While the details of what should be contained in the sex offender register and how it is going to be used are yet to be finalized, different public polls indicate a favorable response to the proposal. It is anticipated that the Law Reform Commission of Hong Kong is likely to recommend further action to set up the register. However, the sex offender register would most likely not be used as a means of imposing harsher punishment or posing obstacles or barriers to the rehabilitation of sex offenders. Another area of concern among the law enforcement agencies is the increasing number of youth


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drug abuse, and consequently the government has proposed drug testing in high schools. The latest drug-abuse statistics indicate a changing trend in drug abuse among young people; they initiate substance abuse earlier and have more access to psychotropic substances such as ICE, cocaine, and club drugs such as Ecstasy and Ketamine. In view of these changes, a special task force has been set up, chaired by the secretary for justice, to identify strategies to tackle this social problem. One of the key recommendations was to introduce new legislation for compulsory drug testing of a person reasonably suspected of having consumed dangerous drugs in schools. The intention is to identify children aged between 11 and 16 who abuse drugs, so that early intervention and treatment programs can be delivered to these at-risk children, young people, and their families. Despite the possible infringement of civil liberties of young people, the government is very keen to pilot this drug-testing measure on a random basis to deter young people from abusing drugs. However, a number of liberal groups have questioned the legality of this coercive measure and the plan to implement it is yet to be seen. The last issue concerns the right to vote among prisoners. In late 2008, a few prisoners applied for a judicial review to challenge the ban on their right to vote, which began to arouse people’s attention to the importance of this issue. In fact, some have argued that laws in Hong Kong should be amended to remove the barrier to voting faced by the prisoner and ex-prisoner. One of the central arguments is that article 26 of the Basic Law states that permanent residents shall have the right to vote and the right to stand for election in accordance with the law. Voting is a fundamental right of democracy and promotes citizen participation in choosing the people to represent them in the political system. In this view, Hong Kong should follow other jurisdictions such as the United Kingdom, Europe, Australia, and Canada to practice criminal disenfranchisement in more limited ways. On December 8, 2008, a High Court judge ruled that prisoners and people being held in custody should have the right to vote, and this ruling restored more than 4,000 prisoners the right to register and to vote in the election.

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However, the government may appeal against this decision, and has not yet finalized a plan to amend the law nor looked for measures to allow people detained in penal institutions to register to vote or to vote in the coming elections. Wing Hong Chui Further Reading Chui, Wing Hong, and Tit Wing Lo, eds. (2008). Understanding Criminal Justice in Hong Kong. Cullompton, Devon: Willan. Jackson, Michael. (2003). Criminal Law in Hong Kong. Hong Kong: Hong Kong University Press. Jiao, Allan. (2007). The Police in Hong Kong: A Contemporary View. Lanham, MD: University Press of America. Jones, Carol, with Jon Vagg. (2007). Criminal Justice in Hong Kong. London: RoutledgeCavendish. Lo, S.H.C., I. Dobinson, and W. H. Chui. (2004). “Sentencing for Drug Offences in Hong Kong: An Overview,” Hong Kong Law Journal 34 (1), 13–45. Whitfort, Amanda. (2006). Criminal Procedure in Hong Kong: A Guide for Students and Practitioners. Hong Kong: LexisNexis. Web Sites Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China: http:// www.info.gov.hk/basic_law/flash.html. Correctional Services Department: http://www.csd. gov.hk/. Department of Justice: http://www.doj.gov.hk/. Hong Kong Police Force: http://www.police. gov.hk/. Independent Commission against Corruption: http://www.icac.org.hk/. Legal Aid Department: http://www.lad.gov.hk/. Security Bureau: http://www.sb.gov.hk/. Social Welfare Department: http://www.swd.gov. hk/en/index/index.html.


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India Legal System: Common/Islamic/Customary Murder: Medium Burglary: Low Corruption: Medium Human Trafficking: Medium Prison Rate: Low Death Penalty: Yes Corporal Punishment: Yes

Background Rich in cultural and religious diversity, India’s democratic and pluralistic commitment comport well with a multifaceted legal and criminal justice system. These factors, socioreligious diversity, and an unrelenting democratic ideology, are the two keystones of Indian jurisprudence. Ancient India was essentially Hindu-ruled and religious principles formed the basis of legal thought. The Arthashastra and the Manusmriti, for example, are Indian scholarly treatises dating from 400 bce and 100 ce, which were instrumental in the development of legal doctrine. In ancient Indian monarchial society, the king’s authority was derivative from the guiding principles of Dharma, which were unquestionably expected to be upheld. Today, India’s political governance adheres to Federalist ideology, combining shared rule with self-rule.

Legal System The Indian Constitution, drafted in 1950, was based on the principles of English common law and incorporated important American court decisions. Among the inalienable rights guaranteed by the Indian Constitution are equal rights to all citizens; a prohibition of discrimination on the basis of race, ethnicity, gender, caste, and religion; and universal franchise, thereby making the Indian electorate the largest in the world. India’s Constitution is an admixture of laws originating from traditional India, Europe (Ireland, Britain, and France), and the United States. The Constitution is the most

significant source of the contemporary Indian legal and criminal justice system. On the whole, Indian laws are in compliance with accepted international law such as the United Nations guidelines on human rights law, environmental laws and international treaties, and international trade laws, including those on intellectual property. The Legal System in India has four subsystems, Legislature, Enforcement (police), Legal System, Adjudication (courts), and Corrections (prisons, community facilities). The Indian legal system is a mix of adversarial and accusatorial legal systems. Despite India’s Federalist system and the existence of both central (i.e., Federal) and state laws, each with its predefined spheres of application, there exists a single integrated system of courts, which administers both the central and the state laws. Catering to India’s pluralistic society, the Indian Constitution and laws respect and preserve the tenets of both Hindu and Muslim jurisprudence. Politically, the president of India and state governors act according to the advice of the Council of Ministers. In rural areas, an informal justice system known as Panchayat or by some other similar name—meaning “rule of the people”—operates to resolve civil, family, and criminal disputes of petty and local nature. Indian civil law is complex, as it is tailored to adhere to the individual laws of each religious group represented in India’s diverse ethnic and religious society. Indian laws are adapted to various religions that are locally represented in different states or communities of India, that is, Hindus, Muslims, Christians, Sikhs, and followers of other religions. A notable exception to this religio-legal pluralism is the state of Goa, where a Portuguese uniform civil code is in place, whereby all religions have a common law regarding marriages, divorces, and adoptions. The first Indian Penal Code (IPC) was adopted in 1860. This code defined crime and prescribed appropriate punishments for crimes. In 1861, a Code of Criminal Procedure was enacted and added to the IPC. This Code of Criminal Procedure established the rules to be followed in all stages of investigation, trial, and sentencing in the criminal justice system. This code was repealed and a new code was established in 1974. These two codes, along with


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parts of the Indian Evidence Act of 1872, form the essence of India’s criminal law. A large number of special and local laws such as the Arms Act, Prohibition Act, Immoral Traffic (Prevention) Act, and so forth, address various other antisocial activities.

Crime The established laws on crime prevention and punishment are embodied in the following three principal statutes, which are universally applicable in the entire country: 1. The Indian Penal Code of 1860 2. The Code of Criminal Procedure of 1973 (Cr.P.C.) 3. The Indian Evidence Act of 1872

A woman protests the sexual abuse of women in New Delhi, India, July 12, 2005. (AP Photo/Saurabh Das)

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There are a number of “special laws” dealing with particular subjects and local laws that have been enacted from time to time by the Union/state legislatures to meet the specific challenges of crime prevention needs. Inasmuch as these special laws serve local needs and interests, they remain subordinate to the Constitution of India.

Classification of Crimes Inasmuch as separate state legislation overlaps with the subject matter of federal statutes relating to criminal liability for acts such as smuggling, illegal use of arms, and corruption, all local legislation must be in compliance with the relevant federal statutes. Furthermore, all federal and local statutes, in turn, are still subordinate to the Constitution. Outside the subject matter jurisdiction of the IPC or similar areas attributable to the Central government as expressed in the provisions of the Constitution, each state has the freedom to draft its own laws on subjects that are considered state subjects. With the exception for laws governing local taxation rates, the citizens of each state must abide by existing central laws passed by the Parliament of India. The Criminal Procedure Code (§§ 2(c), (l) Cr.P.C.) divides crimes into the following two categories: 1. Cognizable offenses are those in which a police officer, on probable cause, can make an arrest without a warrant. Under the IPC of 1860, all major crimes like theft, burglary, robbery, cheating, assaults, homicide, and so forth are considered cognizable offenses. The police officers can investigate and make an arrest without a warrant in a cognizable crime. The police officer also has the discretionary power to evaluate and redefine the reported offense in the complaint. For instance, the officer may not find sufficient corroborating evidence to believe and hence reduce the gravity of the complaint to make it a noncognizable offense. 2. Noncognizable offenses are those in which a police officer lacks the authority to make an arrest without a warrant in noncognizable crimes. A noncognizable criminal incident is


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defined as a minor infraction of the law where a police officer can make an arrest only by the order of the court. As such, the remedies for noncognizable offenses are generally distributed at the discretion of the court, in actions pursued by the affected parties themselves. Absent magisterial permission, law enforcement officers do not generally initiate investigation in noncognizable crimes. The following special crimes are defined in acts other than the IPC: 1. Arms Act, 1959 2. Narcotic Drugs and Psychotropic Substances Act, 1985 3. Gambling Act, 1867 4. Excise Act, 1944 5. Dowry Prohibition Act, 1961, and Prohibition of Child Marriage Act, 2006 6. Explosives and Explosive Substances Act, 1884, 1908 7. Immoral Traffic (Prevention) Act, 1956 8. Railways Act, 1989 9. Registration of Foreigners Act, 1930 10. Protection of Civil Rights Act, 1955 11. Indian Passport Act, 1967 12. Essential Commodities Act, 1955 13. Terrorist and Disruptive Activities Act, 1987 14. Antiquity and Art Treasure Act, 1972 15. Dowry Prohibition Act, 1961 16. Child Marriage Restraint Act, 1929 17. Indecent Representation of Women (P) Act, 1986 18. Copyright Act, 1957 19. Sati Prevention Act, 1987 20. SC/ST (Prevention of Atrocities) Act, 1989 21. Forest Act, 1927 22. Other crimes (not specified above) under Special and Local Laws, including Cyber Laws under Information Technology Act (IT), 2000

Age of Criminal Responsibility Under the IPC, the age of criminal responsibility is established at the age of seven. However, any act, which would otherwise be criminal, committed

by a child 7–12 years old, is free from liability if the presiding judge is convinced that the child had not attained sufficient maturity of understanding the nature and consequences of his or her conduct when the offense in question was committed.

Drug Offenses The Narcotic Drugs and Psychotropic Substances Act (NDPSA) of 1985 promulgated by the Union government is the main legislation dealing with drug offenses. The act defines narcotic drugs as coca leaf, cannabis (hemp), opium, straw, and manufactured drugs, which includes all coca derivatives, medicinal cannabis, opium derivatives, and poppy straw concentrate. Psychotropic substances are those listed in the Schedule of the Act and include, among others, LSD, DET, and MDA. The NDPSA prohibits cultivation of coca plants and the possession, sale, purchase, and use of coca leaves in violation of the act and in contravention of any license granted under it. A similar prohibition is imposed by the act for psychotropic substances. Officers empowered under the NDPSA include those of the Union government (Central Excise, Narcotics, Customs) and the state government (including Revenue, Drug Control, Excise, and the Police).

Crime Statistics The National Crime Records Bureau (NCRB) of the Union Ministry of Home Affairs in New Delhi publishes annual records of crime in India. Since 1999, the total number of complaints received by police has been recorded. These data include records of oral or written complaints, distress calls, or those initiated by police, and are a telling portrayal of the volume of crime in India and the sizable workload of police. In 2005, Indian police received 64,670,600 complaints compared to 76,200,949 received in 2004. The means of notifying police were distributed as follows: 39.7 percent—written complaints, 15.2 percent—oral complaints, 37.7 percent— complaints initiated by police, and 7.4 percent— distress phone calls. Significantly, nearly 77.7 percent of these complaints were registered as cognizable offenses, comprising 18.23 million cases under


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the IPC and 32.04 million cases under the Special and Local Laws (SLL). In addition to the decrease in the number of annual complaints, there was a decline in the IPC/SLL ratio (1:1.92 in 2000 to 1:1.76 in 2005) and the total crime (summation of IPC and SLL) rate (a decrease of 12.4% and 17.9% in 2001 and 2004, respectively). According to the IPC, there were 32,719 murders recorded in 2005 and 28,031 murder attempts reported. The majority of murder victims were between the ages of 18 to 30 and male. There were also 18,359 rapes reported in 2005. According to the IPC, rape is defined as sexual intercourse by a man with a woman against her will, without her consent, or with her consent, if her consent has been obtained by putting her or any person in whom she has an interest in fear of death or harm. Finally, there were 15,750 kidnapping incidents reported in 2005, the majority of victims between the ages of 18 and 30 and women. Other cognizable crimes reported to police for 2004 were recorded as follows: Robbery Burglary Theft Auto theft Riots Criminal breach of trust Counterfeiting Arson Dowry death Molestation Sexual harassment Cruelty to women by husband/relatives Trafficking girls Causing death by negligence Cheating

18,458 92,490 273,045 80,682 59,971 14,176 1,529 8,637 7,026 34,567 10,001 58,121 89 69,423 51,939

Under the main legislation dealing with drug offenses described above, the NDPSA, a total of 29,421 cases were registered in 2005. This number represents an increase of 6.6 percent relative to 2004 records (27,608). All statistical indicators suggest that drug offenses are increasing in incidence. The increase in drug offenses interestingly parallels the decline in the total crime rate. While total crime

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rate has declined, 10- and 5-year trend analysis of drug offense data show a 46 percent and a 15 percent increase, respectively. Interestingly, 35.0 percent (10,283) of the total cases are attributable to just one state in India, Uttar Pradesh.

Finding of Guilt Rights of the Accused Pursuant to the Code of Criminal Procedure of 1973, the accused are afforded constitutionally guaranteed protections. Alternatively, those arrested under special security legislation (SSLL) may not be afforded such protections. Before searching for and seizing evidence, police officers are generally required to secure a warrant from a magistrate. An individual taken into custody has certain rights including the right to be advised of the charges brought against her or him and to seek counsel. Notwithstanding the elaborate procedural and substantive safeguards that are maintained for protecting the rights of the accused, implementation of such rules is not always equitable. The extent of protected rights is often dependent on the class and social background of the accused. From a procedural standpoint, individuals taken into custody by police are required, within 24 hours of arrest, to appear before a magistrate. The judge or magistrate retains the discretion to release the accused on bail. While under trial, a defendant is protected against self-incrimination. Criminal cases generally take place in open trials; however, closed trials also occur in limited circumstances. Decisions made by lower courts can be appealed to higher courts following established appellate procedures. Pursuant to the Indian Constitution, inalienable, fundamental rights endowed upon citizens are enforceable in the Constitutional Courts (High Court and the Supreme Court). Article 21 of the Constitution of India states, “No person shall be deprived of his life or personal liberty except by a procedure established by law.” The Supreme Court has given a wider interpretation to this fundamental right and stated that any procedure to curtail liberty has to be a “just, fair, and reasonable procedure.” Under the Indian Constitution and the Criminal Procedure


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Code (Cr.P.C.) of 1973, the accused are afforded several fundamental rights, including a presumption of innocence until proven guilty. The accused has the right to a speedy trial. In addition, the Indian Code of Criminal Procedure includes provisions for additional rights of defendants, including the right to an expedited and efficient judicial process as well as legal assistance if the defendant is indigent. Under the Criminal Justice System in India, law enforcement officers are often the first persons of contact with the victim and accused. Complaints about criminal incidents are received and processed by law enforcement officers who act as gatekeepers to the criminal justice system. A police officer determines if a criminal incident has taken place and only she or he is empowered to investigate the case. The Code of Criminal Procedure delineates exact procedures for recording the complaint and subsequent investigation of the alleged offenses. Section 154 of the Criminal Penal Code requires that a criminal complaint made to the police is recorded by the station house officer in writing. This section stipulates that whenever a citizen informs the police, or the police learn otherwise about the occurrence of a cognizable crime, the station house officer (SHO) shall institute a First Information Report (FIR), which initiates the criminal investigation.

Courts Each state is divided into judicial districts presided over by a district and sessions judge, who is the highest judicial authority in a district. Below her or him, there are courts of civil jurisdiction, known in different states as subjudges, civil judges, and the like. Similarly, criminal judiciary comprises a chief judicial magistrate and judicial magistrates of first and second class. The Indian Code of Criminal Procedure provides for the following three sets of magistrates for the subordinate criminal courts: 1. Executive magistrates, whose duties include issuing warrants, advising the police, and determining proper procedures to deal with public violence.

2. Judicial magistrates, who are essentially trial judges. 3. Petty criminal cases are sometimes settled in panchayat courts for rural areas, whereby civil and criminal disputes of petty and local nature are resolved.

Jury Trials In 1960, the Indian government abolished jury trials, as it was believed that jury trials are unfair to the poor. It is believed that jury trials are susceptible to media and public influence.

Punishment The punishment meted out to the convicted is in proportion to the crime committed. Under the Penal System of India, there is a range of punishments imposed on the convicted. These punishments are divided into six categories. These punishments range from monetary fines to capital punishment. The six categories of punishment are listed below. 1. 2. 3. 4.

Fines Forfeiture of property Simple imprisonment Rigorous imprisonment with hard labor, solitary confinement 5. Life imprisonment 6. Death penalty

Failure to pay fines can result in imprisonment. Solitary confinement, albeit rare, is employed for serious and dangerous offenders. Although the death penalty is one of the aforementioned six categories of punishment, it is infrequently applied. The death penalty is reserved for crimes such as treason, terrorism, political assassination, and multiple murders. Death and life sentences may be discretionarily commuted. When death penalty is prescribed, the method of execution is by hanging.

Prisons Under the Constitution of India, the states and territories are charged with the task of custody and


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correction of criminals. Various statutory provisions, including the Prisons Act of 1894, the Prisoners Act of 1900, and the Transfer of Prisoners Act of 1950, have established the procedural and administrative roles of the state and local agencies in managing prisons. An inspector general of prisons administers prison affairs in each state and territory. The Indian Ministry of Home Affairs oversees law enforcement and correctional administration at a Central government level. Pursuant to such authority, the ministry is responsible for policy formulation and planning services in addition to providing an active supervisory role related to state penal roles. Particularly, the Central government aids the states in the maintenance of internal security measures, modernization of law enforcement infrastructure, and oversees correctional administration in the states. The government also provides facilities and support for ad hoc advanced training in forensics and technological advancements in criminal science. Indian prisons meet the basic requirements of human rights protection. Some prison administrators, however, concede that the prevailing conditions of poverty in Indian society contribute to recidivism because a prison sentence guarantees minimal levels of food, clothing, and shelter. Prison conditions vary from state to state. The states that have more resources have better facilities. These prosperous states have better rehabilitation programs as compared to the states that are not politically or economically wealthy. The poorer states provide the most minimal facilities and barest accommodations. Male and female prisoners are housed in separate prisons. Conditions for holding prisoners also vary according to classification.

Plea Bargaining A recent June 2006 amendment to the Criminal Procedure Code of India confers a provision for plea bargaining in certain cases. The relevant section of the statute, Chapter XXI A, allows plea bargaining to be used in criminal cases where the prescribed maximum punishment is below seven years. Exceptions include cases where the victim is

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(1) a minor under the age of 14; (2) where the victim is a woman; or (3) where the crime is likely to affect the socioeconomic condition of the country. There are also provisions in the amendment aimed at policing the plea bargaining process, to ensure that the compliance of the accused is not predicated on coercive or corrupt tactics.

Compensation to Victims of Crime Inherent as a critical keystone of the Indian Criminal Justice System is the dual desire to punish and reform criminals. An equally compelling motivation is to award both compensatory and punitive damages to the victim. A reconciliatory attempt to pursue these objectives is reflected in the Code of Criminal Procedure, 1973, § 357 and the Probation of Offenders Act, 1958, § 5. These statutory provisions empower the court to provide compensation to the victims of crime. All courts are empowered to exercise such provisions and award adequate compensatory damages to the victim, particularly when an accused is released on probation or when the parties settle a dispute. Indigent victims of illegal detention by governmental authorities may recover compensatory damages under article 21 of the Constitution of India. Suman Kakar Further Reading Hazra, A. K., and Bibek Debroy, eds. (2007). Judicial Reforms in India: Issues and Aspects. New Delhi: Academic Foundation (Publishers) in Association with Rajiv Gandhi Institute for Contemporary Studies. Kalpana, Kannabiran, and Ranbir Singh, eds. (2008). Challenging the Rule(s) of Law: Colonialism, Criminology and Human Rights in India. New Delhi: Sage. Rajgopal, P. R. (1988). Violence and Response: A Critique of the Indian Criminal Justice Process. New Delhi: Centre for Policy Research, Uppal Publishing House. South Asia Human Rights Documentation Centre. (2007). Handbook of Human Rights and


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Criminal Justice in India: The System and Procedure (2007). South Asia Human Rights Documentation Centre. Delhi: Oxford University Press.

Indonesia Legal System: Civil/Islamic/Customary Murder: Low Burglary: Medium Corruption: Medium Human Trafficking: Medium Prison Rate: Low Death Penalty: Yes Corporal Punishment: Yes

Background Indonesia, the largest archipelagic state in the world, located in Southeast Asia, comprises approximately 17,508 islands. Its total area is about 1,919,440 square kilometers (735,355 square miles). Indonesia is a heterogeneous and multiethnic country, with a Muslim majority; however, constitutionally it is not an Islamic state. The estimation of population in 2009 is around 240 million. Most of the population (about 65%) lives on Java Island, in which Jakarta (the capital city of Indonesia) is located. Java is the fifth largest island in Indonesia. Prior to Indonesia’s independence in 1945, the Indonesia legal system was a dual legal pluralism. During the preindependence Dutch Colonial era, the Western people and certain Asian nationalities, especially the Chinese, were acknowledged as similar in status as the Western people and were subject to the formal Western civil law system, while the indigenous people were subject to its customary (adat) law. Since its independence, both legal systems (Western as well as adat) have been applied to all Indonesian citizens. The use of the Dutch legal system was based on the Indonesian Constitution 1945 that stipulates that before the new law could be enacted, the previously existing law would still be applied until the new one was enacted, and adat

law (even canonical law) has also been adhered to by various ethnic groups. Under the Soekarno regime, the authority of the judicial bodies was under control of the executive body. The president had the right to direct the work of the judicial bodies and select and promote the judges. Article 19 of Law Number 19/1964 stipulates that the president could interfere at any stage of the judicial process for the sake of the ongoing revolution. Under the ideology of Guided Democracy, the rule of law and the concept of “state based on law,” the radical-populist ideology emphasized substantive rather than procedural justice. This policy was ended in 1970 after the successor of Soekarno, General Soeharto, took over. The new order continued until 1998. The first fundamental change in the legal system was the replacement of Law Number 19/1964 by Law Number 14/1970 that reverted back to the judicial bodies as autonomous bodies. However, the judicial bodies did not really have their independence, since the selection and promotion of the judges and the budget was still under the control of the executive. The police, as the first institution that operated in the criminal justice system, were placed under the coordination of the Indonesian Army. Finally, when the Soeharto regime collapsed in 1998, based on Law Number 4/2004, the judicial bodies had their own independence in administering their own arrangements, such as budgeting, selecting, and promoting of the judges of first and appellate courts and nominating candidates of the judges of the Supreme Court to Parliament. In 1981, the Indonesian government successfully established a new law on the Administration of Criminal Justice (Law Number 8/1981), replacing the Dutch Administration of Criminal Justice, while the Administration of Civil Justice had still been using the Dutch law. The adat law jurisdiction was limited to civil cases of its relevant ethnic groups, while canonical law, especially Islam law jurisdiction, was limited to marital and inheritance cases. After the fall of Soeharto in 1998, which brought about the reformation and regional autonomy era, the Aceh Province was granted authority to apply Islamic law (syariah) to its followers in that area.


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In the area of criminal justice, there is a sharp distinction between the Dutch law and the new Indonesian law in terms of the system. The Dutch legal system applies the inquisitorial system, while the Indonesian Administration of Criminal Justice 1981 applies the accusatorial system. The principles of the new law put forward the idea of presumption of innocence, rather than presumption of guilt, and provide wide ranges of protection for the rights of the suspect. Since 1990, the Indonesian police have become an independent organization responsible directly to the president. The Indonesian National Police (INP) or Kepolisian Negara Republik Indonesia (POLRI), a national organization, is financed, directed, and organized by the central government. By 2004 the INP staffed approximately 285,000 people, serving for approximately 220,000,000 citizens. The functions of the INP as stipulated by Law Number 2/2000 focus on public security and order maintenance; law enforcement; protection, guardians, and services to the public. Based on Presidential Decree Number 70/2002 concerning the INP Organizational Structure, the top of the organization is INP Headquarters (Markas Besar Kepolisian Republik Indonesia/MABES POLRI). The implementation of the police functions is carried out by the following four organizational bodies at the MABES level: 1. The Board of Intelligence and Security (Badan Intelijen Keamanan/BAINTELKAM) 2. The Board of Criminal Investigation of Crimes (Badan Reserse Kriminal/BARESKRIM) 3. The Board of the Maintenance of Internal Security (Badan Pembinaan Keamanan/ BABINKAM) 4. The Mobile Brigade (Brigade Mobil/ BRIMOB) As the Indonesian National Police is a national organization, the operational activities at province level are carried out by regional police, namely POLDA (Kepolisian Daerah). At the district level, the operational activities are carried out by POLRES (Kepolisian Resor). Under the POLRES are the smallest operational units, namely POLSEK (Kepolisian Sektor), equivalent to police precinct;

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the jurisdiction of POLSEK is equal to a subdistrict. Since Java Island and Madura Island are the most densely populated islands, there are subregional police, namely POLWIL (Kepolisian Wilayah), under the POLDA to coordinate the operation of several POLRES in its jurisdiction. POLDA Metropolitan Jakarta Raya, POLDA Yogyakarta, and POLDA Banten, nevertheless, have no POLWIL units. Every provincial capital city, except Jakarta, has POLTABES (Kepolisian Kota Besar), whose organizational ranks are similar to the POLWIL in Java. At the POLSEK level, there are five units to support the POLSEK tasks; each is led by the chief of unit, namely Unit Intelijen dan Pengamanan/ Intelkam (Police Intelligence Unit), Unit Reserse (Criminal Investigation Unit), Unit Samapta Bhayangkara/Shabara (Police Patrol Unit), and Unit Binamitra (Community Policing Unit). Unit Intelijen dan Pengamanan (Police Intelligence) has the state security and intelligence function. Unit Lalu-lintas (Traffic Police Unit) is complementary to the POLSEK, depending on the needs of the area. The office location is usually separated from the POLSEK office. This unit is accountable to the traffic police section at the POLRES level and responsible for the enforcement of traffic law and highway patrol. At the POLRES level, the traffic unit is also responsible for issuing driving licenses, motor vehicle licenses, and registrations.

Crime Classification of Crime According to the Indonesian Criminal Code (Wetboek van Straftrecht), which was inherited from the Dutch Indian Colonial, criminal actions are divided into two categories. The first category, as stipulated in Book II of the Criminal Code, is regarding criminal actions classified as crimes (misdrijven), while the other category at Book III of the Criminal Code regards criminal actions classified as offenses (overtredingen). Book II of the Criminal Code stipulates either treason or felonies, while Book III of the Criminal Code stipulates misdemeanors only. The punishment inflicted for treason and felonies ranges from imprisonment (a maximum of 20 years), life


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sentence to capital punishment, while the punishment inflicted for misdemeanors is mainly in the form of fines. Book I of the Criminal Code stipulates the definitions of terms, types of punishment, procedures to be followed in criminal cases, and specific attempts, accessories, mitigating as well as incriminating circumstances that may affect the severity of a sentence. Outside the Criminal Code, there is some law stipulating certain criminal offenses, such as corruption, environmental crimes, terrorism, drug trafficking, and other forms of transnational crimes. Treason comprises crimes against state security (killing of the president and vice president, separatism, rebellion, revealing state defense secrets); crimes against the honor of the president and vice president; crimes against friendship states, statements, and diplomats; crimes against the implementation of civil rights and duties; individual fighting; crimes against public security and property security; crimes against public officials; false oath; counterfeiting of notes and state seals; counterfeiting of documents; crimes against civil status, and so forth. Felonies comprise crimes against public order; crimes against decency; abandonment of people in need of help; causing humiliation; discovering occupational secrecy; crimes against persons; crimes against human lives (i.e., murder); crimes against the body (i.e., assault, rape), including negligence; crimes against property (i.e., larceny, robbery); blackmail and extortion; embezzlements; deceptions; vandalism; crimes in the course of an occupation; crimes in the course of ship navigation and seamanship; crimes against aviation infrastructures; and aiding crimes. According to the Law of Juvenile Justice (Law Number 3/1977), the minimum age of criminal responsibility is eight years old. A juvenile between 8 years and 18 years old who commits criminal offenses should be brought to Juvenile Court. Currently, there is a discussion to reform such a minimum age of criminal responsibility to be at least 15 years old. Crimes that are particularly challenging to Indonesia are human trafficking, terrorism attacks, and drug offenses. The International Organization of

Migration (IOM) (with the assistance of IOM Indonesia) has reported that between March 2005 and January 2008, of 3,042 victims, 88.9 percent were female and only 11.1 percent male, 74.0 percent were adult and 25.8 percent children, and 0.2 percent infants. Marked by the suicide bombing of Bali I on October 22, 2002, some terrorism attacks in Indonesia since 2002 have become issues of transnational crimes. Since that bombing, there have been three incidents of suicide bombing, which include a suicide bombing in the Hotel Marriott on August 5, 2003, a suicide bombing attack at the Australian Embassy in Jakarta on September 9, 2004, and a suicide bombing attack known as Bali II on October 1, 2005. The seriousness of the drug offenses is marked by the increasing number of drug-related prisoners and the involvement of international networks in drug trafficking. Several actions that are defined as crimes in relation to drug offenses are illegal possession of drugs, illegal drug use, drug trafficking, and drug production. Trafficking and production of drugs could be punished with death penalty. Since 1998, which is noted as an era of reformation, corruption has been considered one of the most serious crimes. A special state commission named the Anti Corruption Commission (Komisi Pemberantasan Korupsi) was established in 2004, whose special task is to investigate and to prosecute corruptors in a Special Anti Corruption Court.

Crime Statistics Crime statistics collected by the Bureau of Planning and Administration of the Indonesia National Police for 2007 were as follows: Murder Rape Violent attack Robbery Motor vehicle theft Drug-related offenses

1,236 2,224 18,799 10,140 32,042 9,254

From 2001 to 2007, the homicide rate declined by 44 percent, though rape increased by 78.2 percent. Violent attacks and robbery fluctuated over


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the same period. Motor vehicle theft and drug offenses increased substantially over the period. Police performance as indicated by crime clearance between 2001 and 2007 was relatively steady at the level of between 51 percent and 59 percent.

Finding of Guilt Article 1 of the Criminal Code stipulates that no one shall be punished if there is not any law that has been breached. This stipulation is in line with the presumption of innocence principle, in which the accused should be regarded as innocent until the court finds him or her guilty. In this sense, the accused has the right to remain silent since he or she was arrested by the police and during the trial. It is the duty of the attorney to prove the guilt of the accused. There is no jury system used in Indonesia. However, to preserve objectivity of the trial, the criminal trial is conducted by a judicial panel that consists of three judges. The judges’ verdict must be based on at least two pieces of evidence and ultimately based on their firm conclusion as to the guilt of the accused. Even though the accused has the right for a speedy trial, such a right is obstructed by the provision of pretrial detention up to 120 days that may be requested by the police and the public prosecutor. Basically the accused has the right to be assisted by a lawyer before and during the trial. However, free legal aid is only available for the poor who are accused of legal offenses punishable with at least five years’ imprisonment. Lawyers who provide free legal aid for the poor receive a very small financial compensation from the government budget. As a result, the provision of legal aid is not attractive to the professional lawyers, and only the young lawyers or apprentice lawyers have the interest to do this job. The investigation of crime is conducted by the police. Law Number 8/1981 on the administration of criminal justice stipulates that the role of the criminal investigator is divided into two sorts of officials, namely: (1) “investigator,” an official of the national police or a certain official of the civil service who by law is granted special authority to conduct an investigation; and (2) “junior investigator,” an official of

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the national police who is granted authority by this law to perform a preliminary investigation. These investigators have two somewhat different tasks. The investigation conducted by the investigator is a series of acts regulated by legal procedure for the gathering of evidence to clarify whether an offense has occurred and to locate the suspect. The preliminary investigation, then, is a series of acts by a junior investigator to seek for and to find an event that is presumed to be an offense to determine whether or not an investigation may be carried out by means regulated in this law. The specified tasks for the investigator consist of accepting a report or complaint from a person about the existence of an offense; taking the first step at the crime scene; ordering a suspect to stop and examine the suspect’s identification; carrying out an arrest, detention, search and seizure; examining and seizing documents; fingerprinting and photographing a person; summoning a person to be heard or examined as a suspect or a witness; calling in an expert required in connection with the examination of a case; terminating an investigation; taking other acts in accordance with law. An investigator does not have a duty to prosecute the suspect before the court. The investigator should deliver the dossier of a case to the public prosecutor. The delivery of the dossier of a case to the public prosecutor shall be accomplished as below. At the first stage, the investigator shall deliver only the dossier of a case; where the investigation is deemed to have been completed, the investigator shall cede responsibility for the suspect and the physical evidence to the public prosecutor. The prosecution of the suspect is the duty of the public prosecutor based on the dossier of a case submitted by the investigator. The prosecutor may terminate the case if it is not provided with sufficient evidence or did not substantiate a criminal case. If the prosecutor proceeds with the case, the prosecutor must submit the case before the court as soon as possible. Basically, there is no alternative other than going to trial. However, there is a provision stipulating that the police have the right to terminate the investigation, and the public prosecutor has the right to


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terminate the prosecution. Such rights spark criticism from lawyers and nongovernmental organizations who are concerned with the judicial process; they suspect such a procedure may easily lead to corruption. There are many cases involving financial scandals in the Central Bank (Bank Indonesia), to which the attorney general has released decisions terminating prosecution, which were harshly criticized by the public. In the illegal drug use cases, there is a provision that the judges should send the users to treatment. However, up to 2008, there has been no judge’s verdict that applied such a provision. Some judges have argued that they have insufficient information regarding medical facilities that exist for treatment of drug users. Actually, there are many narcotics treatment institutions that were built to fulfill the provision of the antinarcotics law. And since 2008 the National Anti Narcotics Board (Badan Narkotika Nasional) has had a narcotic rehabilitation center that provides medical treatment for drug users. Most of the accused in criminal cases brought before the court are usually found guilty and are sentenced to imprisonment. For trivial cases and first offenses, the judges will release a probationary verdict. Pretrial detention, or incarceration before trial, is allowed by the law of criminal justice procedure, and the judges will calculate the length of detention as part of the imprisonment. The judges have discretionary authority to impose a lesser punishment. The court system consists of four branches, namely general courts, religious courts, military courts, and administrative courts. The criminal court is part of the general court. There is no specialization of the judges, whether he or she is a criminal judge or civil judge. There are 3,015 judges in the general courts. To be a judge, a person should hold a law degree and be admitted to the judge training program for approximately one year. Postgraduation, they are not directly appointed to be a judge. They have to be apprentice judges for one year, acting as district court registrars before finally being appointed judges of district court. The juvenile trial is conducted by a special judge of the district court who has an interest in juvenile

problems. The trial is conducted informally. The judge, the attorney, and the social worker do not wear uniforms, and the child should be accompanied by his or her parents. It is compulsory to attach a social report of the child provided by the social worker. The child can be brought before the juvenile court if he or she is between 8 and 18 years old.

Punishment Types of Punishment The provision of punishment as stipulated in the Criminal Code comprises the death penalty, life sentence, imprisonment, fines, publication of the sentence, and probation. Punishments listed in the Criminal Code are allowed the maximum. However, the judges have discretionary authority to impose lesser punishment. The victim of crime has the right to sue the offenders before the court during criminal examination. The provision of reparation and compensation to the victims applies only to the gross violation of human rights, if the judge’s verdict explicitly orders the offender to do so. Law on the elimination of domestic violence (Law Number 23/2004) stipulates the protection and reparation of victims of domestic violence and that such protection and reparation should be conducted by the government. The punishment for an intentional murder ranges from 20 years of imprisonment to life sentence to death penalty. A murder committed along with other incriminating offenses may be punished with life sentence or a maximum of 12 years’ imprisonment. A murder without full intent may be punished with a maximum of 12 years’ imprisonment. A planned infanticide by the mother is punishable with a maximum of nine years’ imprisonment, while an infanticide without a plan is punished by a maximum of seven years’ imprisonment. The maximum punishment for a forcible rape to a woman is 12 years of imprisonment. A rape to an unconscious or vulnerable woman is punishable with a maximum of nine years’ imprisonment. The law on the elimination of domestic violence (Law Number 23/2004) stipulates that a marital rape shall be punished with a maximum of 12 years’


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imprisonment or fines of IDR 36,000,000 (about US$3,600). A punishment imposed for a theft with incriminating factors is a maximum of nine years of imprisonment. A theft that causes death to the victim or the witness shall be punished with a maximum of 15 years of imprisonment, while a burglary that causes death with incriminating factors shall be punished with a maximum of 20 years of imprisonment. The incriminating factors of the burglary may vary, which include committing at night, committing in closed/locked properties, being committed by two or more people in a group, breaking and entering, and causing injury or death. There are two laws related to drug offenses, namely, Law on Narcotics Crimes and Law on Psychotropic Crimes. The types of punishment depend on the offense committed, and the types of drugs. The most serious drug offenses are production and trafficking, which shall be punished by death penalty. The death penalty is one of the forms of punishment stipulated in the Criminal Code. Some criminal sanctions that are not stipulated in the Criminal Code also impose the death penalty. The law on narcotics is an example. Several drug offenders have been executed. The execution method is shooting to death by a group of police officers usually in a remote area. The public prosecutor who prosecutes the case before the court must be present at the execution. There have been 12 prisoners executed between 2004 and 2008. This includes, in 2008, the three masterminds of the Bali I bombing—an event that drew international attention.

Prison The directorate general of corrections has revealed that, as of August 2008, the total number of inmates (prisoners and detainees) was 137,144, consisting of 130,895 males (95.44%) and 6,249 females (4.56%). The number of prisoners was 81,127 (59.2%), while the detainees numbered 56,017 (40.8%). The number of male prisoners was 77,531 (95.57%), and female prisoners was 3,596 (4.43%). The number of

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male detainees was 53,364 (95.26%), and female detainees was 2,653 (4.74%). The number of juvenile inmates was very low, with the total number of 2,837 (2% of the total inmates), which consisted of 2,760 boys (97.28%) and 77 girls (2.72%). The number of foreign inmates was 549 (0.4% of the total inmates), consisting of 424 (0.31% of the total inmates) prisoners and 125 detainees (0.09% of the total inmates). Among the foreign inmates, there were 537 males (97.81%) and 12 females (2.19%). The number of death row prisoners was 99 (0.07% of the total inmates), and life sentence prisoners was 153 (0.11% of the total inmates). The number of drug-related inmates was 38,427 (28.02% of total inmates), consisting of 27,062 prisoners (19.73% of total inmates) and 11,365 detainees (8.29% of total inmates). Among the drug-related inmates, there were 35,832 males (93.25%) and 2,595 (6.75%) females. The daily average number of inmates based on the capacity of the detention centers between 1995 and 2002 has shown that the problem of overcrowding has existed since 2002. By 1995, the daily average number of inmates was 47,047, with the total accommodation capacity of 64,047 inmates (72.81% occupation rate), while in 2002 the daily average number of inmates was 67,960, with the total accommodation capacity of 64,345 (105.62%) inmates. There were 408 prisons and detention centers in 2008, consisting of 220 prisons and 188 detention centers. In fact, the detention centers also accommodate prisoners, whereas the prisons accommodate detainees as well. Although most of the biggest prisons are located in the capital cities of provinces, there is a small island in south central Java, namely, Nusa Kambangan, that is used to hold various types of prisons. Most of them were built during the colonial era and were known as the deadly prisons. Nowadays, there are a maximum security prison, medium security prison, and minimum security prison (open prison) located in Nusa Kambangan. The special narcotics prison, super maximum security prison, and one open prison were recently built. Formally, every prisoner should participate in working activities. However, due to overcrowding


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in most prisons, only several prisons provide working activities programs. As a result, the working activities and other treatment programs could not be implemented. The wards of the prison concentrate mainly on maintaining the security of the prison. An exception to this is the newly built narcotics prison where the treatment of drug users is still being implemented. Every inmate has the right of a visitation. The visit permit for the prisoners’ relatives can be obtained at the prison site; the visit permit for detainees, however, must be obtained from some institutions in charge of the detention, for example, the police, the prosecutor, or the judges, depending on the examination steps undergone by the particular detainee. There are several rights that may be granted to the prisoners, for example, parole or home visits, if the prisoners show good behavior. Remission of the sentences may also be granted annually. Even though there are many foreign prisoners, there is no provision for transfer of prisoners yet. This situation may affect the rights of foreign prisoners, since most of the foreigner prisoners’ visas will be overdue after their release, and thus they shall be referred to immigration quarantine, or sent back to their home countries immediately at their own cost. Poor foreign prisoners or prisoners from poor countries in particular face this problem. Muhammad Mustofa Further Reading Atmasasmita, R. (1996). Bunga Rampai Hukum Acara Pidana. (Reading in the Administration of Criminal Justice). Bandung: Alumni. Lev, D. S. (1978). Judicial Authority and the Struggle for an Indonesian Rechtsstaat. Reprinted from Law and Society Review 13(1) (Fall): 37–71. Leyser, J. (1954). “Legal Developments in Indonesia.” The American Journal of Comparative Law 3(3) (Summer): 399–411. Rosenberg, R., ed. (2003). Perdagangan Perempuan dan Anak di Indonesia (Trafficking of Women and Children in Indonesia). Jakarta: ICMC.

Japan Legal System: Civil/Common Murder: Low Burglary: Low Corruption: Low Human Trafficking: Medium Prison Rate: Low Death Penalty: Yes Corporal Punishment: No

Background Japan comprises five main islands (Hokkaido, Honshu, Shikoku, Kyushu, and Okinawa), with additional remote small islands, and is located in the east of the Eurasian continent. The Japanese population is approximately 128 million people, and the land size is about 145,920 square miles. Thus, the population density in Japan is approximately 877 people per square mile. The capital of Japan is Tokyo, located near the center of Honshu Island. Historically, Japanese culture was heavily influenced by China and other countries located in the eastern part of the Eurasian continent. For example, the techniques to crop and cultivate rice, the Japanese people’s main diet, were imported via the continent approximately 3,000 years ago. Furthermore, the Japanese language has its origin in China. The influence of Western culture in Japan can be observed primarily after the 16th century when a group of Christian missionaries arrived in Japan. In terms of economy, Japan may be most notable in its rapid economical development after World War II. The annual economic growth rates during the 1960s and 1970s were more than 10 percent on average, while they were approximately 2–3 percent after 2000.

Sociodemographic Characteristics Japanese society is homogeneous with 99 percent of the country’s population being ethnic Japanese and having the same historical background. Japan is often viewed as a group-oriented society rather than


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an individualistic society. Japanese society is also characterized by the hierarchical system, which is observed in the language and behavior exhibited by Japanese people in business and personal contexts. This is grounded in cultural traditions of Confucianism, which stresses respect and honor toward an elder.

Political System The Japanese government is often considered a centralized government, and because of this, Japanese scholars view the federal, state, and local governments as exercising their political power equally over their constituents. The contemporary Japanese political system has been influenced by the prewar political system based on the 19th-century German and British parliamentary models. Its political system has also been affected by the Constitution of Japan, which was established in 1947 and largely influenced by the U.S. government during the post– World War II occupation. The government is fundamentally divided into executive, legislative, and judicial branches. The Constitution also guarantees the separation of state power. In particular, the executive power resides in the Cabinet and the legislative power resides in the Diet, while the judicial power resides in the Supreme Court and other lower courts. As the head of the judicial branch, the chief justice stands at the same rank as the prime minister, who is the head of the Cabinet (the executive branch). To preserve fairness in the criminal justice system, the status of the judges is protected by the Constitution, and they can only be removed from their jobs by public impeachment.

Legal System Under the Constitution, there are five main legal codes: the Civil Code, the Penal Code, the Code of Civil Procedure, the Code of Criminal Procedure, and the Commercial Code. The Japanese justice system has changed dramatically since the Meiji Restoration of 1868. The Penal Code and Code of Criminal Procedure, which were based on French models, were publicly promulgated in 1880. Under these codes, offenses and punishments for the offenses were specified, all citizens were treated equally,

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and the justice system was centralized. However, this system did not incorporate the defendant’s presumption of innocence and frequently used capital punishment as a means to solve criminal cases. The Japanese criminal law and prison law were revised in 1907 to reflect German law, but the rights of the accused did not become a main issue until post–World War II. The system became adversarial, and the judge decided a case based on evidence presented by both sides. The juvenile law was not reformed until 1947.

Crime Classification of Crime The primary legal code that defines crime and punishment in Japan is the Penal Code. The current Penal Code was enacted in 1907, although the code has continued to be revised as Japanese society underwent changes over time. For example, as a special class of crimes, crimes against the Imperial family were abolished as a result of the postwar reconstruction of Japanese society. Furthermore, articles that imposed harsher punishments for individuals who had committed bodily injury, fatal injury, or murder against their family members were deleted in 1995. Although the vast majority of crimes (e.g., homicides, rape, robbery, assault, and larceny) are defined by the Penal Code, it is important to note that other legal codes, often categorized as Special Codes, also define crimes. Examples of Special Codes are the Traffic Law, the Stimulants Control Law, the Firearms and Sword Control Law, and Anti-prostitution Law. There are several sources of official crime statistics in Japan. The White Paper on Police is published annually by the National Police Agency, while the White Paper on Crime is published by the Ministry of Justice. Although both white papers report the number of reported crimes and the number of cases cleared, additional information is presented by each white paper. For example, the White Paper on Police often discusses emerging trends in crime and recent police activities. The White Paper on Crime, on the other hand, discusses topics in corrections and rehabilitation, as the Ministry of Justice is


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responsible for correctional and rehabilitation services. Additionally, the Annual Report of Judicial Statistics, published by the Supreme Court, summarizes information on the number of criminal cases, as well as their dispositions. The White Paper on Police categorizes crimes as felonious offenses, violent offenses, larceny offenses, intellectual offenses, moral offenses, and other offenses. Felonious offenses include murder, robbery, arson, and rape. Violent offenses include assault, bodily injury, intimidation, extortion, and unlawful assembly with dangerous weapons. Larceny offenses include both burglary and nonburglary thefts. Intellectual offenses include fraud, embezzlement, counterfeiting, official corruption, and breach of trust. Moral offenses include gambling and sexual offenses (including indecent assault and indecent exposure). The number of crimes reported to police in 2005 were as follows: Felonious offenses Murder Robbery Arson Rape

11,360 1,392 5,988 1,904 2,076

Violent offenses

73,772

Assault Bodily injury Intimidation Extortion Assembly with dangerous weapons

25,815 34,484 2,479 10,978

Larceny offenses Burglary Theft of vehicles/bicycles Nonburglary theft Intellectual offenses Moral offenses Other offenses Total offenses

16 1,725,072 244,776 556,987 923,309 97,500 12,085 349,504 2,269,293

Of the four felonious offenses, robbery constituted the most frequent offense category. Additionally, there were 1.1 homicides per 100,000 people. Of

the five categories of violent offenses, bodily injury comprised the biggest category, followed by assault. Larceny offenses (including both burglary and nonburglary) were reported, with the highest frequency among felonious, violent, larceny, intellectual, and moral offenses. Of larceny offenses, 53 percent were nonburglary thefts; 33 percent were thefts of bicycles, motorcycles, and vehicles; and 14 percent were burglaries. As for the proportion of cases cleared by the police, the clearance rate for homicide stood out at about 97 percent. The clearance rates for homicide had been consistently high throughout the modern history of the Japanese criminal justice system. The clearance rates for other felonious and violent offenses were also relatively high, ranging from approximately 50–70 percent. Compared to other offense types, clearance rates for larceny offenses are relatively low at 25 percent. The total number of crimes known to police, derived from Penal Codes and Special Codes, excludes 855,644 cases of professional negligence in traffic accidents, which was 27.4 percent of the total number of crimes known to police. As professional negligence in traffic accidents comprises a substantial amount of the crimes in Japan, a failure to exclude it from statistics often distorts crime trends in Japan. The trends of crimes in Japan between 1945 and 2005, excluding professional negligence in traffic accidents, stayed around 1,500,000 cases per year for a long time after World War II, until it increased sharply in the late 1990s. The number of crimes peaked in 2002 at about 2,854,000. While such a rapid increase in the level of crime might give an impression of worsening safety conditions in Japanese society, several scholars cautioned for such an interpretation. In particular, as a reaction to several police scandals in the late 1990s, the National Police Agency issued a guideline for police officers taking police reports. As a result, police officers were required to process many minor consultation issues as part of their police reports. Thus, it is quite possible that this administrative change is one of the reasons why the number of crimes known to police increased sharply in this time period.


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Organized Crime Groups and Drug Crimes Despite relatively low levels of crime in Japan, of particular challenge to the safety of citizens and law enforcement activities are organized crime groups, known as yakuza, and youth motorcycle gangs, known as bosozoku. According to the White Paper on Crime, there were about 43,300 regular members and 43,000 associate members of the Japanese mafia (yakuza) in 2005. The number of incidents of disputes between rival groups was 18, and guns were used in 11 of them. Although the number of disputes among yakuza and the usage of guns may seem low, these statistics need to be interpreted within the context of Japanese society. The Japanese government imposes a very strong gun control policy. Although citizens are allowed to own hunting guns, they are required to go through strict background checks. For example, when citizens apply for a permit of owning hunting guns, police officers not only check the criminal history of the applicants through their database, but also ask neighbors of the applicants about behavioral and social problems associated with the applicants. The possession of handguns is illegal, as defined by the Firearms and Sword Control Law. The police confiscated 489 handguns in 2005. Because of the strict gun control policy, the number of shooting incidents is relatively low in Japan. There were 76 incidents of shooting in 2005, which was a substantial decrease from about 200 shooting incidents in 2001. Ten people died of shooting in 2005. Furthermore, according to the White Paper on Crime in 2001, there were 23,399 bosozoku (youth motorcycle gangs) members in 1,165 groups. Group size varied, but 6.5 percent of them had 30 or more members. Among crimes committed by juveniles, approximately 25 percent of murders, 10 percent of robbery and bodily injury, 6 percent of intimidation/extortion, and 1 percent of larceny were done by bosozoku members. In addition to the fact that substantial numbers of juvenile offenses were committed by members of motorcycle gangs, it is notable that their behaviors affect the quality of life of law-abiding citizens. For example, motorcycle gang members typically get together at night on weekends

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and ride their specially customized motorcycles to make loud noises. Furthermore, motorcycle gangs often become recruitment places for yakuza (Japanese mafia) members, providing generational ties across criminal groups. In addition to violent offenses, the yakuza is closely involved in illicit drug markets. Major illegal drug types in Japan include methamphetamine, cocaine, heroin, synthetic drugs (e.g., MDMA), opium, and cannabis. The major criminal codes defining these illegal drugs are Opium Law, Stimulants Control Law, Cannabis Control Law, and Narcotics Control Law. According to these criminal codes, selling, possessing, trading, producing, and using drugs are considered crimes. Of these illegal drugs, the majority of offenders are charged with violation of the Stimulants Control Law that mainly regulates methamphetamine (13,549 offenders in 2005), followed by violation of the Opium Law (2,063 offenders in 2005). Although the number of drug offenses in Japan is relatively low compared to other offenses such as larceny offenses, the law enforcement agencies tackle the crimes very seriously as illegal drugs are considered as major money sources of organized crime groups. For example, of the arrested offenders in drug crimes, approximately 50 percent were members of yakuza groups. Furthermore, the majority of these offenders were charged with trading and possession of illegal drugs, indicating their close involvement in the illicit market. In addition to the police and related agencies investigating and preventing drug offenses, the correctional agency operating prisons provides specialized rehabilitation programs for inmates convicted of drug offenses. The general public’s attitudes toward illegal drugs are quite different from those held in the Western world. For example, more than 90 percent of the general public identified methamphetamine and marijuana as “very scary things” in a government survey in 2005. Moreover, discussions about legalizing marijuana use, even for medical purposes, are rare. Additionally, Japan as an island nation helps law enforcement agencies relatively easily prevent drugs from being smuggled in by limiting entry points. Various law enforcement agencies, such as


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the police, customs officers, and the Japan Coast Guard, cooperatively work in preventing drugs from being smuggled in.

Crimes Committed by Foreigners In 2005, 14,786 foreign nationals were arrested, which accounted for a total of 43,622 crimes (Penal Code offenses excluding the professional negligence in traffic accidents). More than 80 percent of these offenders were from Asian countries. In 2005, based upon the nationality of foreign offenders, the top country was China (40.2%), followed by Korea (12.6%), the Philippines (8.0%), Brazil (6.0%), and Thailand (3.8%). Japan has an international treaty with the United States and Republic of Korea. The treaty allows Japan to transfer American and Korean criminals to their home countries upon request of a criminal justice agency. Furthermore, the transferring of other foreign national criminals can also be done if mutual cooperation is expected from their corresponding governments. Finally, there are several penal institutions that provide special accommodations for prisoners with foreign nationality.

Police The police are a primary agency in charge of crime prevention, as well as criminal investigation. As both activities are key roles of the police at the local level, the Police Law enacted in 1947 highlights local autonomy of policing, although one legal system governs the whole nation. The organization of Japanese police forces can be divided into two levels: national and prefectural levels. The police organization at the national level is called the National Police Agency, while there are 47 prefectural police headquarters, one in each prefecture, at the local level. Both at the national and prefectural levels, the police are administratively supervised by their respective public safety commissions (the National Public Safety Commission is above the National Police Agency and the respective Prefectural Public Safety Commission is above each prefectural police headquarters). The members of the public safety commissions are all

civilians. These safety commissions were implemented after World War II to safeguard democratic administration and ensure political neutrality in police operations. They were deemed necessary as the authoritative power of the police had been abused by the national government during the war. At the national level, the National Police Agency acts as a central agency to supervise all prefectural police, and it controls national policies related to police matters. The vast majority of law enforcement activities are, however, conducted at the local level. This is clearly indicated by the number of personnel belonging to the National Police Agency and the prefectural police. There are 1,700 police officers and 4,500 civilians working at the National Police Agency, while 250,000 police officers and 29,000 civilians are employed at the prefectural police offices. The Tokyo Metropolitan Police Department, which employs about 42,000 police officers, is the largest among prefectural police offices. Nationwide, there are about 11,600 female officers. Female officers are expected to play a larger role than their male counterparts in tackling juvenile delinquency, sex crimes, and child abuse. A unique feature of the Japanese policing is its application of the police box system, known as koban. The police box (koban) system is implemented nationally and, in many neighborhoods, more than one police officer is assigned to a police box around the clock. Officers use the police box as their base camp for foot patrols and as their office for writing reports. Furthermore, officers are responsible for visiting each household in their neighborhood. Therefore, officers can get to know neighborhood residents and communicate with them regarding safety information, such as recent crime incidents in the area as well as basic crime prevention tips. Officers stationed at the police box can act as agents to strengthen informal social control in neighborhoods, in addition to their formal patrols.

Finding of Guilt Justice System and Rights of Accused A number of actors play parts in the current Japanese criminal justice system. The police are considered as


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the principal law enforcement agency in crime prevention and criminal investigations. The public prosecutor also participates in investigations, especially at later stages, and takes part in prosecuting criminals at the court. Japanese criminal trials employ the adversary trial system to balance the finding of the truth and protect the rights of the accused. Historically, the modern Japanese criminal justice system was established in the late 19th to the early 20th centuries with considerable influence from the French and German criminal justice systems. Under this modern criminal justice system, however, the rights of the accused were greatly limited. For example, the presumption of innocence was hardly maintained in criminal trials, because the same judge was involved in pretrials (similar to an arraignment) and formal trials. Furthermore, the police often abused their power to gain confessions. The current Japanese criminal justice system can be considered as a hybrid of the continental European and the Anglo-American criminal justice systems. After World War II, the American government became closely involved in the postwar reconstruction of Japan. At the heart of the reconstruction was passage of a constitution that fully acknowledges fundamental human rights. Among the 103 articles in the Japanese Constitution, more than 10 are concerned with the rights of the accused and proper application of criminal procedures. These include due process of law in criminal procedures; strict judicial requirements for warrants of search, seizure, and arrest; the right to defense counsel; the right to remain silent; the right to a fair and speedy trial; the right to a public trial; the right to examine/ cross-examine witnesses; evidential rules of confession; the protection against double jeopardy; and the right to monetary compensation by the state if detained but subsequently found not guilty. As the Constitution lays the foundations of the Japanese judiciary, the Code of Criminal Procedure further articulates the rights of the accused, legal restrictions of criminal investigations, prosecutions, and criminal trials. For example, the adversary system is adapted at the trial stage. Furthermore, as a safety measure against abuse of police authority, strict requirements of judicial warrants for

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compulsory investigative measures (i.e., search, seizure, and arrest) are noted in both the Constitution and Code of Criminal Procedure. In fact, the first article of the Code of Criminal Procedure articulates the purpose of this code is to balance the fundamental rights of human beings, finding of the truth, and proper and swift application of criminal laws. When discussing the rights of the accused in the Japanese criminal justice system, it is important to note that the system differentiates the rights of a suspect and those of a defendant (the accused). The suspect may be under the custody of the police and under investigation, although he or she has not been charged with a crime yet. That is, prosecution has not been initiated for the suspect. Once the public prosecutor initiates prosecution (indictment), the status of the suspect changes to the defendant (the accused). The rights of the accused are broader than those of the suspect. One example of different rights between the accused and the suspect is the right to the public defender. In principle, a public defender funded by the state cannot be assigned to a suspect. It is important to note, furthermore, that much of the police investigation, including interrogation (or questions and interviews), is conducted voluntarily in Japan. That is, the police often ask a person of interest to come down to the police station for an interview. Although the person has the right to refuse such a request, any refusal may raise further suspicions. Furthermore, privately funded defense attorneys cannot be present during the interrogations. The accused, on the other hand, has the right to hire legal counsel for his or her defense, as guaranteed by the Constitution. If the accused cannot afford to hire one, public defenders can be assigned whose expenses are paid by the state. For offenses that carry the death penalty, the accused needs to have defense counsel (either privately funded or a public defender) for a trial to proceed. Unlike the United States, the defense counsel cannot be present at the time of interrogations conducted by the police and the public prosecutor. Nonetheless, the accused has the right to have interviews with his or her legal counsel without the presence of any officials


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from the police. According to the Annual Report of Judicial Statistics by the Supreme Court of Japan, about 98 percent of the accused persons in the district and summary courts have been assisted by defense counsel. Of these, about 25 percent of the accused persons tried at the district courts retained their own defense counsel, while 75 percent were assisted by public defenders. In the summary courts, about 90 percent of the accused were assisted by public defenders. Another difference between the rights of the suspect and the accused is regarding bail. When the police arrest a suspect, the public prosecutor needs to decide within 72 hours whether to file a request for detention, if deemed to be necessary for further investigation. A judge, then, decides if the detention of the suspect is necessary based on evaluation of the following criteria: (1) there are reasonable grounds to suspect that the suspect has committed the alleged crime; (2) the suspect does not have a fixed residence; (3) there are reasonable grounds to suspect that the suspect will destroy evidence; and (4) there are reasonable grounds to suspect that the suspect will escape. In principle, the period of pretrial detention is only for 10 days, with a possible extension of another 10 days if there are unavoidable circumstances. The public prosecutor has to decide by the end of the detention period whether or not to file an indictment against the suspect. For a maximum of possibly 23 days (72 hours + 10 days + 10 days), bail is not allowed for the suspect. That is, before the filing of the indictment (or the initiation of prosecution), the arrested suspect needs to be in the physical custody of the police and the public prosecutor, as long as a judge determines detention is judiciary warranted. Once an indictment is filed, the detention of the accused continues automatically. As initiation of prosecution changes the status of the suspect to that of the accused, however, he or she may apply for bail. The Code of Criminal Procedure stipulates that the request for the bail should be granted, unless there are reasonable grounds to suspect that the accused will destroy evidence, the accused is charged with a serious offense, or the accused is likely to commit another crime once released. Despite such a

principle stated in the Code of Criminal Procedure, only 13.4 percent of the detained defendants tried in the district courts were granted bail in 2005. While the majority (64.3%) of defendants tried in the district courts were detained between one and three months, a substantial portion (25.3%) of defendants were detained for longer than three months.

Public Prosecutors The organizational structure of the public prosecutor offices is similar to that of the courts, with the Supreme Public Prosecutors Office as its highest hierarchical structure, followed by High Prosecutors Offices, District Public Prosecutors Offices, and Local Public Prosecutors Offices. There were approximately 2,350 public prosecutors (including 900 assistant public prosecutors), as of 2003. Qualifications of the public prosecutor are the same as the judges and the defense counsel. These qualifications include that they have passed the national bar exam, that they have gone through training at the Legal Training and Research Institute, and that they have passed the final examination upon completion of the training. The public prosecutors take part in all aspects of criminal investigators, although initial criminal investigations are primarily conducted by the police. The public prosecutors’ tasks are to interrogate the suspect, file a request for detention, and initiate prosecution. A broad degree of discretion is allowed for the public prosecutor as to whether or not to prosecute the suspect. The public prosecutor makes such a decision after considering a variety of factors, including a suspect’s age, personality, home environment, past criminal history, behavior after the crime, indication of remorse, the gravity of the crime, and motivations to commit the crime, among others. Including the Penal Code offenses and Special Code offenses, the police cleared approximately 68 percent of cases in 2005. All cleared cases, except for minor offenses specified by the public prosecutors, were transferred to the public prosecutors who conduct further investigations. Based upon the evaluation of evidence and the gravity of crimes, the


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public prosecutor decided whether or not to prosecute offenders. Of the total number of offenders processed to the public prosecutor, only a small fraction was prosecuted for formal trials (7%). A substantial amount of offenders (34%) were processed to the summary courts via summary procedures that involved examinations of documents and no open court sessions. Summary procedures could be initiated if crimes were punishable with fines less than 500,000 yen (approximately US$5,000) and if the accused did not challenge the charges. Noteworthy of mention is that the public prosecutor suspended prosecutions for a large number of offenders (46%). The public prosecutor decided to suspend prosecutions by weighing several factors, such as offenders’ age, prior records, personality, gravity of offenses, circumstances surrounding criminal acts, and conditions subsequent to criminal acts (e.g., financial restitution to the victims, victims’ suffering, etc.).

Courts The Japanese judiciary has five types of courts: the Supreme Court, High Courts, district courts, family courts, and summary courts. The first two courts are considered to be appellate courts, while the last three are the Court of First Instance with different jurisdictions by types of case. The Supreme Court is regarded as the court of last resort and is located in Tokyo. The Supreme Court has jurisdiction over cases making the second appeal. Grounds for appeal to the Supreme Court are limited to a violation of the Constitution, an erroneous interpretation of the Constitution or laws, and a conflict with Supreme Court precedents. High Courts have jurisdiction over cases making the first appeal (an exception to this is crimes related to insurrection that are first tried at High Courts). Grounds for appeal with the High Courts are clearly specified in the Code of Criminal Procedure. These include, but are not limited to, an error in fact-finding, an excessively harsh or lenient punishment, and an error in the interpretation of laws. District courts are the Court of First Instance where the public prosecutor files an allegation, except for cases whose first jurisdiction resides in

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family courts and summary courts as specified by laws. The judgment at district courts is based upon a single-judge panel, with a few exceptions, for example, criminal cases that are punishable by the death penalty or imprisonment for life. In such a serious criminal case, a three-judge panel is used to form a judgment. There are 50 district courts (one for each of the 47 prefectures and an additional three in Hokkaido Island due to its large land size) with 203 branches in total. Family courts were established based upon a postwar judicial reform to specialize in domestic relations cases and juvenile delinquency cases. Thus, they have the first jurisdiction over disputes taking place in a family context, such as the determination of guardianship and marital disputes. Furthermore, family courts also have the first jurisdiction over juvenile delinquency cases, as well as cases that endanger the welfare of children. As the United States was actively involved in the postwar reconstruction of the Japanese criminal justice system, the philosophy behind this separate court system for juvenile delinquents is similar to that of the United States, namely, that juveniles need guidance and help instead of punishment. Thus, the emphasis is placed more upon rehabilitation and less upon punishment. Furthermore, more emphasis is placed upon offenders and less on offenses. Based upon this philosophy, not only juveniles who have committed a delinquent act, but also juveniles who are considered prone to commit a delinquent act in the future can be brought to the family court. Unlike criminal courts, family court proceedings are conducted in a closed court. Although the initial investigation may be conducted by the police before the case is referred to a family court, the investigation of delinquent acts is also conducted by family court probation officers. Judgments made in the family court take into account not only juveniles’ delinquent acts, but also their personality, family relationships, and home environment. Psychiatrists are also called upon to provide medical evidence for juveniles’ psychiatric conditions. Oftentimes, juveniles may be placed in a juvenile classification home for scientific and medical evaluations. Based upon the evaluation of these wide varieties of factors, the family court


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judges may adjudicate the juveniles and place them under probation or in juvenile training centers. In the case of serious offenses, however, the current Juvenile Law allows family court judges to transfer juveniles aged over 14, who have committed a serious crime, to adult criminal courts. Summary courts have territorial jurisdictions over criminal cases that are punishable by fines and habitual gambling crimes. As a general rule, the summary courts cannot impose imprisonment with or without labor. Exceptions to this rule are some larceny offenses where the summary courts can impose imprisonment with labor for not longer than three years. A substantial number of criminal cases are handled by the summary courts, indicating the importance of the summary courts in effective administration of the criminal justice in Japan. For example, while 77,507 of adult offender cases were tried at the district courts and 386 at the family courts, 730,792 cases were handled by the summary courts in 2005, according to the White Paper on Crime 2006. Approximately 98 percent of cases processed by the summary courts involved summary procedures that only involved examinations of documentation and no open trials. Such summary procedures can be initiated if the crimes are punishable by fines less than 500,000 yen (approximately US$5,000) and if the accused does not contest the charges against him or her. There are 15 Supreme Court judges, 1,597 judges, 915 assistant judges, and 806 summary court judges in lower courts (assistant judges can only participate in a multijudge panel), as of 2006. Although many judges predominantly handle either civil or criminal trials, statistics are not available with regard to how many judges handle predominantly criminal cases. In principle, the judges have to have the same qualifications as the public prosecutors and the defense counsel, such as that they have passed the national bar exam. Exceptions to these qualifications are that Supreme Court judges can be selected from distinguished legal scholars and that summary court judges can be selected from individuals with distinguished knowledge and expertise in legal matters.

Punishment Types of Punishment The Japanese criminal court can impose a wide range of punishments, including the death penalty, imprisonment with or without labor for an indeterminate or determinate term, penal detention, and fines. The most severe form of punishment in the Japanese criminal justice system is the death penalty. The method of execution is by hanging. Recent issuances of death penalty sentences have varied, being 5 in 2001, 3 in 2002, 2 in 2003, 14 in 2004, 11 in 2005, and 4 in 2006. The numbers of prison inmates executed also varied by year: 2 in 2001, 2 in 2002, 1 in 2003, 2 in 2004, 1 in 2005, and 4 in 2006. Although the Code of Criminal Procedure requires that convicted offenders sentenced to the death penalty be executed within six months of the final court decision, many inmates on death row spend more than six months in prison. A particular issue concerning the death penalty in Japan is that the Minister of Justice needs to sign a document and authorize an execution. This means that the actual execution is, to some extent, at the discretion of the Minister of Justice. Some ministers may be reluctant to sign the paper and thus effectively halt the death penalty, although the court may have imposed such a penalty. For example, Justice Minister Seiken Sugiura publicly announced in 2005 that he would not sign the document during his term in office. The Penal Code states that a homicide is punishable by the death penalty, imprisonment with labor for an indefinite term, or imprisonment with labor for a definite term of longer than five years. Of these available sentencing options, the majority of homicide cases were ended with sentences for 5–10 years (29.3%) and 10 years and more (26.7%), while a substantial proportion of sentences were suspended (17.1%). Robbery is punishable by imprisonment with labor for a term longer than five years. The two robbery cases that resulted in the death penalty were robbery resulting in death. The most frequent forms of punishments for robbery were imprisonment for 5–10 years (34.8%) and 3–5 years (32.8%).


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A prison cell for several inmates at Tokyo’s Fuchu prison, January 24, 1997. The Japanese-style futons, or sleeping mats, are tidily folded and the cell is kept clean and orderly according to the rules. Exercise is forbidden in cells, tobacco is banned, television viewing is controlled, and prisoners’ faces must be visible while they sleep. (AP Photo/Wahyu)

Bodily injury is punishable by imprisonment with labor for not more than 15 years or a fine of not more than 500,000 yen (approximately US$5,000). The typical punishment for bodily injury was imprisonment for 1–3 years, although a large portion of such sentences were suspended. Theft is punishable by imprisonment with labor for not longer than 10 years or a fine of no more than 500,000 yen (approximately US$5,000). Similar to bodily injury, the typical punishment for theft was imprisonment for 1–3 years, although a large portion of such sentences were suspended. Rape is punishable by imprisonment with labor for a definite term of longer than three years. The data available through the Supreme Court of Japan combine sentences of rape and other sexual crimes. A large proportion of offenders are given suspended

sentences, which is a typical characteristic of the Japanese criminal justice system. Punishments for illicit drugs vary by types of drugs (e.g., opium and methamphetamine) and charges (e.g., possession, trade, and cultivation). For offenders who were convicted of the Stimulants Control Law, which covers various drugs including methamphetamine, a typical punishment was imprisonment for 1–3 years. A notable characteristic of sentences for these drug offenders was that the majority of offenders were imprisoned, as opposed to receiving suspensions like other types of crime. A unique characteristic of Japanese criminal trials is that plea bargaining is not allowed, although many defendants do not contest charges against them. Admission of guilt is often used as an indication of remorse and can be grounds for a lenient


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sentence. Furthermore, whether financial compensation was made by the accused can also be grounds for a lenient sentence. Thus, oftentimes, the defense counsel presents evidence of mitigating circumstances surrounding the accused to obtain lenient sentences during court hearings. Finally, the most frequent form of punishment given out by the courts was fines (89%). It is notable that only a very few defendants were found not guilty in the Japanese criminal justice system (66 defendants or about 0.05% of the defendants prosecuted for formal trials in 2005). This could be largely due to the wide discretion given to the public prosecutor regarding their decisions to prosecute. That is, prior to prosecutions, the public prosecutor carefully selected cases that required penal punishments. Another characteristic of the sentencing patterns in the Japanese criminal justice system was that sentences were suspended for a large number of convicted offenders. In 2005, sentences were suspended for 55,000 defendants, while 34,000 were imprisoned.

Prisons There are two departments that are responsible for corrections and rehabilitations. The Correction Bureau of the Ministry of Justice is the prime agency providing correctional services for both adults and juveniles. As of 2006, there were 74 penal institutions (59 prisons, 8 juvenile prisons, and 7 detention houses) with 113 branches (6 prison branches and 107 detention house branches). Additionally, there were 53 juvenile training schools. Detention houses mainly hold arrested suspects and defendants awaiting trials. Although these arrested suspects and defendants awaiting trials are also held in prisons, they are segregated from prison inmates in such a case. The average number of people housed in the penal institutions in 2005 was 77,932 (11,131 of whom were arrested suspects and defendants awaiting trials). A vast majority of people housed in penal institutions were males (about 94%). Out of 74 penal institutions, 56 (76%) exceeded their capacities in 2005. As the number of prison inmates has been increasing since the late 1990s, the total

capacity of penal institutions has been exceeding 100 percent since 2001. The Correction Bureau employs a classification system to identify penal institutions and correctional treatment programs that are best suited for rehabilitation of prison inmates. The classification system evaluates inmates based upon their criminal history, their personal characteristics (e.g., sex, age, mental illness, citizenship), and types of correctional programs (e.g., vocational training, drug rehabilitation, organized crime rehabilitation, sex crime rehabilitation, moral teaching, and traffic safety). Inmates are evaluated at the beginning of their sentences, and regularly afterward, to identify correctional treatment programs suited for individual needs. For example, first-time offenders placed in prisons are classified as Class A, while career criminals held in prisons are classified as Class B. Juvenile offenders placed in the system are classified as Class J. Women incarcerated in prisons are classified as Class W. Foreign nationals incarcerated in prisons are considered Class F. The Rehabilitation Bureau of the Ministry of Justice is the primary agency responsible for administering rehabilitation programs for parolees and individuals under probation. To serve the goal of rehabilitating ex-offenders, the bureau is actively involved in all aspects of rehabilitation services, for example, adjusting an inmate’s family and surrounding environments prior to parole, and supervising halfway houses and volunteer probation officers. In the Japanese criminal justice system, voluntary probation officers play a crucial role in rehabilitation and supervision of parolees and probationers. Voluntary probation officers have their expenses paid by the government, but receive no other compensation as they supervise and assist probationers and parolees in their rehabilitation. Volunteer probation officers evaluate home and work environments of these ex-offenders prior to their parole and make adjustments if problems that may affect their rehabilitation exist. The importance of volunteer probation officers can be illustrated by sheer comparisons of the number of professional probation officers (approximately 1,400) and volunteer probation officers (approximately 50,000).


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Finally, at the correction and rehabilitation stage, approximately 53 percent of inmates were paroled before the completion of their sentences. For juvenile offenders placed in juvenile training schools, 98 percent were granted paroles before completing their terms. Of 55,000 defendants whose sentences were suspended, 5,000 were suspended with paroles.

Juvenile Offenders Adult and juveniles are distinguished at the age of 20 in the Japanese criminal justice system. Individuals over the age of 20 who violate the Penal Code are prosecuted and tried at adult criminal courts, although adult offenders who are charged with endangering the welfare of children can also be brought to the family court, as the focus here is on the children as the victims of the crime. This separate court system for juveniles is established based upon the philosophy that juveniles are still amenable. Juveniles are considered to be in need of help and guidance. Thus, when deciding the best dispositions for juveniles, stronger emphasis is placed on rehabilitation than on punishment. To adequately rehabilitate juveniles, various factors are considered, including but not limited to, family environment, personality, past delinquency history, gravity of offenses, and association with other delinquents. To assess proper treatments for juveniles, the courts may place them in a juvenile classification home for scientific and medical evaluations for a maximum of four weeks. Rather than the adversary trial system, characteristics of the juvenile justice system include a focus on rehabilitation rather than punishment, closed-court hearings, and cooperative hearings among parties involved to determine appropriate measures in the best interest of the accused juveniles. When a juvenile commits a serious offense, however, a family court judge may decide to refer him or her back to the public prosecutor so that the juveniles can be tried at an adult criminal court. It is important to note that the Juvenile Law states that juveniles younger than the age of 14 cannot be held responsible for criminal acts. Furthermore, in

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practice, the family court only transfers juveniles, who are older than 16 and committed a serious offense such as murder, to an adult court. In deciding whether or not a juvenile should be transferred to the adult court, the family court judge examines a variety of factors, such as the motivation for the crime, the circumstances surrounding the case, the gravity of the crime, personality, age, and the home environment. When juveniles are transferred to the adult criminal court, trial procedures for adult criminals are applied to the accused juveniles. When juveniles are tried in the adult criminal court, the death penalty cannot be imposed upon juveniles younger than the age of 18. Juveniles who were tried in the criminal court could be placed in juvenile prisons for their rehabilitation. Finally, it is important to note that, under the Japanese criminal justice system, juveniles who are considered prone to delinquent behavior and likely to commit a crime in the future can also be referred to the family court by the police and child welfare agencies. For example, juveniles with a history of running away and intimate associations with known adult offenders can be considered as juveniles prone to delinquent behavior and referred to the family court by the police, the public prosecutor, and social workers at child welfare agencies. Out of about 216,000 cases refereed to the family court in 2005, the majority of cases were dismissed, 19 percent of which had hearings and 56 percent of which had no hearing. Only 2 percent of juveniles processed to the family court were sent to juvenile training schools, while a substantial portion of juveniles were placed under probation (17%). Juvenile training schools offer a variety of vocational training, education, and rehabilitation services. As of 2006, there were 53 juvenile training schools in Japan. George Kikuchi and Yoko Baba Further Reading Leonardsen, Dag. (2004). Japan as a Low-Crime Nation. New York: Palgrave Macmillan. Ministry of Justice: http://www.moj.go.jp/EN GLISH/index.html.


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National Police Agency: http://www.npa.go.jp/en glish/index.htm. Parker, Craig I. (2001). The Japanese Police System Today: A Comparative Study. Armonk, NY: M. E. Sharpe. Supreme Court of Japan: http://www.courts.go.jp/ english. Thornton, Robert Y., and Katsuya Endo. (1992). Preventing Crime in America and Japan: A Comparative Study. Armonk, NY: M. E. Sharpe.

Kazakhstan Legal System: Civil Murder: High Corruption: High Human Trafficking: Medium Prison Rate: High Death Penalty: No Corporal Punishment: No

The Kazakh legal and judiciary system is broken down into three components: district, provincial, and federal. In general, the district courts handle most of the criminal cases. The provincial courts hear appeals from the lower-level district courts. Finally, the federal Supreme Court, made up of 44 members and the highest court in the country, is mainly an appeal court for the provincial courts. Each level of the court system is overseen by the executive branch of the government and the judges are appointed by the president. In addition to the three courts, the country’s Constitution allows for a Constitutional Council, which handles all constitution matters. The Constitutional Council is composed of seven members. The president appoints three of the council members. The legislature appoints the other four. The president holds the right to veto all decisions rendered by the Constitutional Council. There is no form of appeal for a decision issued by this council.

Role of Police

Background Kazakhstan, the largest of the countries in central Asia, has a population of approximately 15 million people. In 1936, Kazakh became a republic of the Soviet Union and in 1991, with the dissolution of the Soviet Union, Kazakhstan came under the rule of a new president. In 1995, the country adopted its own constitution as an independent nation. Kazakhstan has taken on a legal system similar to that of the Soviet era. This legal system consists of the National Security Committee, the Ministry of Internal Affairs, and the Office of the Procurator General. Each of these sections of the legal system maintains its own individual responsibilities in law enforcement and protection. The National Security Committee handles all intelligence and counterintelligence affairs. The Ministry of Internal Affairs oversees the militia (also known as the police), the investigation of criminal activity, fire protection, automotive inspection, and preservation of order. Lastly, the Office of the Procurator General handles the prosecution of criminals.

Kazakhstan’s police force, which is headed by the Ministry of the Interior, was staffed at approximately 20,000 in 2005. Although they were previously headed by a military official, the police have been operating under a civilian minister since 2003, which has effectively removed them from military control and placed them under civilian jurisdiction. There are different categories of police within the country. The secret police are used by the Kazakhstan government to attempt to suppress opposition to the government. The country has a separate agency, known as the Financial Police Agency, which reports directly to the prime minister. This agency manages the investigation of financial crimes such as money laundering. The regular police force of Kazakhstan handles all other issues. They are known for corruption and brutality, according to mongabay.com. Because of the many different units, it is often unclear under which jurisdiction a crime should be handled. Due to this uncertainty of jurisdiction and the well-known problem of corruption, individuals


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feel that they must watch out for each other. Civil responsibility is taught within the school system to aid in the deterrence of crime. Presently, the Kazakhstani police agencies are facing a shortage of staff and the existing staff is lacking a strong degree of professionalism. These problems are said to be due to the low pay rate provided to the officers and the discontinuation of amenities that were allowed as compensation for law enforcement services, such as apartments. Law enforcement positions are becoming difficult if not impossible to fill. The country is attempting to combat this problem by developing schools for policing whose purpose is to teach potential officers the elements of police work, the Constitution of the republic, and criminal and administrative codes. This education is provided free of charge to the trainees. In return, the trainees help their high school teachers keep order within the schools. Once they graduate from the schools, they are guaranteed credit toward acceptance into the police academy and toward furthering their education outside of the law enforcement realm.

Crime Classification of Crimes Article 9 of the Criminal Code of the Republic of Kazakhstan defines crime as a “publicly dangerous act.” Article 10 further divides crimes into those of “lesser gravity, crimes of medium gravity, grave crimes, and especially grave crimes.” Crimes of lesser gravity include intentional acts for which the punishment is two years or less of “deprivation of freedom” or negligent acts for which the consequence is no longer than five years of imprisonment. Crimes of medium gravity are those for which the punishment does not go beyond five years of deprivation of freedom. This category also includes negligent crimes whose punishment is imprisonment for a period of time greater than five years. The category of grave crimes consists of acts for which the maximum punishment does not exceed 12 years of imprisonment.

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Especially grave crimes are defined as those crimes punishable by imprisonment for more than 12 years. Especially grave crimes include attempt on the life of a person administering justice or preliminary investigations; attempt on the life of the president; murder with aggravating circumstances; planning, preparation, or conduct of aggressive war; sabotage; state treason; terrorism; use of prohibited means and methods of conducting war; genocide; and mercenary participation in armed conflict. Article 15 states that the age of criminal responsibility is 16 years; however, exceptions may be made for murder; rape; kidnapping; theft; robbery; brigandage; extortion; aggravated car theft; terrorism; capture of a hostage; theft or extortion of arms, ammunition, explosive materials, and explosion devices; hooliganism under aggravating circumstances; vandalism; theft or extortion of drugs or psychotropic substances; and a range of other crimes. Individuals who are psychologically lacking and therefore not completely aware of the danger of their acts cannot be held criminally liable. The rate of juveniles being detained for criminal behavior is very high. Some believe this may be due to the country implementing the same laws and regulations for minors as they do for adults and they are tried under the same judicial system. Within the country of Kazakhstan, some types of crime are particularly troublesome; in particular, domestic violence and rape, which severely impact the women of the country. In domestic violence situations, the Kazakh police are only permitted to handle physical violence. They do not deal with any sexual or economic violence occurring within the family environment. The grave crime of rape is handled in a private manner. This makes the prosecution of an individual for rape charges extremely difficult. Since the affair is a private matter, it is the responsibility of the victim to obtain legal counsel and pursue the prosecution of the offender. For aggravated rape, the trial may be public and prosecutors can pursue the case. However, they may also choose to decline, in which case the responsibility to seek justice returns to the victim. Another problem plaguing Kazakhstan is that of white-collar crimes such as embezzlement, tax fraud, and power abuse. However detrimental


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they are to the country, they are an ongoing affair of frequent occurrence. Human trafficking is one of the most prevalent crimes found throughout Kazakhstan. It is the thirdmost profitable crime in the country, according to Freedom House. Kazakhstani people are trafficked not only within the confines of the country but also to other areas such as the United Arab Emirates (UAE), Germany, Greece, Israel, Russia, and Turkey. A factor that partially enables the act of trafficking is the lack of compliance with the standards for the elimination of trafficking on the part of the government. According to the Trafficking in Persons Report 2007 U.S. Government Report issued by the Office to Monitor and Combat Trafficking in Persons, Kazakhstan has been placed on the Tier 2 watch list for failing to provide substantiation of their initiative to combat human trafficking.

Drug Offenses The drug problem in Kazakhstan originated with the dissolution of the Soviet Union. The country became a primary route for drugs in course from Afghanistan to consumers in Russia and Europe. Lax customs controls have made Almaty, a major city in Kazakhstan, a crossroads for the trade of opiates and cannabis from southwest Asia as well, according to a Library of Congress report. The country has now also become a user of the drugs and a major source of cultivation of cannabis since excellent growing conditions for cannabis and opium poppies can be found throughout the country. The extreme poverty throughout central Asia makes drugs appear to be a worthwhile business. In addition, the corruption in agencies such as the police and excessive amount of migration throughout the area only aid in the trafficking of drugs. These factors and its proximity to Afghanistan make drug trafficking a lucrative business for many, and a large crisis for Kazakhstan.

Crime Statistics Statistics on crime for the Republic of Kazakhstan are available through the United Nations Office on Drugs and Crime. During 2005 it was

reported that 625.7 kilograms (1376.5 pounds) of heroin were seized, an increase from the 457.7 kilograms (1,006.9 pounds) seized during 2004. Relatively consistent with the amount of heroin was the quantity of opium seized in Kazakhstan. In 2005 the reported amount of opium obtained was 668.9 kilograms (1,471.6 pounds), compared to 352.8 kilograms (776.2 pounds) in 2004. By far, the most troublesome quantities of drugs seized within the country are that of cannabis. In 2005 officials obtained 21,732.6 kilograms (47,811.7 pounds) of cannabis, which remained at a relatively steady quantity from the previous year of 21,348.6 kilograms (46,966.9 pounds). Information reported to the United Nations Office on Drugs and Crime by the Kazakh’s Ministry of the Interior provides the 2005 statistics on drug-related crime within the country. The country reported 9,741 registered drug-related crimes, which amounts to 65.7 drug-related crimes per 100,000 people. There were a reported 7,429 drugrelated convicts in 2005, for a rate of 50 per 100,000 people. Statistics reported to the United Nations Office on Drugs and Crime by the Kazakh’s General Prosecutors Office indicated, in 2005, 146,347 crimes were registered, which equals a rate of 986.8 crimes per 100,000 people. There were a reported 57,902 convicts, which provides a rate of 388.5 convicts per 100,000 people. Statistics show, within the first six months of 2006, there were a reported 68,900 crimes committed in Kazakhstan. The republic saw 873 murders, 6,092 robberies, and 27,934 thefts. According to this information, the total rate for reported criminal activity in Kazakhstan for the first half of 2006 is 464 per 100,000 people.

Finding of Guilt Rights of the Accused Kazakhstan’s Constitution encompasses generally recognized international human rights standards with which all criminal proceedings must strictly comply. This Constitution encompasses the widest possible range of civil, political, economic, social,


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and cultural rights of citizens. The Code for the Execution of Criminal Penalties further outlines the specific rights of convicted criminals and offers them protection both socially and legally. Article 14 of the Constitution states that everyone is equal before the law and that “(n)o one shall be subject to any discrimination for reasons of origin, social status, property status, occupation, sex, race, nationality, language, attitude towards religion, convictions, place of residence or any other circumstances.” Everyone has the right to secrecy of personal savings and investments, letter exchange, telephone conversation, postal, telegraph, and other communication. Restrictions of these rights are only allowable during criminal proceedings in accordance with procedures directly established by the law. According to the Criminal Procedural Code of the Republic of Kazakhstan, a person suspected or accused of a crime has the following rights: to immediately be given the basis for his or her detention as well as the legal qualification of the crime of which he or she is suspected or accused; to receive from the body of criminal prosecution an immediate explanation of his or her rights; to have a public trial by an independent, competent, and impartial tribunal; to be present at his or her trial; to be heard in court; to provide explanations and testimony with regard to suspicions or accusations that exist against him or her in a language of which he or she has a command; to utilize the assistance of a translator at no cost; to be presumed innocent; to abstain from giving self-incriminating testimonies or explanations; and to present evidence and call witnesses in his or her defense. It was not until 2007 that trials by jury were implemented, although the law did allow for such trials long before this time. Only serious murder cases are brought before a jury. Accused individuals have the right to legal counsel and to have unlimited, private, confidential meetings with their legal representatives from the moment of their initial detention. Furthermore, the defendant has the right to have his or her defense counsel present during questioning and other investigative acts. Defense also has the right to participate in preliminary hearings, judicial discovery, and court debates.

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At any point in the criminal proceedings, suspects or accused individuals have the right to refuse counsel, which signifies the individual’s intent to perform his or her own defense. However, in cases in which the defendant is a minor, faces 10 or more years’ imprisonment, does not speak the language of the court, or has a mental or physical disability, the law dictates that he or she must have legal representation. If accused individuals cannot afford legal representation, the Constitution guarantees qualified, government-provided legal representation free of charge. After their case has been heard, individuals have the right to file complaints concerning acts and decisions of the court, procurator, investigator, or inquest officers. Each convicted person has the right to challenge his or her sentence and have his or her sentence revised by the upper court. They also have the right to ask for pardon or mitigation of punishment. Kazakhstan has very low acquittal rates—less than 1 percent. Some believe this is the result of the power of the prosecutors, passivity of judges, and the powerlessness and low quality work of the defense bar.

Investigation and Prosecution Procedures for initiating and conducting criminal prosecution are outlined in Kazakhstan’s Code of Criminal Procedure. These guidelines are strictly followed to ensure all suspects are given an impartial hearing. Preliminary investigations, researching circumstances of cases, carrying out criminal prosecution, and implementing sanctions and court decisions are the responsibility of the investigator. Once these tasks are completed, finished criminal cases are sent to the procurator. The burden of proof, which consists of collecting, evaluating, and utilizing evidence rests with the procurator, or prosecutor, who exercises the supervision of the legality of such activities as interrogation, investigation, and court decisions. The prosecuting party must be represented by a state


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procurator or a private procurator when the court is considering each criminal case. In criminal proceedings in which the procurator represents the state, the procurator must be present at all stages of the main trial. Procurators wield a large amount of power in Kazakhstan because they, rather than judges, have the right to issue arrest, search, and detention warrants. They also have the power to protest and suspend judicial decisions. Corruption of prosecutors is a real concern in Kazakhstan. To elicit bribes, procurators will intervene in civil or commercial matters in which the state has no interest in the outcome, according to an American Bar Association report. Furthermore, procurators will fail to provide protection to citizens who are unable to afford to prosecute privately or whose cases do not seem important to the local authorities. The inquest officer is responsible for performing pretrial procedures associated with criminal cases and is obliged to comply with the instructions of the court, procurator, body of preliminary investigation, and the body of interrogation.

Court System The court system in Kazakhstan remains objective and impartial and has interest only in upholding the law, not in prosecution or defense. It functions at three levels: local courts, regional courts, and the Supreme Court. Local courts, or rayon courts, handle petty crimes such as pickpocketing and vandalism. As of 2004, there were approximately 260 rayon courts in Kazakhstan with 1,851 judges. There are also 16 economic courts, which handle commercial disputes. Regional courts, or oblast courts, are separated into civil, criminal, and supervisory sections. These courts handle more serious offenses, such as murder and grand larceny, as well as appeals from local courts. These courts, with 572 judges, sit in each of the country’s 14 oblasts, plus in the cities of Almaty and Astana. The Supreme Court handles appeals of lower-level court decisions. The Supreme Court is divided into civil, criminal, and supervisory sections. It has 44 members and hears cases in panels of nine or three judges depending on the seriousness of the case.

Supreme Court justices are elected by the Senate, upon the proposal of the president, based on a recommendation by the High Judicial Council, which is composed of the chairpersons of the Constitutional Council, Supreme Court, Prosecutor General, Minister of Justice, two Senate deputies, six judges, the Secretary of the High Judicial Council, and others appointed by the president. Judges in oblast courts and rayon courts are appointed by the president, based on the recommendation of the High Judicial Council and the Minister of Justice. All judges in Kazakhstan serve life terms. The president determines how many judges there are as well as their rate of pay. All judges must be citizens of Kazakhstan, have graduated from a law school, be at least 25 years old, and have two years of prior legal experience. Oblast-level and Supreme Court judges must have five years of prior legal experience, including a minimum of two years serving as a judge. The appointment of rayon-level judges is based on examination and criteria such as grades throughout law school and reputation in the community. The appointment of oblast-level and Supreme Court judges does not depend on examination, but other criteria such as experience, professionalism, and reputation are considered. All judges are required to attend the Judiciary Academy for initial training (Bhavna), and additional training sessions are offered within each individual court and through the Union of Judges of Kazakhstan.

Pretrial Incarceration Pretrial detention is permissible in the Republic of Kazakhstan. Suspects may be held in custody for no more than 72 hours before being officially charged with a crime. During the investigation process, detainees are held in investigatory jails. At their request, when appropriate, accused individuals may be allowed to work inside the jail during their detention and receive appropriate wages after various deductions specified by law. A person may not be held in pretrial detention for more than two months. However, this period may be extended up to 12 months if it is found to


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be impossible to complete the investigation in a shorter time period. Any person detained must be immediately notified of the reason for his or her detention as well as the legal description of the offense of which he or she is suspected or accused. Detainees are afforded various rights, such as the right to courteous treatment; the right to receive letters and parcels; the right to religious practices; the right to private and confidential meetings with legal counsel, representatives of trade unions, and other voluntary associations acting as defense counsel; as well as with relatives and other persons participating in the case as counsel. If it is believed that a suspect is attempting to elude the preliminary inquiry, hamper investigations, or that he or she is likely to continue committing crime during judicial proceedings, preventative measures can be taken. These include disallowing the suspect to change addresses without permission, placing a minor under supervision, bail, house arrest, or arrest.

Punishment Types of Punishment Incarceration is the most common punishment used for criminal cases in the Republic of Kazakhstan, but fines, probation and community service, or social work, are alternative forms of punishment that can be applied to individuals who are convicted of lesser offenses. In 2006, 51 percent of convicted individuals were sentenced to confinement, 7 percent were fined, 2 percent were sentenced to correctional work, 38 percent received a suspended conviction, and less than 1 percent were sentenced to execution (the death penalty was abolished in 2007). Colonies in Kazakhstan were once selfsupporting through prison labor. All prisoners were expected to produce something during their incarceration. However, this is not the case in Kazakhstan today. Now, convicted individuals are held in corrective facilities known as “colonies,” in which they are given the opportunity to be rehabilitated through socially useful labor, education, vocational training, and public pressure.

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Since the new Code for the Execution of Criminal Penalties in 1998, convicted individuals have been categorized based on the seriousness of their offense. The conditions of their incarceration are based on this distinction. These categories are normal, relaxed, rigorous, and privileged. Eligibility for parole is also based on this distinction. Convicted persons may be eligible for parole after serving onehalf, one-third, two-thirds, or three-quarters of their sentence, depending on their classification. A large-scale prison reform program was begun in 1998 with support from the International Centre for Prison Studies, Penal Reform International, the Royal Netherlands Tuberculosis Association, and the Polish Prison Administration. This project had two main parts. The first involved introducing human rights and strategic management programs within the regional prison administration and prison colonies. The second aspect of the reform focused on the problem of tuberculosis among the prison population. This project was a success in that it brought a substantial amount of professional training to the employees of the penal system and improved prison conditions, including altering the psychological climate within the prisons by improving staff and prisoner relations. Staff behavior was also better managed after this program’s introduction. This program was so successful in its initial three years that it was extended for another three years at the end of 2000. The Prison Committee had developed its own five-year plan of reformation, which included addressing such issues as overcrowding, staff to inmate ratios, staff training, treatment of tuberculosis, insufficient work for prisoners, and a need for programs that better prepare inmates for their release from prison to ensure they do not recidivate and can lead healthy and productive lives. In 2004, several amendments were made to the criminal statutes of Kazakhstan. These amendments were intended to temper the criminal punishment system, reduce the number of offenses punished by incarceration, and simplify investigating procedures. Changes included the introduction of plea bargaining and increasing the use of fines in place of imprisonment. Some petty crimes,


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including assault, assault while under the influence, and causing harm through negligence, were decriminalized and reclassified as administrative offenses.

Juvenile Justice Although there is not a separate juvenile justice system in Kazakhstan, there are specific chapters and articles within the criminal codes that pertain specifically to juvenile crime and punishment, and juveniles are held in separate facilities. Sentences used in juvenile cases include fines, forfeiture of the right to undertake certain activities, community service, correctional work, arrest, and deprivation of liberty. Juveniles may also be sentenced to any of the following educational measures: warning; placement under supervision by a parent, guardian, or specialized state body; restitution; restriction of leisure time; or placement in a special correctional or clinical-educational institution. Minors accused of committing a crime enjoy better food and living conditions than adults. They are also entitled to daily walks (of no less than two hours) and to watch movies and television. Some of the premises are also equipped for sports. In general, juvenile colonies provide more opportunities for activities outside the premises than are available in adult colonies, and juveniles are allowed more contact with family. Youth penal colonies are categorized into four types: ordinary, mitigated, privileged, and severe. Offenders generally begin their sentence under “ordinary” circumstances and may be transferred based on their behavior. Offenders who are well behaved and show effort toward both work and education programs may be transferred after three months to “mitigated” circumstances. Under ordinary circumstances, inmates are allowed two long and six short visits per year, and they are housed in a dormitory within the colony. If held under mitigated circumstances, the offenders are still housed within the colony’s dormitory, but the inmates are allowed twice as many visits per year and may be allowed to enjoy these visits outside the colony. As the inmates’ release date draws

near, they may be transferred to “privileged” circumstances under which they are allowed to sleep outside the colony under supervision. Juveniles held under privileged conditions are allowed further visitation and can use money without restriction and wear civilian clothing and footwear. If sentenced to “severe” circumstances, the inmates are only allowed four short visits per year and are isolated within the colony unless working or studying. These inmates are those convicted of an intentional crime with aggravating circumstances. Juveniles can earn privileges or rights based upon their behavior, volunteer work, and academic studies. These rights include the right to attend cultural or sporting events outside the educational colony, with facility supervision, and the right to leave the colony with family supervision. Convicted juveniles also have the right to receive mail and parcels; the right to practice religion and attend services; and the right to have telephone conversations with relatives. Juveniles are also given the opportunity to perform volunteer work in the community to aid in the reintegration of the offenders after their sentence.

Typical Punishments The severity of sentences in Kazakhstan is often based on factors surrounding the offense. For example, assault and battery have a maximum sentence of 10 years in prison, including cases of domestic abuse, but if the act inflicts physical pain but has no long-term effects, punishments can be as insubstantial as a fine, 180 hours of social work, or onemonth imprisonment. According to the 1998 Criminal Code, rape is typically punishable by imprisonment from three to five years. However, many circumstances can increase this sentence. Repeat offenders can be sentenced to 5 to 10 years. Rapes in which the victim is underage or infected with a sexually transmitted disease (other than HIV) as a result of the rape, as well as gang rapes, are also punishable by 5 to 10 years. Prostitution is punishable only by warning or fine. However, more severe punishments can be used for individuals convicted of forced prostitution,


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prostitution connected to organized crime, or operating brothels or prostitution rings.

Prison As of the beginning of 2007, the prison population in Kazakhstan was 348 per 100,000, according to the International Centre for Prison Studies. Seven percent of these inmates are female and 1.9 percent are juveniles. The prison rate is down slightly since 2004 when there was a rate of 386 per 100,000. In 2001, this rate was at 549 per 100,000, its highest point since 1990. The Ministry of Justice is responsible for sentenced prisoners. It currently manages 95 penitentiary institutions. These include 18 pretrial detention centers holding 15,855 detainees and 77 correctional colonies for sentenced prisoners, which house 70,630 prisoners, three of which are for women and three of which are for juveniles. Women account for just over 4 percent of the total prison population. There is a special unit within one women’s prison where female minors are held. As of 1999, this unit held 100 girls. Improved living conditions have been created for pregnant women and women with children who receive specialized medical care and better food and creature comforts, as required by the government. Furthermore, they may not be penalized by being placed in a punishment cell. Unless a woman has been convicted of a particularly heinous crime, she may be allowed to serve a delayed sentence if she is pregnant or has children under the age of eight. As of 1999, there were 36 women imprisoned with their children under the age of three. In these cases, the children are housed in a separate area of the prison and the mothers are allowed to communicate with them and participate in their care.

Prisoner Rights Convicted persons have been guaranteed the right to practice their religion, and virtually all corrective establishments have their own prayer rooms and mosques. Those held in colonies are entitled to 12 working days of paid release from work per year. Those held in corrective establishments may be

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authorized to leave their establishment short term, for a period not exceeding seven days for purely personal reasons (the death or serious illness of a close relative), or long term, for the period of annual paid release from work.

Transfer of Prisoners to Other Countries According to the Republic of Kazakhstan’s Constitution and international agreements, foreigners and stateless individuals who commit offenses in other territories and then are seized in Kazakhstan can be extradited to that territory for criminal prosecution or to serve their sentence. However, individuals who have been granted asylum in Kazakhstan may not be extradited. Asylum may be granted to individuals or families who fear persecution in the country of their citizenship because of their race, nationality, political actions, or religious beliefs. One condition for the extradition of offenders to another country is the existence of an international treaty with the Republic of Kazakhstan. If the country does not have such an agreement, the decision of extradition is handled through the diplomatic service of the Republic of Kazakhstan. Kristen Lee Hourigan and Stephanie L. Stashenko Further Reading Governance: Basil Institute on Governance, Asset Recovery Knowledge Center, the Constitution of the Republic of Kazakhstan. Basil Institute on Governance Web Site: http://www. assetrecovery.org/kc/resources/org.apache. wicket.Application/repo?nid=1d1292dd-80c211dd-aec8-83823fa6e881. Legislationline. “Law No. 167 of 16 July 1997 of the Republic of Kazakhstan the Criminal Code of the Republic of Kazakhstan.” Legislationline Web Site: http://www.legislationline. org/upload/legislations/25/c8/ca1cfb8a67f8a1c2ffe8de6554a3.htm. United Nations Office on Drugs and Crime. Country Fact Sheet: Kazakhstan—2006. United Nations Web Site: http://www.unodc.org/ uzbekistan/en/fact_kaz.html.


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Kyrgyzstan

Kyrgyzstan Legal System: Civil Murder: High Burglary: High Corruption: High Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background From 1936 to 1991, the country was a constituent republic of the Soviet Union. At that point, it became the independent Republic of Kyrgyzstan. It ratified its first Constitution in 1993, formalizing the country as a democratic republic, sovereign, and subject to the rule of law. It is hard to believe that for a while after independence, many had considered Kyrgyzstan to be an “island of democracy” in Central Asia. But the Soviet Union’s disintegration deprived the new country of its chief source of economic sustenance, and the move toward a market-based economy has devastated this largely impoverished nation. Political turmoil and widespread popular disaffection eventually ousted the first president, Askar Akayev, from office during 2005’s so-called Tulip Revolution. While Akayev fled to Kazakhstan, his successor, Kurmanbek Bakiyev, took over. Bakiyev’s mandate was to disperse political power, open space for the development of civil society actors, and end the pervasive private and public sector corruption. Unfortunately, this mandate quickly came to naught. Bakiyev and his Ak Jol Party centralized governmental power in their own hands. The powerful presidency coincides with a powerful proregime bloc in Parliament. The constitutionally formalized separation of powers across branches does not exist. Amnesty International (AI) continues to condemn the government’s efforts to severely restrict the space for human rights defenders and independent civil organizations. Likewise, Reporters

without Borders consistently ranks Kyrgyzstan as one of the worst countries regarding press freedoms. Not only has Bakiyev’s regime reneged on its promise to convert its state media to independent public media, the regime has condoned an environment in which journalists critical of the regime and its official corruption are criminally prosecuted, harassed, and subjected to physical violence, even culminating in assassination. Corruption continues to be endemic. Transparency International regularly lists Kyrgyzstan among the most corrupt nations in the world. The 2006 Constitution formally prohibits any type of discrimination against any social group including ethnic minorities, women, and religious affiliates. About 70 percent of the population is ethnic Kyrgyz, with most minorities being either Uzbek or Russian, 15 percent and 10 percent, respectively. Three-quarters of the population is reportedly Muslim, while one-fifth is Russian Orthodox. The regime has always been secular, however, and human rights investigators such as Human Rights Watch (HRW) report on the state’s aggressive stance toward even nonviolent Muslim celebrations. As well, the UN Committee on the Elimination of Racial Discrimination (CERD) reported in 2007 that the government has still failed to adequately deal with the clashes between Kryzyz and Dungan countries in 2006 and has failed to properly protect refugees fleeing violence from the Uzbek government.

Legal System The nation’s legal tradition is based almost exclusively on Tsarist and Soviet civil law traditions. In part, this is manifested in the procuracy, which continues the Soviet tradition of the strong Prokuratura. The procuracy continues to be a unified, national entity with a strict hierarchy that expresses state power centralized in the executive branch. The Prosecutor General’s Office operates above the provincial, or oblast, prosecutors’ offices. Below is a separate prosecutors’ office for the City of Bishkek, the country’s capital and largest city, the military prosecutors’ office, as well as interdistrict, or interrayon, city, and rayon (district) prosecutors’ offices.


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There are also equal-status specialized prosecutors’ offices. In the political turmoil that has continued since the country’s first Constitution in 1993, governments have amended the Constitution in 1996, 1998, 2001, and again in 2003. In 2006, a second Constitution was ratified and quickly amended. These often legally specious actions have largely occurred through dubious political procedures. Chapter 6 of the original Constitution deals with the court system and the judiciary, as do the 1999 Law on Advocacy Activity, 1999 Constitutional Law on the Status of Courts, the 2001 Constitutional Law on the Status of Judges, and the 2003 Law on the Supreme Court and Local Courts. The 1997 Criminal Code and 1999 Criminal Procedure Code govern the criminal proceedings. The Constitutional Court is the highest judicial body. It is responsible for protecting the Constitution. It rules on the constitutionality of legislation, decides disputes regarding Constitutional interpretation, and issues opinions on the validity of presidential elections, proposed Constitutional amendments, and on the removal from office of the president and judges of both the Constitutional and Supreme Courts. The Constitutional Court, composed of a chairperson, a deputy chairperson, and seven judges, suffers from low public confidence because of its close service to whatever presidential regime reigns at the moment. The Supreme Court is the highest body for civil, criminal, and administrative matters. It is divided into civil, criminal, and commercial sections. It hears appeals from the lower courts, and a panel of three judges hears ordinary appeals. A presidium of nine judges hears important appeals. A plenum issues opinions on court practices. These are binding on the lower courts and remind some legal observers of the hierarchical nature of Soviet courts, in which higher courts attempt to discipline and harmonize activities in the lower court. The Courts of General Jurisdiction deal with civil and criminal matters at three levels that correspond with the country’s administrative divisions into 7 provincial oblasts, 43 district rayons, plus the City of Bishkek. The Oblast Courts operate as Courts

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of Second Instance. They are formally divided into civil and criminal divisions. Cases are heard by a panel of three judges. The Rayon Courts operate as Courts of First Instance. The majority of cases are heard by a single judge. The courts are not divided into sections. But judges tend to specialize in either civil or criminal cases. The Military Court system is authorized to hear criminal cases involving members of the military and other bodies including the National Security Service, the Ministry of Interior (MoI), and the Criminal Penitentiary System of the Ministry of Justice (MoJ). There are five Garrison Courts and a Court of Appeal. The judiciary is not truly independent from executive power. The National Council of Justice, which is part of the presidential administration, is responsible for proposing, selecting, and certifying judges for the local courts. Of its 14 members, only 5 are judges. The president exerts powerful control over judicial appointment. He nominates judges for the Supreme and Constitutional Courts and his Parliament approves them. The same is true for some of the lower court judges. The president also determines how many judges the country will have, where they will be posted, and how much they will be paid. Judicial corruption is widespread among the subordinated and low-paid judges. Over 90 percent of judges are Kyrgyz, as are 72 percent of lawyers. Just one-third of judges are females, and these are disproportionately relegated to work civil cases. Prevailing stereotypes hold that female judges should not be entrusted with important criminal cases, particularly violent crime cases. In 2005–2006, the Office of the Prosecutor General reported that just 8.8 percent of the influential prosecution service was minority. Only 12 percent of prosecutors were women, and although some do hold senior or supervisory positions, the very senior positions are male.

Police According to 2002 World Health Organization data, there were 16,727 police in Kyrgyzstan or 3.25


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police per 1,000 civilians. Investigating agencies include the Ministry of Internal Affairs, the National Security Service, the Financial Police, the Transportation Service, and the Drug Control Agency. The police forces have not been free from corruption and brutal misconduct. As the American-based Freedom House (FH) reports, Customs Officers in Osh are especially corrupt, providing cover for drug smugglers, allowing the free flow of drugs from Tajikistan and elsewhere. In 2002, while citizens in Jalal-Abad peacefully protested arbitrary arrest practices, police shot them with live ammunition. This event sparked massive protests that helped set the stage for the Tulip Revolution a few years later. But police still

harass human rights defenders, political opponents, members of the LGBT community, and Muslims. Bishkek police carried out warrantless raids on the Labrys community shelter in 2008 to harass the LGBT community there, perpetuating what HRW calls an “atmosphere of prejudice.” In 2009, the Supreme Court heard cases of 32 defendants who were accused of organizing demonstrations in Nookat. According to credible reports, the police actually attacked celebrants while they peacefully attended the Islamic Eid al-Fitr. Reportedly wielding guns and batons, police arrested celebrants and subjected them to torture by using plastic bags and gas masks to semisuffocate them, beating them upon the soles of their feet, and forcing them

Police officers detain opposition members gathered for an antigovernment assembly in central Bishkek, Kyrgyzstan, November 16, 2002. (AP Photo/Gyaz Tokombayev) © 2011 ABC-Clio. All Rights Reserved.

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to stand in their underwear in cold rooms with their feet in water for up to three days. In 2002, the National Ombudsman was created by the Law on Peoples’ Rights Defenders. It has been mandated to be an independent advocate for private citizens and NGO rights. Interestingly, it is believed that because the Ombudsman was clearly positioning himself for a presidential campaign, public faith in the institution suffered. Yet in 2004 alone, the National Ombudsman received about 15,000 complaints.

Crime According to a 2009 Radio Free Europe report, Interior Minister Moldomusa Kangantiev declared, “Crime is on the rise in Bishkek,” and he promised that, “We are stepping up our efforts. Armed policemen will work during night shifts.” According to the 8th UN Survey of Crime Trends and Operations of Criminal Justice Systems in 2002, there were 413 murders, 88 by youth. There were also 1,497 robberies. However, the minister’s alarm does seem to be a function of the country’s continued political turmoil rather than the high rates of common crime. Indeed, the mass riots and looting of earlier protests, endemic corruption, officially abetted organized crime, and occasional political assassination seem to have engendered a sense of disorder and political fatigue among even those who once had faith in the new regime’s willingness to fight corruption.

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6.4 percent in this age group. There are no reliable statistics for cocaine, amphetamines, or Ecstasy use. There were 879 drug abusers in treatment in 2007. Of those in treatment, opiates and cannabis were the primary drugs of choice for 77.3 percent and 19.4 percent, respectively.

Human Trafficking Human trafficking has also challenged the nation’s criminal justice system. According to a 2009 U.S. State Department report, Kyrgyzstan has been a source, transit, and to a lesser extent, a destination country for men and women for forced and sexual labor. Both men and women are trafficked to Russia and Kazakhstan, while women are trafficked to the United Arab Emirates, Kazakhstan, and several other countries for sexual labor. Domestically, the city of Osh is believed to be a growing destination for female sex workers. The government is believed to be improving its response in several ways, including providing more locally available information for at-risk people, making space available for NGOs to run victims shelters, as well as doing more to repatriate Kyrgyz nationals. In 2008, the government and NGOs identified 161 victims, down from 331 in 2007. NGO shelters helped 34 victims, and the government did not prosecute the victims. In 2008, there were 92 investigations, up from 33 in 2007. Officials prosecuted eight defendants and convicted six in 2008. Still, there are concerns about the complicity of low-level government officials and that police accept bribes from traffickers.

Corruption Although Criminal Code Section 8 details the prohibition against fraud and other economic crimes, authorities seem very reluctant to investigate and prosecute such cases. Corruption is tied to other crime problems that challenge the country. For example, Kyrgyzstan is a transit country for drugs being trafficked through Tajikistan and elsewhere bound for Europe. Still, it appears that drug use within the country is relatively low. According to the World Drug Report 2009, the annual prevalence of use among the population aged 15–64, was just 0.80 percent. Cannabis use is more common, with

Domestic Violence Violence against women and girls is clearly very prevalent. In 2003, human rights activists successfully achieved the ratification of the Law on Social-Legal Protection from Domestic Violence. This recognizes domestic violence as a specific offense and provides for the use of orders of protection in these cases. It also prohibits sexual violence against marital partners. The Ministry of Internal Affairs registers 8,000 to 10,000 emergency family crisis calls annually. Each month, 40 to 50 domestic violence victims are


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hospitalized in the Bishkek City Hospital alone. Officials registered 4,135 cases of violence between 2005 and 2006. Yet only 63 domestic violence cases reached the courts, resulting in just 18 court orders. In 16 of these, courts only issued warnings of administrative arrest or criminal proceedings. Critics warn that authorities have not bothered to enforce orders of protection, keeping victims in risk. Indeed, authorities do not consider violence against women and girls to be serious prosecutable crimes. This has been particularly true of bride-kidnapping. This is a common crime in Kyrgyzstan. HRW reports that at the end of each school year, a “literal hunt for young girls starts all over the country.” Gangs of men kidnap young girls and take them to their presumptive grooms’ homes. There, strangers beat and rape them and force them into marriages and do not allow them to return home. According to HTW, “Many Kyrgyz officials portray bride-kidnapping as a harmless ritual, a voluntary practice. But women all over the country paint a very different picture.” For them, it is a violent and traumatic experience, one that is so prevalent because it is perpetrated with impunity. Only 27 cases were initiated under article 155 in 2005, up from a mere 15 the prior year. Human rights observes argue that official inattention to crimes like these reflects the disproportionately small representation of women in decision-making positions throughout the country’s political and criminal justice systems. Not surprisingly, those victims who do seek help prefer to contact NGO crisis services rather than state officials.

Finding of Guilt The Constitution provides that an individual has the right to criminal defense, either by oneself or by a defense lawyer from the moment of arrest. But the Criminal Procedure Code delays this to the moment of first interrogation or actual arrival at the investigating institution. Investigators are supposed to advise detainees of their rights at the time of their detention. But this does not always happen, and they sometimes pressure them to waive this right. Juveniles, processed through the same system as the adults, cannot waive this right. Also, lawyers

have to get permission from the investigators before gaining access to their clients. Indigent arrestees also have the Constitutional right to free legal aid. However, defendants must prove their eligibility through time-consuming procedures. The pay is so low, attorneys find the work distasteful. As well, defense attorneys must actually receive documentation from prosecutors or judges attesting to how much time the defense attorneys actually spent in court working on their indigent clients’ cases or else they will not be compensated. Understandably, many defense attorneys do not participate in the program. There is a general shortage of lawyers. In 2004, there were 1,192 advocates for a population of 4.8 million. There are two types of defense lawyers: advocates and nonadvocates. Advocates represent clients in both criminal and civil cases. Nonadvocate lawyers work civil but not criminal cases. To practice, lawyers need law degrees and licenses from the MoJ. Commonly, investigators will appoint defense attorneys to defendants who do not have their own attorneys. This has led to the proliferation of so-called pocket lawyers who are dependent upon investigators to supply them with clients. This tends to undermine the vigor with which they defend clients, sometimes even leading them to aid the prosecution. In practice, there are many obstacles to effectively implementing the principle of equality of arms between prosecution and defense. Investigators hamper defense access to evidence, as well as make it more difficult for the defense to present evidence during trial. The Criminal Procedure Code grants defendants the right to confer privately with their attorneys. But this is typically impossible simply because many facilities lack sufficient space. The powerful procuracy also unbalances the presumptive equality of arms. Prosecutors do not just prosecute defendants. They also supervise the legal propriety of the proceedings, being that they are responsible for ensuring the uniform implementation of legislative acts. If prosecutors dislike judges’ rulings, they may place complaint letters in the judges’ files. These files are later reviewed when the judges come up for reappointment. They are


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also responsible for exercising appropriate supervision over criminal investigations. But it is believed that they often fail to do so, enabling the police to illegally collect evidence and forcibly extract confessions. The public widely perceives that the procuracy is subject to improper influence from both prosecutorial and outside authorities, despite prohibitions against such influence. Also, supervisors limit the discretion of subordinate prosecutors due to the procuracy’s highly bureaucratic, hierarchical nature. In 2007, there were 720 prosecutors working in 67 offices, all with law degrees. The Constitution guarantees the presumption of innocence. There are obstacles in practice. For example, there is a notable lack of courtrooms, so trials are often held in judges’ offices. This makes it impossible to ensure public accessibility to trials. Old courts still keep defendants caged during trials even when they are charged with minor, nonviolent crimes. The Constitution prohibits the use of ill-gotten evidence. But there is no definition of inadmissible evidence or detailed rules on the appropriate procedures for excluding inadmissible evidence. So the use of illegal evidence is routine. The Constitution also prohibits the use of torture and ill-treatment and inhuman or degrading investigation techniques. Still, prosecutors are reluctant to have such allegations investigated. Thus, maltreatment occurs frequently. Judicial proceedings are extremely long, severely undermining the right of speedy trial completed within a reasonable amount of time. This is particularly problematic for defendants in pretrial detention. Courts commonly remit cases for supplementary investigation instead of rendering final verdicts. This too slows proceedings, and it casts doubt upon the certainty of judicial decisions and the principle of equality of arms. The Constitution grants defendants the right to appeal their convictions. But judges frequently fail to seriously re-examine cases, let alone overturn convictions. Because trial records are recorded by court clerks who keep handwritten notes, trial records are often unhelpful at appeal. Here, too, judges

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frequently just send cases back to the lower courts for further investigation instead of rendering final verdicts. Again, this casts doubt on the certainty of judicial verdicts and lengthens proceedings. The Law on Attestation Procedure of Judges of the Local Courts 1999 governs judicial selection in those courts. Judges must have law degrees, professional legal experience, and be of a certain age. As noted earlier, the Attestation Commission, operating under MoJ, recommends judicial nominees to the president who actually appoints them. Judicial candidates must first pass an oral exam and the commission members vote by secret ballot to determine whether or not candidates pass. The general perception is that this process lacks objectivity. Unfortunately, those candidates who successfully become judges will draw low salaries and have no mandated ethics training. Many will become part of a practice that legal observers call “telephone justice.” This is said to occur in politically sensitive cases. Executive authorities directly influence judicial rulings, and senior judges directly influence their juniors on how to rule in particular cases. In sum, practices such as these all culminate in very high percentages of cases ending in conviction. According to Department of Court statistics, more than 98 percent of cases between 1998 and 2002 resulted in convictions.

Punishment The Criminal Codes makes relatively severe punishments available, if courts wish to mete them out. By law, human trafficking may incur sentences ranging from 3 to 20 years’ imprisonment. However, in 2008, four of the six convicted human traffickers received suspended sentences, while the other two were imprisoned for three to eight years. The prescribed penalty for bride-kidnapping is a fine in the amount of 100–200 times the country’s minimum wage or up to five’ years imprisonment. Such penalties are infrequently imposed, though. Likewise, although the Criminal Code articles 134, 299, and 373 provide for criminal punishment for criminal acts of discrimination, authorities rarely invoke these provisions.


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This contrasts sharply with the severe prison terms inflicted upon those arrested during the Nookat protests in 2008. Courts convicted them of “incitement to cause or participate in mass unrest,” “separatism,” “attempting to overthrow the constitutional order,” and “spreading ethnic or religious strife.” Their prison sentences range from 9 to 20 years. There has also been concern regarding severe punishments for juvenile offenders. There is no separate juvenile system, and thus no alternative penalties tailored specifically to juveniles. As well, there is a notable lack of rehabilitative or vocational juvenile programming. Commissions on minors’ affairs are set up within local administrations. These bodies can take those minors aged 11–14 who have not been processed through the criminal courts and place them in so-called special schools for difficult children. The death penalty has also been a normal part of penal punishment in Kyrgyzstan. In 1998, authorities declared the first moratorium on its use. They extended it several times. The International Helsinki Federation for Human Rights reports that despite this, judges had still continued to hand down death sentences because there were loopholes in the law, and judges were able to ignore the new Constitution’s provisions relating to these cases. By 2007, there were 167 unofficially condemned persons waiting on makeshift death rows in the basements of investigation agency jails since there are no specially designated death row facilities in Kyrgyzstan. However, in 2007, the Criminal Code was finally amended to abolish the death penalty. Executions are to be replaced with life sentences. The amendments also reduce some prison sentences for some crimes. Still, in this region, decisions pertaining to matters such the death penalty are not always final. In 2006, a UN Special Rapporteur expressed concern about the general failure to provide sufficient alternatives to extremely long prison sentences. The MoJ administers the prison system. According to the World Prison Brief, in 2009, there were 6 pretrial detention facilities and 11 prisons in the system. The prison population was 7,199 prisoners,

giving the country an imprisonment rate of 133 prisoners per 100,000 citizens. Within the prison population, 27.6 percent were pretrial/remand detainees. Females and foreigners constituted 3.9 percent and 1.9 percent, respectively. Juveniles were only 1.2 percent of the prisoner population. But juveniles face long pretrial detention periods while being held in adult facilities. The official capacity is 14,445 prisoners. Reportedly, the occupancy rate is a manageable 49 percent. This claim is not credible. If true, Kyrgyzstan, with its high levels of corruption, poverty, and conviction rates, could be said to have countered the worldwide trend toward severely overcrowded prisons, a trend that is particularly pronounced in Central Asia and former Soviet republics. Human rights investigators have strongly encouraged criminal justice proposals within Kyrgyzstan, in part because they argue that the poor country cannot continue to sustain its high levels of imprisonment and overcrowding humanely. The International Committee of the Red Cross (ICRC) visited 44 prisons and detention facilities in 2007. They expressed concern about the lack of judicial guarantees for detainees in police custody. The government did agree to set up an interministerial working group to improve policy custody conditions. The ICRC also made recommendations for improving confinement conditions for females, foreigners, and juveniles. They also found it necessary to provide prisoners with mattresses, hygiene and cleaning products, stationery, as well as jackets to survive the cold Kyrgyz winters. Tuberculosis has also been problematic. Unfortunately, when officials began to interfere with their regular visitation procedures, the ICRC ended its visits, casting doubt on the likelihood of significant reforms. Paul Schupp Further Reading Bishkek, Kyrgyzstan: 2006 Crime and Safety Report: http://www.osac.gov/Reports/report. cfm?contentID=40853.


Laos (Lao People’s Democratic Republic)

Constitution of Kyrgyzstan: http://www.coe.int/ T/E/Legal_Affairs/Legal_co-operation/For eigners_and_citizens/Nationality/Documents/ National_legislation/Kyrgyzstan%20Constitu tion%20of%20the%20Kyrghyz%20Republic.asp. Ryan, Tricia. (2007, August 11). “ ‘Our Women Are Really Very Patient’: The Construction of Domestic Violence as a Problem in Kyrgyzstan.” Paper presented at the annual meeting of the American Sociological Association, New York City: http://www.allacademic.com/meta/ p184186_index.html. Soltobaev, Aziz. (2000, August 30). Central Asia: Tajikistan-Kyrgyzstan Drug Route. American University in Kyrgyzstan, Economics Department. CACI Analyst: http://www.cacianalyst. org/?q=node/496. United States Department of State. (2009, June 16). Trafficking in Persons Report 2009—Kyrgyz Republic: http://www.unhcr.org/refworld/ docid/4a4214ac2d.html.

Laos (Lao People’s Democratic Republic) Legal System: Civil Corruption: High Human Trafficking: Medium Prison Rate: Low Death Penalty: Yes Corporal Punishment: No

Background Lao People’s Democratic Republic (Lao PDR) is a landlocked country in southeast Asia. The republic was created in 1975 toward the end of the IndoChina War. The country suffered immensely from the war and became the most bombed country in the world. Still classified as a “least developed country,” Lao PDR aims at moving out of that class by 2020. The population, according to the last census carried out in 2005, is 5.6 million.

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The Lao Constitution declares in article 2 that the country is a people’s democratic state. The National Assembly appears as the supreme instrument of state power in terms of the Constitution. But this must be viewed in context of the political regime. Article 3 states that the Lao People’s Revolutionary Party is the leading nucleus of the political system. The party thus has a leading role recognized by the Constitution. The People’s Supreme Court is the highest court of the land. Below it are the three Regional Appellate Courts (for the Northern, Central, and Southern regions). There is a provincial court for each of the 17 provinces and for the capital city of Vientiane, which is referred to as the Vientiane Municipality Court. Each district should have a district court but due to lack of judges, there are only 102 district courts for the 141 districts, up from 63 in 2006. In all courts, cases are taken up before threejudge panels. District courts have a limited civil and criminal jurisdiction. The provincial courts have original civil and criminal jurisdiction as well as appellate jurisdiction in respect of judgments of district courts. From provincial courts, an appeal lies to the appellate court on questions of law or fact. The Supreme Court has an appellate jurisdiction in respect of judgments of appellate courts, but only on matters of law. The president of the Supreme Court is appointed and is removable by the National Assembly. Before 2003, all other judges of the country were appointed by the Standing Committee of the National Assembly on the recommendation of the government. An amendment to the Constitution effected in 2003 provides for the vice president of the People’s Supreme Court to be appointed or removed by the president of the state on the recommendation of the president of the Supreme Court. Other judges of the Supreme Court and judges of all other courts are appointed, transferred, and removed by the Standing Committee on the recommendation of the president of the Supreme Court. The administration of courts was transferred from the Ministry of Justice to the Supreme Court, another welcome development.


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Under article 86 of the Constitution, the Office of the Supreme Public Prosecutor (OSPP) has the duty to monitor the correct and uniform implementation of laws and regulations by all state institutions, mass organizations, local administrations, civil servants, and citizens. Under article 3 of the Law on Prosecutors, the OSPP monitors and inspects the enforcement of laws by the investigation and interrogation authorities and in places of detention, prisons, and rehabilitation centers. The departments of Police, Forests, Customs, Income Tax, and Immigration are the main law enforcement agencies. The police are a powerful organization, and there are complaints that, sometimes, even directions of prosecutors are ignored by the police. The police appear to be more powerful in the provinces, being closer to the local authorities. Officials, however, insist that while there may be officers who abuse their powers, this is not a general phenomenon and that violations are not condoned. The Lao legal system is basically a civil law system. In recent times, certain features of the common law system have also been incorporated. Decisions of the Supreme Court are now binding on all other courts. Article 5 of the Law on People’s Courts, adopted in 2003, reads: The judgment of the People’s Supreme Court on a matter that is not (or is not clearly) defined by the laws shall be considered as a court precedent, which the people’s courts shall comply with until such matter is regulated by a law. The system of criminal law is inquisitorial. Article 8 of the Law on Criminal Procedure declares the principle of presumption of innocence. Article 28 recognizes several rights and obligations of accused and defendants. One of the obligations is to “give statements or clarifications in relation with the accusations.” There is thus no right to silence. The Legal Sector Evaluation (LSE) of 2003, commissioned by the United Nations Development Programme (UNDP) with the support of the Lao government, noted several inconsistencies with internationally accepted norms in criminal trials. Evidence is not formally led through witnesses. Trials

are conducted in effect by judges with prosecutors being quite passive. There is no presumption of innocence in practice. Defendants are found guilty based solely on alleged confessions, without confessions even being proved to be voluntary and true. Senior judges and officials at consultative workshops held during the evaluation have stated that the instances cited were mostly aberrations due to inexperience and inadequate training of judges and did not represent the state of the law in the country. In 2004 the Criminal Procedure Law was amended to provide that a conviction shall not be based principally on confessions made by the accused or defendant. In practice, however, many judges continue to use confessions as the sole basis for convictions. New laws do not always find their way, especially to lower courts, and there is little information on amendments to laws. Lack of training of judges and passiveness of prosecutors and lawyers are contributory factors.

Crime Classification of Crimes Article 8 of the Penal Law divides offenses into the following three categories: 1. “Minor offenses” are offenses punishable by public criticism or fine. Examples: forbidden gambling (article 83), hooliganism (article 84), violation of traffic security (article 85), and failure to perform obligations toward minor children, parents, or spouse (article 127). 2. “Major offenses” are offenses punishable by reeducation without deprivation of liberty and imprisonment from three months to 10 years and fine. Examples: money laundering (article 64), disclosure of state or administrative secrets (article 71), unlawful production, possession, and use of weapons or explosives (article 76), battery (article 90), unlawful arrest and detention (article 99), theft and forceful misappropriation of state or collective property (article 108), robbery of personal assets (article 118), and corruption (article 174).



3. “Crimes” are offenses punishable by imprisonment from five years onward or by the death penalty. Examples: treason (article 56), rebellion (article 57), and murder (article 88). Minor crimes are taken up by district courts. All other criminal cases are tried by provincial courts. Lao law does not contain a provision that explicitly lays down the age of criminal responsibility. Article 53 of the Penal Law, titled “Measures towards Children,” permits courts to require the offender to request a pardon from the offender, order compensation payable by the parents or guardians, or send the child to the parents or guardians or to administrative authorities or social organizations for reeducation. But for a court to do so, there has to be a finding of guilt. To further complicate matters, article 4 of the Law on Criminal Procedure provides that investigations may not be opened and criminal proceedings may not be continued in cases involving “acts threatening the society by children less than fifteen years of age” and that in such cases, educational measures shall be applied. The question again arises as to how educational measures could be applied without a finding of guilt. Drug-related offenses, money laundering, and human trafficking are the crimes that are particularly challenging to Lao PDR. Opium has been almost eradicated from the country. Yet, the use of other drugs appears to be increasing. An increase in cases of theft has been seen, and most suspects in such cases were drug addicts. The production, sale, distribution, possession, importation, export, transportation, or the transit through the Lao People’s Democratic Republic of narcotics such as heroin, amphetamines, any ingredient used in the production of heroin or amphetamines, opium, and marijuana is punishable under article 146 of the Penal Law. Persons who are found to have consumed, or purchased for consumption, less than three grams of heroin, morphine, cocaine, amphetamines, or other psychotropic substances are regarded as victims and sent for treatment. So are smokers of marijuana. There are reports of drug traffickers using close relatives and friends, even small children and

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pregnant women, making detections difficult. People from ethnic groups with a low understanding of criminal liability were also being used. Capacity of police officers in identifying and analyzing drugs is low. Lack of equipment for anti-trafficking units is a major drawback. The country is ranked as being high among countries of origin of human trafficking. Money laundering is an issue of concern, illegal proceeds being mainly derived from corruption and drug trafficking. There have been only a relatively few prosecutions for human trafficking and still less for money laundering.

Crime Statistics Statistics, official or otherwise, are not available in respect of crimes committed. Nor are statistics of arrests and detentions available. In the rural areas, the most typical serious crimes are drug-related crimes, theft, illicit felling of timber, human trafficking, and smuggling of immigrants, while motor traffic offenses constitute the most typical minor offense. Most suspects in cases of theft are drug addicts. Drug-related crimes top the list of serious crimes in urban areas, with theft, money laundering, and human trafficking also making the top grade. Violations of motor traffic laws are the most common minor offense. It is not to be assumed that these categories top the lists in terms of prosecutions too. As stated earlier, there have been relatively few prosecutions for money laundering and human trafficking. Some statistics from the Supreme Court relating to criminal cases are available. In 2008 there were a total of 2,801 cases in provincial courts. It may be presumed that trials account for 80–90 percent of the cases in provincial courts and that the percentage of convictions is more than 95 percent.

Finding of Guilt Rights of the Accused The Constitution contains a chapter on Fundamental Rights and Duties of Citizens. Article 42 is the only provision related to criminal procedure:


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The right of Lao citizens in their bodies, honour and houses are inviolable. Lao citizens cannot be arrested or searched without the order of the Public Prosecutor or the people’s courts, except if otherwise provided by the laws. The Law on Criminal Procedure recognizes several rights of accused and defendants. Article 5 assures the inviolability of citizens’ rights and freedom. The equality of citizens before the law and courts is guaranteed by article 6, while article 7 guarantees the right of a defendant to defend himself or herself. The presumption of innocence is declared by article 8. Trials are ordinarily held in public. All criminal cases, in the district courts as well as in provincial courts, are tried by three-judge panels. Trial by jury is not available. No express provision related to acceptance of a plea of guilt to a lesser offense is found; neither is there such a practice. There is no express legal provision guaranteeing speedy trial. In practice, trials do not drag on.

Right to Representation, Legal Assistance An accused or defendant has the right to be represented by an attorney, a representative of an organization, a guardian, or a close relative. A lawyer is appointed by court in cases where capital punishment may be given, when the accused or defendant is a child less than 18 years of age, is deaf or is a mute or mentally deficient person, and when the accused or defendant does not understand the Lao language. The trial begins immediately after the accusation is read out. The trial is not adjourned for the defendant to prepare his or her defense and/or retain a lawyer.

Investigations and Prosecution Investigations into alleged offenses are conducted by agencies such as the police and departments of Customs, Forestry, Income Tax, and Immigration. The opening of an investigation shall be reported to the public prosecutor. The prosecutors ensure the lawful performance of investigations. At the conclusion of an investigation, the case file is forwarded to the prosecutor. Under the Law on Criminal Procedure, prosecutors play an important role in arrest and detention

pending trial. Under article 62, an arrest can be made only upon a warrant issued by a prosecutor or a court. In what are described as “flagrant” and “urgent” cases, article 63 provides for arrest without warrant. All arrests have to be reported to the prosecutor. Detention pending the institution of criminal proceedings in a court requires a warrant in writing from the prosecutor. According to article 61 (Detention), a suspect may be detained for 48 hours, on the order of the head of the investigation agency or a public prosecutor, for the purpose of carrying out further investigation if there is “sufficiently firm information” that such suspect has committed a criminal offense for which the law provides imprisonment as punishment. “Where there are firm indications supporting the order to open an investigation” and if provisional detention is seen necessary, an application shall be made to a public prosecutor. In the absence of “firm indications,” a request shall be made for release. The public prosecutor decides whether the suspect should be released or detained. Article 62 is titled “Arrest” and deals with arrest with a warrant issued by a prosecutor or a court. For the issue of a warrant for arrest, there should be “firm evidence” that the suspect has committed an offense punishable with imprisonment. Other factors such as “possible escape by the suspect, destruction of evidence, repeated offense, physical attack against the victim, witness or possible physical attack by the victim or other persons against the suspect” shall also be considered. A person arrested shall be notified of the warrant and the reasons for arrest. The arrest shall be reported to the prosecutor within 24 hours, a statement taken from the suspect within 48 hours at the latest, and an application made to the prosecutor for release or provisional detention. The prosecutor shall decide on release or detention within 24 hours. Arrests may be made without a warrant in “flagrant” and “urgent” cases. Violations of these provisions are common. The LSE referred to a district prosecutor who discovered during a prison inspection that only 10 out of 80 prisoners had been detained upon a proper order from his office. From information received by concerned parties, it appeared unlikely that the situation



would be remedied in the near future, the LSE observed. There are no reports of improvement.

Detention and Release Pending Trial Article 65 of the Law on Criminal Procedure provides for “provisional detention,” explained as “temporary detention prior to the court’s final decision to carry out investigations.” Provisional detention requires a warrant from the public prosecutor and is issued considering the same factors considered in issuing a warrant for arrest under article 62. A person placed under provisional detention shall be detained separately from other prisoners. The period of provisional detention shall not ordinarily exceed three months. Where further investigation is deemed necessary, the public prosecutor may extend the period of provisional detention, each time for three months at the request of the head of the investigation agency. The total period of provisional detention shall not exceed six months in the case of a misdemeanor and one year in the case of police matters. Misdemeanors and police matters are not defined. The Penal Law categorizes offences as minor offenses, major offenses, and crimes. At the end of such period, the public prosecutor shall order the accused person’s immediate release if there is insufficient evidence to prosecute the case. The period of provisional detention is reduced from the term of imprisonment if the accused is ultimately convicted and sentenced to imprisonment. Provisional release is release pending the conclusion of the trial and is governed by article 66. Only a person accused of a minor offense can be so released. Provisional release is not permitted in cases of offenses referred to, again, as police matters. In article 74, the public prosecutor shall study a case submitted by an investigation agency or a court and shall within 15 days issue any of the following instructions: instructions on further investigations where investigations are incomplete; suspension of the proceedings; closure of case. When investigation or restrictive measures applied by investigation officers or court officers are inadequate in the circumstances of the case, the public prosecutor may modify, cancel, or terminate such measures. Where there is sufficient evidence, the

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public prosecutor shall order that the accused person be prosecuted. When the case file is received by a court, a judge assigned by the president of the court studies the file and on his recommendation, the court may return the case file to the public prosecutor for further investigation or for more offenses or defendants to be added. If the court is satisfied that a proper investigation has been carried out, a date is fixed for a court hearing. The lack of clarity in the Law on Criminal Procedure on the procedure to be followed has a major impact on the quality of criminal justice. Also, there is no law on evidence.

Alternate Dispute Resolution The country has a long and healthy tradition of settlement of disputes at village level. Village Mediation Units (VMU) were set up pursuant to the Decision of the Minister of Justice No. 304/MOJ, dated August 7, 1997. New guidelines were issued by Decision No. 08/MOJ, dated February 22, 2005. Minor civil and criminal disputes first go before a VMU. If not settled, mediation is again attempted by the District Justice Office, which refers disputes that are not mediated to the appropriate court. VMUs have been set up in around 85 percent of the 10,944 villages in the country. VMUs are administered by Provincial and District Justice Offices. Overall responsibility for VMUs lies with the Department of Judicial Administration of the Ministry of Justice. A VMU has five to nine members. The head of the village (Nai Ban) is ex-officio president. The Lao Women’s Union and the Lao Front for Reconstruction are represented. The other members are appointed by the authorities in coordination with the Nai Ban and the said representatives. Overall, about 90 percent of cases coming before VMUs are settled. The rate of settlement in rural areas is high, rural people being more compromising. In urban areas, people appear more concerned about prestige. No statistics regarding the percentage of criminal cases resolved by guilty pleas are available. Even when a defendant pleads guilty, courts go into details about the circumstances of the crime, questioning witnesses and defendants as in a trial.


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The Lao law does not contain an explicit provision that permits a court to take into consideration the fact that a defendant has pleaded guilty at the earliest possible stage in deciding the sentence to be awarded. But article 40 of the Penal Law lists the circumstances that would reduce penal responsibilities and permits courts to take into consideration other factors not provided in this article but which would commonly be considered relevant in reducing penal responsibilities. The Law on People’s Courts provides that the Supreme Court, appellate courts, and provincial courts should each have separate criminal and juvenile chambers. There is no such requirement for district courts. Due to the shortage of judges, judges of provincial courts serve in more than one chamber. Due to lack of judges, justice officials also used to serve as judges in the past. The LSE reported that, in 2003, only 66 of the 158 functioning judges in district courts had formal appointments, the others being officials. In 2006, district courts had 96 judges, all formally appointed. The figures for 2008 are not available, but the number should be much more, considering the fact that 102 of the 141 districts have their own district court, up from 63 in 2006. Supreme Court officials state that officials do not function as judges anymore. Provincial court judges are sometimes sent to district courts to make up the three-member panels required by law. All judges should have had a formal legal education, being graduates of the Faculty of Law and Political Science of the National University of Laos or of a recognized university or the former Vientiane Law School. Some of the judges in the higher courts have had no basic legal education and had been appointed to the judiciary when a degree in law was not a requirement.

Punishment Categories of Punishment Article 28 of the Penal Law lists the various punishments that can be inflicted. Punishments are categorized into principal penalties and additional penalties.

Principal penalties include the following: • Public criticism—ordinarily by criticism of the offender in court; may be by publicity. • Reeducation without deprivation of liberty. • Deprivation of liberty. Life imprisonment shall not be imposed on an offender who was less than 18 years old or was in a state of pregnancy when the offense was committed. • Death penalty—by shooting—shall not be imposed on an offender who was less than 18 years old the time the offense was committed or on a woman offender who was in a state of pregnancy at the time the offense was committed or who is pregnant at the time the court makes its decision. A woman who is pregnant shall not be executed. Additional penalties include the following: • Fine (which may be the principal penalty in certain cases). • Confiscation of items connected to the offense. • Confiscation of property. • Suspension of the right to vote and to be elected. • House arrest—forbids the offender from leaving a place of residence or from entering areas specified by court. In addition to penalties, a court may request the relevant authorities to withdraw driving licenses or other permits; to relieve the offender from performing or to forbid the offender from performing a function or duty; to withdraw orders, medals, or titles; or to deport the offender. The execution of a sentence of imprisonment, reeducation without imprisonment, or fine as the principal penalty may be suspended for a period of five years. If during such period, the offender is not convicted of any other offense, the sentence shall not be executed. In the event of a subsequent conviction resulting in the offender being sentenced to imprisonment, the new penalty as well as the one that has been suspended will be executed. The



suspension of the execution of a penalty may be in whole or in part. A person who has committed an offense while serving a sentence for a previous offense or within a period of five years after serving a sentence for the same or similar offense, an offender sentenced to three years of imprisonment or more, or an offender sentenced for a “crime” (an offense punishable with imprisonment from five years onward or by the death penalty) cannot benefit from a stay of execution of penalties.

Compensation for Victims of Crime Article 29 of the Law on Criminal Procedure states that a victim of a crime is entitled to compensation. A civil plaintiff has the same rights as a victim. A feature of the Lao criminal process is that parties who are entitled to damages or liable to pay damages under civil law are also entitled to participate in criminal trials. This is salutary as the need to file separate civil actions is obviated. However, the law does not lay down the procedure to be followed for a victim or civil plaintiff to present evidence and satisfy the court as to the compensation payable.

Selected Serious Offenses Article 88 of the Penal Law deals with murder. A person who intentionally causes the death of another person is punishable with 10 to 15 years of imprisonment and fine. Where the accused is a professional killer, where the killing has been barbarous, where the victim was a pregnant woman, and so forth, life imprisonment or death penalty may be imposed. Where the killing was in response to a grave provocation by the victim, the sentence is three to five years’ imprisonment. Under article 20, an act of legitimate defense does not amount to an offense. The penalty for rape, in the absence of the aggravating circumstances, is three to five years of imprisonment and fine, less than in most other jurisdictions. As article 128 stands, only intercourse “against the will” of the woman in the given circumstances would amount to rape. The following situations, caught up in the definition of rape in many jurisdictions, will not constitute rape under

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Lao law. For example: A man has sexual intercourse with a woman who is sleeping or is unconscious. The intercourse is without her consent but not against her will. Theft (simple) is punishable with three months to two years of imprisonment or reeducation without deprivation of liberty and fine. Theft by mugging shall be punished with six months to three years of imprisonment and fine. Where theft is committed through “forced entry or by damaging fences, doors, cases, cupboards and others,” the offender shall be punished with six months to three years of imprisonment and shall be fined. Where the offender is a professional thief or a member of an organized group or where the loss is substantial, the offender punishment is three to five years of imprisonment and fine. Attempted theft is also similarly punishable. Punishment for robbery is four to eight years of imprisonment and fine. Where the offender is a professional robber or a member of an organized group or where severe injuries or loss of life or substantial damage is caused, punishment is 8 to 15 years of imprisonment and fine. Preparation or attempt to commit robbery shall also be punished. There is enhanced punishment for theft and robbery of assets of the state and collectives. Imprisonment is the typical punishment for drug offenses. All drug offenses are punishable under article 146 of the Penal Law. The prohibited acts include the production, sale, distribution, possession, importation, export, transportation, or the transit through the Lao People’s Democratic Republic of narcotics such as heroin, amphetamines, any ingredient used in the production of heroin or amphetamines, opium, and marijuana. As seen earlier, the death penalty can be imposed for more serious crimes. Execution is by shooting. According to officials, the death penalty is not carried out in practice.

Prisons There is very little official information available. There are more than 50 prisons and detention centers. The prison in Samkhe village in Vientiane


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probably houses the largest number of inmates. Foreign prisoners are mostly said to be in the prison at Phonthong village in Vientiane. Jayampathy Wickramaratne Further Reading Wickramaratne, Jayampathy, Miomir Serbinson, and Xaynari Chanthala. (2004). Evaluation of the Implementation of the Rule of Law in Lao PDR, 1997–2003, Lessons and Challenges. Vientiane: United Nations Development Programme.

Macao Legal System: Civil Murder: Medium Corruption: Low Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: Maybe

Background Macao is located at the southern coast of Mainland China. It is approximately 60 kilometers (37 miles) west of Hong Kong and 145 kilometers (90 miles) south of Guangzhou (Canton). The total area of the territory is only about 30 square kilometers. It consists of a small peninsula, which borders the Guangdong Province of China, and a much larger outlying island. In recent decades, Macao has been witnessing a considerable expansion of population due to massive influx of immigrants from Mainland China and elsewhere. In fact, this city is basically an immigrant society. More than half of the residents were not born in Macao. Thousands of legal immigrants come from the other side of the north border every year. These new arrivals are mostly of low educational background. By the end of 2007, the population in the Macao Special Administrative Region (SAR) was estimated to be about 538,100, and the density was

larger than 18,000 per squared kilometer. It has become one of the most densely populated regions in the world. The percentages of male and female population were 49.38 percent and 50.62 percent, respectively. Before December 1999, Macao was a territory under Portuguese colonial rule. In 1845 Portugal declared Macao a free port in an attempt to compete with the rapidly rising British colony of Hong Kong. A century passed, and the Chinese Communist Party established the People’s Republic of China (PRC) in Beijing in 1949. The new Chinese government declared that all the previous treaties signed by the Manchu government with Portugal to be invalid. However, as with Hong Kong, Macao was left to retain its status quo for a few more decades. The “Joint Declaration on the Question of Macao” was signed in Beijing in 1987. After about 440 years of Portuguese occupation since the mid16th century, the government of the PRC resumed its sovereignty over Macao in December 1999 and transformed the small city into another Special Administrative Region in the same manner as Hong Kong. According to the Joint Declaration on the Question of Macao and the three principles provided by the Basic Law of Macao—“One country, two systems,” “Macao people governing Macao,” and “A high level of autonomy”—the Macao SAR is entitled to preserve its own capitalist socioeconomic system for at least 50 years, and to retain administrative and legislative autonomies, independent judicial powers, and final adjudication powers. National defense and diplomatic affairs are the only two areas of exception that are exclusive responsibilities of the central government of the PRC. The new governor of SAR is called the chief executive, who is accountable to both the central government of the PRC and the people of Macao SAR. Today, Macao is regarded as a wealthy region with very low unemployment. Official figures show that this small city has become an economically fast-growing city in the coastal region of southern China. Although tourism is often claimed to be the backbone of Macao’s economy, the casino industry is the one that really occupies a pivotal role in the


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economic vitality of the region. A major part of the SAR government’s revenue is actually produced by casino taxes.

Legal System Due to its Portuguese heritage, the overall legal system of Macao, including the criminal justice system, can be regarded as broadly based on Portuguese law, and therefore of basic characteristics of the continental legal system of Europe. In other words, Macao is typically a civil law legal system where legislation is the chief source of law. Case law is not a major source of law in Macao. The Basic Law of the Macao Special Administrative Region of the People’s Republic of China consists of 145 articles and 3 annexes. After the handover, this Basic Law, which was adopted by the National People’s Congress as the constitutional law for Macao, took effect immediately on December 20, 1999. In compliance with the central government’s “one country, two systems” policy, most of the legal codes in Macao remain unchanged after the handover, except for a small portion of the existing laws and regulations that has been identified as contradictory to the Basic Law of the Macao SAR. The most authoritative framework of the legal system in Macao at present is composed of five significant codes: the Civil Code, the Commercial Code, the Code of Civil Procedure, the Penal Code, and the Code of Penal Procedure. They are collectively known as the “Five Big Codes” in Macao. In addition, there are a number of other codes such as those in the field of administrative law. Macao SAR has been entitled to exercise a high degree of legislative autonomy. The sole legislature of the SAR, the Legislative Assembly, enjoys the power to make, amend, suspend, and repeal laws. Currently, the Legislative Assembly is composed of 29 members, being 12 from direct elections, 10 from indirect elections, and 7 as nominated by the chief executive. All laws enacted locally shall be reported to the central government for the record. The Penal Code of Macao is one of the five most important codes. Although it was enacted by the

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Legislative Assembly of Macao, it is generally recognized that the contents, legislative philosophy, and the fundamental principles of this code have been deeply influenced by the criminal jurisprudence theories and thoughts of Portugal. There are four fundamental principles in this Penal Code: 1. The Principle of Minimum, Necessary, and Appropriate Intervention of Criminal Law 2. The Principle of No Crime without a Law, No Penalty without a Law 3. The Principle of No Penalty without a Fault 4. The Principle of Humanization of Legal Consequence of Crime

Crime Classification of Crimes The Penal Code of Macao classifies crime into the following five major categories: 1. Crimes against the person include homicide, manslaughter, all types of abortion, all types of physical abuse, kidnapping, rape and child molestation, libel, slander, defamation, crimes against privacy such as trespassing and hacking. 2. Crimes against property include theft, burglary, robbery, embezzlement, fraud and blackmail; crimes against property rights include intended bankruptcy, piracy. 3. Crimes against peace and humanity include inciting to war or genocide, racial discrimination, and so forth. 4. Crimes against social order include bigamy, abduction of minors, forging of currency, arson, explosion, pollution, hijacking, dangerous driving, and participation in triad societies or terrorist organizations, and so forth. 5. Crimes against the country include inciting to collective disobedience, insult to national emblem, usurpation of public office, disobedience of legal orders, perjury, abuse of authority, violation of confidentiality, corruption, bribery, and so forth.


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Trends in Crime By general impression, Macao has a relatively moderate level of crime. This perception is supported by the official statistics. There has been a 30.25 percent increase in recorded crime in the period 2003 through 2007. More than half of the recorded criminal cases for these five years were property crimes, especially in 2003 (54.89%) and 2005 (54.23%). Instead, crimes against the person, which are generally regarded as more serious than property crimes, accounted for about one-fourth of all cases in the same period of time. Among these crimes against the person, assault was the most frequent type of offense, whereas homicide was the least frequent form of crime. According to the Macao Yearbook, crimes recorded by the police in 2007 were as follows: Theft, burglary, and robbery Homicide Assault Sexual offense Crimes of social disturbance Crimes against the territory Others

5,726 11 412 75 1,420 888 1,018

In addition to the official record compiled by the police, the Public Prosecutions Office of Macao in the same period (2003 to 2007) reported cases filed that showed similar trends for the same period. Statistics for different types of crimes as reflected in cases filed for 2007 were as follows: Illegal immigration and related crime Physical assault Violation of personal freedom Drug-related crime Illegal gambling and loan sharking Sexual assault Organized crime Murder Others

1,476 1,431 302 157 216 47 31 24 3,496

Although Macao has long enjoyed a relatively low crime rate, it did encounter a short period of trouble when Macao approached the end of Portuguese

colonial rule. Things got worse when the monopolized casino company STDM changed its style of business administration from the centralized management to the new subcontracting system in the early 1990s. Triad members (organized crime) had the chance to infiltrate casino by controlling the selling of gambling chips and loan sharking. As time went on, disputes over power and monetary profit between the competitors became intense. Violent means were employed by triad societies to settle the disagreements. There were gunshots and bomb attacks on triad members, attempted assassinations of judicial officials, and kidnappings of some wealthy people; even a member of the Legislative Assembly was seriously threatened by the gangland violence. In the eyes of the international media, Macao turned into a center of organized crime just a few years before the PRC resumed its sovereignty over the territory. Eventually, by means of arresting and penalizing the triad boss and stationing the People’s Liberation Army in the territory, Macao quickly resumed its peace and social order in the postcolonial era.

Police Before the handover of Macao back to the Chinese government, the public order of this Portuguese colony was maintained by two separate police systems: the Public Security Police and the Judiciary Police. The Public Security Police was primarily responsible for the maintenance of daily public order. The Judiciary Police specialized in crime prevention and investigation. After the establishment of Macao SAR government, the police system went through a substantial restructuring. An integrated police department, the Unitary Police Service, has been formed to lead and direct all the police operations. The two above-mentioned systems, the Public Security Police and the Judiciary Police, come under the direct central command of this Unitary Police Service. This central department, the Unitary Police Service, is primarily responsible for planning and giving advice on all police operations. There are five units within UPS:


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1. 2. 3. 4.

The Intelligence Analysis Centre The Operations Planning Centre The Department for Resource Management The Computer and Information Technology Unit 5. The Information and Public Relations Office

Under the leadership of the commissionergeneral, the Public Security Police is responsible for ensuring the fundamental public order of the territory. In 2007, the number of staff members in Public Security Police was more than 3,500. There are altogether 10 ranks in the Public Security Police ranging from the commissioner-general to constable. Within the structure of Public Security Police, there is one management board heading nine subordinate units: Resource Management Department, Information Department, Operations Department, Immigration Department, Traffic Department, City Police Department, Islands Police Department, Tactical Police Unit, and Logistic Support and Services Division. Besides, the Public Security Police has its own police school to manage the recruitment and training of police officers. Another police system is the Judiciary Police. It is a criminal investigation sector that has six subordinate units: Criminal Investigation Department, Management and Planning Department, Forensic Science Laboratory, INTERPOL Macao-China, Criminal Intelligence Division, and the Department for the Investigation of Gaming-related and Economic Crimes. Like Public Security Police, the Judiciary Police has its own police training school to recruit and drill the new blood in criminal investigation. INTERPOL Macao-China is a special unit in the Judiciary Police. It is also a subbureau of the Chinese National Central Bureau of ICPOINTERPOL. Upon the request of overseas INTERPOL offices, it provides operational assistance in Macao, including issuing international arrest warrants, exchanging crime information, and detaining international fugitives. Through the operation of this unit, the Macao police system establishes cooperative relations with overseas security authorities. Another special unit is the Department for the Investigation of Gaming-related and Economic

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Crimes. The duty of this unique police unit is to prevent and investigate gaming-related offenses and many other crimes committed in casinos and gaming venues. Its set-up reflects the prosperity of the casino industry in this city. Macao is literally a casino state in the Far East. It has often been called the “Monte Carlo of the Orient” or “Las Vegas of the Orient.” Many studies have shown a substantial positive association between organized crime and the gambling industry. In this socioeconomic context, the establishment of the unit is deemed to be necessary.

Customs The Macao Customs is another law enforcement sector in Macao’s public security system. An independently administered unit apart from the police, it is responsible for exercising its authority to lead, implement, and supervise measures related to customs laws and policies. Macao Customs performs its policing duties such as combating customs fraud, curbing and stamping out unlawful trafficking, safeguarding intellectual property rights, and monitoring external trade activities to protect Macao’s international reputation. Macao Customs puts much emphasis on interregional and international cooperation. Because the territory consists of a small peninsula and an outlying island, patrolling the coastal waters is an essential part of Macao Customs’ duties. The Customs Service Fleet, which takes up the responsibility of this marine patrolling, has gained the cooperation of the Guangdong Provincial Public Security Department and other mainland customs departments of the PRC. Joint operations at sea are frequently conducted to maintain order along the coastal waters.

The Commission against Corruption Because of the seriousness and prevalence of corruption in the territory before the handover, the Macao SAR government needed to set up a special law enforcement unit to combat the crime of corruption and carry out ombudsman functions. Modeling the Independent Commission against


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Corruption in Hong Kong, this new unit is independent from the police and other law enforcement teams and accountable only to the chief executive. The unit is called the Commission against Corruption of Macao (in Portuguese: Commissario contra a Corrupcao—CCAC ). CCAC, as an independent law enforcement team, makes no laws itself. Its power and duties are prescribed in article 59 of the Basic Law. Moreover, CCAC makes no prosecution in its own right. After investigation, the cases are transferred to the Public Prosecutions Office for prosecution. Regarding the organizational structure, the CCAC has one cabinet and two subordinate bureaus— the Anti-corruption Bureau and the Ombudsman Bureau. Each bureau has its own investigation department and is responsible for the control of different negative bureaucratic behavior in public administration. All staff are recruited separately from other departments to maintain its independency. According to the latest annual report of the CCAC, altogether 736 complaint cases were recorded in 2007. This figure represents a 12.4 percent decrease compared with the record in 2006 and an even more drastic decrease of 33.6 percent compared with the record in 2005. This is also the lowest number of complaints received since the Macao SAR was established. The decrease of complaints related primarily to the drop-off of criminal offenses and the overall improvement of integrity in Macao, especially the upgrading of public administration services.

inary hearing, adjudication, ordinary appeal, extraordinary appeal, and execution. The phase of adjudication itself can be divided into three stages— the antecedent action such as pretrial examination; hearing of evidence, which means the holding of a court hearing; and the ruling that is the consequence of judgment on a case made by a court. The prosecution adopts different approaches to try different categories of criminal offenses. For public offenses, the prosecution determines whether it is necessary to institute legal proceedings regardless of the will of the victims. But for the quasipublic offenses and private offenses, whether the prosecution decides to institute legal proceedings depends on whether the victims or their agents will lodge a complaint to the prosecution. The power of investigation into criminal cases mostly belongs to the prosecution, and partly belongs to the examining magistrates. For criminal police authorities, they are entitled to participate in the investigation with the authority extended by the prosecution or courts. Although the law legalizes the means of collecting evidence that meet the requirement of modern society, such as monitoring of telephone conversation, it provides for very strict restriction on the application of these means to safeguard basic rights and freedom of citizens. Police must present persons remanded in custody to an examining judge within 48 hours of detention. Cases must come to trial within six months of an indictment. However, judges can refuse bail in cases of serious crime.

Finding of Guilt According to the Code of Penal Procedure of Macao, there are two categories of criminal proceedings—the ordinary process and the special process. The ordinary process includes the trial by the Collegial panel and Sole-judge bench. The special process can be the simple process or the correctional process. The simple one is used to try offenders who are punishable by a prison term of not more than three years, whereas the correctional one is used to try trivial criminal offenses. The penal procedure can be divided into seven phases—registration of cases, investigation, prelim-

The Public Prosecutions Office The Public Prosecutions Office is the only official judicial organ in the judiciary of Macao that possesses the power of prosecution. The office is independent from other departments and institutions and is free from any political interference. The Public Prosecutions Office has equivalent status to that of the courts, though they are working together closely in the judiciary of Macao. The head of the Public Prosecutions Office, the public prosecutor-general, shall be a permanent resident of the Macao SAR. Nominated by the chief


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executive, the candidate needs to be appointed by the central government. Public prosecutors (also known as judicial officers in this office) are nominated by the public prosecutor-general and appointed by the chief executive. According to the incumbent public prosecutorgeneral, Mr. Chio-ming Ho, the Public Prosecutions Office of Macao has the following powers and functions: 1. To represent the Macao SAR government in the courts. 2. To monitor the application of law. 3. To safeguard public interests. 4. To supervise criminal investigation and ensure successful criminal prosecutions. Furthermore, the Public Prosecutions Office has established a judicial framework entitled “One Institution, Three Levels of Assignment.” One institution refers to one unified body within the structure of the office, as opposed to the three levels of the office corresponding to the three tiers of courts.

Judiciary Under the Basic Law and the Macao SAR Judicial Organization Framework Law, there are two independent judiciary bodies in Macao. The first is the court system, which is responsible for the exercise of the power of adjudication. The second system is the Public Prosecutions Office that possesses the power of prosecution in the judicial ambit of Macao SAR. The Basic Law stipulates that judges of the courts at all three levels shall be appointed by the chief executive. The public prosecutor-general as the head of the Public Prosecutions Office shall be nominated by the chief executive and appointed by the central government of PRC. The rest of the prosecutors of the Public Prosecutions Office are appointed by the chief executive. In 2006, there were altogether 29 judges in all three levels of courts, plus another 29 magistrates in the Public Prosecutions Office.

Courts The courts of Macao SAR are clearly structured into three levels. This hierarchical court system

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embodies the power of final adjudication granted by the central government of the People’s Republic of China.

1. THE COURT OF FIRST INSTANCE The president of the Court of First Instance is appointed by the chief executive from the local judges of that level of court. The term of office of this presidency is three years. The court consists of both the Lower Court and the Administrative Court. The Lower Court is composed of three Civil Courts, three Criminal Courts, one Court for Minor Civil Cases. It also has two Examining Magistracies. There are two distinctive ways for the Lower Court to adjudicate over legal proceedings: (a) Collegial panel is the form of hearing conducted by a group of judges, and (b) Sole-judge bench is a hearing conducted by a single judge. Offenses punishable by a term of imprisonment not less than three years are generally heard by the Collegial panel. The rest of criminal offenses are normally tried by a Sole-judge bench. Currently, the Lower Court has altogether 18 judges for the two different ways of legal proceedings—4 presidents of Collegial panel and 14 judges of Sole-judge bench. The Examining Magistracy, with a team of two judges, hears criminal cases at various stages of investigation. During the criminal hearing process, the Examining Magistracy performs investigative judicial functions, conducts preliminary trials, and decides whether to send a case for a full trial. In addition, the magistracy can carry out judicial work related to detention, imprisonment, and rehabilitation. The Administrative Court has two judges to adjudicate in cases in the form of either a Collegial panel or a Sole-judge bench. They hear disputes of the following three main types: public administration, taxation, or customs. The Administrative Court is not entitled to hear criminal cases.

2. THE COURT OF SECOND INSTANCE The Court of Second Instance (or the Court of Appeal) is the court of the middle rank. At present, it has five judges. All of them are appointed by the chief executive. The president serves a term of three years. The main functions of the Court of Second


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Instance include hearing appeals against the Court of First Instance, hearing jurisdictional conflicts between different parts of the Court of First Instance, deciding whether criminal cases should be retried, and reviewing and confirming other judgments made by courts or arbiters outside Macao.

3. THE COURT OF FINAL APPEAL The Court of Final Appeal is the court of the highest rank in Macao SAR with the power of final adjudication. It currently has three judges. The president of the Court of Final Appeal shall be appointed by the chief executive among the local judges of that level of court. The appointee shall be a Chinese citizen who is a permanent resident of the Macao SAR. The term of office of this presidency is three years. Like the Court of Second Instance, the Court of Final Appeal functions in chambers and in sessions and holds a general meeting once a week.

Punishment There are two types of legal consequences prescribed by the Penal Code: penalties and security measures.

Penalties Because of the humanistic approach of the criminal law of Macao, the application of penalty to the convicts should be intended for the prevention of crime and the correction of the offenders. Punishment should be applied as a means to achieve these two objectives simultaneously. Under this philosophy, death penalty and life imprisonment have long been abolished. According to the criminal law of Macao, there are two types of penalties—the principal penalty and the accessory penalty. The execution of penalties must be in sequence. The principal penalty has to be completely executed before the accessory punishment could be carried out. The principal penalties consist of sentence to imprisonment and sentence to fines. In Macao’s criminal justice system, a substitution practice has

been effectively operating within the two principal penalties for a long period of time. Under specific circumstances, the sentence to fines could substitute for imprisonment when the judges consider that the objective of crime prevention can still be met. Besides, the original sentence must not be more than a six-month imprisonment. On the other hand, if convicts fail to pay the fine without a reasonable explanation, they still have to serve the prison terms. Prison terms are set by days, months, or years. The shortest term is one month. In general, the longest term will be 25 years. Under specific circumstances, the term may be set to 30 years maximum. Judges may set the prison term longer than 25 years when applying concurrent punishment for several crimes at one time. Prison terms for the most common serious crimes according to the Penal Code are as follows: Murder Aggravated murder Manslaughter Aggravated manslaughter Forcible rape Robbery Blackmail

10 to 20 years 15 to 25 years A maximum of 3 years A maximum of 5 years 3 to 12 years 1 to 8 years 10 to 20 years

Fine as a penalty for crime is applied through two stages. First, the judge has to determine the number of days for the fine that is correspondent with the extent of criminality. Second, the judge has to decide the value of the fine for each day, ranging from 50 to 10,000 Macao patacas (1 U.S. dollar is equivalent to 8 patacas), according to the financial capabilities of the convict. The product of the two figures will be the actual amount of fine payable by the convict. Accessory penalty is applied to the convict in the form of deprivation of his or her right to engage in certain public activity or to hold a certain job position. The application of accessory penalties in addition to principal penalties appears only under specific circumstances. It is not a necessary consequence of the conviction.


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Security Measures According to article 18 of the Penal Code of Macao, all subjects under the age of 16 are legally presumed to be unable to recognize the illegality of their actions and to make a decision on their actions. This clearly indicates that the age of criminal responsibility in Macao is 16 years of age. Under this criminal legislation, minors cannot be incriminated and criminal penalties cannot be applied. Security measures, such as verbal admonition, provisional internment for observation, attended liberty and internment, are the only legal consequences that can be applied to minors. When the wrongdoers reach the age of 18, these security measures will become inapplicable to them. Besides the minors, another group of wrongdoers who also cannot be incriminated are those who are psychologically abnormal. According to the criminal law of Macao, persons with mental abnormality lack the subjective abilities to comprehend their own actions. If they engage in activities that constitute criminal offenses, preventive measures need to be taken to protect them and the recipients against potential danger and damage to legal interests and rights. These preventive actions are normally taken in the form of security measures.

Probation and Parole According to the criminal law of Macao, the court can apply probation to those offenders who have committed less serious crimes. Probation is the suspension of a sentence of imprisonment. A convicted criminal who needs to serve a jail sentence not more than three years and demonstrates substantial evidence of remorsefulness can be placed on probation. He or she can return to the community under the supervision of a probation officer. The criminal has to abide by certain conditions set forth by the court for a probation period of one to five years. Based upon the assessment of the performance of the convicted during the probation period by the probation officer, the court can withdraw the application of probation and send the criminal back to the prison. Parole is a special correctional program in the Macao penal system. It is the supervised release of

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a prison inmate before the completion of his or her sentence. According to the criminal law of Macao, the inmate must have served at least two-thirds or six months of his or her sentence. In other words, parole would not be applied to those with a sentence of less than nine months. The second condition for application of parole is the demonstration of substantial evidence of remorsefulness from the convicted. The final condition is the demonstration of substantial evidence of not posing potential danger to the society by the parolee after the release. Monitored by a parole officer, the parolee will be assisted to reintegrate into the normal society on an earlier date.

Prison Macao Prison has a long history that can date back to ancient dynasties of Imperial China. However, the modern one was only built in 1990 on an outlying island. It is a crucial part of the Macao criminal justice system. Its function is to execute courtimposed custodial sentences. The principle of punishment in Macao is to help criminals reintegrate into society and lead a normal life after discharge from prison. Because of that, the prison is responsible for the discipline and rehabilitation of the inmates during their period of confinement. The prison has employed a unisex policy of administration. Men and women have separate sections. Some special zones are set up for detention of inmates who might need absolute or limited isolation from other prisoners. The maximum accommodation of the prison is 1,050 inmates. In 2007, there were a total of 812 persons in prison, of which about 10 percent were female and 25 percent were prisoners on remand. The prison offers a wide range of courses from primary school level to secondary school level. Academic placement tests are also provided to assess the prisoners’ educational abilities. For those inmates who have already completed secondary school education, they are entitled to apply for distance learning correspondence courses. Vocational training workshops have been set up where professional tutors are recruited to teach


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inmates different vocational knowledge and skills. Moreover, the prison has established partnerships with a number of tertiary institutes in Macao to offer professional programs to equip inmates with a variety of job skills and thus pave their way to return to society in the future. Inmates can obtain professional certificates after the completion of courses and become certified technicians or skilled workers. In addition to these occupational training opportunities, inmates who have children under 16 years old are entitled to join a program called “the Child Support Program.” In company with a social worker, inmates in this program are allowed to meet their children on Sundays to maintain and strengthen their parent-child relationships. This is another humanistic mechanism of paving the way for their return to normal life.

Social Rehabilitation Department The Macao SAR government has set up a Social Rehabilitation Department under the Legal Affairs Bureau to provide rehabilitation services to released inmates. The provision of these services corresponds with the spirit of Macao’s criminal justice system of assisting offenders to rectify the wrongdoings and reintegrating them into society. The services include psychological counseling, financial aid, and employment support. The assistance can be extended to the family of the ex-convicts. Besides the services toward released inmates, the department is also responsible to implement noncustodial sentences to those offenders who have been convicted of minor offenses. These noncustodial sentences include suspended sentences, probation, labor service as a substitute for paying fine, and compulsory abstinence from drug abuse. In 2007, the Social Rehabilitation Department reported that there were 119 offenders on probation, 83 serving suspended sentences, 7 on community service orders, and 2 drug-addiction rehabilitation cases. Furthermore, this department provides rehabilitation services not only to adults but also to juveniles. These services include compiling presentencing

reports to the courts, conducting educational and vocational training programs, offering psychological counseling, and monitoring them on their school attendance behavior. The department reports that in 2006 there were more than 450 juvenile cases annually, of whom 412 were in follow-up education and 23 were serving suspended sentences.

Reformatory for Juvenile Delinquents The Reformatory for Juvenile Delinquents is an institution operating under the governance of the Legal Affairs Bureau of the Macao SAR government. It holds young persons who have violated Macao’s criminal law. All clients are referred by the courts. Its mission is to help these juvenile delinquents remedy their cognitive, psycho-emotional, and behavioral problems. It also aims to enhance their ability for self-care and independence, strengthen their capacity to think and learn, and equip them with basic life skills so that they can adapt better to society in the future. In general, the reformatory as an institution accepts juvenile delinquents aged 12 to 16. But once an adolescent has been accepted as an inmate, he or she can stay in the institution until the age of 21. The reformatory has established two different areas for boys and girls with a team of counselors working around-the-clock in each area, respectively. Other professionals such as psychologists, social workers, and occupational training instructors work together to take care of the inmates’ psychological, interpersonal, and occupational needs. In 2007 there were 42 boys in reformatory and 4 girls. This was a 30 percent decline compared to 2006. The reformatory also provides formal education programs up to secondary school level to the inmates. It also helps arrange for the inmates to study at other vocational training centers. Besides educational opportunities, the reformatory has developed a community service scheme to help juvenile delinquents understand better about the larger society and develop a stronger sense of social responsibility. Under this scheme, inmates are required to participate in a number of voluntary work teams to provide social services to the community such as


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assisting nonprofit organizations in organizing various community activities. Samson Chi-fai Kwan Further Reading The Basic Law of the Macao Special Administrative Region of the People’s Republic of China. The Government Printing Bureau of the Macao Special Administrative Region Web site: http:// bo.io.gov.mo/bo/i/1999/leibasica/index_uk.asp. Centro de formacao Juridica e Judiciaria. (2007). Proceedings of the International Conference on Criminal Procedure Law Challenges in the 21st Century. Macao: Centro de formacao Juridica e Judiciaria. Chio, Kuok-keong. (1998). A Study of Penal Law of Macao. [in Chinese]. Macao: Macao Foundation. Leong, Candy Veng-mei. (2004). “Macau Casinos and Organized Crime.” Journal of Money Laundering Control 7(Spring): 298.

Malaysia Legal System: Islamic/Common/Customary Murder: Medium Corruption: Medium Human Trafficking: Medium Prison Rate: Medium Death Penalty: Yes Corporal Punishment: Yes

Background Malaysia consists of Peninsular Malaysia, which comprises 11 states (Perlis, Kedah, Penang, Perak, Selangor, Negeri Sembilan, Melaka, Johor, Pahang, Kelantan, Terengganu), and Sabah and Sarawak. The population in Malaysia is about 25 million. The male population makes up 51 percent of the population, while the female population is 49 percent. The population consists of diverse ethnic groups and religions. The three main ethnic groups in Malaysia

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include Malays (53.4%), Chinese (26%), and Indians (7.7%). The other indigenous groups, besides the Malays, live mainly in Sarawak and Sabah (e.g., Iban, Bidayuh, Melanau, Kadazan, Bajau, and Murut) and make up 11.7 percent of the population. Other small ethnic minority groups, such as the Portuguese and Siamese descendents, make up the rest of the population (1.2 percent). The religions practiced in Malaysia entail Islam (60.4%), Buddhism (19.25), Christianity (9.1%), Hinduism (6.3%), and others (5%). Islam is the official religion of the country. Malaysia is a democratic country with a constitutional monarchy. The ruling party is the Barisan Nasional (National Front), which is a coalition of the United Malays National Organization (UMNO)— the dominant party, Malaysian Chinese Association (MCA), Malaysian Indian Congress (MIC), and a few smaller parties.

Legal History Malaysian legal history begins with the arrival of Francis Light from Britain in Penang in 1786, followed by the cessation of Melaka in 1824. Before then, there were kingdoms and sultanates dispensing Islamic law, traditional law, and customary law, notably the Undang-undang Melaka (the laws of Melaka), which existed around 1422 to 1458. When the English first arrived in Penang, they did not bring any legal system with them as their main concern was trade. At that period, British rule in Penang is said to be a period of “legal chaos.” The First Charter of Justice, based on the law of England at the time, which was founded upon the common law, was introduced into Penang in 1807. Through the charter, a Court of Judicature was established. English law in Malaysia, therefore, started in Penang. The Second Charter of Justice was introduced to Melaka and Singapore in 1826, and the Third Charter of Justice was introduced in 1855. The application of English law was confirmed by the Privy Council (in England) in 1875. As the trading business developed, English law spread from Penang, Melaka, and Singapore to other states. However, there was no statutory introduction of English law


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in these other states until 1937, although it had been practiced widely. The Civil Law Enactment of 1937 gave statutory authority for its application. As for criminal law, the Indian Penal Code 1860 and criminal procedure were formally adopted by Penang and Melaka in 1871. In 1884, Perak formally adopted the Indian Penal Code. The codes gradually spread to other states through British officers and Malay magistrates. By 1889, Negeri Sembilan, Selangor, Perak, and Pahang had accepted British authority and the British Residential system, where each ruler or sultan had to accept a British Resident. The sultans were the sovereign rulers, but actual government was in the hands of the British Residents. In 1896, all four states formed the Federated Malay States. The Federated Malay States formally adopted the Indian Penal Code in 1905. The other states, which did not join the Federated Malay States, were known as the Unfederated Malay States. In 1948, the Federated Malay States, the Unfederated Malay States, and the Straits Settlements of Penang and Melaka joined up to form the Federation of Malaya. The Federation of Malaya gained independence from British colonial rule in 1957. A new federal constitution was introduced, which became the supreme law of the country. The federation, together with Sarawak and Sabah, which were under British colonial rule in 1946, and Singapore, formed Malaysia in 1963. Singapore separated from Malaysia in 1965. At present, every state has its own government and constitution regulating the government of that state. Malaysia, as a whole, has a written constitution called the Federal Constitution. It is the supreme law of the country. Under the Constitution, Parliament has the legislative authority of the central government. The Parliament consists of the Yang di-Pertuan Agong (the King), a Senate or Dewan Negara, and a House of Representatives or Dewan Rakyat. Parliament enacts laws for the whole of Malaysia. However, if the laws enacted by Parliament are inconsistent with the Federal Constitution, the courts of law may declare them void. The legislature of a state may also make laws with respect to matters specified in the State List. The list covers matters such as Islamic

law, personal and family law of Muslims, Malay customs, offenses by Muslims, sharia courts, local government, local services, and offenses against the state law. However, article 75 of the Federal Constitution provides that if any state law is inconsistent with the federal law, the federal law shall prevail.

Police The first modern police force in Malaysia started on March 25, 1807, after the introduction of the First Charter of Justice in Penang. Most of the officers then were of British origin. Similar independent police organizations were soon introduced to other states. After the Japanese occupation in Malaya ended on April 1, 1946, the Straits Settlements Police, the Federated Malay States Police, and the Unfederated Malay States Police merged together to form the Malayan Union Police with its headquarters in Kuala Lumpur. During the Malayan Emergency that took place between 1948 and 1960, the police, together with the military, played a huge role in defeating the communist insurgency. The Yang di-Pertuan Agong awarded the police force with the title DiRaja (Royal) on July 24, 1958. On September 16, 1963, the police force in Malaya, Sabah, Sarawak, and Singapore merged together to form the Polis DiRaja Malaysia (Royal Malaysia Police) and was led by an inspector-general of police.

Sources of Malaysian Law Malaysian law can be classified into written and unwritten law. Written law refers to federal and state constitutions and legislation enacted by Parliament and the state assemblies. Unwritten law comprises principles of English law applicable to local circumstances, previous judicial decisions, and local customs accepted by the courts. Another source of Malaysian law is Islamic law, which only applies to Muslims. The Federal Constitution provides that the states have power to administer Muslim law. The courts that enforce Muslim law are the sharia courts. It covers mainly family matters (e.g., marriage and divorce) and division of property and assets of a deceased person.


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The Judicial System The doctrine of binding judicial precedent in English law is practiced by Malaysian courts. Decisions of higher courts bind lower courts and some courts are bound by their own decisions. Before January 1, 1987, the Privy Council, which sits in England, was the final court of appeal in Malaysia. Appeals to the Privy Council on criminal and constitutional matters were abolished on January 1, 1978. The highest court of appeal after that was the Supreme Court until June 23, 1994 where the Federal Court took over as the highest court of appeal.

Courts The hierarchy of Malaysian courts is as follows. The superior courts consist of the Federal Court (the highest court of appeal), the Court of Appeal, the High Court in Malaya (in Peninsular Malaysia), and the High

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Court of Sabah and Sarawak. The subordinate courts consist of the Sessions Court, Magistrates’ Court, Penghulu’s Court (in Peninsular Malaysia only), and the Native Court (in Sarawak and Sabah only). The head of the judiciary is the chief justice.

PENGHULU’S COURT The penghulu’s court is the lowest level of the subordinate courts in Peninsular Malaysia. It is presided over by a penghulu, or headman, appointed by the state government for a mukim (district). Disputes are normally settled informally and of a civil nature. For criminal cases, the penghulu’s court can only try minor offenses against persons of an Asian race and that can be punished by a fine not exceeding 25 ringgit (about US$7). Any person charged with an offense before a penghulu’s court may elect to be tried by a magistrates’ court.

The Sultan Abdul Samad Building in Kuala Lumpur is home to Malaysia’s judicial branch and is the location of the Federal Court and other high courts. The architecture reflects Malaysia’s predominantly Muslim population. (Sandra Prietz/Dreamstime) © 2011 ABC-Clio. All Rights Reserved.

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MAGISTRATES’ COURT The magistrates’ court, presided over by a firstclass or a second-class magistrate, deals with minor civil and criminal cases. A first-class magistrate is a member of the judicial and legal service of the Federation and, therefore, legally qualified. A secondclass magistrate is appointed by the Yang di-Pertuan Agong. Under Section 85 of the Subordinate Courts Act 1948 (Revised 1972) (SCA), a first-class magistrate may try all offenses for which the maximum term of punishment provided by the law does not exceed 10 years’ imprisonment, all offenses punishable with fine only, and offenses under Sections 392 (robbery) and 457 (lurking, house-trespass or house-breaking by night) of the Penal Code. Section 87 of the SCA states that the first-class magistrate may pass the following sentences: 1. Not exceeding five years’ imprisonment. 2. A fine of not more than 10,000 ringgit (about US$2,788). 3. Whipping up to 12 strokes. 4. A combination of any of the above sentences. However, in the case of Dangerous Drugs Act 1952, the magistrate may impose a fine not exceeding 100,000 ringgit (about US$27,884) on offenders. A second-class magistrate may try offenses for which the maximum term of imprisonment does not exceed 12 months or offenses punishable with a fine only. Under Section 89 of the SCA, the secondclass magistrate may pass the following sentences: 1. Not exceeding six months’ imprisonment. 2. A fine of up to 1,000 ringgit (about US$279). 3. A combination of the above sentences. The magistrates’ court also orders adjournments, bails, remands, warrants to search places, apprehensions of criminals or offenders, transfers of proceedings to sessions courts, and holds inquiries of death.

JUVENILE COURTS Juvenile courts, presided over by a first-class magistrate and assisted by two lay advisers (one of whom shall, if practical, be a woman), deal with persons

who have attained the age of criminal responsibility, that is, 10 years old, but below 18 years old. A child is a person under the age of 14 years, while a young person is between 14 and 18 years of age. The juvenile courts can try all offenses except those punishable by death. The court is closed to members of the public, unlike the other courts where the public generally may have access. The newspaper is prohibited from revealing the name or any particular information that may lead to the identification of any child or young person in the proceedings. The offender who was found guilty may be sent to a juvenile institution or a school to be given corrective or rehabilitation education. If the offense does not involve homicide, the court may discharge him or her on condition that he or she executes a bond, with or without sureties, to be of good behavior and to come up for sentencing when called upon. Appeals by the offender may be made to the High Court. A death sentence cannot be imposed on juveniles; instead, the person will be detained during the pleasure of the raja or sultan (ruler of the state) or the Yang di-Pertuan Agong.

SESSIONS COURT The sessions court, presided by a sessions court judge, is the highest of the subordinate courts. It deals with both criminal and civil cases. Its criminal jurisdiction extends to all offenses other than those punishable with death.

NATIVE COURTS The native courts exist only in Sarawak and Sabah and are empowered to try civil and criminal matters relating to native laws or customs. In Sarawak, the native courts are statutory courts established by the Sarawak state law and not by federal law. They administer a system of laws entirely different from that of the High Court and the subordinate courts in Sarawak. The native court system consists of three courts: the district native court, the native officer’s court or chief’s court, and the headman’s court. The headman’s court consists of a headman and two assessors. It has the power to impose a fine


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not exceeding 50 ringgit (about US$13.93). The native officer’s or chief’s court consists of a native officer or chief and two assessors. It has the power to impose a term of imprisonment not exceeding six months and a fine not exceeding 100 ringgit (about US$27.88). The district native court, comprising a magistrate, a native officer, and two assessors, possesses the widest jurisdiction. It may impose a term of imprisonment not exceeding two years and a fine not exceeding 200 ringgit (about US$55.74). The Resident’s Native Court and the Native Court of Appeal exercise only appellate jurisdiction. The Native Court of Appeal is presided over by a judge with powers similar to those of a High Court judge and nominated from the High Court by the Yang diPertua Negeri (rulers in Sarawak and Sabah). The district native court is not subordinate to the High Court. The High Court also has no jurisdiction to entertain the motion of any applicant from the district native court. In Sabah, jurisdiction is exercised at the native court with the district officer acting in a supervisory cum appellate capacity. All proceedings are subjected to scrutiny by the district officer who may quash or vary the proceedings, or direct a rehearing if he or she considers that such proceedings have been irregular or improper. An imprisonment sentence cannot be imposed without the endorsement of the district officer. In his or her appellate capacity, the district officer hears appeals from any order of a native court. An appeal from any order of the district officer lies to a Native Court of Appeal presided over by a judge of the High Court. The Court of Appeal also comprises the Resident of the residency in which the original proceedings took place and one native chief duly appointed.

HIGH COURT There are two High Courts in Malaysia presided over by two chief judges. They are the High Court in Malaya (in Peninsular Malaysia) and the High Court of Sabah and Sarawak. The jurisdiction of the High Court is original, appellate, and supervisory. In its original jurisdiction, it has unlimited criminal and civil powers. In criminal cases, they

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can only be brought to the High Court after the offenders have been properly committed for trial after a preliminary hearing in the magistrates’ courts. All cases punishable by death are tried at the High Court. In the exercise of its appellate jurisdiction, the High Court hears civil and criminal appeals from the magistrates’ and sessions courts. As such, the High Court may, in the interest of justice, call for the records of any proceedings in the subordinate courts at any stage of such proceedings. It may also remove the case to the High Court or give such directives to the subordinate courts as it deems necessary.

COURT OF APPEAL The Court of Appeal constitutes the president of the Court of Appeal and up to 10 Court of Appeal judges. The Court of Appeal case is heard by three judges or such greater uneven number of judges. Its jurisdiction covers both criminal and civil offenses. In criminal cases, the Court of Appeal has jurisdiction to hear and determine any appeal against any High Court decision. Appeals are decided in accordance with the opinion of the majority of judges composing the court. Where an appeal has been heard and disposed of by the Court of Appeal, it has no power to review the case.

FEDERAL COURT The Federal Court is the highest court in Malaysia and consists of the chief justice, the president of the Court of Appeal, the chief judge of Malaya, the chief judge of Sabah and Sarawak, and six Federal Court judges. Every proceeding in the Federal Court is heard by three judges or such greater uneven number of judges as the chief justice may in any particular case determine. Its jurisdiction covers both criminal and civil offenses. In criminal cases, the Federal Court has the jurisdiction to hear and determine any appeal of the Court of Appeal in its appellate jurisdiction in respect of any criminal matter decided by the High Court in its original jurisdiction. An appeal may be made against acquittal, conviction, or against sentence on a point of law or fact.


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Finding of Guilt Criminal Procedure There are many laws governing the administration of criminal justice or criminal procedure in Malaysia, but the foremost statute is the Criminal Procedure Code (CPC). All offenses under the Penal Code and offenses in statutes may be tried according to the CPC. However, if a specific statute lays down a special mode of trial or investigation, then that statute will prevail over the CPC; for example, search in relation to drug offenses would have to be conducted according to the provisions of the Dangerous Drugs Act 1952. Besides local statutes, the CPC allows reference to be made to English law whenever appropriate.

public prosecutor a report in the form set out in the procedures to institute or not to institute prosecution in court. However, the public prosecutor may issue an order in writing directing that no report be forwarded to him or her in cases of a character to be specified in the order and may at any time vary or revoke the order. According to Section 376(1) of the CPC, the attorney general will be the public prosecutor and will control and direct all criminal prosecutions and proceedings under the CPC. The solicitor general will have all the powers of a deputy public prosecutor and shall act as public prosecutor in the absence of or inability to act of the attorney general. The powers of the public prosecutor are numerous. The public prosecutor may appoint deputies who will be under his or her general control and direction.

Arrest There are generally four categories of persons who may effect the arrest: (1) the police officer, (2) the penghulu (headman), (3) the private person, and (4) the magistrate or justice of the peace. Section 23 of the CPC allows a police officer to arrest a person without a warrant. The penghulu may arrest in situations similar to those of a police officer. After the arrest, the penghulu has to hand over the person to the nearest police officer or to the nearest police station without unnecessary delay.

Investigation After the police have arrested the persons or after a police report has been made by a complainant, the police will decide on whether to proceed with investigation. In the course of investigation, Section 117 of the CPC allows the police to detain the arrested person, but he or she must be produced before a magistrate within 24 hours, exclusive of time taken for any journey, if the police want to detain him or her longer than 24 hours. The magistrate may extend the period of detention to a maximum period of not exceeding 15 days.

Prosecution Once the police investigation is completed, the investigating officer is required to forward to the

Crime Criminal Offenses Where criminal offenses in Malaysia are concerned, the Penal Code and the Criminal Procedure Code are the main references, although there are many other laws governing the administration of criminal justice. The Penal Code offenses broadly include, but are not limited to, the following: 1. Offenses against the state and armed forces; unlawful assembly and rioting; bribery and corruption; counterfeiting, forgery, giving false evidence. 2. Offenses affecting the public health, safety, convenience, decency, and morals, and offenses relating to religion. 3. Offenses affecting the human body, for example, murder and rape. 4. Offenses against property. 5. Offenses relating to marriage, for example, enticing or taking away or detaining with a criminal intent a married woman. 6. Defamation, criminal intimidation, insult, and annoyance. 7. Attempts to commit offenses. The Malaysian police classify crimes according to the Malaysia Crime Index, which divides them


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into those of violence and those against property. Violence includes murder, attempted murder, rape, gang robbery with firearms, gang robbery without firearms, robbery with firearm, robbery without firearm, and voluntarily causing hurt. Property crimes include van/lorry/heavy machinery thefts, car thefts, motorcycle thefts, snatch thefts, housebreaking and thefts during the day, housebreaking and thefts during the night, and other thefts. For 2007, there were 35,158 violent crimes recorded by police, of which 588 were murders. There were 174,440 property offenses. From 2001 to 2007, the number of murders has remained relatively stable, while there has been a gradual increase in property offenses, the rate increasing more steeply in 2006 and 2007.

Punishment Sentencing Sentencing in Malaysia aims at retribution, deterrence, and rehabilitation. A convicted offender may be given more than one sentence. The sentences include (1) death by hanging; (2) imprisonment; (3) whipping; (4) fines; (5) compensation orders and costs; (6) police supervision; (7) good behavior bonds; and (8) orders in relation to juveniles. Two other sentences that are not meted out by the courts, but by the minister, are restricted residence and banishment. The death sentence may be imposed by the High Court, Court of Appeal, or the Federal Court. The sentence is assigned to grievous offenses such as murder, kidnapping, possession of firearms, and trafficking in dangerous drugs. One exception where the death penalty cannot be imposed on an offender convicted of an offense punishable with death is a woman pregnant with a child. A sentence for imprisonment for life will then be imposed. Another exception is juvenile offenders. However, under Regulation 3(3) of the Essential (Security Cases) Regulation 1975, a juvenile offender who is charged with a security offense, such as possession of firearms, can still be sentenced with the death penalty. Imprisonment may be divided into three categories: (1) imprisonment for life, (2) imprisonment for

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a definite period, and (3) imprisonment in default of payment of fine. Whipping of a maximum of 12 strokes may be imposed by the first-class magistrates, while there is no limit placed on the other courts. However, Section 288 of the CPC restricts the number of strokes to 24 for an adult (aged 16 years and above) and 10 for a youthful offender (between 10 and 16 years). The rattan used for adults will not be more than half an inch in diameter, while for youthful offenders, whipping will be inflicted in the way of school discipline with a light rattan. Under civil law, whipping cannot be imposed on non-Muslim females, males sentenced to death, and males who are older than 50 years. It is generally imposed where there is evidence of use of violence or brutality such as rape and robbery committed with the use of weapons. Whipping for offenses that do not involve violence (purportedly for deterrence) include criminal misappropriation of property, criminal breach of trust, and cheating. As of December 2009, the caning of women for adultery is also administered for Muslim women (under Sharia Law). All strokes imposed must be executed at one time. It cannot be executed in installments. Before the sentence is executed, a medical officer has to be present to certify that the offender is fit to undergo such punishment. If, during the execution of the sentence, a medical officer certifies that the offender is not in a fit state to undergo the remainder of the sentence, whipping will finally be stopped. As for fines, the first-class magistrates’ court can impose a fine of a maximum of 10,000 ringgit (about US$2,790) unless there are exceptional circumstances where the court may impose the maximum specified for a particular offense or unless a specific statute says otherwise. For compensation orders and costs, the court may order the convicted offender to pay the costs of prosecution, or such part of it as the court directs, and compensation to victims of offenses to be fixed by the court. The scale for imprisonment in default of payment is generally less than 25 ringgit (about US$7) for one month’s imprisonment, 25–50 ringgit (about US$7 to $14), for two months’ imprisonment, and in any other case, four months’ imprisonment.


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Police supervision for offenses punishable by two or more years may be imposed if the offender has been convicted of an offense previously and it is one punishable with imprisonment for a term of two or more years. The High Court or sessions court can issue the period of police supervision to be not more than three years, commencing immediately after the expiration of the sentence passed on him or her for the last of such offenses. Magistrates’ courts can issue the period of police supervision to be not more than one year. The juvenile courts may admonish and discharge the offender; require a bond of good behavior; commit to the care of a relative or other fit person; order a parent or guardian to execute a bond to exercise proper care and guardianship; make a probation order; commit to an approved school or Henry Gurney School (rehabilitation school); order to pay a fine, compensation, or costs; and order imprisonment subject to that allowed by a sessions court. Children cannot be sentenced or ordered to be imprisoned for any offense. A young person may be sentenced or ordered to be imprisoned, provided he or she cannot be suitably dealt with in any other way whether by probation, fine, or committal to a place of detention, approved school, or Henry Gurney School, or otherwise. In prison, he or she should not be allowed to associate with adult prisoners. Section 12(3) of the JCA provides that the words “conviction” and “sentence” will not be used in relation to juveniles dealt with by the juvenile court. Instead, a conviction is construed as “a finding of guilt” and a sentence is “an order made upon a finding of guilt.” As they cannot be convicted, they do not possess “previous convictions” in the form of offenses committed before reaching 18 years of age. Should juveniles be tried in courts other than juvenile courts, they may be convicted. For example, if a juvenile is charged for murder and is tried in the High Court, the High Court may convict him or her or sentence him or her.

Restricted Residence and Banishment Under the Restricted Residence Act 1933, the minister may order a person to reside in a particular

area, either for life or for a term to be specified by the minister. The grounds for such an order have not been made clear. The only guide offered by the law to the minister is a suggestion that the person so confined is given to seditious activities, incitement to violence, or breaches of the peace. Those arrested under the law of restricted residence are exempted from being produced before a magistrate within 24 hours of arrest. Under the Prevention of Crime Act 1959, members of secret societies, drug traffickers, traffickers in women and girls, and certain habitual criminals, together with persons banished under the Banishment Act 1959, may be arrested and made the subject of an inquiry by a person appointed by the minister for that purpose. If the inquiry officer so recommends, and the minister agrees, the name of the person so arrested is entered on a special register. Under Section 18 of the Prevention of Crime Act 1959, if, for example, a person so registered is found “near any place in which any act of violence or breach of the peace is being or has just been committed,” he or she will, unless he or she can satisfactorily account for his or her presence there, be guilty of an offense. Another peculiarity of the act is that if the person so registered commits any one of a number of specified offenses under the Penal Code, the Societies Act, and the Corrosive and Explosive Substances, and Offensive Weapons Ordinance of 1958, he or she will be liable to imprisonment for a term twice as long as the maximum prescribed for the offense and also to whipping.

Sharia Law and Punishment Sharia laws, which only apply to Muslims, are legislated at state level by the various state governments with the exception of the federal territories sharia laws, which apply to the three federal territories of Kuala Lumpur, Labuan, and Putrajaya. The sharia laws for these three federal territories are legislated at federal level by the federal Parliament. Although the laws are invariably derived from Islamic teachings, the contents of the laws, and the list of offenses and the types of punishments provided for by these laws, are generally similar save for some


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detailed procedures, minor differences in definitions, and the scale and types of punishments for the offenses committed. For purpose of illustration and discussion in this article, the federal territories sharia laws, incorporating Sharia Criminal Offences (Federal Territories) Act 1997, Sharia Criminal Procedure (Federal Territories) Act 1997, and Sharia Court Evidence (Federal Territories) Act 1997, will be used as the main source of reference. Under Sharia Criminal Offences (Federal Territories) Act 1997, sharia crimes are divided into five distinct categories, namely: 1. Offenses relating to Aqidah (religious belief) 2. Offenses relating to the sanctity of the religion of Islam and its institution 3. Offenses relating to decency 4. Miscellaneous offenses 5. Abetment and attempt

SHARIA PUNISHMENTS Although the act provides the punishments of fine, imprisonment, whipping, or any combination of the three punishments listed for all the offenses discussed earlier, the act also provides some leeway for the court to institute “rehabilitation measures” toward the offenders. The Islamic Council, through a Gazette notification, may appoint a place or institution to be an approved rehabilitation center for the purpose of rehabilitating offenders guilty of committing offenses under the act. Persons found guilty of committing offenses relating to Aqidah (religious belief) and persons found guilty of committing some of the offenses relating to sanctity of the religion of Islam and its institutions may be subjected to this rehabilitation measure. The period of counseling or rehabilitation would be specified by the court order, but would not exceed six months. If the sentence of imprisonment is imposed together with counseling or rehabilitation, the period of counseling or rehabilitation and imprisonment combined should not exceed the aggregate of three years. For female offenders who are guilty of committing offenses relating to decency, they can be ordered to be committed to an approved rehabilitation home for women for a period as may be specified by

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the court. This period, however, would not exceed six months. This punishment can be meted out either in lieu of, or in addition to, the punishment for the offense committed.

THE CARRYING OUT OF SENTENCES Generally, the carrying out or execution of punishments for offenses committed under sharia law is almost similar to those punishments meted out for offenses committed under civil law in regard to imprisonment and fines, treatment of juveniles, and suspension, remission, or commutation of sentence. There are some slight variations in regard to administration of whipping. The whipping rod and prior examination of the offender is carried out as in civil law. In executing the sentence, the person appointed will use the whipping rod with average force without lifting his hand over his head so that the offender’s skin is not cut. After inflicting the stroke, he will lift the rod upward and not pull it. The whipping may be inflicted on all parts of the body except the face, head, stomach, chest, or private parts. During the execution, the offender will wear clothes according to Islamic law. If the offender is male, the whipping will be inflicted in a standing position. If the offender is female, the whipping will be inflicted in the sitting position. If, during the execution, the government medical officer certifies that the offender can no longer receive the strokes, the whipping will be postponed until the offender is certified fit to undergo the balance of the sentence. If the offender is sentenced to whipping only, he or she will be dealt with as if he or she is sentenced to imprisonment until the sentence is executed. For those who are old or suffer illness and certified by the government medical officer to be unable to undergo the whipping, either fully or partly, the court may consider reasonable execution.

Death Penalty From 2002 to 2006, 280 local male prisoners, 3 local female prisoners, 46 foreign male prisoners, and 3 foreign female prisoners were hanged.


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Prison In Malaysia, offenders could be sent to the following institutions depending on their age and the type of offense they have committed: 1. 2. 3. 4. 5.

Prison Henry Gurney School Detention center Rehabilitation center Detention depot

At present, there are 48 institutions for convicted offenders. There are plans to build more prisons in Malaysia to house the increasing number of offenders in the country. The annual admission of convicted prisoners has increased from 49,243 in 2002 to 72,615 convicted prisoners in 2006; an increase of almost 50 percent. Annual admission of convicted female prisoners is much less compared to the convicted male prisoners. Convicted female prisoners made up about 12 percent of the total convicted prisoner population. The biggest prison at present is in Kajang. The construction work of the prison started in 1975. The female section of the prison was opened on March 1, 1984. At the time, the male and female prisons were managed by the same prison officials. In the early 1990s, it was decided that the female prison should be separated from the male prison so that it could be managed more efficiently. As such, by January 1, 1993, the Kajang Female Prison was made autonomous from the Kajang Prison, which now housed only male inmates. In 2006, the Kajang Prison housed 21,058 male inmates. The Kajang Female Prison, which is, at present, the biggest female prison in Malaysia, housed 11,403 female inmates. Under the Rehabilitation and Treatment Section of the Prison Department, the rehabilitation programs include education and living skills, and the treatment programs offered include health, treatment (e.g., rehabilitation programs for drug users and counseling programs), and religious education (for Muslims, Christians, Hindus, and Buddhists). Juvenile and young offenders are encouraged to continue their school education. Contract teachers are employed to teach them, and all necessary

facilities are provided so that they could study comfortably. Adult offenders could also continue their studies if they wish to do so. Besides this, adult offenders are also taught living skills so that they could find employment and integrate back into society when they leave the prison. They are taught skills pertaining to industries such as construction, farming and livestock, food production, clothing, and furniture. These skills could be taught in the prison or in joint venture programs with local companies. Joint venture programs with local companies to provide skills to the prisoners started in 1981. These companies provide the place, raw materials, machines, and supervisors for this training. They also pay a salary to the prisoners involved in the training and provide them with insurance policies. The Prison Department will, in turn, have to send prison officers to accompany the prisoners while they are on training. The Vocational and Industry Section of the Prison Department was officially set up on January 1, 2007, to plan, produce, promote, and sell quality products of prisoners. Its aim is to set up viable industries within the prison compound. This will provide jobs and salaries to prisoners as well as enable them to obtain skill training certificates that will be beneficial to them when they leave the prison.

Visiting Policies The Prison Department encourages visits to the prisons from the society to deter them from wrongdoings. The visits will also contribute to the rehabilitation process of the prisoners. Those who could apply to the Prison Department to visit the prisons include uniformed groups (e.g., police and the military), voluntary organizations and nongovernmental organizations that could contribute to the rehabilitation process of prisoners (e.g., religious organizations), students from higher education institutes, and youth organizations. Families of prisoners are encouraged to visit the prisoners to help strengthen family relationships and reduce pressure or stress on the prisoners. A prisoner initially admitted into the prison is enti-


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tled to receive a visit from close relatives within four weeks after his or her admission. Usually spouses, close family members, and close friends of the prisoners are allowed to apply to visit the prisoners. Duration of the visit is 45 minutes and only five persons are allowed. If there are more than five family members present, they will have to take turns within the 45 minutes. A child below 10 years is not counted as a visitor. During the visit, food, drinks, and essential items required by the prisoner may only be purchased from the prison canteen. Prisoners are also permitted to celebrate their religious festivals based on their religious belief as stated in their records. Family members could visit them in conjunction with these festivals. On these occasions, family members are allowed to bring food for the prisoners that could only be consumed during the visiting time. Others who could apply for visitation include the police, lawyers, and welfare bodies handling the prisoners’ cases. The prisoners could be allowed, with the consent of the director-general of prisons, to visit a critically ill close relative or on the occasion of death. Approval could only be considered if the application is made by a close relative and consented to by the prisoner. However, a prisoner who has been allowed to visit a critically ill relative will not be allowed to visit him or her again upon his or her death. A prisoner about to be hanged may be visited by his or her family members face to face for the last time one day before the hanging takes place. Prisoners in Malaysia cannot be exchanged or transferred to other countries because Malaysia does not have any extradition treaty. Likewise, Malaysians who committed crimes under Malaysian law cannot be extradited back to Malaysia from other countries. Yik Koon Teh and Ahmad Ghazali bin Abu Hassan Further Reading Hickling, R. H. (2001). Malaysian Law: An Introduction to the Concept of Law in Malaysia. Kuala Lumpur: Pelanduk Publications.

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Lee, Mei Pheng. (2005). General Principles of Malaysian Law. Kuala Lumpur: Oxford Fajar Sdn. Bhd. Mimi Kamariah Majid. (1995). Criminal Procedure in Malaysia. Kuala Lumpur: University of Malaya Press. Prison Department of Malaysia: http://www. prison.gov.my/pride/. Teh, Y. K. (2006). “Female Prisoners in Malaysia.” Journal of Offender Rehabilitation 43(1): 45–64.

Maldives Legal System: Islamic Murder: Low Corruption: Medium Prison Rate: High Death Penalty: Maybe Corporal Punishment: Yes

Background Maldives is a small island nation situated in the Indian Ocean on a major marine route. The name “Maldives” is derived from the Sanskrit term maladvipa, meaning “garland of islands.” The location of Maldives, with close neighbors Sri Lanka and India, has had a major impact on world trade. For instance, in ancient times, the Maldives’ islands provided the unit of currency, the cowrie shells, for Asia and parts of the East African coastal areas. Additionally, very recently, the islands of the Indian Ocean, including Maldives, played a crucial role in Eastern-Western conflict as it served as a route through which much oil from the Persian Gulf states passed in shipment to markets elsewhere. Geographically, Maldives is made up of 1,200 coral islands that form a double chain of 27 atolls. Maldives has a total land area of 300 square kilometers (115 square miles) and has a population of about 385,925. The people represent a composition of Sinhalese, Dravidian, Arab, Australasian, and African groups who speak a Dhivehi language. The majority of Maldivians are Sunni Muslims and


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attend religious, Koranic schools. Maldives’ official religion is Islam and all citizens adhere to Islamic religion. In fact, the practice of a faith other than Islam is forbidden. The country reports a 98 percent literacy. Maldivian law has revolved around the sultanate, a position that began under Dutch control and later turned to British protection. The Maldives became independent in 1965 and three years after independence, it became a republic (1968). Politically, Maldives had a single party until 2005. Following the political riots of 2004, the Maldivian Malé political parties were legalized. The president of Maldives, Maumoon Abdul Gayoom, had been elected to six successive terms by single-party referendums, and he consequently dominated the political scene on the islands for approximately 30 years. A constituent assembly, the Special Majlis, in June 2008, developed and instituted a new constitution, which was ratified by the president in August 2008. In October 2008, the Maldives held its first-ever presidential elections under a multicandidate, multiparty system, representing a significant accomplishment for the island nation. In this election, Gayoom was defeated by Mohamed Nasheed, a political activist who had been jailed several years earlier by the former regime. Notwithstanding the fact that Maldives ascribes to civil law, Islamic sharia law is applied in the majority of cases. Pursuant to Islamic law, women have limited rights. A striking example is in the weight accorded to the testimony of a woman—pursuant to Muslim practice, the testimony of one man is equivalent to that of two women. Furthermore, the rights of laborers are limited as well. Specifically, they may not form unions or participate in any strike. Maldivian law does not recognize any freedom of the press or speech. Nor does the government usually respect such rights. Nevertheless, in 1994, a Press Council was established to protect journalists. This granted some limited freedom of the press.

Political System The Maldivian government is parliamentary in nature. Combined with this, the Maldivian government

also incorporates a strong executive. The revised 1968 Constitution of Maldives purports to enlarge the centralized role of the presidential government. The president of the Maldivian government has the authority to appoint members of the Cabinet, the judiciary, and 8 members of the 50-member Parliament. In addition, pursuant to the Maldivian Constitution, the president assumes additional discretionary influence as the “Supreme authority to propagate the tenets of Islam.” The Maldivian government is run by the president who is elected for a renewable five-year term by the legislature, or Majlis.

Constitution Pursuant to Maldivian law, the courts exist as an extension of the executive branch. The minister of justice, an appointed official under the president, is responsible for overseeing the nation’s court systems. The organizational and hierarchical structure of the governmental power is based on the 1968 Constitution and the subsequent revisions of 1970, 1972, and 1975. The constitutional directives provide for a highly centralized, presidential form of government, wherein religious and other powers reside in the president. For instance, the Constitution vests final authority for the propagation of Islam in the president, who in turn is empowered to appoint all judges who interpret and apply the sharia in the adjudication of civil and criminal cases. The basic constitutional rights of people are broadly phrased under Maldivian law. These fundamental rights, however, are subject to being exercised within the framework of the Islamic, or sharia, law. The Maldives Constitution, article 38 in the Penal Code, allows the jailing or banishment “for any gesture, speech or action that instills malice or disobedience in the minds of Maldivians against lawfully formed government.”

Internal and External Dissensions Security threats to Maldives have existed mainly in the form of internal dissensions rather than external threats. In May 1980, President Maumoon Abdul Gayoom disclosed details of efforts related to an abortive coup against his regime. Gayoom


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ascribed the internal threat to the actions of former president Ibrahim Nasir, supported by nine British ex-Special Air Services mercenaries. Nasir denied this allegation but in April 1981, the authorities sentenced Ahmed Naseem, former deputy minister of fisheries and brother-in-law of Nasir, to life imprisonment for plotting to overthrow Gayoom. In 1983, Gayoom encountered another unsuccessful coup attempt. Attempts to extradite Nasir from Singapore failed. In November 1988, Abdullah Luthufi, a former Maldivian businessman, spearheaded a mercenary force of approximately 150 Sri Lankan Tamil separatists. These forces invaded Maldives and attempted a coup d’état. The president requested the intervention of the Indian government. India responded with a cordial offer of a 1,600-member unit to Maldives. With the help of the Indian military assistance, the coup attempt was immediately aborted. The four Maldivians and 12 Sri Lankans who participated in the coup attempt had their death sentences commuted to life imprisonment by President Gayoom.

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1. The president’s office 2. The attorney general’s office 3. The 17 ministries and associated entities The executive branch is responsible for the execution and implementation of all official national government programs. The ministries of government, the attorney general’s office, and the High Court are subservient to the president’s discretion. The sitting president wields power over financial matters and is the governor of the Central Bank.

Crime and Justice Maldivian society is extraordinarily homogenous: there is but one religion (Sunni Muslim) and one language, Dhivehi. This uniqueness is reflected in its social milieu, and as a result, there is very little reported crime, social strife, or conflict. Notwithstanding a history of some civil unrest, these dissensions were predominantly rooted in power struggles within the controlling government. Also contributing to this unrest was the often tumultuous relationship between Maldives and the British government prior to the latter’s withdrawal in 1976.

Government Within the parliamentary structure, the legislative assembly, also known as the Majlis, has 50 members: two from Malé, two from each of the 20 administrative atolls, and eight appointed by the president. The president appoints the speaker of the Majlis, who acts as an ex officio member. Inasmuch as the Majlis sessions are open to the public for viewing and participation, only elected members can exercise the right to vote. Maldivians enjoy a universal right of suffrage for those aged 21 years and over. The procedure for electing a president is as follows: (1) the president is nominated in a secret ballot by the Majlis, and (2) the president is then elected by a majority vote at a national referendum for a fiveyear term. The president exercises significant power in the appointment of all cabinet members, ministers, and judges. The High or Supreme Court consists of a chief justice and four judges. The Maldivian executive branch is composed of the following three branches:

Defense and Security System Maldives is a relatively safe place; the country has not faced any external threats since its independence. Maldives maintains a single security unit, the National Security Service, which employs approximately 1,800 personnel. These military employees maintain security and perform army, police, and maritime duties. Owing to the geographically disparate and noncontiguous nature of the atolls, it is unfeasible to employ military personnel on every island. This is also reflected in the inability of the coast guards to protect every atoll and its surrounding area.

Age of Criminal Responsibility Under Maldivian sharia law, the minimum age of criminal responsibility is seven years. This age delineation also applies to certain property-related crimes, intentional killing, and narcotics offenses.


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For all other criminal offenses, children can be held criminally liable at the age of 14.

Laws Pertinent to Children The rights of children are represented in Maldivian law, which serves to protect them from abuse, both physical and psychological. The Maldivian Ministry of Gender, Family Development, and Social Security have the vested authority to enforce the law as it relates to children. Notwithstanding the fact that reliable data are lacking, some reports indicate that incidents of child abuse, including sexual abuse, are gaining more prevalence in the Maldives. From a punitive perspective, the penalties for sexual abuse of a minor include imprisonment for up to three years up to a more severe punishment including banishment. Notwithstanding the fact that some protections for children exist under Maldivian law, child labor remains a problem, primarily in traditional areas of Maldivian subsistence, such as agriculture, fishing, and small-scale commercial activities and family businesses. Virtually nonexistent are reports of child labor in the industrial sector.

The NCB primarily is responsible for rehabilitation of addicts and coordinates the efforts of NGOs and other individuals engaged in counternarcotics activities. Distinct laws have been enacted to address the problems with narcotics trade, terrorism, and corruption: For instance, Law No. 17/77 on Narcotic Drugs and Psychotropic Substances prohibits consumption and trafficking of narcotics. The law also prohibits laundering of proceeds from narcotics trade. Law No 2/2000 on Prevention and Prohibition of Corruption prohibits corrupt activities by both public and private sector officials. Pursuant to this law, all proceeds must be forfeited, and this law also empowers judicial authorities to freeze accounts pending a court decision. Law No. 10/90 on Prevention of Terrorism in the Maldives deals with related aspects of money laundering and terrorist financing. Provision of funds or any form of assistance toward the commissioning or planning of any such terrorist activity is unlawful. There have been no known or reported cases of terrorist financing activities through banks in the Maldives.

Drug Trafficking, Money Laundering, and Trafficking in Persons

Crime Statistics

Maldives has a relatively minor drug problem, but it is one that appears to be on the growing trend. The Maldivian government is cognizant of the growing problem and has fully cooperated with the United States on fighting this issue. The skewed age distribution of the Maldivian population, wherein children under 16 are disproportionately overrepresented, raises the suspicion of UN International Drug Control Program officials of the high growth potential for drug use in the country. The Maldivian police, however, can regulate and prevent the sale of drugs on the streets of the capital and most populated city, Malé. Maldivian police have stated that the nation’s approximately 25,000 foreign workers may be responsible for most of the trafficking. The Maldivian government took charge of this growing problem in November 1997 with the development of a Narcotics Control Board (NCB) pursuant to the executive authority of the president.

Maldives has a relatively low crime rate. However, the highly protected and regulated infrastructure of the Maldivian legal system makes the acquisition of reliable data or statistics a difficult task. As such, there exists very little information on actual crime rates. INTERPOL, however, provides some information. Based on the analysis of the INTERPOL data, for murder, the rate in 1997, the most recent year available, was 1.2 per 100,000 population. For rape, the rate in 1997 was 3.2. For robbery, the rate in 1997 was 20.4. As for aggravated assault, the rate in 1997 was 7.2 for Maldives. With regard to burglary, the rate in 1997 was 37.2. The rate of larceny for 1997 was 659.2 for Maldives. The rate for motor vehicle theft in 1997 was 0. The rate for all index offenses combined was 728.4 in 1997. Violence against women, such as domestic violence, has a generally low prevalence in Maldives.


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There is, however, a dearth of effective records on this subject matter, especially due to the private nature of the conduct. Notwithstanding the lack of official records, according to the U.S. Department of State, Maldivian police officials have reported that they received few complaints of assaults against women, such as rape and other violent crimes. Sharia law provides that the penalty for rape is flogging, imprisonment for up to five years, or banishment.

Finding of Guilt The police initiate investigations after having received written complaints from citizens, police officers, or government officials. The police can also initiate investigation on suspicion of criminal activity. However, Maldivian police are not required to obtain arrest warrants to investigate a person. The attorney general is responsible for referring cases to the appropriate court. The attorney general’s decision is predicated on the results of the police inquiry. In general, details of a case are not released until it is certain and there is sufficient evidence to indicate that the charges are likely to be upheld.

Detention Pursuant to older laws in the Maldives, suspects could be detained for long periods without being charged. However, revisions to the Maldivian laws and Constitution explicitly prohibit arbitrary arrest and detention. Current Maldivian law dictates that, “a suspect may be detained in prison, remain free, or be placed under house arrest for 15 days during investigations, depending upon the charges.” However, in the majority of cases, the suspect will be released if not brought to trial within 15 days. Although this aspect of criminal procedure is established, the president may elect to unilaterally extend pretrial detention for an additional 30 days. Criminal defendants, who are released pending trial, are subject to geographical constraints, in that they may not leave a specific atoll. Fundamental due process under Maldivian law necessitates that within 24 hours of an arrest, an individual must be told of the grounds for the arrest. Subsequent to this, a suspect can be held for seven days. If no judicial

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proceeding is initiated within a period of seven days, the matter is then delegated to an anonymous threemember civilian commission. The members of this commission are appointed by the president, and the commission is empowered to authorize an additional 15 days of detention. Maldivian law affords no provision for bail.

Legal Aid Maldivian law does not have any general provision of legal aid for criminally charged defendants. However, recent strides may change the law. For instance, a recent law that became effective in December 2002 provided for legal assistance, albeit limited, to people accused of a criminal offense. This particular law affords civil litigants with the opportunity to appoint a lawyer. This law is exclusively limited to civil cases, in which the litigants, both plaintiff and defendant, are private individuals. However, Maldivian courts do not recognize a right to legal representation for the indigent. Similarly, during police interrogation, there is no right to legal counsel. Despite this, detainees are often granted limited access to family members during the interrogation process.

The Judicial System The judicial infrastructure of Maldives exists with a High Court and eight lesser courts, which are situated in Malé. Serving as the superior-most court of law in Maldives, the High Court exercises jurisdiction over politically sensitive cases. Another task that the High Court fulfills is that it mostly acts in its appellate capacity, or as a court of review. The lesser courts that are lower in hierarchy have jurisdiction over matters such as debt, theft, or property claims. Other islands aside from Malé that make up the chain of atolls of Maldives have generic courts that exercise broad subject-matter jurisdiction. There are three courts in Maldives: One court for civil matters, one for criminal cases, and one for family and juvenile cases. Malé also has a High Court, which is independent of the Justice Ministry. The High Court can exercise discretionary jurisdiction over a broad range of cases. The court often


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chooses to certify, and thereby accept, jurisdiction over politically sensitive matters. Additionally, the High Court serves as a court of appeals, in that it can review a lower court’s decision for reversible error. The president has the vested authority to subsequently assemble a five-member advisory council to review High Court rulings. Such ad hoc councils effectively serve a pseudo-appellate/supervisory capacity. Furthermore, the president has the vested authority to affirm judgments of the High Court, to order a second hearing, or to overturn the court’s decision. This vests the president with supreme authority over judicial decree. Maldivian judges and magistrates who are fluent in Islamic, civil, and criminal law conduct trials in public. Maldivian law affords no right to jury trials, and as such none are provided. Pursuant to the Maldivian Constitution, however, an accused is presumed innocent until proven guilty. As such, the Constitution affirms the notion of due process, but qualifies such a right—an accused person has the right to defend himself “in accordance with Shari’a.” Pursuant to this obligation, during a trial, the accused may call witnesses and be assisted by a lawyer (for a civil dispute). Judges can question the concerned parties and attempt to establish the facts of a case. Owing to the supremacy of sharia under Maldivian law, civil law is necessarily subordinate. As such, sharia applies in all situations not within the purview of civil law as well as in certain matters of cultural/religious significance such as divorce and adultery. There is no general judicial provision upholding a right to legal counsel for matters relating to matrimonial and criminal cases. The predicate for such a legal stance is that sharia law mandates that all answers and submissions should come directly from the parties involved, and hence the use of advocates infringes on Islamic law. Notwithstanding this general bar, the High Court allows legal representation for parties in all cases, including those in which lower courts denied such a right. Pursuant to Maldivian interpretation of Islamic customary practice, the testimony of two women equals that of one man in matters within the jurisdiction of sharia, such as for adultery, financial matters, and

inheritance. In other cases, however, the testimony of men and women are equivalent.

Courts Maldivian courts do not employ any jury trials. Sitting judges interpret Islamic law and determine how the specific provisions apply to the case at hand. Trials are open to the public. The Maldivian court system was entirely restructured in 1997. In particular, the following three categories of lower courts supplanted the previously existing judicial infrastructure: 1. Madani (Civil) Court 2. Jinaaee (Criminal) Court 3. Aaelee (Family/Juvenile) Court Under Maldivian jurisprudence, a litigant or other party to a legal action can appeal against the judgment of a lower court (the Criminal Court). This appeal is usually made to the chief justice at the High Court and subsequently to the president who may independently conduct a separate review of the legal merits of a case. The president’s decision in such a case, however, is final.

Punishment Owing to the Islamic-centered legal system of Maldives, the law recognizes crime under the Islamic code, or sharia. There is no formal criminal code. Under Maldivian Islamic sharia law, the following six crimes are recognized: 1. 2. 3. 4. 5. 6.

Unlawful sexual intercourse False accusation of adultery Theft Highway robbery Drinking intoxicants Apostasy (conversion from Islam to another religion)

Judges under Maldivian law possess significant discretion in determining how justice is meted out. Much like any other legal system, Islamic law works in a similar fashion in terms of outlining the law and correlative punishments, but it is distinct in that it also incorporates religious rules and rituals.


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A telling portrayal of classical Islamic law is the punishment for a nonvirgin who has sex out of wedlock. The punishment would be death by stoning. Further, theft or simple larceny would result in the amputation of a hand.

Penal System The Maldivian penal system is predicated on Islamic law with admixtures of English common law, primarily for commercial matters. In general, Maldivians follow the sharia or Islamic law, both for law codification as well as for punitive matters. For certain offenses, the courts may order convicted criminals to be beaten. More frequently, the Maldivian courts limit punishment to the following: 1. 2. 3. 4. 5.

Fines Compensatory payment House arrest, imprisonment Flogging Banishment to a remote island

Banishment At the core of Maldivian law, as mentioned earlier, is Islamic sharia law, but admixed with this are elements of the civil law enactment of 1968 and its subsequent amendments. The product of this addendum was a modified sharia law, which excludes excessive punishments such as amputation and stoning to death. Notwithstanding the prohibition against cruel and unusual punishment, the modified code still sanctions floggings and the sentencing of banishment to a remote island. Current Maldivian enactments limit the banishment sentence to a range of eight months to one or two years. The punishment entails that the prisoner is left to survive on an island with the indigent peoples on that island. The prisoner has to attain, usually by laborious efforts, sufficient money to supplement the paltry per diem allotment distributed by prison authorities. The predicament is worst for women who are banished since they are highly susceptible to harassment and sexual abuse by the village men. The offenses for which banishment may be imposed on Maldivian citizens are usually those that are religious in nature (i.e., Islamic law violations):

1. 2. 3. 4.

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Drinking alcohol Extramarital sex Theft Eating in public during the fasting month of Ramadan

Owing to the highly protected and regulated infrastructure of the Maldivian legal system, data or detailed statistics are lacking on the number of banishment cases. However, some reports, albeit unofficial, indicate the prevalence and incidence of banishment as a punitive outcome. A report depicts that in 1988, there were 1,224 convictions, of which 806 people were banished. One-third of those banished were reportedly women, according to Kirsten Ellis in her book Odyssey Illustrated Guide to the Maldives, published in 1993. Another report provides more recent statistics: a report in Haveeru daily online quotes the Department of Corrections (Maldivian prison department) in stating that in 2002, 647 people were banished to outer islands. The report, however, notes that the source had not provided information on the nature of the offense committed.

Flogging Maldivian law permits flogging as a punitive outcome. This form of punishment is in accordance with the Maldivian courts’ construction of suitable forms of punishment under sharia law. In most matters, flogging is publicly performed, usually in front of the court building. For defendants with great public importance, this “public” requirement is waived. In such cases, the flogging is conducted in the court room and then announced to the general public that it has been successfully carried out.

Death Penalty Under Maldivian law, the death penalty is a potential punitive outcome for egregious offenses. Since 1958, however, all death sentences have been commuted to lesser sentences, such as life imprisonment or banishment. In fact, the death penalty has not been actually implemented in any case in the Maldives since the 1950s. This is despite the fact that the death penalty continues to persist under the


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country’s legal system, which is an admixture of common and sharia law. Those convicted of murder may be sentenced to death; however, these convictions have almost invariably been commuted to life in prison by the president. A notable example that received considerable media attention was the 2005 conviction of eight former Maldivian government security officers. These eight governmental employees were sentenced to death for the 2003 killing of prisoner Hassan Evan Naseem, which triggered significant political upheaval and mass protests. The president commuted the sentences to life imprisonment in January 2007.

Prisons Maldives has three main prisons. The prison population, although fluctuating, approximates 300 at the country’s main facility. Inmates are segregated based on gender, age, and type of crime. For instance, women are imprisoned separately from men, children are imprisoned separately from adults, and persons arrested for drug use are sent to a “drug rehabilitation center” on a space available basis.

Human Trafficking: Medium Prison Rate: High Death Penalty: Yes Corporal Punishment: Yes

Background Mongolia is a large landlocked country covering an area of 604,103 square miles with a population of only 2,612,900. The end of the Soviet Union in 1990 and the collapse of the Council for Mutual Economic Assistance (COMECON), whose member states were Mongolia’s main trading partners, forced Mongolia into a difficult and rapid transition to democracy and a market economy. After having been an independent but still satellite state of the Soviet Union for 70 years, Mongolia’s peaceful Democratic Revolution of 1990 culminated in the ratification of a new democratic constitution in 1992. Even in 2009, about 40 percent of the population still maintains a nomadic lifestyle. About twothirds are under the age of 30 and approximately 1 million people, that is, about two-fifth of all Mongolians, live in the capital city of Ulaanbaatar.

Suman Kakar

Legal System Further Reading Library of Congress Country Studies—Maldives: http://lcweb2.loc.gov/cgi-bin/query/r?frd/ cstdy:@field(DOCID+mv0006). President’s Office, Strategic Communications Unit, Malé, Republic of Maldives: http://www.maldiv iandetainees.net/RelevantLegalDocuments/Pro posed_Constitutional_Amendments_20050214. pdf. U.S. Department of State—Maldives: http://www. state.gov/g/drl/rls/hrrpt/2004/41741.htm.

Mongolia Legal System: Civil Murder: High Burglary: High Corruption: Medium

Mongolia’s social, political, and legal structures were modeled along the lines of those in place in the Soviet Union and other Eastern Block countries. In the years before becoming a democracy, Mongolia benefited particularly from intensive assistance from the German Democratic Republic (GDR). After the collapse of the Soviet Union, the now-unified Federal Republic of Germany almost immediately substituted most of the assistance previously provided by the GDR, including assistance for legal reform. As a result, the Mongolian legal system today looks very much like the German legal system with some elements that are more frequently present in common law systems, such as inclusion of some adversarial processes, a high commitment to strong judicial branch administration, and independence of the courts and prosecutors’ services. Mongolia’s justice system shares the challenge of having to adjust to rapid and fundamental societal


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changes with the rest of the government and society. Limited resources, lack of infrastructure, higher caseloads, and increasingly complex cases before criminal and civil courts escalate the demands on an already strapped justice system. As a result, public trust in the rule of law is not well established, and critics often question the fairness of the justice system, despite the passage of significant legal reforms and considerable changes in justice sector operations, especially in the prosecution service and the courts. At the same time, many positive changes can be observed today. Supported by extensive international assistance, all courts and most prosecutors’ offices are automated, case management software assists in tracking cases, managing caseloads, and providing management information. All courts have public access terminals where everybody can check on the status and outcome of a case; courtrooms have been redesigned and policies changed to provide for more equality among the parties and for public access, particularly media access, to the courts. All judges and prosecutors have access to the latest laws, many via a uniform information network. On the other hand, assistance for the police, the “public face of the justice system,” has been limited.

Police Mongolia’s police are a national force, organizationally located within the Ministry of Justice and Home Affairs. Public order, crime control, and some emergency response functions are at the core of the police’s mandate. There are more than 7,000 officers located throughout Mongolia (51% are low-ranking officers, including patrol and beat officers; 49% are mid- and high-ranking officers). The Mongolian Police is still a strictly hierarchical organization. At the same time, police are completely separate from the military and General Intelligence Agency. Boarder control and customs are also outside its mandate. Supported by a few small grants from the Open Society Foundation, the Mongolian Police embarked in 2001 on a program to experiment with

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community policing in a few small neighborhoods in Ulaanbaatar and three rural areas. These projects successfully brought the community and police closer together, resulting in improved procedures and mechanism to address community issues. When funding ceased, the police continued these efforts at least in the existing pilot sites. Renewed international donor interest in these efforts promises support for expansion of community policing throughout the country starting in 2008.

Crime Classification of Crimes Mongolian law distinguishes four categories of crimes—minor, less serious, serious, and grave. Based on the Mongolia Criminal Code as amended in 2007, these are defined as follow: • Minor crimes are punishable by a fine equal to 5 to 50 times the minimum wage, or 100 to 250 hours of forced labor, or by incarceration for one to three months. Minor crimes are specified in 64 articles of the Criminal Code and include a broad range of crimes—for example, minor theft, infliction of a minor bodily injury (i.e., causing a short-term detriment to health or a slight loss of the ability to work), evasion of treatment of a venereal disease, engaging minors in heavy drinking, drug abuse, prostitution, vagrancy, or begging. • Less serious crimes are punishable by a fine equal to 51 to 250 times the minimum wage, by 251 to 500 hours of forced labor, by incarceration for three to six months, or imprisonment for up to five years. There are 251 different articles that outline less serious crimes and include offenses such as illegally crossing the border, negligent manslaughter, torture, and sexual intercourse with a minor. • Serious crimes, of which there are 73, are punishable by a fine equal to 251 to 500 times the minimum salary or imprisonment for 5 to 10 years. This includes serious theft cases, rape, kidnapping, among others.


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• Grave crimes, defined in 38 articles, are punishable by imprisonment of 10 to 15 years or in extraordinary cases of up to 25 years or by death. This includes murder, serious organized and gang crimes.

Age of Criminal Responsibility The age of criminal responsibility in Mongolia is 16. Exceptions are offenders aged 14 to 15 who committed select serious cases, such as homicide, deliberate infliction of a severe bodily injury, rape, robbery, aggravated theft, deliberate destruction or damage of property, and aggravated hooliganism. For first-time offenders of a minor or a less serious crime who are under the age of 18, the court may apply probation or an alternative measure of coercion of educational character instead of formal

punishment. Such alternative can be payment of compensation for any damages caused, if the juvenile has his or her own source of income, or working for a NGO or specific individual, which can be the victim, if appropriate. Sentencing to a special educational facility is another alternative for juveniles aged 14 to 16, if other less invasive alternatives have not been successful. According to information provided by the Supreme Court Research Center, typically half or more juveniles receive alternative sentences.

Drug Crimes Considering that illicit drug use is still a rare occasion in Mongolia, drug possession is currently not punishable. Illicit production, manufacturing, and distribution of narcotic and psychotropic drugs

A Mongolian police officer drags a drunken man, dressed in only a blanket after being given a cold shower, back to his cell at a police station in Ulan Bator, Mongolia, November 16, 1998. (AP Photo/Greg Baker) © 2011 ABC-Clio. All Rights Reserved.

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may be considered a less serious crime if smaller quantities are involved; it is a serious crime if larger quantities are involved, or there are other aggravating factors (i.e., gang or organized crime activity, serious endangerment of the population). The schedule indicating what are considered illicit narcotics and psychotropic drugs in Mongolia is developed by the Department of Health. The drug of choice in Mongolia is alcohol. Alcoholism and poverty both going hand in hand with high unemployment rates, are the root causes of crime in Mongolia. The main crimes are property crimes, mainly theft, assaults, and other crimes resulting in bodily injuries, including the much underreported but serious problem of domestic violence. At least one-quarter of all crimes reported to the police are committed under the influence of alcohol. While violent crimes seem to be increasing and are at least of increasing concern to the population, especially in the urban areas, Mongolia remains a relatively low-crime country employing a relatively harsh justice regime of crime control.

Crime Statistics Data provided by the Information and Research Division of the Mongolian General Police Department in February 2008 indicate increases in the minor crimes categories and decreases in the more serious crimes recorded by police. The top three categories of crimes recorded by police are theft (36.5% of all cases in 2006), infliction of bodily harm (19.6% of all cases in 2006), and traffic violations (7.8% of all cases in 2006). Cases of theft in rural areas include significant numbers of cattle theft, and cases involving bodily harm are frequently related to alcohol abuse, including significant numbers of brawls while under the influence of alcohol. Reflecting the above-mentioned limited occurrence of illicit drug use, the official statistics do not include any drugrelated crimes. Crimes recorded by the police for 2006 are as follows: Minor crimes Less serious crimes Serious crimes Grave crimes

6,168 8,961 2,715 409

Murder Rape Robbery

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311 314 455

The crimes most typically recorded in urban areas are theft, vandalism, traffic crimes, intentional infliction of severe bodily injury, and robbery. The crimes typically recorded in rural areas are theft (especially of livestock), brawls, and vandalism.

Finding of Guilt Following the continental European legal tradition, Mongolia does not have jury trials. At the current time, minor cases are heard by a single judge; in other cases, the Mongolian law requires that a panel of at least three judges hears the case. This requirement was introduced as part of major changes to the Criminal Procedures Code in 2002 to ensure a fair trial. In rural jurisdictions with limited numbers of judges available, this requirement not only increased cost and the burden on individual judges who have to cover multiple panels, it also delayed trials due to insufficient availability of judges. As a result, future changes to the Criminal Procedures Code may again allow a single judge to hear not just minor but possibly also less serious cases. Mongolia complies with international requirements to provide for a speedy trial, and cases generally come to trial within a few months.

Right to an Attorney Defendants have a right to an attorney starting at the time an investigation begins, and certainly at the time an arrest is made. However, the right of the attorney to be actually present during arrest and detention decisions was only recently added to the Criminal Procedures Code. More importantly, there exists no public defender system in Mongolia; instead private attorneys are assigned by the court to those who cannot afford their own attorney. Further, the right to have an attorney present does not mean that the state has to provide an attorney in all cases. Article 40 of the Mongolian Criminal Code specifies that the participation of an attorney is mandatory and the state is required to provide an attorney only when the defendant is mute, deaf, blind, and/or due to a physical


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or mental handicap not able to defend himself or herself; if the defendant is a minor, does not have command of the Mongolian language; if the death penalty may be applied; or if a co-defendant has a defense counsel. The 2002 Law on Advocacy states that it is mandatory for each member of the Mongolian Advocate’s Association to defend two indigent people per year. The state is required to pay the attorney fees when their participation is mandatory and the defendant cannot afford his or her own counsel. The fees the state pays attorneys are, however, extremely low. The very fact that the state has started to finance legal aid is a sign of progress. However, since most criminal offenders are poor, more state funding is needed for legal aid. Considering that Mongolia’s state budget is still very limited, significant increases are not expected in the near future. With international assistance, a few legal aid centers have been created in the capital and others are planned to be established in each of Mongolia’s 21 state capitals.

• The actions investigated are no longer considered of socially dangerous nature. • The suspect, accused, or defendant committed a minor crime for the first time, reconciled with the victim, and redressed the damage caused. • The suspect, accused, or defendant was mentally ill when committing the crime. Otherwise, cases are generally settled through a trial. Changes to the CPC introduced in 2007 simplified proceedings that can be applied in select minor cases if the accused has confessed and the parties have no further disputes. Simplified proceedings still require a court hearing, even though an abbreviated one. Negotiations or dispute resolutions are not available in criminal cases, even though judges are allowed to encourage the parties to settle their dispute before commencing the trial. Other alternatives to a trial do not exist except in cases involving juveniles. There is no plea bargaining.

Pretrial Detention Investigations and Prosecutions Investigation of cases is generally the responsibility of the police. Exceptions are crimes committed by police, prosecutors, or judges, which are investigated by members of a Special Investigative Unit that was created in 2003 under the prosecutor general’s office. Other exceptions are state corruption cases, which are investigated by staff of the AntiCorruption Agency (created in 2007), and select cases that involve state security matters, such as espionage, treason, assault on public figures, and similar cases, which are investigated by staff of the General Intelligence Agency. Prosecutions are conducted by members of the national prosecution service. Mongolian prosecutors have very little discretion, but, according to article 205.7 of the Mongolia Criminal Procedures Code (CPC), they may dismiss a case for lack of evidence or if the following occur: • A suspect, accused, or defendant committed a minor crime for the first time and has voluntarily revealed and compensated the damage caused or corrected the harm caused.

Pretrial detention is allowed, generally following international principles, that is, there must be a reason justifying pretrial incarceration, such as circumstances that indicate the likelihood of reoffending, endangering the investigation, or likelihood of not appearing for the trial. The decision to hold someone in pretrial detention is made by a judge following a request by a prosecutor who generally follows the recommendation of an investigator. Police may arrest persons suspected of a crime and hold them for up to 72 hours before a decision is made to prosecute or release them. Still, according to a U.S. State Department report, arrest without a warrant is fairly common. The report cites a survey of detainees conducted by the Mongolia National Human Rights Center in 2006, which found that 919 out of 978 persons detained in the main pretrial detention center near Ulaanbaatar were arrested under the “pressing circumstances” exception to the requirement that a court warrant should be obtained prior to arrest. In addition, the length of time suspects can be held in pretrial detention has raised concerns. The maximum period of court-ordered pretrial detention was finally reduced in 2007 from 24 months to 4 months


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for less serious crimes, 12 months for serious crimes, and 24 months for grave crimes. Further, the court now has to review the decision to detain the suspect every month. Detainees may be released on bail with approval of a prosecutor. According to the law, juveniles under 16 cannot be held in pretrial detention and those older than 16 are to be held separately from adults. Outside of Ulaanbaatar, this usually means just in a different cell, since separate facilities for juveniles are not available.

Mongolia’s Judiciary In 2007, there were a total of 429 judges in Mongolia. Judges are not specifically assigned to handle criminal cases only, except those serving at the Highest Appeals Court, the Capital City Court, and at the Supreme Court. No separate juvenile courts exist in Mongolia. To become a judge or prosecutor, a law degree from a Mongolian law faculty is required and candidates must have passed a special qualification exam, which can only be taken after two years of legal practice. Considering the relatively low standard at Mongolia law schools, the prior low qualification requirements, and low salaries of judges, it is not surprising that the regard for judges and public opinion of the judiciary in Mongolia is not very high. Public perception of the judiciary has improved somewhat over the past years. Still, many perceive that judges are not well versed in critical substantive areas of the law (particularly economic law and human rights) and accusations of favoritism and corruption are frequent. Critics point out that the high proportion of women in the judiciary (approximately 70% in the countryside and 50% in Ulaanbaatar) indicates the profession’s low prestige. Increasing judicial salaries, along with new selection requirements, is aimed at raising the status and professionalism of the judges serving in Mongolia’s courts.

Punishment Types of Punishment The predominant punishment applied in Mongolia is a prison term. Information provided by the prosecutor general’s office in February 2008 showed that

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during the first half of 2007, a total 4,657 individuals were convicted. Of these, 3,206 or 68.8 percent were sentenced to prison. Not all of them had to serve their prison term, however; 1,150 individuals (35.8%) received a conditional prison sentence, for 444 (13.8%) the execution of the prison sentence was postponed, and 65 persons were released after an amnesty. Further, 1,431 offenders received other types of punishment: 332 (23.2%) were punished by a fine, 384 (26.8%) were sentenced to forced labor, and 715 (49.9%) were sentenced to other forms of detention. Of those sentenced to prison, 138 were sentenced to a term of up to 1 year, 1,396 to a term of 1–3 years, 442 to a term of 3–5 years, 784 to 5–8 years, 163 to 8–10 years, 197 to 10–15 years, 58 to 16–20 years, and 28 to a term of 20–25 years. Information provided by the general prosecutors’ office indicates that the typical punishment for murder and rape is prison. Robbery and serious theft also resulted in prison time often; of the 840 individuals convicted for these crimes in 2007 in Ulaanbaatar alone, 389 were sentenced to prison. Corporal punishment is not part of the sentencing options in Mongolia. Nevertheless, every year reports from human rights organizations, such as Amnesty International, decry the unofficial use of corporal punishment in Mongolia’s detention centers and prisons, and every year prisoners die as a result of abuse, neglect, and the generally terrible conditions in most of Mongolia’s prisons. According to a 2006 United Nations Development Programme (UNDP) report, 259 individuals were sentenced to capital punishment (death sentence) between 1990 and 2000. In comparison to the first five years of that decade, a 60 percent reduction in the use of capital punishment sentence was registered from 1996 to 2000. However, information on the use of capital punishment is classified, official data are not released, and, as the UNDP report states, prison conditions for those sentenced to capital punishment are atrocious, and family members are never notified of executions. The method of execution is a shot in the neck. Changes to the Criminal Code introduced in 2002 prohibit capital punishment for women, men over the age of 60, and individuals who had not reached the age of 18 at the time the crime was committed.


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Prisons According to information provided by the Court Decision Enforcement Department (CDED) in February 2008, there were 5,934 offenders sentenced to prison, 165 persons sentenced to arrest, and 1,824 individuals in detention centers on December 15, 2007. Compared to the end of 2006, the number of individuals sentenced to prison increased by 15.1 percent, the number of persons sentenced to arrest increased by 47.2 percent, and the number of detainees increased by 14.4 percent. Only 27 foreigners were serving their sentence in Mongolian prisons. Of these, 14 were from Russia, 9 from the People’s Republic of China, and 1 each from the Czech Republic, Azerbaijan, Armenia, and Great Britain. There are 21 penal institutions under the authority of the Court Decision Enforcement Department (CDEA): 1 high security prison, 2 special regime, 8 strict regime, and 10 normal regime prisons. In addition, there are 14 arrest centers and 29 detention centers. The CDEA also has a Central Prison Hospital with 120 beds, a Tuberculosis Hospital with 50 beds, and a Central Detention Center Hospital with 45 beds. On average, the Central Prison Hospital has 1,900–2,050 in-patients and 3,700–5,000 prisoners, and detainees get medical aid and services annually. Information provided by the prosecutor general’s office of Mongolia, which has some oversight functions over the prisons in Mongolia, indicates that on November 25, 2007, there were 62 individuals held in high security prison, 842 in special regime prison, 2,438 in strict regime prison, 2,501 in normal regime prison, and 180 persons in arrest centers. The biggest prison is located in Baganuur District, about a two-hour drive from the capital of Ulaanbaatar. This is a strict regime facility housing more than 1,000 inmates. A 2007 report of a prison visit by a member of the International Federation of Red Cross and Red Crescent Societies indicated that more than half of the male inmates there, mostly between 18 and 30 years old, were expected to serve a prison term of more than 15 years. Health issues, especially tuberculosis, are a major problem here and in most Mongolia prisons and detention

centers. The Red Cross provides health education and medical services but also all-important assistance for transitioning to the outside world. The conditions here are not the worst of all prison facilities in Mongolia but still shocking to foreign visitors. Quarters are cramped and while reports of abuse have declined over the years, the conditions are still bleak. For most of the nonworking hours, prisoners are not assigned to cells but to compartments that are about 10 feet long, 6 feet deep, and only high enough to sit in. Up to six prisoners may be in one of these compartments that are stacked high along the walls. According to the Law on Court Decision Enforcement and related procedures, prisoners are required to work. The CDED is required to ensure that labor safety standards for prisoners meet the requirements of the Mongolia Labor Law. Hours of work and rest for the prisoners in normal regime prison and juveniles are in accordance with the labor law. Whenever possible, prisoners are to be provided with the opportunity to be assigned work that is related to their professional skills and working abilities. However, lack of such work is not a ground for release from the work requirement. On average, around 45 percent of all prisoners are working. They can participate in training to obtain skills needed in related professions and may also have an opportunity to be enrolled in other educational courses; for example, courses leading to general and/or higher education, as well as other professional skills training, enabling them to work as construction carpenters, decorators, bricklayers, painters, welders, and plumbers. Those passing all courses are awarded certificates issued jointly with the relevant certifying organizations. Moreover, regular courses to increase literacy (reading and writing), computer skills, and English language are conducted at prisons and prisoners are enrolled on a voluntary basis. The normal regime prisons may send their inmates to work under supervision on CDED farms or may contract them out. In addition, the prisoners in normal regime prisons may provide services, such as cleaning or maintenance, at other prisons, arrest, and detention centers. Prisoners in special or


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strict regime facilities can work only at their own facility under the supervision of a security guard. For them, the hours of work and rest can differ from the labor law. All prisoners may receive a compensation based on the quantity and quality of work performed. The rates need to reflect standard wages. If prisoners performed work on an outside contract, the employer transfers the wages to the account of the prison. The prison takes certain deductions from the money earned; the rest is transferred to the prisoners’ account. Prisoners have the right to spend 10 percent from this account each month. The remaining money will be given to them at the time of release. All prisoners are allowed a limited number of phone calls and can make money transfers. The number of calls allowed will vary with the security level of their confinement. Visits with family members and others are regulated by internal policies and regulations developed in conformity with the Law on Court Decision. Prisoners in normal regime prisons are allowed 4 short-term visits and 8 long-term visits per year and may receive packets and letters. Short-term visits are less than 3 hours, and long-term visits are less than 72 hours. Prisoners in strict regime facilities are allowed 3 short-term and 2 long-term visits annually and may receive 3 packets and 2 letters per month. Those in high security prisons are allowed 2 shortterm visits per year and 1 letter per month. According to the Law on Court Decision, the prisoners also have the right to: • Know about the circumstances and regulations of the punishment imposed, related rights, obligations, and restrictions; • File complaints to the official or institution they are serving in; • Get legal assistance; • Write a book, produce scientific writings, and create works of art at their own expense; • Be provided with food of a certain amount of calories, clothes, an adequate cell, and get medical assistance; • Subscribe to a limited number of newspapers, magazines, and use the library of the prison;

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• Be entitled to get a pension or other benefits continuously; • Receive humane treatment from the prison personnel; • Protection of their personal security. Prisoners who have properly fulfilled their assigned duties and have not committed disciplinary breaches may be granted a leave of up to 30 days once in a quarter. Prisoners in prisons with normal regime may be granted leave of up to seven days in case of serious illness or death of relatives or if a considerable loss has occurred to the family due to natural calamity or other disaster. The chief prison administrator may grant such leave if a request is issued by the local governor or a hospital. On average, around 265–300 convicts enjoy this right annually, a very low percentage. Considering that relatively few foreigners live in Mongolia and that the number of foreign temporary workers and visitors remains low, it is not surprising that few foreigners get in conflict with the law. As a result, the number of foreigners Mongolia has transferred is few. Some sentenced offenders have been transferred to Russia and Kazakhstan following the Berlin Protocol on Exchange of Convicts from May 19, 1978. If foreigners are accused of crimes, they are more frequently either kept in Mongolian prisons or deported before a trial. Heike Gramckow Further Reading Gramckow, Heike. (2007). “The Long Winding Road: Judicial Sector Reform in Mongolia.” International Judicial Monitor 2(1). Judicial Monitor Web Site: http://www.judicialmonitor.org/ archive_0207/sectorassessment.html. Tseveen, Odgerel, and Battsetseg Ganbold. The Mongolian Legal System and Laws: A Brief Overview. Globalex Web Site: http://www. nyulawglobal.org/globalex/Mongolia.htm. United Nations Development Programme. (2006). Democratic Governance Indicators: Assessing the State of Governance in Mongolia. Ulaanbaatar,


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Mongolia: http://www.undp.org/oslocentre/ docs07/DGI-Mongolia.pdf. The World Bank. (2007). The Enabling Environment for Social Accountability in Mongolia. Report No. 32584–MN. Washington, DC: The World Bank. Note: Assistance in data collection was provided by Suheemaa Dugersuren and Gantulga Yonkhor, staff members of the Mongolian Judicial Reform Project (JRP). The staff of the Mongolian General Police Department, the Prosecutor General’s Office, the Supreme Court Research Center, and the executive secretary of the General Council of Courts were instrumental in providing translations and access to data.

Myanmar (Burma) Legal System: Common/Customary Murder: Medium Corruption: High Prison Rate: Medium Death Penalty: Maybe Corporal Punishment: Yes

Background The British Empire ruled this country—then known as Burma—as part of its Indian colony until Burma became the independent nation Union of Burma in 1948. The country’s legal and judicial origins lie in its 1947 Constitution. This constitution incorporated key liberal democratic principles, such as the presumption of innocence, habeas corpus, and the right to due process and fair trials, as well as Britain’s common law tradition with the development of case law and the use of an independent judiciary of competent, impartial legal arbiters. It also provided the structure and procedures around which the Burmese legal and judicial systems would be organized. Courts would be organized from local townships and districts all the way up to the country’s Supreme Court. Throughout the 1950s, these principles of individual justice remained relatively vital, with the use of writs and the exercise of habeas corpus

protections common. Yet, the constitutional protections for regionalized ethnic minority groups were much weaker and provoked discord. Successive military coups, beginning with the so-called caretaker regime under General Ne Win in 1958 and again in 1962 by the self-styled Revolutionary Council began what would prove to be a successful systematic dismantling of the British common law tradition underpinning Burma’s constitutional system, a dismantling intellectually orchestrated by Dr. Maung Maung. This successfully eliminated the judiciary’s independence and its legal competence. In 1974, a military dictatorship calling itself Socialist Republic of the Union of Burma seized power and eliminated the professional judiciary and its case law, appointing party apparatchiks to preside over the ironically labeled “People’s Courts.” As a result, the legal and judicial system could no longer serve as independent countervailing forces to the military dictatorship’s endemic corruption and systematic criminality. In 1988 the military junta, calling itself the State Law and Restoration Council (SLORC), butchered thousands of Burmese opponents to seize state power and reinstate the previously corrupted constitution and its lawless judiciary. It changed the country’s name to the Union of Myanmar a year later, a national renaming that continues to engender divisions so strong that dissidents continue to refer to their stolen country as Burma. And once it had solidified its dominance over the country, the SLORC chose an even friendlier name for itself, the State Peace and Development Council (SPDC), while systematically draining the nation of its wealth and vitality. Still, the junta did allow elections in 1990, elections that it fully expected to win. The SPDC was stunned when the National League for Democracy (NLD) led by Daw Aung San Suu Kyi defeated it in a landslide victory, despite the violence aimed to prevent such a victory. Thanks to the postelection crackdown and the annulment of the displeasing election results, the SPDC has since managed to retain dictatorial control over Myanmar. Despite skepticism, the junta announced that it would unilaterally impose its so-called Seven-Step Road map to Disciplined Democracy, free of democratic involvement. This included unilaterally imposing the


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A Myanmar man is arrested by plain clothes police officers during a protest against fuel price hikes in Yangon, Myanmar, on August 28, 2007. (AP Photo/Democratic Voice of Burma)

2008 Constitution that officially legalized military rule. The junta is expected to hold elections in October 2010, though regime opponents will boycott the elections, contending that the elections will be a sham. Throughout the country’s history, both uniformed and “plainclothes,” police forces have supported military juntas. The current secretive regime does not seem inclined to publish reliable statistics detailing the manpower numbers of its police force, and there have no public investigations into the country’s police activities and few official statements. So there is no official acknowledgment of just how much the Burmese people fear and despise them. As a neo-colonial police force presided over by a military junta, they are guided by an institutional mentality of self- and regime-service rather than public service and upholding the rule of law.

The police are fully subordinate to Myanmar’s army, the 400,000-strong Tatmadaw. To prepare for a reemergence of mass protests such as those that had erupted in 1988, the head of the SPDC, Senior General Than Shwe, formed what the junta calls the Union Solidarity Development Association (USDA) to serve as “plainclothes” proxies for uniformed security forces to attack and intimidate dissidents. The USDA and the so-called swanar-shin, or “masters of force,” are not the typical self-directed paramilitary forces seen elsewhere. Rather, they are hierarchically organized and trained units, who remain on call for townshiplevel authorities and whose activities are closely orchestrated by the junta. One of their most infamous accomplishments was the Depayin massacre. The Burma Lawyers’ Council in Thailand estimates that as many as 5,000 of these militia


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attacked Daw Aung San Suu Kyi’s motorcade during her 2003 tour. Human rights watchers and dissident legal analysts report that Myanmar’s police forces are fundamentally flawed. Routine violence, favoritism, incompetent investigations, pursuit of personal interest, and profiteering remain standard operating procedure. Police corruption is endemic. Officers regularly initiate criminal investigations, not because crime victims request that they do so. Rather, police seize arrest powers as opportunities to extort bribes in the form of money, personal property, or sex from their victims. Or else they make arrests because persons able to do so use the police to further personal vendettas or steal property from their neighbors. Dissident criminal justice analysts assert that Myanmar’s police force does not receive the professional training and supervision that genuinely modern police forces in other countries do. Myanmar’s police therefore do not possess the skills needed to actually perform meaningful criminal investigations. Thus, the Asian Legal Resource Centre concludes that unlawful detention and torture remain an “indispensible part of criminal inquiries.” Worse, the fundamental inability of police to competently investigate crimes, even if officials were inclined to do so, functionally guarantees that the junta remains totally unaccountable for its own criminality and corruption. Consequently, while the police force needs to be wholly dismantled and modernized, it is in the regime’s interest to ensure that this does not happen.

Crime Myanmar has a Penal Code, though there are no discernible classifications for crimes such as felony versus misdemeanors elsewhere. The Penal Code refers to a range of ordinary crimes against person, property, and public order. With respect to criminal responsibility, there is no statutory definition for adult criminal responsibility, though children are considered to be those individuals under age 16, while youths are considered to be those individuals between the ages of 16 and 18.

Myanmar’s secretive rulers do not participate in the UN’s Survey of Crime Trends and Operations of Criminal Justice Systems, so the typical crime data do not appear to be readily available. In the absence of any official statistics, the junta has been inclined to promote the image of Myanmar as a socially conservative, predominantly Buddhist society that enjoys very low levels of crime and violence. However, journalistic sources, dissident legal commentators, and human rights defenders strongly dispute this official image, condemning authorities for doing little to control crime and the regime itself of engaging in much of the crime and violence. For example, officials assert that there are very few missing children in Myanmar, and thus the police force does not need a special department solely responsible for policing the crime. Yet this denial may stem in part because such a large number of the abducted children are taken by the military itself, which exploits them as military “porters” as physical and sexual laborers. As Human Rights Watch estimates, children may account for as much as 35–45 percent of the SPDC’s new recruits. Indeed, the police and army appear to be either directly or indirectly involved in most crime and violence. It is reported that police regularly victimize civilians, and initiate criminal investigations against them, not because actual crime victims file complaints, but because locals have bribed the police to do so often in efforts to carry out vendettas or various criminal schemes. Special drug-squad police regularly accost civilians for bribes, frequently beating and killing them. State-controlled media regularly ritually denounce civilians who complain that police or military officials have abused them. Instead, official media assert that complainants are of ill-repute while their officers have demonstrated excellent discipline and have acted according to proper regulations. Further, the Myanmar Penal Code contains a number of provisions to counteract citizen complaints to police and aggressively deter them from doing so, making any official crime statistics even more unreliable. Provisions allow prosecutors to criminally charge complainants for bringing “false charges” against their neighbors or officials.


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Provisions threaten charges, punishable by prison sentences, for filing “false information with intent to cause a public servant to use his lawful power to the injury of another person” as well as accusations deemed to be “criminal defamation” done for “intentional insult with intent to provoke breach of peace; statements conducing to public mischief.” Invoking these provisions means that police do not need to conduct investigations, for which they are unqualified, and cases can be resolved expediently. As well, others learn that criminal complaints are dangerous for the complainant and that crimes committed by police and state officials will be committed with impunity. Not surprisingly, authorities in this highly authoritarian state commonly determine that victims of both ordinary crime and officer abuse are indeed defaming others in attempts to disrupt security and imprison the troublemakers accordingly. As part of Indochina’s “Golden Triangle,” Myanmar provides large quantities of harvested opium each year. Officially, the Central Committee for Drug Abuse Control (CCDAC), which the Directorate of Defense Services Intelligence (DDSI) effectively controls, leads Myanmar’s counternarcotics operations. The CCDAC includes personnel from the police, the army, and military intelligence with 18 drug enforcement task forces around the country in major cities and along key transit routes near the country’s borders with China, India, and Thailand. In 1999, the junta initiated its 15-year plan to eliminate opium crop production by 2014. The UN’s Office on Drug and Crime’s 2008 Opium Survey in Myanmar, which it conducted in conjunction with the dictatorship’s officials, reported that the dictatorship has considerably decreased the country’s opium production, which was reportedly potentially 410 metric tons (451 US tons) in 2008. It also reported that the overall prevalence of adult heroin users in the country that year was a low 0.12 percent of the population and somewhat higher for males than it was for females. U.S. drug control analysts tend to be less sanguine about the levels of opium production, though they seem to agree on the level of local heroin users. The

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U.S. State Department believes that the CCDAC has inadequate resources with which to achieve its stated mission. U.S. authorities have declared that Myanmar’s counternarcotics efforts by 2008 have “failed demonstrably,” with the country producing 90 percent of Southeast Asia’s opium, making it the second-largest opium producer in the world. Although the ruling junta, which traffics in the country’s other lucrative extractive industries, does not appear to be systematically involved in the drug trade, powerful local army personnel are reported to be. As well, it is believed that the junta’s published statistics greatly underestimate the extent of Myanmar’s black market overall, which includes significant trade in methamphetamines and counterfeit pharmaceuticals, suggesting that money laundering is also more substantial than the junta suggests. Sources agree that about 90 percent of Myanmar’s opium crops exist in its Shan State, with additional production occurring in the Kachin and Kayah State. These states represent the political aggregation of specific regionalized ethnic groups. There has been significant ongoing armed conflict between rebel Karen National Union (KNU) forces and the Tatmadaw and its allies, the Democratic Karen Buddhist Army (DKBA), a loose coalition of thugs and drug-runners. This conflict and the drug trade have corresponded with widespread problems of civilians being extorted by armed forces, the taking of slave laborers, and other crimes against humanity such as torture and extrajudicial killings, as well as the trafficking of women and children for foreign labor. This has all led to continued problems of migrating persons forcibly displaced from the regions. In 2007, for example, there were an estimated 3 million internally displaced persons in Myanmar in addition to the many millions fleeing the country.

Finding of Guilt Those accused of crimes in Myanmar have no actionable rights in the criminal court systems. The Burma Lawyers’ Council concludes that in practice authoritarian policies have systematically led to the “emasculation of the principles of fair trials


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and due process,” effectively reducing the courts to merely legalistic facades. The accused are regularly arrested without warrants and held incommunicado without access to family members or attorneys. Because there is no modern police force trained to perform actual criminal investigations and provide prosecutors with evidence, criminal cases are not investigated and prosecutors need not actually establish cases with evidence. Instead, pretrial detention under police custody, coupled with confessions extracted with torture, provide prosecutorial material. Under the Myanmar Penal Code, courts can grant bail in cases where police are not legally authorized to do so. But in practice, bail decision making is chaotic and unprincipled, made by authorities without respect to their legal authority. Bail is frequently set at monetary levels exceeding the legally permissible maximum. Although dissident commentators report that there still remains a coterie of competent and dedicated defense attorneys and human rights advocates attempting to defend defendants within the court system, in practice, criminal defendants cannot assert due process rights or even predict how their cases will be resolved. The junta’s own Judiciary Law of 2000 formally acknowledges the right to public hearings with various exceptions. Yet the courts regularly deny defendants public hearings. According to Amnesty International, trials fall far short of international standards for fair trials, with authorities regularly making prejudicial pretrial statements about cases, abrogating the presumption of innocence, and holding trials in secret with or without defendants present. The 1947 Constitution had mandated that Supreme Court judges had to have at least 15 years’ experience as advocates in that court before becoming judges. But successive military juntas have done away with any such competency standard. Instead, judges are selected for their willingness to comply with military dictates. Although the junta abolished military tribunals in 1992, the judiciary remains firmly under military control, and the Judiciary Law of 2000 has further legalized judicial dependence. Defendants may legally appeal their convictions. Appeals can be made from township court to

district or division court, up to the Supreme Court and then defendants may apply for special appeal. But appeals inevitably fail. Successive juntas have also instituted a series of suppressive laws that have effectively criminalized all forms of political dissent. These are ostensibly designed to prohibit “subversive acts” that officials deem to threaten the “stability” and “security” of both their “State” and their “Union.” In particular, the regime regularly invokes the Emergency Provision Act of 1950 and arrests dissidents for the peaceful exercise of their natural rights to free expression, association, assembly, and movement, and commonly subjects them to secretive political trials in its special criminal courts. These, in place since 1962, still have broad authority to process all manner of Myanmar’s “insurgents” and “traitors” and represent what the Asian Legal Resource Centre describes as a “completely sealed off parallel system” to the ordinary courts. Firmly controlled by the military, these courts do not allow defendants to appeal to the ordinary courts.

Punishment The Penal Code allows for a range of familiar criminal punishments in the ordinary criminal courts such as fines, imprisonment, transportation for life, and the death penalty. Although reliable official statistics do not appear to exist, it seems that a large majority of ordinary criminal convictions results in the imposition of monetary fines. As well, human rights watchers have reported that it is relatively common for police to effectively adjudicate cases of serious interpersonal crimes such as murder and rape by coercing victims to accept monetary restitution from offenders in lieu of seeking a prison term for their attackers. However, for the serious political prisoners processed through the special criminal courts, there are three penalties available: at least three years’ imprisonment at hard labor, full life imprisonment, or death. The World Prison Population List, eighth edition, reports statistics for Myanmar’s prison system collected from the junta’s Correctional Department in its Ministry of Home Affairs. It reports that in


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2007, Myanmar’s prison population was an estimated 65,063 with an imprisonment rate about 126 per 100,000 population. Pretrial detainees represent about 15 percent of the prison population, while juveniles and foreign prisoners represent about 1.6 percent and 0.6 percent, respectively. The Correctional Department administers 94 prisons. These include 22 maximum, 7 medium, and 10 minimum security prisons. The system also includes about 50 prison labor camps of various sorts. Depending upon the facility, prisoners are forced to work in rock quarries, engage in livestock breeding, work on rubber plantations, or perform agricultural labor, railway construction, or engage in other construction work. There is also a women’s prison and two rehabilitation camps, one of which is specifically designated for drug addicts. But the junta’s centerpiece prisons are Mandalay and the infamous Insein Prison in Yangon, formerly Rangoon. Many of the junta’s estimated 2,100 political prisoners, including Suu Kyi, are incarcerated here. Although the official capacity is between 5,000 and 6,000, the actual prison population at Insein is estimated to be more than 10,000. Bo Kyi, current secretary of the Burmese Assistance Association for Political Prisoners, who was himself imprisoned in Insein, describes it as the “darkest hell-hole in Burma.” Concrete cells are 8 feet by 12 feet without sleeping mattresses, toilets, or showers. Tuberculosis and scabies, dysentery and mental disorders are rampant. Guards regularly torture prisoners and criminal convicts are frequently used to discipline political prisoners. Torture through stress positions and morning “exercises” are commonly inflicted, and conditions inside the prison have become so bad that the International Committee of the Red Cross has stopped its prison inspections throughout Myanmar in protest. For many, incarceration inside Insein is a death sentence. Paul Schupp Further Reading Amnesty International: http://www.amnestyusa. org. Asian Legal Resource Centre: http://www.article2. org.

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Burma Lawyers’ Council: http://www.blc-burma. org. This organization aims at restoring the rule of law. Human Rights Solidarity, a publication of the Asian Human Rights Commission. Article 2, International Covenant on Civil and Political Right. Human Rights Watch: http://www.hrw.org.

Nepal Legal System: Common/Customary Murder: Medium Corruption: Medium Human Trafficking: Medium Prison Rate: Low Death Penalty: No Corporal Punishment: Yes

Background Cloaked by the majestic Himalayan Mountains, Nepal is a developing nation that borders India and China. While Nepal has a total land area of 147,181 square kilometers (56,827 square miles), slightly larger than the state of Arkansas in the United States, the country has a population of 29,519,114 (July 2008 est.). Nepal shares porous borders with India and China, a fact that has translated into increased growth in interborder trafficking of goods, drugs, and people. Nepal’s unique form of government—a combined form of parliamentary democracy and constitutional monarchy—is reflected in its mixed legal system. Having been crippled by political instability for a long time, Nepal’s current pursuit of politico-legal activism is poised to restructure the Nepalese legal system.

Origins of Legal and Criminal Codes The ancient laws of Nepal can be traced back to the rule of Nepalese king Amshuverma (sixth century c.e.). Under King Amshuverma’s rule, the first laws of administration, land reform, and monetary system, albeit unwritten, were introduced. Subsequent


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kingdoms introduced written laws, including the Manav Nyayashastra introduced by King Jayasthithi Malla (1382–1395). Translated as “Civic Laws,” the Manav Nyayashastra was a legal and social code strongly influenced by contemporary Hindu principles. Another example is King Ram Shah’s Chhabish Thiti (26 Commandments). A more formalized written law, the Muluki Ain (Civil Code), was introduced in 1854 by Prime Minister Jang Bahadur Rana. Modeled after both the Napoleon Code and the Common Law System, this civil code formally established the reign of the Royal Court. This code remained in effect until 1950. The roots of the Nepalese Independent Judiciary can be traced back to the Pradhan Nyayalaya (Supreme Court) of 1950, the forerunner of the modern Nepalese Supreme Court. The judiciary was granted independence from the king and supremacy over matters of law. However, the role of the Supreme Court as the supreme “guardian of the law” was ephemeral, since in 1963, the king regained his power. Under his newly claimed authority, the king superseded the three branches of the government—the executive, legislative, and partially the judiciary—and declared the Supreme Court as Hukum Pramangi (Order of the Crown). This heightened royal power remained in effect until 1990, when the revolution sought to establish democratic principles, foremost among which was an independent judiciary. However, this was also short-lived. In 2002, Parliament dissolved and the king reclaimed his sovereignty, a rule that lasted from 2005 to 2006. Although Nepal’s current criminal justice system is predicated on the essentially democratic ideals envisioned by the Constitution, the monarchy was responsible for the administration of the criminal justice system until 1990. During this era, the Nepalese army played a significant role, along with the implementation of the one-party panchayat system. In 1990, however, the panchayat system was supplemented with an independent criminal justice system with a multiparty interim government. Along with political changes, 1990 brought swift legal changes to Nepal. The Nepalese Constitution of 1990 upheld and established the legal notion of a fair and an impartial criminal justice system.

The Communist Party of Nepal (Maoists) staged a revolution in 1996 and seized judicial power. More recently, on November 21, 2006, the Nepalese government executed the Comprehensive Peace Agreement, an agreement formally ending the Maoist insurgency that began in 1996. As a result of the ensuing violence and political unrest, an interim nonpartisan constitution was drafted and adopted on January 15, 2007. This 2007 Constitution is expected to integrate formal democratic principles and establish the sovereignty of the people. The newly created interim constitution embraced democratic philosophies and norms, such as nonpartisanship, fundamental civil liberties, basic protections and freedoms, right of franchise, and other edicts that establish the authority of the rule of law. As such, it replaced the king as the head of state with the prime minister. The newly established constitution underscores several fundamental liberties, that is, equality and a fair and balanced criminal justice system. Most recently, the king was ousted following the April 2008 general elections and the first meeting of the Constitution Assembly. Following these elections, Nepal was declared a secular, Federal Democratic Republic by the Constitution Assembly on May 28, 2008, and the king was replaced by leaders of the Communist Party of Nepal (Maoist) (CPNM). In conclusion, the Muluki Ain (The Legal Code) of 1854, as mentioned above, was introduced by the first rana prime minister, and remained in effect until the early 1990s. Amended several times, the Muluki Ain was entirely revamped in 1963. It attempted to harmoniously integrate royal rule and local customs. The entire treatise was called the Ain Sangraha. The revised code fostered the notion of democracy and equality before the law. This was significant in that it endeavored to end legal favoritism based on caste, creed, and sex. The code revolutionized local customary law by permitting divorce, intercaste marriages, and abolishing laws that allowed discrimination based on caste. The Muluki Ain created a uniform family law that was applicable to all and engendered the ideal of caste-blind equality. In the absence of the code’s specificity, community


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customs shaped the decision. This has produced a unique and complex legal system.

Legal System The ancient Nepalese legal system has been inquisitorial, plural, and also follows civil law. Pursuant to the 1990 political upheaval and ensuing changes, the role of the judiciary broadened. With it, independent judicial review of executive and legislative branch decisions became established as a legal norm. Judicial independence, during this era, fostered the growth and autonomy of the Supreme Court, largely independent of monarchical intrusion (at least theoretically). Under the 1990 Constitution, some substantive procedural protections for criminal defendants were implemented, namely, the right to counsel, protection from double jeopardy, and protection from retroactive application of laws.

Courts The Nepalese legal system is an admixture of Hindu legal and English common law traditions. On the whole, Nepal’s legal system is influenced by Tibet, China, and India, and an interlude of British colonial guidance. Nepal’s Hinduism is a testament of India’s influence, and this defines its culture and caste-structured society. The ancient Muluki Ain prior to its 1963 revision had no specific interpretation of law. The magistrates and justices subjectively interpreted laws. Court procedures were not uniform and no writs of habeas corpus were issued. The accuser was placed in jail along with the accused. There was no provision for a speedy trial and/or swift administration of justice. The burden of proof rested with the accused, who was presumed guilty until proven innocent. There were no jury trials. Although the ancient rules dictated that the accused could not be convicted of a criminal charge without confessing, torture was often used as a means of obtaining confessions. Courts under the Muluki Ain had executive and judicial powers along with final decisionmaking authority vested in the prime minister.

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The feudal-based legal system envisioned by the Muluki Ain was overthrown in 1951 pursuant to the reforms enacted and the Constitution of 1948. This divested the prime minister of judicial authority. The statutory enactment of the Supreme Court Act of 1952 established the Nepalese Supreme Court as the highest judicial body, modeled after the Indian Supreme Court. Under this new Supreme Court, special traveling courts were established. These courts traveled to different districts to provide citizens easier access to justice. These courts were courts of general jurisdiction, and as such, were empowered to audit public accounts, hear complaints of all kinds, make arrests, hold trials, and impose sentences. Jurisdictionally, each district has a Court of First Instance that affords legal redress for the aggrieved plaintiff in contemporary Nepal. The jurisdiction of the courts is divided by subject matter, such as civil, criminal, a court of appeals, and 14 zonal courts. Additionally, there are five regional courts and a Supreme Court. The Supreme Court is empowered to issue writs of habeas corpus and decide on the constitutionality of laws. The Supreme Court of Nepal has both original and appellate jurisdiction. The original jurisdiction of Supreme Court oversees 4 regional, 15 zonal, and 75 district courts. In Nepal, there are 5 development regions, 14 zones, 75 districts, 3,995 village development committees, and 36 municipalities. Nepal has not accepted compulsory International Court of Justice (ICJ) jurisdiction. Originally, the Supreme Court justices were appointed by the king. Inasmuch as the Supreme Court is considered as the court of last resort, the king had power of “executive clemency,” whereby the king had discretionary authority to grant pardons and suspend, commute, or remit sentences of any court. The Supreme Court is composed of a total of 14 justices—a chief justice, six other associate justices, and seven alternate judges in reserve.

The Nepalese Supreme Court Nepalese Supreme Court Justices hold offices until the age of 65. They can be impeached by a twothirds majority of the House of Representatives on


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the grounds of incompetence or improper conduct or dishonesty. The chief justice and other justices reserve the right to resign from office at any time. The Supreme Court has the power to hear petitions and appeals, review and revise judgments, and to try certain cases. It also administers the Court of Appeal and all the district courts and disseminates the Supreme Court decisions. Under Nepalese judicial and criminal justice systems, there is no distinction between criminal and civil courts other than some basic procedures. The Nepalese Constitution classifies courts into three categories: 1. The Supreme Court of the Kingdom of Nepal 2. The Court of Appeal 3. The District Courts Various types of benches determine the judicial power of the Supreme Court. Examples include the following: 1. Single Bench formed of a single justice, concerned with the procedure of cases. 2. Division Bench composed of two justices, hearing the appeals filed after the decision of the Court of Appeal and other revisions of court decisions. 3. Full Bench composed of three or more justices to render the final decision upon the cases that do not have unanimity in the decision of the division bench or other cases. 4. Special Bench composed of three or more justices to hear petitions concerning the constitutionality of the law.

The Full Court The Full Court is commonly known as the meeting of all the justices present including the chief justice. It is a high-level policy-making body of the judiciary. The Full Court is basically responsible for the formulation of policies relating judicial administration. Policy decisions formulated by the Full Court are basically carried out by the Registrar (ex officio secretary of the Full Court) of the Supreme Court. Major functions of the Full Court are as follows:

1. To recommend new legislation relating to the administration of justice and any amendment or change required in such law. 2. To consider the policy issues relating to administration of justice and court management. 3. To approve the annual report of the Supreme Court. 4. To award the title of Senior Advocate. 5. To consider on matters referred to the Full Court either by the chief justice or any of the justices.

Nepalese Military Courts In Nepal, there are separate military tribunals that generally deal with military personnel. Generally, civilians are not tried in the military courts. There is no jury system. Special tribunals hear cases involving terrorism or treason under the treason act. Nepal’s military court system was modeled after those of the Indian Army and was composed of courtsmartial. The king was the head and presiding authority for the courts-martial. The four divisions of the courts-martial were (1) general, (2) district, (3) summary general, and (4) summary. An ex officio member of the general court-martial was an officer of the Department of the Judge Advocate General. This division of the court-martial was authorized to levy any sanctions pursuant to army regulations. A district court-martial, however, had the vested authority to levy any sanctions other than the death penalty.

Police The Nepalese police force is under the general supervisory authority of the Ministry of Home Affairs. The cabinet is vested with the authority to appoint the inspector general of police and other senior administration of the police force. The police are classified into the following five categories: 1. 2. 3. 4. 5.

The Nepal Public Police Force The Armed Police Force The Guard Police Force The Riot Police Force The Traffic Police Force


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Historically, Nepal kings (rajas) essentially carried out police and judicial functions. Outside the capital, however, the central government appointed local governors, also known as bada hakim, run by the panchayat system. (The panchayat system is a consular assembly of village leaders.) This panchayat maintained order in their local communities, similar to Indian rural law. Local custom informed and molded the administration of police and judicial function. As such, cultural and social position, that is, caste, had a strong influence on judicial and police treatment. Aggrandizement of polito-social power by the central government was a main point of contention with the tribal groups. This federalism argument belied local disregard for central government policy. During rana-rule, there was no centralized police system. Rather, crime and punishment were matters of local concern, handled by the panchayat system. An anti-rana revolt began in 1950, which sparked the modernization of the Nepalese police system. Indian police aided the Nepalese officials in restructuring the police force and the creation of infrastructure for the Nepalese criminal justice system. In 1955, King Mahendra enacted the Nepal Police Act, which was instrumental in the modernization of Nepal’s police system. This statutory law effected major structural and functional changes in the Nepalese punitive system and improved its efficiency. Pursuant to the Nepal Police Act, Nepal was divided into geographical zones, also known as “ranges.” The Nepalese Constitution provides that Ministry of Home Affairs and its appointed “chief district officer” shall be responsible for maintaining law and order at the district level. The panchayat informal system was replaced by village and municipal development committees charged with local administrative and judicial functions. The chowki hawaldar (local police officer) replaced the village leaders and was responsible for the maintenance of law and order at the local level. The chowki hawaldar, in turn, reports to the thana (station inspector). On a larger scale, all chowki hawaldars work under the direction of thanas, the chief district officer. Hierarchically, the Nepalese Police Force was the highest police agency that was under the control of

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the Ministry of Home Affairs. The inspector general of the Nepalese Police Force directed the Central Police Headquarters, which had different divisions, as follows: (1) criminal investigation division; (2) intelligence, counterintelligence, motor transport, and radio sections; (3) a traffic policy branch; and (4) a central training center.

Crime Investigation Since the Nepalese legal system is an admixture of accusatorial and inquisitorial legal systems, criminals are prosecuted before the judiciary by the police and the office of the attorney general. Under the contemporary police system in Nepal, the Crime Investigation Department (CID) executes the crime investigatory functions of the police. The CID works as a unit under the Nepal Public Police Force at the Nepal Police Headquarters and is directed by an assistant inspector general of police. The hierarchical organization of the CID is divided across 5 regions, 14 zones, and the 75 districts of Nepal. Regional police offices (for each region of Nepal) are directed by a deputy inspector general of police. Each zone has its “zonal police offices,” which are under the direction of senior superintendents of the Nepalese police force. The districtlevel police offices are subsequently directed by the zonal or regional superintendents of police or deputy superintendents of police, respectively. District police offices pursue investigative capacities within their territory. For cases of national concern, the regional police offices act as a liaison between district units and the Central Crime Investigation Department at Nepal Police Headquarters. The CID is classified into the following eight specialized divisions based on the nature of crimes: 1. 2. 3. 4. 5. 6. 7. 8.

Crime Investigation Groups National Level Dog Section Narcotic Control Unit Crime Investigation School Crime Research Branch Foreign Branch Anti-Terrorist Branch Scientific Resources Coordination Branch


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These divisions serve the investigatory and organizational capacity of the CID. The Anti-Terrorist Branch is classified into internal and external terrorist sections. The Scientific Resources Coordination Branch deals with criminal behavior, fingerprinting, photography, and forensic science. The Crime Research Branch includes the following subdivisions: 1. 2. 3. 4. 5.

The Central Women’s Cell Records Section Research Section Crime Investigation Information Section White Collar Crime Section

Some of these subdivisions are products of recent legislation enacted to further democratic principles.

Crime Age of Criminal Responsibility The age of criminal responsibility in Nepal is 10 years. Pursuant to Nepalese law, children above the age of 16 are regarded as adults. As such, they are subject to the same penalties as adults and must face the consequences of their actions. In Nepal children between 16 and 18, or those who are jointly charged with adults, can be tried in an adult court under ordinary procedures. The police officers have broad discretionary powers and can apprehend children on various grounds, including vagrancy, indecent behavior or prostitution, being a public nuisance, “incorrigible,” or exposed to moral danger. The New Civil Code (Naya Muluki Ain) classifies children into three different categories by age: 1. Age of complete innocence 2. Age of quasi-responsibility 3. Age of complete responsibility Currently, in Nepal, children’s cases are heard by a panel that includes a magistrate and social workers.

government and the U.S. Embassy in Nepal, the rate of violent crime in Kathmandu is low, but crime, such as robbery and home invasion by armed gangs, in Kathmandu and in adjacent areas has been rising since April 2006. Limited data are available on certain types of crimes in Nepal from various United Nations surveys. The rates of crime in 2006, per 100,000 population, are reported as follows: Intentional homicide Intentional homicide with a firearm Assault Rape Robbery Thefts Burglary Fraud Drug offenses Illicit drug traffic crimes Human trafficking Participation in organized criminal groups

1.84 0.30 3.79 0.76 0.54 1.95 0.10 0.30 0.80 0.80 0.21 0.12

These crime data are adapted from the 10th United Nations Survey on Crime Trends and the Operations of Criminal Justice Systems (2009) conducted by the United Nations Office on Drugs and Crime, Centre for International Crime Prevention. There were 4,082 total recorded crimes in Nepal during 2005 as compared to 4,134 in 2006, producing crime rates of 15.07 and 14.96, respectively. There were a total of 564 intentional homicides completed during 2005 as compared to 509 during 2006, producing rates of 2.08 and 1.84, respectively. The assault rate in 2005 was 3.86 as compared to 3.79 in 2006. The rates for burglary, fraud, drug offenses, illicit trafficking in drugs, human trafficking, and organized crime do not display any significant changes from 2005 to 2006.

Drugs Crime Statistics Few data are available on crime in Nepal. According to the advisory for travelers put out by the U.S.

Nepal is not a significant producer of narcotic drugs. Despite its proximity to the major heroin source countries of Myanmar and Afghanistan,


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Nepal has not been a major transit route. However, its relatively porous borders and easy travel between Nepal and neighboring countries may facilitate transit routes for drugs and other illegal activities, although the rates for these crimes do not appear to be especially high, according to the United Nations data.

Punishment Death Penalty Nepal abolished the death penalty for ordinary crimes in 1990, and in 1997 the death penalty was completely abolished. The last execution to take place in Nepal was in 1979. Generally, the death penalty was used for treason, mutiny, desertion, inciting panic, and surrender of troops, arms, or garrisons to the enemy with a finding of cowardice. During the time of war, punishment for dereliction of military duties was twice as severe as for the same offense committed in peacetime. Officers and citizens were strictly forbidden to have any contact with foreign diplomats and attachés. Only a few high-ranking officers in army headquarters were permitted to interact with foreigners solely on official matters. Failure to observe this rule could result in disciplinary action. The disciplinary powers allowed officers and noncommissioned officers were more extensive than in the U.S. military service. Unit commanders could impose up to 30 days’ confinement in prison or restriction to barracks. The most common forms of company punishment included extra guard duty, suspension from duty or from supervisory assignments, fines of up to 14 days’ pay, detention of pay until a financial or property loss was compensated, reprimand, and warning. Junior commanders could demote officers with the rank of hudda (sergeant) or lower.

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a number of cruel punishments, including shaving of the head (Mudne), pricking with needles (Khopne), applying hot metals to the body (Damal Garne), and feeding faeces (Abhaksha). Following this act, the main sanctions available to the courts were fine and imprisonment. The Compensation for Torture Act (article 31) and the Constitution (article 14) prohibit torture and inhuman and degrading treatment. There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions, but Section 7 of the Children’s Act and the 2005 Supreme Court decision prohibit corporal punishment.

Prisons Prior to 2001, offenders as young as 10 years old could be handcuffed. In 2001, the Supreme Court ordered the banning of handcuffing young offenders. Section 15 of the Children’s Act prohibits the use of handcuffs, fetters, and solitary confinement of children. In Nepal there is no separate place for juveniles either in police custody or in prison despite the fact that the Children’s Act of Nepal clearly prohibits housing children alongside adult criminals in the same facility. The Prisons Act (1962) attempted to instill humanitarian treatment in Nepalese prisons. Prisons for females are very crowded and are attached to men’s prisons. Most female prisoners awaiting trial are housed in crowded prisons adjacent to prisons for men. Pregnancy during imprisonment in Nepalese prison is a common occurrence. In Nepal, the mentally ill are also housed in prisons. Nepal does not have a department of corrections, and as such, there is no separate prison officer cadre and no minimum ratio for staff to prisoners. The civil servants are frequently transferred from department to department to administer different departments, including prisons. Suman Kakar

Corporal Punishment In Nepal, corporal punishment is used on children up to the age of 16 years under the Child Act (Sections 11 and 15) and the general prohibition of cruel treatment in Section 7. In 1964, the Act to Repeal Some Criminal Cases and Remitting Punishment abolished

Further Reading International Civil Defense Directory—Nepal Web Site: http://www.icdo.org/pdf/struc/nepal-en.pdf. The Library of Congress Country Studies. CIA World Factbook—Nepal: http://www.celrrd.


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org/2.1/strengthening_of_criminal_justice_ system.php. Strengthening the Criminal Justice System— From the ADB Regional Workshop in Dhaka, Bangladesh, May 30–31, 2006 Web Site: http:// www.adb.org/Documents/Books/StrengtheningCriminal-Justice-System/strengthening-criminaljustice-system.pdf. The United Nations Office on Drugs and Crime, Centre for International Crime Prevention: http://www.unodc.org/documents/data-andanalysis/Nepal.pdf. Youth and the Criminal Justice System Context and Practices within Asia: http://www.pficjr.org/ Resources/documents/Youth%20and%20the%20 Criminal%20Justice%20System.pdf.

North Korea (Democratic People’s Republic of Korea) Legal System: Civil/Customary/Socialist Human Trafficking: High Death Penalty: Yes Corporal Punishment: Yes

Background Criminal law and the criminal justice system have a long history in Korea. Early criminal codes specified formal penalties for murder, the infliction of physical injury, and theft. Later, a centralized, systematized, and bureaucratized criminal justice system emerged, and criminal law was specifically written down and more articulated. During this period, a professionalized criminal justice system—including police and a judicial bodies—was developed. However, a division of labor between military, police, and judicial functions did not exist. Also during this time, criminal law was well developed and regulated many aspects of criminal matters including treason, defeat in warfare, surrender to the enemy, murder, theft, killing livestock, adultery, abuse of a government official’s authority, and embezzlement. During the Joesun dynasty (from 1390 to 1910), the criminal justice system was professionalized,

and in 1894, the French criminal justice and legal system was imported into the nation and the modern police force was created independent of the judicial body. This Westernized system continued until the Japanese occupation in 1910. During this period, Korean criminal law and its criminal justice system were heavily impacted also by German influences, which were imported by the Japanese. After the Korean liberation in August 1945, North Korea underwent a two-year Soviet military governance during which time the Japanese criminal justice system and criminal law were altogether rejected and the new socialist criminal justice system and law were strongly enforced. Before the establishment of the North Korean state, the police force was created by Korean communists, primarily led by Kim Il-sung and his group, and backed by the Soviet army. The main functions of this police force were to defend the communist temporary governing body, punish the anticommunist population, and keep the peace. With the birth of the new state in 1947, North Korean criminal law was heavily influenced by socialist law to serve and protect the communists and Kim Il-sung’s dictatorship regime. After the creation of its own regime, armed forces were separately created, and thus the police were relieved of their military function. Since the creation of the North Korean state, the political history of this country and related criminal law can be divided into four important time periods. During the first period (August 1945–April 1956), Kim Il-sung’s leading communists concentrated on attacking and destroying all other noncommunist political groups and individuals. The North Korean police and other criminal justice bodies played important roles in arresting and punishing these enemies of communism. During the second period (April 1956–May 1972), the North Korean state consolidated Kim Il-sung’s one-man dictatorship. All other communist groups, individuals, and the general population not supporting Kim Il-sung were summarily executed or sent to labor camps for life without any judicial proceeding. The North Korean police again played a significant role in this political campaign. The police were separated from the Interior Ministry and became the independent,



extremely powerful Ministry of Social Security. The third period (May 1972–July 1994) witnessed Kim Il-sung’s regime attempt to abdicate the throne in favor of his first son, Kim Jung-il. Kim Il-sung faced fierce political opposition for this hereditary succession of power. The North Korean criminal justice system and police played a crucial role in completing this succession process and defending Kim Il-sung’s regime. A great number of the elder Kim’s political rivals and members of the general population were arrested, executed, or sent to labor camps without judicial proceeding. Kim’s regime reshuffled its criminal justice agencies to strengthen its political control over political rivalries and the general population. The Ministry of Social Security was renamed as the Department of Social Security and developed into the current general police organization in North Korea. A suborganization was separated from the Ministry of Social Security and became an independent political police and intelligence organization called the National Political Protection Agency. The last period (July 1994–present) saw three major issues threaten Kim Jung-il’s regime: the collapse of the former Soviet Union, a significant economic recession and famine during most of the 1990s, and the death of Kim Il-sung, who was revered as a god. His successor and son, Kim Jung-il, named his father as an eternal president of the nation. Upon these crises, Kim Jung-il reengineered his ruling structure and relied heavily on the North Korean military and other coercive state agencies. He proclaimed the “military first” policy. Based on this principle, the National Defense Commission was created as the practically ultimate authority of North Korea, including all other nonsecurity matters as well as national defense. Then, Kim Jung-il became the chair of the National Defense Commission, and thus he was able to rule his country. In North Korea, criminal justice agencies and other security bodies exist to protect a personal ruler and his regime or to execute his will over his subjects. This essence is imbued with socialist principles. In the socialist legal tradition, the primary function of criminal justice is to protect the communist state, punish individuals opposing communist

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principles or states, and reeducate the population as communist persons. Accordingly, the North Korean criminal justice agencies and other security agencies have all those purposes—but never the protection of individual rights and properties. Thus, judicial independence for checking the abuse of power of state agencies is ignored. Criminal justice agencies and other security agencies have free hands over individual suspects in criminal justice proceedings. Finally, when understanding crime and the criminal justice system in North Korea, it is crucial to distinguish between formally stated principles and actual practices. Unlike other countries, formally stated principles in North Korea have propaganda purposes for foreigners. The Constitution and criminal law in North Korea may include principles of due process, human rights, personal protection, separation of powers, and rules of evidence; however, those principles are never seriously considered. Actual practices in real life are set by Kim Jung-il’s or other highranking state officials’ arbitrary decisions. For this reason, when examining crime and punishment in North Korea, one needs to focus on actual practices, not formally addressed missions and principles.

Crime The North Korean government does not release statistics on crime. In principle, crime is a product of class conflict in the capitalist state and, according to socialism, is primarily committed by the capitalist state and bourgeoisie in the process of protecting its ruling system and to oppress the proletariat. Being a socialist state, North Korea basically stands on the ground that there is no crime in the country. North Korea’s complete government control over its people and thorough seclusion from the outside world are other reasons for the scarcity of information regarding crime in this country. No foreign scholars, organizations, or mass media can enter this country to develop independent reports on crime. Independent foreign media sources are completely shut out. Thus, there is little way to secure an accurate picture of crime in North Korea. Despite this enormous challenge, there are ways to gain an impression of the extent of crime in


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North Korea by using alternative sources. Those sources include interviews with North Korean defectors; Web site information provided by government, media, NGOs, or Christian missionary groups helping North Korean defectors; intelligence; a human rights’ report; and rare news reports.

Classification of Crime In general, two different types of crimes exist in the socialist legal tradition: political crimes and conventional crimes. Political crimes are usually considered grave offenses. These crimes include crimes against socialist principles, the socialist state, or the Communist Party. Conventional crimes are grave or minor offenses, such as murder, theft, rape, assault, and traffic violations. There are four different types of political crimes: those against rulers, against the nation, against communism/socialism, and crimes of border-crossing without state permission. The first type of offense is a particularly serious crime in North Korea. In any nation, an attempt to assassinate or plot against the head of state is a serious crime. However, in North Korea, crimes against rulers also include seemingly harmless or trivial acts such as a criticism or an insult against rulers including both the current leader Kim Jung-il and the deceased leader Kim Il-sung. For example, stepping or sitting on a picture of rulers in the newspaper, tearing a ruler’s picture apart, having a dirty portrait of a leader, or a verbal insult against a leader can be serious political offenses. The second type of crime, treason, is far more broadly defined than in any other country. This crime also reflects a bitter rivalry against South Korea. This type of crime includes aiding or abetting a South Korean agent or civilian; praising South Korea or its system, politics, economy, or culture; and attempting to escape to South Korea. Also, seemingly harmless and trivial acts can be included in this type, such as singing South Korean pop songs and watching South Korean television or movies. The third type of crime is against socialist principles. Socialism is eagerly preached in North Korea and any criticism, rejection, or idleness on these

principles can be grave political offenses. Examples of these serious types of crime against socialism can be verbally criticizing socialism or praising capitalism. Running a private business is a grave offense that threatens the socialist system. Stealing or obtaining agricultural products such as corn, rice, or potatoes can also be political offenses, in addition to not reporting to one’s assigned work without government permission. The last type of political offense arose during the 1990s, when North Korea underwent a great famine. As a result, its state distribution system collapsed, and many North Koreans illegally crossed the North Korea–Chinese border or the North Korea–Russian border to search for food, money, jobs, and a better opportunity. Initially, the North Korean government took draconian measures against illegal border crossings because it felt threatened by this development. All border trespassers, if caught, were severely punished. However, in the late 1990s and early 2000s, there were so many North Koreans crossing the border that the North Korean government reluctantly eased its sanction on border-crossing criminals. It classified border trespassers into two categories: the simple border crossing offenses and the serious border crossing offenses. The North Korean government severely punishes the latter, while it less harshly punishes the former as simple border crossing offenses are for pure economic reasons. Border trespassers simply work in Russia or China to make money or obtain food and then return to North Korea later. Some trespassers may engage in border trade, buy items in Russia or China, and then sell them in North Korea. The serious border crossing offenses are illegal border crossings beyond pure economic reasons and usually involve South Korea or Christianity. For example, illegal border crossing with an intention to enter South Korea or other Western democratic countries falls into this category. Also, conversion to Christianity or contact with a South Korean or a Christian missionary after crossing the border is included in this category. Conventional crimes can be sorted into felonies and misdemeanors. Felonies seem to include murder, theft, rape, robbery, burglary, assault, smuggling,



organized crime, drug trafficking, bribery, embezzlement, and corruption. Murder is punishable by the death penalty and even homicide by traffic accident can be punishable by the death penalty. Theft, rape, robbery, burglary, and assault are punishable by imprisonment of one year or longer. Smuggling, bribery, embezzlement, and corruption can be also punishable by one year or more prison sentence. Misdemeanors may include traffic violations, adultery, and domestic violence—all considered trivial offenses. Domestic violence exists but is widely ignored by the authorities as an insignificant matter. Adultery exists and was a common crime among women in the past whereupon female offenders were lightly sanctioned. Traffic violations include drunken driving, smoking while driving, and failure to maintain a clean vehicle in Pyongyang, the capital city. Also, in Pyongyang, there exist certain hours in a day during which one can drive: driving outside these permitted hours can be a traffic violation. Such acts are generally punishable by fine or driving license suspension or revocation. Additionally, prostitution, juvenile delinquency, organized crime, and drug trafficking also exist in North Korea.

Prevalence of Crime After analyzing interviews and reports, it seems reasonable to estimate that a variety of crime has been rapidly increasing in North Korea since the early 1990s. Most of these crimes are either a direct byproduct of the economic crisis in this society (theft, robbery, prostitution, black market activity, smuggling, and border crossing), or are secondary byproducts such as murder, assault, domestic violence, juvenile delinquency, gang violence, organized crime, rape, and corruption. Many of these crimes occur in and around the black market (Jangmadang in Korean). An interviewee noted that crime is rampant in most parts of North Korea. Generally, people feel unsafe; when a wife works outside to make a living, a husband stays home to protect their property. Due to the great famine of the 1990s and a continuing economic collapse, the state stopped providing the necessities of life and paying salaries for the

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majority of the civilian population, except for a few of the loyal ruling class. People stole food, goods, and machinery from the state factories or farms to sell on the black market. Also, famine forced a great number of people to leave their homes and wander in search of food. These people easily transformed into criminal offenders or victims. Also related to this famine was prostitution, which rapidly increased as starving women sold their bodies to provide for themselves and their families. Desperate people easily turned to violence and an increase in murders, assaults, and battery resulted from personal disputes. Youth gangs were formed and harassed and extorted people in and around the black market. Meanwhile, police took full advantage of black markets and accepted bribes. A North Korean informant claimed that the police were the real criminals and true gangsters. Crime in North Korea has distinct dynamics in four different geographic regions: Pyongyang, large cities in the provinces, border areas, and the countryside. In Pyongyang, crime is minimal as only state-selected people can live and work in this capital city with residential permission dependent on one’s loyalty to the North Korean regime and the Communist Party. Thus, residents in Pyongyang are usually the elite ruling class of the nation. Visitors need government permission before entering the city; once inside, the police tightly control the security of the city to squelch potential riots, coups, or assassinations. Accordingly, it is not surprising to see low crime in this capital city. Yet, even in this environment, gang activity and other crimes have reportedly been increasing. Crime seems widespread in large cities in the provinces with most crimes occurring in and around the black market areas. Stealing, gang activities, and violent attacks are frequent in these areas. Also, prostitution thrives at railroad stations or near travelers’ inns. Among large cities in the provinces, crime is particularly rampant in border cities or port cities. Border areas have also experienced a rapid increase of crime as a great number of people illegally cross borders. Smuggling is also active with various smuggled items such as used cars, televisions, cigarettes, clothing, and cosmetics from Russia and China. These smuggled items


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and their transporters are often targets of theft, as smugglers usually carry large amounts of cash or goods and are robbed or murdered. Agricultural product theft is rampant in the countryside due to starvation and the collapse of the state distribution system. People steal crops and vegetables from the state farm or storage. Oftentimes, women engage in “on the spot” prostitution with government officials to acquire agricultural products.

Organized Crime Organized crime, corruption, and gang activity are widespread in North Korea due to loosening government controls driven by the economic crisis. Usually, these organized gangsters prey on the general population in the form of black market merchants and small-time border-crossing smugglers who oftentimes pay for police protection. In the upper levels of organized crime, criminals may work for highly placed government figures in such activities as drug trafficking. They are hired by the North Korean government and work as its secret representatives trafficking drugs manufactured by the North Korean government. Meanwhile, throughout the North Korean government, organized corruption is rampant. Police officers and soldiers steal or extort from the civilian population. They are rarely punished unless they are caught at the scene of the crime. Also, other forms of corruption, including embezzlement, selling and buying of government offices or ranks, various favors such as Communist Party membership, residential rights in Pyongyang, travel permission, reduced punishments or release of prisoners, and abusing one’s authority, are widespread among government officials. Lastly, transnational organized crime activities are worth mentioning. Unlike other countries, North Korea as a state commits transnational organized crime activities. According to a report, it is increasingly clear that not only are key figures within the North Korean regime involved in transnational organized crime, but that the state itself has criminalized itself as a matter of policy. In this respect, North Korea is metamorphosing into a

true “criminal state.” These criminal ventures include not only drug trafficking, but also counterfeiting U.S. currency, illicit trade in endangered species, human trafficking, fraudulent antiques, counterfeit CDs and tapes, cigarettes, and radioactive materials. Particularly in drug trafficking, the state encourages illicit opium cultivation and manufacturing heroin and methamphetamines. It was reported in a United Nations conference in 2001 that the profit from narcotics trafficking netted North Korea U.S. $300 million per year.

Police and the Criminal Justice System Apart from the already noted ultimate mission of the North Korean criminal justice system to protect its leader, the Communist Party, and the socialist state, the criminal justice system is also composed of the standard police, courts, and prisons. Among them, police or other law enforcement agencies play the most important roles and have far greater power than other components of the criminal justice system. They can literally arrest anyone on their own discretion and detain the arrestee for up to almost a year without any formal proceeding. They also run their own prison system. In some cases, the police or other law enforcement agencies enjoy judicial decision-making power such as conviction, sentencing, and execution. Two major policing agencies exist in North Korea: Inmin Boan Sung (People’s Security Department) and the Gukga Ahnjeon Bowee Boo (National Security Protection Agency). The People’s Security Department is a general police agency equivalent to the Ministry of the Interior in the former Soviet Union. This agency deals not only with ordinary crime and criminals in principle but, depending on circumstances, may deal with political crime and criminals. Gukga Ahnjeon Bowee Boo (or simply Bowee Boo) is a combined agency of intelligence and political police equivalent to the KGB in the former Soviet Union. The primary function of this agency is spy activity overseas, antiespionage within the territory, and prosecuting political criminals in the country. Although its jurisdiction is limited to only political criminals in principle, its actual police power covers



a large portion of population in North Korea because political crime is so broadly and arbitrarily defined. Inmin Boan Sung, the North Korean police, was created in 1945 as Jungchee Boan Guk (Political Security Agency) and later became an independent ministry, Sahoe Ahnjeon Sung (the Ministry of Social Security). In 2000 it was renamed as Inmin Boan Sung (the Ministry of People’s Security). Officially, the North Korean police is a ministry of the cabinet and thus under the command of the prime minister. Yet, in reality, the prime minister has no commanding power over the police except for traffic-related administration. The police take no orders from the cabinet and directly report to Kim Jung-il. The structure of the North Korean police is along military lines and composed of three geographical tiers: the central organization in the capital city of Pyongyang, provincial organizations existing in each provincial administrative unit, and the Boonjoo So existing in the lowest level of administrative unit. The central organization in Pyongyang controls all suborganizations and units in the North Korean police and includes 15 departments such as internal affairs and seven independent agencies such as foreign affairs, education, and transportation. Provincial departments are under the central administration’s chain of command and have two tiers: provincial headquarters and the lower-tier departments, which are located in cities of provinces or districts of three special cities. For the lowest level of North Korean police, Boonjoo So is structured under each lower-tier provincial department and under the lowest level of the North Korean administrative unit. It is said that about 4,000 Boonjoo So are established all over North Korea. The total size of North Korean police is estimated between 180,000 and 200,000 for a total population of roughly 23 million people. Their structure includes 21 different ranks (the same as the military) with two tiers: an upper rank of generals and officers and a lower rank of petty officers and soldiers. In the lower level, an individual police officer must spend between 8 and 10 years mandatory service period, as in the military. After spending this mandatory service period, a police officer may be

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discharged or apply for Inmin Boan Sung Political University to become a ranking officer. Entering this university is very competitive and extremely selective. Students spend four years in this university and become a ranking officer after graduation. In general, the police are feared, hated, and despised among the general population; yet, it is very popular to become a police officer among North Koreans. People want to have good and friendly relationships with a police officer due to the almost unlimited power of the police. Bowee Boo is another important police organization in North Korea, as it is considered an intelligence agency, a counterespionage agency, and the political police. In general, it is a more powerful organization than the North Korean police. Bowee Boo was under the direct command of the North Korean president, Kim Il-sung, up until his death in 1994 when Kim Jung-il presumably took command. Like the North Korean police, the structure of Bowee Boo also follows the basic structure of other North Korean administrative units: a centralized organization under a strict chain of command with its nucleus in the capital city of Pyongyang commanding all other suborganizations dispersed in local administrative units. Bowee Boo is primarily responsible for counterespionage and political crime and identifies, investigates, and arrests foreign spies or members of the domestic population opposing (or even complaining) about North Korean leaders, the North Korean state, communism, the Communist Party, and the regime. This agency has several other functions including operating its own prison camps and responsibility for border patrol and protection, immigration control, customs and smuggling control, airport and seaport protection, and personal protection for Kim Jung-il and other high-ranking government and party figures. The total size and recruitment practices of Bowee Boo are not known; however, it does operate its own educational facility for agents called Gugka Bowee Boo Jungchee Daehak (National Security Protection Agency Political University). Only Communist Party members can enter this university to spend five years receiving military training and studying politics, psychology, philosophy, and socialist


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economics. Successful graduates become agents in Bowee Boo or ranking officials in the Communist Party or other government organizations. In this university, everyone including teachers, trainers, and staff—but not students—is military personnel. Upon graduation, a student receives a military rank. Like the police, Bowee Boo is widely feared and hated by most North Koreans. Usually, it is more feared than the ordinary police; however, Bowee Boo as a profession is very popular. Many people want to be a Bowee Boo agent but the selection process is very competitive. This popularity is probably due to the enormous political power and access to wealth by means of corruption attached to this profession. Besides the police and the political police, other components of the criminal justice system such as prosecutor, court, and lawyer exist in North Korea; however, their roles or powers are limited and minimal, because many cases are directly processed by the police or the political police. Regarding structure, the prosecutor is not under the administrative body but instead the legislative body. The Choigo Inmin Hoeu (Supreme People’s Assembly) is the legislative body of North Korea and is controlled by Kim Jung-il in practice. Under the chain of command of the central prosecutor’s office, provincial prosecutors’ offices exist in the intermediary-tiered three special cities and nine provinces. Under these provincial offices, local prosecutor’s offices exist in districts of special cities, cities of provinces, and goons (equivalent to counties in the United States). The head of a provincial or local prosecutor’s office is appointed by the head of the central prosecutor’s office. The structure of the court is similar to that of prosecutor. Lawyers do exist in North Korea, but have extremely limited roles. In principle, anybody can be the criminal defender (the role of a lawyer in trial) without any license or education. Individual or private law firms do not exist, as all lawyers are paid by the state and are members of the lawyer’s committee, which takes cases in bulk and distributes them. There are about 500 lawyers in North Korea, of which approximately 200 are professional lawyers

with the remainder being part-time lawyers having other professions such as college professor or legal researcher. Since extremely few numbers of prosecutors, judges, and lawyers exist in North Korea, most North Koreans think no such people exist in their country because they never met anyone with such a profession. To become a prosecutor, judge, or lawyer, one only needs to major in law at the university. Once graduated from the university majoring in law, the new graduate should work in a lowerlevel job such as court clerk for several years. After that, one can be appointed as a prosecutor or judge by the state. Regarding the licensing of lawyers, a bar exam was established in 1993; however, retired prosecutors and judges or persons with five years or more work experience in the legal field can become lawyers without passing the license exam. Generally, these legal professions are not popular among young North Koreans.

Finding of Guilt In North Korea, either the police or the political police play the most important role in determining guilt for both political crime and conventional crime, as such a finding is based on the police’s arbitrary decision after hearing confessions extracted through torture. In political crimes, cases bypass the formal criminal procedure of prosecution, trial, and conviction and are exclusively handled by the police or the political police. Criminal suspects can be identified and arrested by Bowee Boo or the police, who have their own detention facility for their arrestees called Gamok (jail) or Guryu Jang (detention center). These are holding facilities for criminal suspects who can be detained in such facilities for up to several months without any legal charge or prosecutor, judge, or lawyer recognition or intervention. Bowee Boo or the police can interrogate or torture their suspects until obtaining confessions, whereupon Bowee Boo makes a judicial decision as to guilt. When the police determine guilt by confession, they usually transfer their detainees to Bowee Boo for political crime cases. When Bowee Boo finds guilt, they execute their detainees in a secret trial or



an open trial if the case is serious. No judges, prosecutors, or lawyers are present in any of those trials. In less serious cases, Bowee Boo usually sends the guilty person to a prison camp for forced labor without a determined sentencing period. Family members of the guilty party are also sent to the prison camp for forced labor with no determined sentencing period. In conventional crime cases, Inmin Boan Sung is the most important authority in the determination of guilt. Formally, these criminals are supposed to stand trial before a judge—but this is in principle only. Many criminal cases never reach the point of trial or even the prosecutor but instead are decided and punished by the police. The finding of guilt in conventional criminal cases is not much different from political crime cases, except that the cases are handled by the police, not by the Bowee Boo. The police find and arrest a criminal suspect and detain him or her in their holding facility. Without any outside interference—as in political crime cases—the police detain their arrestee for up to several months. The police constantly interrogate and torture their suspect until obtaining a confession. Once the police have a finding of guilt based on the confession, the detainee stands on one of two public trials: an open trial before the public, where police officers read the criminal charges and related criminal codes and convict the accused; or, in the other case, a formal criminal trial can be held. Once the police pass the case to the prosecutor, the prosecutor handles the case and makes a decision for either going to trial or returning the case to the police. The prosecutor can rarely reduce the charges set by the police. In trial, the prosecutor, judge, lawyer, and Inmin Chamsimwon (equivalent to the jury in the United States) are present. The lawyer does nothing to defend the criminal defendant, as his only job in the trial is postconviction when he provides the defendant the options: “I consent” or “I have no objection.” The jury is selected from a population with strong loyalty to the Communist Party and supports the prosecutor in the trial. The prosecutor makes a statement, and the judge makes a final decision on conviction and sentencing. Although the judge has autonomy to make a decision in trial on

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paper, he usually confirms the prosecutor’s charge because his performance is censored by the North Korean state or the Communist Party. Formally, an appeal is guaranteed if the defendant is dissatisfied with the conviction—but in principle only, as no appellation seems realistic in practice.

Punishment Four different types of punishments have been identified in this country: the death penalty, imprisonment, forced labor, and fines. Among them, prison and forced labor are usually combined; however, forced labor as a separate punishment also exists. The death penalty is widely practiced even for nonheinous crimes and can be issued by a judge in a formal trial and immediately executed by the police. A murder conviction usually receives the death penalty; however, these formal death sentences seem relatively rare in this totalitarian state as in most cases, people can be simply executed without any formal trial or in an ad hoc open trial. When one attempts to steal agricultural products or government property, military or the police guarding that state property may simply shoot and kill a thief on the spot. The National Security Protection Agency or the police can execute their arrestee based on their own administrative decision. An open trial is basically held in open market, under a bridge, a sandy field along the river, or other open spots. The audience is forced to gather and to watch the trial. The chief of the local police department has the authority to decide an execution, which is then carried out by the police who shoot or hang the criminal in front of the assembled population. Execution is also common in prison, not only for prison riots or escape attempts, but also for rule violations or simple disobedience. Imprisonment is another common type of punishment in North Korea. Political criminals and their family members can be imprisoned. Usually in this case, there are no formal trials or hearings as criminals and their families are literally kidnapped by the political police, Bowee Boo, and directly sent to prison camps run by the political police. No definite term of imprisonment is given, which means, in


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practicality, life imprisonment. In case of conventional criminals, a definite term of imprisonment is given. Inmates serve their sentence in prisons run by the police. Unless an inmate is sick, every inmate is subjected to slavelike labor. No exception is tolerated by the prison staff. Forced labor is another type of punishment that is also widely practiced in prison. Inmates are forced to work in agriculture, construction, mining, or industry with no payment. Forced labor is also applied to those who are convicted of less serious crimes. These offenders are sent to labor-training camps, Rodong Dalryeonn Dae, where they are forced to work during their defined time in this facility. Fines as a type of punishment are limited to traffic violations. Although North Korea has a very small number of vehicles, traffic regulation is strict and its punishment is harsh. Fines for traffic violations vary from 10 won to 50 won (US$0.01 to 0.05).

Prison As detailed earlier, no separate and independent correctional agencies exist in North Korea. Instead, prisons are administered by either the National Security Protection Agency or the police and can be categorized into two different types: prisons for political criminals and their families run by the National Security Protection Agency and prisons for conventional criminals run by the police. Meanwhile, prisons can be divided by the length of detention. This can be also divided by two types: prisons for a long-term confinement (one year or longer) and prisons for a short-term confinement (less than a year) as shown in the following table.

Administered by National Security Protection Agency

Administered by Police

Long-term confinement

Prison for political criminals and their family members

Prison for conventional criminals

Short-term confinement

Detention center for political criminals

Detention center for conventional criminals

The type of prison for political criminals and their family members is called Gwalli So (“controlling facility”) or Tkbyeol Dokjae Guyeok (“special dictatorship zone”), both resembling the Soviet gulag. The incarcerated are expelled from society and confined in a specially designated area for life as they are considered “hostile” in accordance with the state’s classification of the entire population into three categories: the core class (loyalists), the unstable class (potentially swayed against the regime), and the hostile class (dangerous). This type of prison can be one prisonlike building or composed of very large sprawling encampments located mostly in the valleys between high mountains and in the northern provinces. One part of the prison is self-contained, closed compounds for the alleged political criminals, and the other is a closed and fenced-in village for family members of the alleged political criminals. The two parts are completely separated and no communication or contact is permitted. There are between 5,000 to 50,000 prisoners per Gwalli So, totaling some 150,000 to 200,000 prisoners throughout the nation. The prisoners live under brutal conditions in permanent situations of deliberately contrived semistarvation. Another type of prison, for conventional criminals, is more like a typical correctional institution. This facility is designed for persons convicted of serious crimes, that is, the equivalent of felony offenses. This type of prison is called Gyohwa So (“correctional facility”). Some of the Gyohwa So resemble large penitentiaries: a single, large compound surrounded by high walls and barbed or electrified wire fencing with several buildings for manufacturing production, prisoner housing, and offices for guards and prison officials. Other Gyohwa So are large, barbed-wire-enclosed encampments—located in the valleys of high mountains—composed of prisoner villages where prisoners engage in mining or logging. In many aspects of day-to-day prison life, this type of prison resembles the first type of prison as inmates are forced to do hard, often heavy, and dangerous labor while provided food rations insufficient to sustain even sedentary life. The combination of hard labor and inadequate food provisions results in rapid weight loss, industrial or mining work


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accidents, malnutrition-related diseases, and death. Prison hospitals and clinics are essentially places where the sick and injured are sent to await death. Loss of life occurs at such high rates that many of the Gyohwa So are perceived by prisoners as death camps (like political prisons) in that prisoners expect to die before the completion of their set sentences. The other two types of prisons are detention centers run by the Bowee Boo and those run by the regular police. They essentially have no practical differences and both are of two types: a short-term Jipgyeol So and a Rodong Dalryeonn Dae. The latter is an even shorter-term detention center, set up to accommodate the overflow from the established detention centers caused by the large numbers of famine-related criminals in recent years, and is more localized than Jipgyeol So and not specified in the criminal statute. Generally, these detention centers deal with petty criminals convicted of what would be considered, in other countries, misdemeanor offenses or petty infractions, such as the large number of North Koreans who illegally crossed the border and were repatriated from China. Also, many petty offenders are held in this facility under such offenses as leaving one’s village or traveling within the country without authorization, not showing up at one’s designated worksite, or leaving the country. Despite its short-term confinement, the living and working conditions of these detention facilities are not much different from regular prison. Inmates are forced to do hard labor such as farming, mining, and manufacturing work in harsh conditions. Guards’ treatment of inmates is harsh and brutal and, again, there is a lack of medical care. As a result of all these, the death rate among detention facilities is unusually high despite the short term served. Minwoo Yun Further Reading The Daily NK: http://www.dailynk.com/english/. Hawk, David. (2003, October 22). The Hidden Gulag: Exposing North Korea’s Prison Camps. Washington, DC: U.S. Committee for Human Rights in North Korea. Koreascope: http://www.koreascope.org.

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Ministry of Unification, Republic of Korea: http:// unikorea.go.kr/english/.

Pakistan Legal System: Islamic/Common Murder: Medium Corruption: Medium Human Trafficking: Medium Prison Rate: Low Death Penalty: Yes Corporal Punishment: Yes

Background The Islamic Republic of Pakistan is the sixth-most populous nation in the world and the secondbiggest Muslim country with an estimated population of about 177 million and an area of 340,133 square miles. Geographically, Pakistan shares borders with Afghanistan to the northwest, China to the north, India to the south and east, and Iran to the west. In the south it is located on the Arabian Sea very near to the mouth of the Persian Gulf. Historically a part of India, over the years, it was ruled by rulers of various denominations but primarily by Hindus, Muslims, and the British. Before the British formally colonized this territory in 1857, Muslims had been ruling this area for about 1,145 years. In 1947, after independence from Britain, Pakistan appeared as a new nation on the world map with about 98 percent Muslim population. But the majority Muslim population did not at all mean a theocratic state to be “ruled by priests with a divine mission.” Quaid-e-Azam Mohammad Ali Jinnah (1876–1948), the founding leader of Pakistan, and completely a secular man, clearly enunciated his vision even three days before Pakistan actually was established. In his address to the first constituent assembly, on August 11, 1947, he said: “You are free; you are free to go to your temples, you are free to go to your mosques or to any other place of worship in this State of Pakistan. You may belong to any religion or caste or creed that has


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nothing to do with the business of the State.” To further emphasize his point, in February 1948, he elaborated: “We have many non-Muslims-Hindus, Christians and Parsis—but they are all Pakistanis. They will enjoy the same rights and privileges as any other citizens and will play their rightful part in the affairs of Pakistan.” So to start with, Pakistan adapted the Government of India Act (1935) as the first constitution of Pakistan, which was secular. The current constitution of Pakistan was framed in 1973 by the elected government of Prime Minister Mr. Zulfiqar Ali Bhutto—altogether a secular politician educated in UC Berkley. The only clause worth mentioning of the Constitution concerning Islam was that nothing in the law was going to be repugnant to the basic tenets of Islam. Different rulers from time to time made some amendments to the Constitution, but the citizens always want to revert to the original constitution of 1973, which was passed unanimously by all the constituent units of Pakistan. Under the Constitution of 1973, Pakistan is a parliamentary democracy with the president as the head of state and the prime minister as the head of government. It has a two-house Parliament with a 100-member Senate and a 342-member National Assembly. Administratively, Pakistan is divided into four provinces and some federally administered tribal areas. Four provinces include the Punjab, Sind, Baluchistan, and North West Frontier Province (NWFP), administered by the respective provincial assemblies headed by the chief ministers aided by some provincial ministers. Some areas along the border with Afghanistan, since the British time, have enjoyed a special status, having relatively more independence as compared to the areas under the provincial governments. These tribal areas are called Federally Administered Tribal Areas (FATA) and are administered by the president through the provincial governor of NWFP. Capital territory Islamabad is also under the federal government. Northern areas of Gilgit and Baltistan until recently were ruled by the federal government, but in 2009 they elected their assembly and the assembly has elected the first chief minister and the governor is nominated by the federal government.

Crime and Justice Criminal Law Mainly the secular nature of the Constitution, amended with some Islamic provision, is reflected in the procedural and substantive law of the country as well. Pakistan’s secular laws are based on British common law. The Criminal Procedure Code dates back to 1898 while the Pakistan Penal Code was legislated in 1860—both of them promulgated in the British period. In the same way, Prisons Act and Prisoners Act have been in force since 1894 and 1900, respectively. However, supposedly, to Islamize the law of evidence, General Zia-ul-Haque, the military ruler of Pakistan, replaced the Evidence Act passed by the British Parliament in 1872 with Qanoon-eShahadat (the Law of Evidence) Order in 1984. In addition to the Criminal Procedure and Pakistan Penal Code, there are some local and special laws. Local laws are specific to some geographic region: for example, Frontier Crime Regulations, 1901 is implemented in just the FATA area. And special laws deal with some specific subject: for example, AntiTerrorism Act, 1997 is meant to deal with the terrorism cases.

Crime In Pakistan, murder, attempt to murder, culpable homicide, rape, grievous hurt, hurt, kidnapping, abduction, assault on public servant, and suicide are grouped as crime against the person, while crime against property includes dacoity (robbery in which accused are five or more), robbery, burglary, cattle theft, theft, and cheating. Violations of Arms Act (1965), Prohibition Order (1979), and other miscellaneous laws are counted under the category of local and special laws. In 2008, a total of 581,919 crimes were reported to the police out of which 96,312 (16%) crimes were against person, 111,979 (19%) against property, and 373,628 (64%) under local and special laws. Terrorism, although generally a crime against the person, is categorized as violation of the special laws. According to the Global Terrorism Database, maintained by the University of Maryland, from 1970 to 2007, 2,590 cases of terrorism occurred in Pakistan, in which 5,840 people


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were killed and 11,597 injured. No doubt this figure is very conservative. Although most of the laws are either adapted or promulgated by the federal government, a minimum of actual law implementation is with the federal government itself. It administers (policing, adjudication) the capital Islamabad and FATA. Federal Investigation Agency (FIA), under the federal government, investigates immigration cases, and some important terrorism cases, whereas the National Accountability Bureau (NAB) conducts investigations into corruption of federal government departments. National Highways and Motorway Police is also controlled by the federal government. Some other law enforcement agencies controlled by the federal government include rangers (border security force), coast guards, frontier constabulary, and political administration in FATA. Federal government also issues policy guidelines to the provinces on important crime control and public order issues.

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Broadly speaking, crime prevention, investigation, adjudication, correction, compensation of the victims, and maintenance of public order rests with the provinces. Provinces have an elaborate system for most of these functions, especially for policing, adjudication, and corrections.

Women and Children Women and children are two weaker sections of the society and once they come into contact with the criminal justice system, they merit special treatment. Pakistan is signatory to a number of rights of child and women’s rights’ instruments such as the Universal Declaration of Human Rights, Convention on the Rights of the Child (CRC), Stockholm Declaration and Agenda for Action against Commercial Sexual Exploitation of Children, Convention for the Suppression of the Traffic of Persons and of the Exploitation of the Prostitution of Others, and Convention

Pakistani women participate in a protest against gang rape, July 6, 2002, in Lahore, Pakistan. A tribal council ordered a teenage girl to be gang-raped because her 11-year-old brother was seen with a woman not related to him, a crime punishable by death in some remote regions of Pakistan. (AP Photos/K.M. Chaudary) © 2011 ABC-Clio. All Rights Reserved.

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on the Elimination of Discrimination against Women (CEDAW). However, women continue to remain the victims of murder, domestic violence, human trafficking, physical and sexual abuse, kidnapping, rape, acid thrown and burn, and honor killing. Women are also victims of Hudood Laws, which most of the people consider as discriminatory. At different times, the government has taken some steps for the promotion and protection of women’s rights, which includes amendments in the West Pakistan Family Ordinance 1964. Also, the former prime minister, Benazir Bhutto, inaugurated the women police station on June 2, 1994. The general public received it very well, particularly the women in Karachi. Now women police stations exist in almost all parts of Pakistan. Pakistan in 1990 ratified the United Nations (UN) Convention on the Rights of the Child (CRC) and in 2000, Pakistan issued Juvenile Justice System Ordinance (JJSO). It was necessary to keep the fundamental difference between the juvenile justice system and the criminal justice system. The rehabilitation of juveniles is considered to be the primary goal of the juvenile justice system, while that for the adults has been retribution. The introduction of JJSO came to an sudden halt when, on December 6, 2004, the Lahore High Court revoked the JJSO with effect for the whole country. In February 2005, the Supreme Court of Pakistan stayed the Lahore High Court judgment. While the appeals are pending in the Supreme Court and the JJSO has been temporarily restored, Amnesty International urges the government of Pakistan forcefully to make the case for child rights when the appeal comes up for hearing. What makes the situation more critical is that out of Pakistan’s population of 177 million, almost half, or 49 percent, are under the age of 18 years while 22 percent are adolescent (10–18 years).

Police Until 2002, the police were administered through the Police Act (1861) and the Police Rules (1934). Finding these laws outdated, and to make the police operationally neutral and free from extraneous influences, the federal government promulgated a new Police Order in 2002 that replaced the Police Act of

1861. Now the police are organized geographically on the police station level, subdivision level, district level, region level, and the province level. The police station is the basic geographical unit of operation and consists on average of about 100 police commanded by an inspector of police, while the province is commanded by an inspector general, and the police strength varies according to population of the province. For example, the inspector general of Punjab Police commands about 170,031 police. The Police Order of 2002 also provides for the functional specialization of police into two major functions: operations and investigations. Operations staff is responsible for preventing crime, registering cases, serving as first responders to crime in case of need, and maintaining public order. Investigation staff is deputed to investigate cases, arrest the accused, and pursue the cases in court with the help of the prosecution branch. Some support and logistic branches of police are provided under the law. For example, the Criminal Investigation Department (CID) collects, analyses, and transmits intelligence concerning terrorism, mainly at the provincial levels but with some regional offices as well. It also interrogates the arrested terrorists and keeps their records, while another support staff called Special Branch concerns itself with crime and political intelligence. Traffic Branch, in liaison with the district police officers, manages traffic flow and issues tickets on traffic violations. Telecommunication and Transport supports the other police branches with logistics support on wireless networks and purchase and major repair of vehicles.

Finding of Guilt Courts The judicial system in Pakistan is a mix of secular and Islamic courts, including a Supreme Court, provincial High Courts, district courts, subdivisional courts, and federal sharia courts that administer Islamic law. In addition, there are some special purpose courts like anti-terrorism courts. The lower courts at the subdivision level are presided over by civil judges-cum-magistrates who, along with civil cases, try criminal cases as well. They are empowered to try cases in which punishment is up to


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14 years of rigorous imprisonment. Above them are the sessions judges who sit at the district level, or in case of additional sessions judges, at the subdivisions level. They have the power to try cases leading to capital punishment. Every province has its High Court with a jurisdiction conferred on them by the Constitution (articles 175(2) and 199 of the 1973 Constitution) or by law. Generally, they are the first level of appeal against the judgments of civil judges and the sessions judges. They hear different writ petitions like writ of habeas corpus and take actions on matters of vital importance to the public. The Supreme Court of Pakistan is the apex court in Pakistan’s judicial hierarchy—the final arbiter of legal and constitutional disputes. The court consists of one chief justice and 16 other judges. Although its permanent seat is in Islamabad, the capital, it has a number of branch registries where cases are heard. Its legal powers are outlined in the Constitution. The Anti-Terrorism Court (ATC) was established in Pakistan to try terrorism cases by the 1997 Anti-Terrorist Act. Later on the act was amended on October 24, 1998, by the Anti-Terrorism (Amendment) Ordinance to bring it more in line with the Constitution. On August 25, 1999, through the Pakistan Anti-Terrorism (Amendment) Ordinance, the government generalized the ATC system to all of the country. To strengthen the judicial system, reform efforts were made in 1958, 1967, 1978, 1993, and 1997. The major problem with the court system was found to be the high backlog of cases. The following causes and factors responsible for the delays in trial of criminal cases were identified: unsatisfactory service of processes and the nonattendance of witnesses, shortage of judicial and ministerial staff, delay on the part of investigating agencies and delay in writing and delivering judgments, frequent adjournments and dilatory tactics by the lawyers and the parties, and unattractive service conditions of subordinate judicial officers. Some of the legal and administrative measures were recommended to upgrade the system. The recommendations generally included increases in the number of judicial officers, provision of courtrooms and allied facilities, restructuring the service condition of judicial officers, timely

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submission of cases for prosecution, taking effective measures to ensure attendance of witnesses, liberalizing the provisions of bail, to check and control frequent adjournments, separation of the functions of civil and criminal courts, and strict supervision on court management. Access to the Justice Program initiated and sponsored in 2001 by the Asian Development Bank is on its way to remove some of the problems identified earlier.

Prosecution In all criminal cases in Pakistan, the state is deemed to be the complainant of the case. However, the victims appear as witnesses and if they could afford a lawyer, they are allowed to engage their own lawyers. In the initial days before 1980, police officers served as prosecutors in the magisterial courts and the district attorneys prosecuted cases in sessions courts. But in the early 1980s, all the prosecution was taken over by the offices of the district attorneys. However, under the Access to Justice Program, the government of Punjab has established a separate Public Prosecution Department through the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006. The province of Sindh, in July 2006, established its own prosecution service under the ordinance called the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance 2006. The provinces of Baluchistan and NWFP have also independent prosecution services.

Punishment Pakistan’s prison system has existed since the British era and the basic infrastructure is present in almost all the district headquarters. However, in the newly established districts, the prisons have been built or are being built. Separate facilities are seldom available for convicts, and under trial prisoners, and for children and women. An old and chronic problem of prisons is the overcrowding caused partly by cumbersome and technical provisions of procedure and partly because of nonobservance of provisions. According on a report published in 2006, Pakistan has more than 95,000 people in custody for criminal


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offenses, of which approximately 67 percent (about 63,600) are pretrial detainees. Out of the more than 31,400 convicts, nearly a quarter—more than 7,000 individuals, including almost 40 women—have been sentenced to death, and are either involved in lengthy appeals processes or awaiting execution after all appeals have been exhausted. Under a ruling from the Federal Sharia Court, family rooms are being built in prisons to provide facilities for the convicts to spend some days with their spouses. Some high-security prisons are also being constructed to keep the terrorists separate from the ordinary prison population. The need for measures to lessen the population of the prisons through reforms in the jail administration and restorative justice programs has been recommended many times. Probation services, although existing for a long time in Pakistan, are almost nonconsequential.

Death Penalty The number of persons sentenced to death in Pakistan and executed is increasing every year, with 394 accused sentenced to death and 15 hanged in 2004 and 309 sentenced to death and 134 hanged in 2007. Pakistan currently has 26 criminal offenses that allow for the death penalty—as opposed to just two, for murder and treason, at the time of independence in 1947. Several of these laws were enacted to deal with some exigencies. The list of 26 offenses includes many crimes that cannot be justified as a “most serious crime,” as required for the death penalty under the International Covenant on Civil and Political Rights. Therefore, scholars recommend that there is an urgent need for a review to remove the death penalty as a sentence for many of these crimes. They further recommend a review of the laws and witness requirements for such crimes and provision for defendants’ access to a competent counsel. Syed Ejaz Hussain Further Reading Chaudhry, M. A. K. (1997). Policing in Pakistan. Lahore: Vanguard. Cohen, Stephen P. (2006). The Idea of Pakistan. 2nd ed. Washington, DC: Brookings Institution Press.

Usa, Ibp. (2009). Pakistan Justice System and National Police Handbook, 6th ed. (World Strategic and Business Information Library). Washington, DC: International Business Publication, USA. Wasti, Tahir. (2008). Islamic Law in Practice: The Application of Qisas and Diyat Law in Pakistan, Yearbook of Islamic and Middle Eastern Law, Vol. 13 (2006–2007).

Philippines Legal System: Civil/Common Murder: High Burglary: Low Corruption: High Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background The Philippine legal system is a mixed common and civil law system, incorporating elements from Spanish civil law, American common law, Muslim law, and customary law. Philippine private laws, including laws on persons and family relations, law on sales, property, and contracts, are primarily civil law in nature. Philippine’s constitutional law, criminal law, business law, taxation, banking, and evidence are influenced by American common law. The practice of codifying laws in the Philippines started as early as 1521 when Spain colonized the Philippines. During Spanish colonization from 1521–1898, Spain introduced codification of laws, enacting codes such as the Spanish Civil Code (to govern civil, family, and property relations) and the Penal Code (to govern criminal acts). When the Americans colonized the country from 1898–1946, the system of codification was continued. However, the United States also introduced the common law system under which decisions of the Philippine Supreme Court were treated as binding. Thus, although


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legal codes were still widely used, court decisions interpreting the codes also had the binding effect of law. The Americans also revised the Spanish codes and enacted a new Revised Penal Code (1930) and a new Civil Code (1950). The practice of using both statutory law (written instruments from the legislative branch) and case law (binding court decisions) continued after the Philippines gained independence on July 4, 1946. Under the newly established government, laws enacted by Congress were (and are still) called Republic Acts. During the martial law period (1972–1981), President Ferdinand Marcos issued more than 2,000 presidential decrees that also had legal and binding effect. The issuance of presidential decrees was terminated in February 1987 when the 1987 Constitution was ratified. At present, several codes are in use, including the 1930 Revised Penal Code and the Civil Code. The Revised Penal Code defines criminal acts, provides for criminal liability, and establishes the penalties for different crimes. The Revised Penal Code distinguishes penalties into capital (death or reclusion perpetua), afflictive (six years to life imprisonment), correctional (one month to six years), and light (up to 30 days). These penalties are imposed in relation to the classification of the crime. Thus, serious crimes have capital or afflictive penalties. Less grave crimes have correctional penalties. Light crimes have light penalties. The 1987 Constitution, however, prohibits the death penalty unless allowed by Congress through duly enacted laws.

Government The Americans granted the Philippines independence on July 4, 1946, pursuant to both the 1935 Constitution and the 1934 Tydings Mcduffie Law. The 1935 Constitution provided for three separate branches of government: the executive headed by the president; the legislative consisting of a bicameral Congress; and the judiciary, consisting of the Supreme Court, and all lower courts. Efforts to amend the 1935 Constitution were initiated through a Constitutional Convention that convened on June 1, 1971. While the convention was still in session, President Ferdinand E.

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Marcos declared martial law. The Constitutional Convention completed its draft constitution, which was then submitted for ratification through citizens’ assemblies on January 17, 1973. Although the 1973 Constitution was ratified and a parliamentary form of government was authorized, a parliamentary government was not set up due to a transitory provision of the 1973 Constitution. Instead, President Marcos established military tribunals and abolished Congress. President Marcos lifted martial law in 1981. He then abolished military tribunals and authorized the holding of elections wherein he emerged as winner. The Constitution was again amended in 1984 and elections were held for the elective seats in Parliament. Subsequent political developments, including the assassination of opposition member Senator Benigno Aquino, forced President Marcos to call a special presidential election on February 7, 1986. The National Movement for Free Elections results showed that Sen. Aquino’s widow, Corazon Aquino, was leading the elections by a landslide. Ferdinand E. Marcos and Arturo M. Tolentino, however, were officially declared winners for the positions of president and vice president. This led to a peaceful and spontaneous uprising by the people (“People Power”) and eventually led to the ouster of President Marcos on February 25, 1986.

Post-EDSA Revolution (1986–Present) The events subsequent to the People Power Revolution and the ouster of President Marcos led to the revival of a democratic republic. When President Marcos fled the country, Corazon C. Aquino took her oath of office as president. Immediately thereafter, she issued several proclamations, including the following: (1) Proclamation No. 1, where she and Vice President Laurel assumed power; (2) Proclamation No. 3, which provided for a new government and a Provisional or Freedom Constitution; and (3) Proclamation No. 9, where a Constitutional Commission was established. The Constitutional Commission was tasked with drafting a new constitution, which was ratified on February 2, 1987. The Constitution provided that the


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president and vice president elected during the February elections would have a maximum six-year term. The 1987 Constitution also established a republican form of government composed of three independent branches (executive, legislative, and judiciary). The military (Armed Forces of the Philippines [AFP]) is under the control of the Department of National Defense. But the civilian police (Philippine National Police [PNP]) is under the control of the Department of Interior and Local Government.

Police Attempts to restructure the police started as early as the mid-1970s. Prior to this, the Philippine Constabulary was solely responsible for law enforcement at the national level. Local law enforcement (city and municipal police officers), on the other hand, maintained peace and order at the local level and were under the supervision of the National Police Commission. This system created problems including territorial jurisdiction, lack of uniformity and coordination, intrapolice disputes, and political partisan involvement in police employment. Another major problem was the use by local incumbent politicians of the police as private armies to intimidate political opponents. To resolve these issues, the 1973 Constitution provided for the integration of police, fire, and jail services nationwide. The Integrated National Police was organized to ensure public safety, protect lives and property, enforce laws, and maintain peace and order throughout the nation. It was given powers to prevent crimes; arrest, detain, and rehabilitate criminal offenders; prevent and control fires; investigate crimes; and bring offenders to justice. However, in practice, the Philippine Constabulary handled serious crimes or cases involving separate territorial jurisdictions, while the Integrated National Police handled less serious crimes and local traffic, crime prevention, and public safety. The structure and functions of the Philippine Constabulary and Integrated National Police were reorganized and integrated into the Philippine National Police (PNP). The PNP was created as a

police force that is national in scope and civilian in character. The PNP is administered and controlled by the National Police Commission.

Organization of Police According to law, the chief of the PNP is supported by the following administrative and operational units: 1. Administrative Support Units, which consist of (a) Crime Laboratory, to provide scientific and technical investigative aid; (b) Logistic Unit, to procure, distribute, and manage all logistical requirements, including firearms and ammunition; (c) Communications Unit, to establish an effective police communications network; (d) Computer Center, to design, implement, and maintain a database system; (e) Finance Center, to provide finance services; and (f) Civil Security Unit, to provide administrative services and general supervision over all organized private detectives, watchmen, security guard agencies, and company guard forces. 2. Operational Support Units, which include (a) Maritime Police Unit, to perform all police functions over Philippine territorial waters and rivers; (b) Police Intelligence Unit, for intelligence and counterintelligence functions; (c) Police Security Unit, to provide security for government officials, visiting dignitaries, and private individuals authorized to be given protection; (d) Criminal Investigation Unit, to monitor, investigate, and prosecute all crimes involving economic sabotage and other organized crimes. The Criminal Investigation Unit shall also investigate all major cases involving violations of the Revised Penal Code and organized crime groups, unless the president assigns the case exclusively to the National Bureau of Investigation (NBI); (e) Special Action Forces, to function as a mobile strike force or reaction unit to support local police forces in controlling civil disturbance, counterinsurgency, hostage-taking rescue operations, and


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other special operations; (f) Narcotics Unit, to enforce all laws against dangerous and other prohibited drugs and substances; (g) Aviation Security Unit, to secure the country’s airports against offensive and terroristic acts; (h) Traffic Management Unit, to enforce traffic laws and regulations; (i) Medical and Dental Centers, to provide medical and dental services for the PNP; and ( j) Civil Relations Unit, to promote community and citizens’ participation in maintaining peace, order, and public safety.

Crime The Revised Penal Code classifies crimes into nine categories depending on the right or interest violated: 1. Crimes against national security and the laws of nation such as treason and espionage, piracy, and so forth. 2. Crimes against the fundamental laws of the state such as arbitrary detention or expulsion, violation of dwelling, dissolution of peaceful meetings, and crimes against religious worship. 3. Crimes against public order such as rebellion or insurrection, coup d’état, crimes against legislative bodies. 4. Crimes against public interest such as forgery, impersonation, false testimony; monopolies in restraint of trade; unfair competition. 5. Crimes against public morals such as gambling and betting, offenses against decency, obscene publications and exhibitions, vagrancy and prostitution. 6. Crimes committed by public officers consisting of various forms of bribery and corruption. 7. Crimes against persons such as parricide, murder, homicide, infanticide and abortion, kidnapping, abandonment of helpless persons and exploitation of minors, threats and coercion. 8. Crimes against property such as of robbery, theft, swindling, arson, and other crimes involving destruction and malicious mischief.

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9. Crimes against chastity such as adultery, rape, and seduction, corruption of minors and white slave trade, libel and slander. In President Gloria Macapagal Arroyo’s State of the Nation Address for 2006 and the 2007 State of the Nation Address Technical Report prepared by the Presidential Management Staff, she identified three major criminal activities that are currently being targeted: terrorism, organized crimes, and illegal drugs. Republic Act No. 9372 (the Human Security Law) was enacted to combat terrorism. As of July 2007, 840 communist terrorists and 107 members of the Abu Sayyaf Group (a terrorist organization funding its activities through kidnapping and other illegal activities, such as drug trafficking) were arrested or killed. Government reports claim that terrorist activities decreased by 41.3 percent from 11,930 in 2001 to 7,003 in 2005. To emphasize its seriousness in curbing the threat of communist insurgents, the government allocated Philippine pesos (PhP) 1 billion (the current equivalent of US$21.5 million) to the Armed Forces of the Philippines, the Philippine National Police, and other related agencies tasked with eradicating the Communist Party of the Philippines–New People’s Army by 2010. Although military operations have been ongoing, the Communist Party-New People’s Army continues to exist. Avelino Razon, Philippine National Police chief, stated that the New People’s Army (NPA) rebels have only 5,700 members (the lowest level in 20 years) as of 2007, due to military destruction of 13 suspected insurgency bases. In January 2010, the Armed Forces of the Philippines issued an official news release stating that at least 566 NPA rebels surrendered during the past year. The report further stated that “the large number of surrenders during the past year is attributed to the healthy partnership of the Philippine Army with the local government units and, most importantly, the cooperation of the residents in the area. With this drop in the number of NPA strength in the country, there is not a doubt that the June 2010 deadline of significantly weakening the NPA rebels shall be met.” During the first half of 2007, law enforcement officers seized illegal drugs valued at PhP 1.74 billion


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(the current equivalent of US$38,280,000). As of July 2007, a total of 9,761 pushers and users were arrested, leading to the filing in various courts of 7,107 drug-related criminal cases. This is in contrast to the efforts of the government for the entire year of 2006, wherein a total of illegal drugs valued at PhP 2.9 billion (the current equivalent of US$63,800,000) were confiscated and 9,739 drug cases were filed in court. Under existing Philippine law, dangerous drugs and controlled substances are defined in accordance with international law instead of being defined by local statute. Thus, dangerous drugs are defined as to “include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances.” “Controlled Precursors and Essential Chemicals” are defined as to “include those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.” Under the Dangerous Drugs Act of 2002, dealing in dangerous drugs is punishable by a penalty of life imprisonment to death and a fine from 500,000 pesos (the current equivalent of US$11,000) to 10 million pesos (the current equivalent of US$220,000). Dealing in controlled substances is punishable by a penalty of imprisonment ranging from 12 years 1 day to 20 years and a fine from 100,000 pesos (US$2,222) to 500,000 pesos (US$11,000). The Dangerous Drugs Act of 2002 also provides for situations where the penalty is higher, such as if the transaction occurs within 328 feet (100) meters of a school, or minors are used as runners.

Crime Statistics For the year 2006, the Directorate for Investigation and Detective Management Division of the PNP reported the following number of street crimes: 6,196 murder incidents, 3,299 homicide cases, 2,589 rape cases, 7,313 robbery incidents, and 9,988 cases of theft. These crimes totaled 29,385 for the year 2006 and the PNP reported an efficiency rate averaging 82 percent representing the total number of crimes solved.

The National Statistical Coordination Board, on the other hand, reported that the total number of crime incidents per 100,000 population increased from 81.9 in 2006 to 115.6 in 2007. Out of the total crime incidents, index crimes increased from 47.8 in 2006 to 65.5 in 2007 per 100,000 population. Nonindex crimes also increased from 34.1 in 2006 to 50.1 in 2007 per 100,000 population. Based on official reports from the Bureau of Jail Management and Penology (BJMP), the most typical crimes in rural areas are theft and various crimes against persons such as homicide, physical injuries, and rape. Theft in rural areas accounted for more than 50 percent of the total crimes reported as of July 2007. Similarly, the incidence of homicide, physical injuries, and rape accounted for more than 50 percent of the total crimes reported as of July 2007. The most common crimes in urban areas are robbery and drug-related offenses, with the National Capital Region accounting for almost 49 percent of the total reported incidence of robbery reported as of July 2007 and almost 40 percent of the total reported incidence of drug-related offenses reported as of July 2007.

Finding of Guilt Section 14, article 3 of the 1987 Philippine Constitution guarantees the following rights of the accused: (1) presumption of innocence; (2) to be heard by himself or herself and counsel; (3) to be informed of the charges against him or her; (4) speedy, impartial, and public trial; (5) right to confront witnesses; and (6) compulsory process to secure attendance of his or her witnesses and evidence. In addition, the Rules on Criminal Procedure guarantee that the accused is not compelled to be a witness against himself or herself and has the right of appeal. In addition to the above rights of the accused, the 1987 Philippine Constitution has adopted the judicial ruling in the United States concerning Miranda rights in the case of Miranda v. Arizona, 384 U.S. 436 (1966). Section 12, article III of the 1987 Constitution provides for the rights of any person under custodial interrogation. Custodial investigation is


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questioning initiated by law enforcement officers after any individual is placed under custody or “deprived of his freedom of action in any significant way.” The 1987 Constitution requires law enforcement officers to inform a suspect of the right to remain silent and to have competent and independent counsel. The Constitution also provides that, if the suspect cannot afford the services of counsel, he or she must be provided with one. These rights to remain silent and to counsel cannot be waived except in writing and in the presence of counsel.

Prosecution and Defense The Public Attorney’s Office (PAO), an attached agency under the Department of Justice, is responsible for providing indigent litigants free legal assistance, including defending the accused at trial. The precursor of the PAO is the Citizen’s Legal Assistance Office (CLAO). Under these laws, the CLAO was mandated to represent, free of charge, indigent persons. With the enactment of the Administrative Code of 1987, CLAO was renamed the Public Attorney’s Office and the title Chief Citizen’s Attorney was renamed Chief Public Attorney. The law provides that for offenses punishable by imprisonment for at least four years, two months, and one day, a preliminary investigation is required and a complaint must be filed only with any of the following officers: provincial or city prosecutors and their assistants, judges of the municipal trial courts and municipal circuit trial courts, national and regional state prosecutors, and other officers as may be authorized by law. For all other offenses, the complaint or information may be filed directly with the municipal trial courts and municipal circuit trial courts, or the complaint may also be filed directly with the office of the prosecutor. Upon the filing of the complaint, a preliminary investigation is conducted by the prosecutor’s office to determine whether there is sufficient grounds to believe that a crime has been committed and the respondent is probably guilty, and should be held for trial. On the basis of the complaint and any accompanying affidavits, the investigating officer may either

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dismiss the case or issue a subpoena to the respondent. The respondent is given the opportunity to present his or her counteraffidavit, the affidavits of his or her witnesses, and other supporting documents. Thereafter, the investigating officer may set a clarificatory hearing. If he or she finds cause to hold respondent for trial, the investigating officer will prepare and file the information with the proper court. The ombudsman also has the power under the 1987 Constitution to investigate any alleged illegal act of any public official, employee, or government agency. The ombudsman has authority to conduct preliminary investigations and to file with the Sandiganbayan (the Anti-Graft and Corruption Criminal Court ) investigations against public officers and agencies. This power of the ombudsman is concurrent to that of other investigative authorities such as the police and prosecutors when the accused is a public official with salary grade of lower than 27.

Accused Is Higher-Level Public Officer The ombudsman has primary jurisdiction to conduct preliminary investigation of all complaints against higher-level public officials such as governors, mayors, diplomatic officials, highly ranking military and police officers, top executives of government corporations, members of Congress, and members of the judiciary. The ombudsman is allowed to deputize and designate regular prosecutors to assist him or her in the case.

Dispute Resolution A law passed by Congress on April 2, 2004, established the Alternative Dispute Resolution Law. Mediation and other forms of alternative dispute resolution such as evaluation of a third person, minitrial, and mediation-arbitration are allowed under this law. In addition, all international commercial arbitrations are required to be governed by the Model Law of International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on June 21, 1985, and recommended and approved on December 11, 1985.


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Based on a study conducted by the Supreme Court of the Philippines with the assistance of the United Nations Development Programme (2006), a significant portion of criminal cases at the regional trial court and lower trial court levels are either archived (33.80%) or dismissed (33.69%). Only approximately 23 percent of the cases filed actually go to trial, with 18.06 percent of the cases resulting in convictions and 4.53 percent resulting in acquittals. The study further suggests that a significant portion of criminal cases are not brought to trial due to settlement between parties. On the other hand, a substantial portion of cases are archived due to failure of the prosecution to gather enough evidence such as eyewitnesses to proceed with the case. Similarly, at the Sandiganbayan, 75 percent of the criminal cases filed against various government officials result in acquittals.

Rights of Detained Persons Incarceration before or awaiting trial is allowed, if the accused or detainee has not posted bail. A person under legal custody can only be released when he or she has posted and been granted bail. Philippine Rules on Criminal Procedure provide that bail can be posted to secure the release of a person under legal custody. Bail is a right: (a) before or after conviction by the metropolitan trial and municipal trial or circuit courts of an offense punishable by not more than six years’ imprisonment; and (b) before conviction by the regional trial court for an offense not punishable by death, reclusion perpetua, or life imprisonment. Bail, on the other hand, is discretionary: (a) before conviction by the trial court of a capital offense, when the evidence of guilt is not strong; and (b) after conviction of an offense not punishable by death, reclusion perpetua, or life imprisonment. As for persons legally detained, the Revised Rules on Criminal Procedure provide that any person under legal detention shall not be released or transferred except when there is a lawful court order or when he or she has posted and been granted bail. Thus, a person who is detained lawfully under a warrant of arrest cannot be released or transferred

to another place unless there is a valid court order or is admitted to bail.

Courts There are as many criminal court judges as there are judges of the various courts in the Philippines including the Municipal Court, Metropolitan Court, Municipal Circuit Trial Court, Regional Trial Court, Sandiganbayan, Court of Tax Appeals, and Sharia courts. All of these courts exercise jurisdiction over specific criminal cases defined by existing laws. Under Philippine law, metropolitan trial courts, municipal trial courts, and municipal circuit trial courts have jurisdiction over the following offenses: (a) violations of city or municipal ordinances committed within their respective territorial jurisdictions, (b) all offenses punishable by not more than six years’ imprisonment regardless of the amount of fine and other accessory penalties, and (c) where the sole penalty for the offense is a fine (and not imprisonment), offenses punishable by not more than 4,000 pesos (approximately US$83.26) fine. Regional trial courts are granted exclusive jurisdiction over the following: (a) all criminal cases not within the exclusive jurisdiction of any other court, tribunal, or body; and (b) where the sole penalty for the offense is a fine (and not imprisonment), offenses punishable by a fine of more than 4,000 pesos (approximately US$83.26) for private persons and not more than 6,000 pesos (approximately US$124.89) for public officers and employees. The Anti-Graft Court (Sandiganbayan) has jurisdiction over cases involving corruption by government officials with rank of Grade 27 or higher under the Compensation and Position Classification Act of 1989. The Court of Tax Appeals (CTA) has jurisdiction over violations of the National Internal Revenue Code, Tariff and Customs Code, and other laws enforced by the Bureau of Internal Revenue or the Bureau of Customs. However, if the amount of taxes and fees claimed is less than 1 million pesos (around US$22,000) or there is no specific amount claimed, the regular courts have jurisdiction and their decision is appealable to the CTA.


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The sharia courts are special courts created under Presidential Decree No. 1083 (Code of Muslim Personal Laws). These courts have exclusive jurisdiction over all violations of the code. These judges must be qualified to hold the positions in said respective courts, as defined by law. A regional trial court judge, under Philippine laws, must be a natural-born Philippine citizen, at least 35 years old, and for at least 10 years have been engaged in the practice of law or held Philippine public office that requires admission to the practice of law. A judge of a metropolitan or municipal trial or municipal circuit trial court must be a natural-born Philippine citizen, at least 30 years old, and for at least 5 years have been engaged in the practice of law or held Philippine public office that requires admission to the practice of law.

Juvenile Law The Juvenile Justice and Welfare Act 2006 was signed by President Gloria Macapagal-Arroyo, effective in May 2006. The law introduced a new juvenile justice system and provides a framework for victim reparation for the crime; reconciliation of the offender, the victim, and the community; and reintegration of offender into society. Under the new law, a child 15 years old or under at the time of the commission of the offense is exempt from criminal liability, but subject to an intervention program. A child above 15 years but below 18 years is also exempt from criminal liability and subjected to an intervention program, unless he or she has acted with discernment, in which case such child shall be subjected to the appropriate proceedings. The exemption from criminal liability does not include exemption from civil liability. Chapter Two of the law outlines diversion procedures. Individuals responsible for the juvenile justice program are required to conduct mediation, family conferencing, conciliation, and appropriate indigenous modes of conflict resolution having in mind the best interest of the child. The chapter provides for the creation of diversion contracts and the procedure to follow if the contract is not completed. Diversion can be used at all stages of the juvenile proceeding.

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Punishment Under Philippine law, the principal penalties that may be imposed are: (a) afflictive penalties, consisting of reclusion perpetua (up to 30 years in prison), reclusion temporal (12 years and 1 day to 20 years), and prision mayor (from 6 years and 1 day to 12 years); (b) correctional penalties, consisting of prision correccional (from 6 months and 1 day to 6 years), arresto mayor (from 1 month and 1 day to 6 months), suspension, and destierro; and (c) light penalties, consisting of arresto menor (from 1 day to 30 days), and public censure. Fines and bond to keep the peace may also be imposed in addition to any of the above penalties. Philippine law also provides that any person sentenced to reclusion perpetua shall be pardoned after undergoing the penalty for 30 years, unless such person by reason of his or her conduct or other serious cause is considered by the chief executive as unworthy of pardon. The law provides further that any person sentenced to destierro or banishment shall not be allowed to enter the place or places designated in the sentence, nor within a specified radius of 25 to 250 kilometers (15 to 155 miles) from the place designated. The penalty of arresto menor may be served under house arrest. The law states that arresto menor may be served in the municipal jail or in the house of the defendant himself or herself under the surveillance of an officer of the law, depending on the discretion of the court. Accessory penalties consist of perpetual or temporary absolute disqualification from public office, suspension of the right to vote and be voted for, suspension from a profession, forfeiture or confiscation of instruments and proceeds of the offense, and payment of costs. Any person who kills a member of his or her family is guilty of parricide and shall be punished with the penalty of imprisonment ranging from 20 years and 1 day to 40 years to death. Any person guilty of murder shall be punished by imprisonment ranging from 17 years, 4 months and 1 day to 20 years to death, depending on various aggravating circumstances. The crime of rape is punished by reclusion perpetua (imprisonment of 20 years and 1 day to 40 years).


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The penalty imposed under Philippine law for theft corresponds with the value of property stolen. The law imposes imprisonment of prision mayor in its minimum (6 years and 1 day to 8 years) and medium periods (8 years and 1 day to 10 years), if the value of the item stolen is more than 12,000 pesos (US$265) but does not exceed 22,000 pesos (US$488), but if the value of the item stolen exceeds the latter amount, the penalty shall be prision mayor in its maximum period (10 years and 1 day to 12 years), and one year for each additional 10,000 pesos (US$222), but the total of the penalty that may be imposed shall not exceed 20 years. On the other hand, imprisonment of prision correccional in its medium (2 years and 4 months to 4 years and 2 months) and maximum periods (4 years, 2 months, and 1 day to 6 years) is imposed if the value of the thing stolen is more than 6,000 pesos (US$133) but does not exceed 12,000 pesos (US$266). The penalties for theft decrease as the value of the property stolen decreases. Robbery with violence against or intimidation of persons is punished with the penalties of: (a) reclusion perpetua (imprisonment of 20 years and 1 day to 40 years), when by reason or on occasion of the robbery, the crime of homicide is committed; (b) from reclusion temporal in its medium period (14 years, 8 months, and 1 day to 17 years and 4 months) to reclusion perpetua (imprisonment of 20 years and 1 day to 40 years) when the robbery is accompanied by rape or intentional mutilation; (c) reclusion temporal (12 years and 1 day to 20 years), when by reason or on occasion of the robbery, physical injuries are inflicted; and (d) prision mayor in its maximum period (10 years and 1 day to 12 years) to reclusion temporal in its medium period (14 years, 8 months, and 1 day to 17 years and 4 months). The law punishes both importation and sale of dangerous drugs and controlled substances. Importation of any dangerous drug, regardless of quantity and purity, including opium poppy or substances derived from opium (even for floral, decorative, and culinary purposes), is punishable by life imprisonment to death and a fine ranging from 500,000 pesos (US$11,000) to 10 million pesos (US$220,000). Importation of any controlled precursor and essential

chemical is punishable by a penalty of 12 years and 1 day to 20 years’ imprisonment and a fine ranging from 100,000 pesos (US$2,200) to 500,000 pesos (US$11,000). Selling or transacting in dangerous drugs is punishable by life imprisonment to death and a fine ranging from 500,000 pesos (US$11,000) to 10 million pesos (US$220,000). Selling any controlled precursor and essential chemical is punishable by imprisonment from 12 years and 1 day to 20 years and a fine ranging from 100,000 pesos (US$2,200) to 500,000 pesos (US$11,000). Penalties are increased for selling to minors or close to a school.

Death Penalty The death penalty was abolished on June 24, 2006. Although the 1987 Constitution prohibits death penalty “unless otherwise provided by law,” Congress subsequently enacted Republic Act No. 7659, which imposed the death penalty for specific “heinous crimes.” In 1999, lethal injection was approved as the method of execution through Republic Act No. 8177. On March 24, 2000, President Joseph Estrada suspended all executions. On April 15, 2006, the death penalties for about 1,230 death row inmates were commuted to life imprisonment. Republic Act No. 9346, later signed by President Gloria Macapagal-Arroyo on June 24, 2006, abolished the death penalty. The penalties of life imprisonment and reclusion perpetua (indeterminate sentence, 30-year minimum) replaced the death penalty.

Prison In 2005, jails managed by the Bureau of Jail Management and Penology (BJMP) in Manila, Philippines, operated at 390 percent of designed capacity, compared with 323 percent in 2003. As of December 2005, the BJMP reported a total of 61,331 inmates in its centers. The number of inmates in BJMP centers dropped to 60,732 as of December 2006 and 60,209 as of July 2007. The Bureau of Corrections reported a total of 29,000 inmates in its national prisons as of 2005 and 30,468 as of 2007. As of November 2007, there are 1,132 city, district, and municipal jails nationwide that are under


Philippines

the administrative control of the BJMP, and there are 7 national prisons under the administrative control of the Bureau of Corrections (BuCor). The BJMP is an agency of the Department of Interior and Local Government, while the BuCor is an agency of the Department of Justice. The BJMP has operational and administrative control over 1,132 city, district, and municipal jails. In reality, only 417 jails (2 female dormitories, 2 youth centers, 152 district jails, 84 city jails, and 177 municipal jails) are actually under control of the BJMP, since 63 percent or 715 jails are still being operated by the Philippine National Police. The BuCor was created under the Reorganization Act of 1905 (Act No. 1407 dated November 1, 1905). It was charged with the safekeeping of all prisoners in prisons and all penal settlements, or those institutions under its custody. The country’s biggest prison is the National Bilibid Prison in Muntinlupa, Rizal Province. The prison houses inmates serving life imprisonment or long-term imprisonment. Prior to its existence, inmates were housed at the Old Bilibid prison in Manila. Commonwealth Act No. 67 provided for the construction of a new national prison in Muntinlupa. All inmates in the Old Bilibid Prison in Manila were transferred to this location. The building with a capacity of 3,000 prisoners was officially named the New Bilibid Prison on January 22, 1941. The prison reservation area consisted of 587 hectares (1,451 acres), part of which was arable. The prison compound area consisted of 300 x 300 meters or a total of 9 hectares (22.24 acres) and was surrounded by three layers of barbed wire. From the 1970s to the present, the New Bilibid Prison has served as the national maximum security compound, containing death row convicts, inmates sentenced to life imprisonment, persons accused of numerous pending cases, inmates with multiple convictions, and inmates sentenced to more than 20 years’ imprisonment. In the late 1960s, the prison’s security fences were reinforced with concrete slabs. The height of this concrete wall was later increased in the 1980s. Also, another facility was constructed about 2.5 kilometers (1.5 miles) away from the main building. This

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facility was named Camp Sampaguita or the Medium Security Camp. Inmates are required to work in the national prisons and penal farms. In the Correctional Institution for Women, women prisoners were allowed to do embroidery, poultry, piggery, and cultivation of crops, flowers, and fruits. In the Iwahig Penal Colony, a merit system was established in 1906 for the prisoners. They could choose from among the following vocational activities: farming, fishing, forestry, carpentry, and hospital paramedical work. In 1955, the government allowed the distribution of colony lands (maximum of six hectares or equivalent of 14.83 acres ) for cultivation by colonists. Four years later, a committee created to study the state of national prisons recommended the division of prisoners in Iwahig into two groups: the settlers and colonists. Based on this committee recommendation, settlers who engaged in farming for their own benefit could cultivate the land awarded to them by government. The government also furnished the initial capital requirements for tools, dwellings, and farm animals. The settlers, however, were required to reimburse household expenditures from earnings from their farm products. Upon release from the colony, they receive monetary amounts credited in their favor, after deducting the expenses reimbursable to the government. The San Ramon Prison and Penal Farm were established in southern Zamboanga through a royal decree promulgated in 1869. Inmates were required to do agricultural work. During the Spanish-American War in 1898, prisoners in San Ramon Prison were released and the buildings destroyed. The prison was later reopened and in 1912; Gen. John Pershing, chief executive of the Department of Mindanao and Sulu, classified the institution “as a prison and penal colony.” After a few years, the colony became self-supporting, with 75,000 coconut trees contributing to its income. Various crops such as rice, corn, papaya, and other crops were also harvested. The Philippine Coconut Authority later took over management of the coconut farm from San Ramon. The Davao Penal Colony requires inmates to do handicrafts. According to the Bureau of Corrections, the facility established a carpentry shop


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and the shop became known for the fine workmanship of prisoners. Sales of handicrafts were made through the institutions and inmates were compensated depending on the availability of funds. The Sablayan Penal Colony (located in Occidental Mindoro) and the Leyte Regional Prison (in Abuyog, Southern Leyte) similarly follow the same agricultural and rehabilitative programs of the other penal farms described earlier. Visiting hours are allowed for inmates and detainees. Each jail has its own visiting hours. Visiting time in Makati City Jail, for example, is limited from 9 a.m. to 12 noon.

Exchange of Prisoners and Extradition Prisoners may be exchanged or transferred to other countries. Under Presidential Decree No. 1069 and the 1994 RP-US Extradition Treaty, extradition of persons who have committed crimes in a foreign country is allowed. In the landmark case of Government of the United States of America v. Hon. Purganan and Mark Jimenez (G.R. 148571, September 24, 2002), the Supreme Court was confronted with several issues under the RP-US Extradition Treaty. This case involved a request by the U.S. Department of Foreign Affairs to the Philippine Department of Justice for the extradition of Mark Jimenez to the United States. The request contained the grand jury indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. The papers alleged that Mark Jimenez was charged in the United States with attempt to evade or defeat tax; fraud by wire, radio, or television; false statement or entries; and election contributions in name of another. The Supreme Court in this case ruled that an extraditee is not entitled to notice and hearing before a warrant for his arrest can be issued. The Supreme Court further ruled that the respondent of the extradition request is not entitled to post bail or to gain provisional liberty while extradition proceedings are pending. Claire Angelique Nolasco and Rolando V. del Carmen

Further Reading American Bar Association. (March 2006). Judicial Reform Index for the Philippines: http:// www.abanet.org/rol/publications/philippines_ jri_2006.pdf. Bureau of Jail Management and Penology. (2007). Data and Statistics: http://www.bjmp.gov.ph/ data.html. Philippine National Police. (2007). National Crime Statistics: http://www.pnp.gov.ph/index.html. Public Resource Management Consultants. (March 2006). Conduct of Further Study on Operations and Linkages of the 5 Pillars of Justice Final Report: http://apjr.supremecourt.gov. ph/pubreports/Conduct%20of%20Further%20 Study%205%20Pillars%20of%20Justice.pdf. Santos-Ong, Milagros. (2009). Philippine Legal Research: http://www.nyulawglobal.org/globalex/ Philippines1.htm.

Singapore Legal System: Common/Islamic Murder: Low Corruption: Low Human Trafficking: Medium Prison Rate: High Death Penalty: Yes Corporal Punishment: Yes

Background Singapore consists of the main island of Singapore and 63 offshore islands in Southeast Asia. The main island city-state is located at the southern tip of the Malayan Peninsula between Malaysia and Indonesia. Singapore has a heterogeneous population of 4,839,400 as of June 2008, consisting of 74.7 percent Chinese, 13.6 percent Malays, 8.9 percent Indians, and 2.8 percent of people who are Eurasians or of other races. The modern criminal justice system in Singapore is organized around the British model of law and


Singapore

jurisprudence, as Singapore was its colony between 1819 and 1959. English law (statutes and common law) as it stood then was formally received as the law of Singapore on November 27, 1826, by virtue of the Second Charter of Justice, but its application was subject to local circumstances with a view to adapting the application of English law to the native cultures of the Malay, Chinese, and Indian peoples. Between 1826 and 1872, English criminal law applied to all the inhabitants of Singapore as supplemented by local legislation. Criminal procedure was based on Indian legislation, which itself was partly based on English criminal practice. The Penal Code was enacted in 1872, and as it was considered a local statute, the condition of the Second Charter of Justice that English law be applied to suit local conditions and cultures ceased to apply. Between 1873 and 1888, several statutes on criminal procedure were enacted to update the existing criminal procedure to be consistent with the Penal Code, which abolished the distinction between felonies and misdemeanors. The current Criminal Procedure Code (Cap. 68) was enacted in 1900. These three statutes on criminal justice remain in force in Singapore in substantially the same form as when they were introduced. Many of the functions the contemporary criminal justice system in Singapore perform are similar to those of the British. Chapter 235 of the Singapore Police Force Act stipulates the function of the Singapore Police Force’s role as maintaining law and order, preserving public peace, preventing and detecting crime, and apprehending offenders. Consequently, from a legislative viewpoint, there is nothing conspicuous about the way in which Singapore categorizes its major crimes. The nation’s criminal code consists of 23 chapters and 511 sections, which classifies approximately 330 different types of criminal activity in six broad categories. The Singapore Police Force (SPF) comprises 12 staff departments and 11 line units, which include the Volunteer Special Constabulary, Traffic Police, Airport Police, District Police Divisions, Security Command, Commercial Affairs Department, Police National Service Department, Gurkha Contingent, Special Operations Command, Police Coast Guard,

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and Training Command. Presently, the SPF has an operationally ready strength of 12,516, comprising 7,826 regular officers, 1,206 civilian officers, 3,484 National Service Full-time (NSF) personnel, 20,852 Operationally Ready National Servicemen (NS), and 1,049 Volunteers Special Constabulary (VSC) officers. The Singapore police come under the Ministry of Home Affairs while the military institution is under the jurisdiction of the Ministry of Defence. Though the two institutions are structurally and legally separated through the administration of the Police Force Act (Cap. 235) and Singapore Armed Forces Act (Cap. 295), it is now commonplace for the police and military to organize joint operations or be involved in joint patrolling of key installations following the 9/11 terrorist attacks in New York. The Singapore model of policing is akin to the authoritarian typology: its centralization under the direct and almost exclusive authority of the executive power makes it a state police. As a consequence of this direct connection with the political, it is characterized by a function of political or “high” policing where the police function is institutionally and explicitly attributed to maintaining a particular conception of social order. The Singapore state’s credence in prioritizing order over justice is best exemplified in the crime control model of justice that drives the operation of the criminal justice process. This is witnessed particularly in the Misuse of Drugs Act and Prevention of Corruption Act where the laws operate on the basis of the presumption clause—in that a person is deemed guilty unless otherwise proved. Despite the authoritarian character of the Singapore state, it is equally important to acknowledge that its model of formal policing attests to the Anglo-Saxon model of “community” policing based on the idea of “policing by consent.” This categorization fundamentally flows from the assumptions that policing in Singapore is high on accountability; undertaken with public consent that does not mean acquiescence but a broad tolerance indicating a satisfaction with the service and enforcement roles of policing; its organizational structure allows the public to express their policing wants and needs; and last but not least, the SPF’s professional


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culture is epitomized by the officer on the street, close to the community, and patrolling the beat with the consent of the general public. The 40percent citizen-initiated arrests in the major crimes of outrages against modesty, robbery, housebreaking, motor-vehicle theft, rape, and murder for the year 2005 and the success of community policing are attributed to the so-called community model of policing adopted by the government. The crime control model has its roots in the political and social upheavals in the immediate preindependence and postindependence years that called for the need for a robust formal control machinery to ensure social order in the newly formed multiracial and multireligious state. The period marked the intensification in the use of the Internal Security Act (ISA) and the Criminal Law (Temporary Provisions) Act of 1955 to ensure an orderly transition to eventual independence. While the latter primarily empowered the executive to incarcerate the common criminal indefinitely, the former, which has its roots in the Emergency Regulations of 1948 introduced by the British in Malaya and Singapore, dealt with the problem of communism, subversion, and racial and religious extremism. These regulations allowed the police to arrest anybody suspected of having acted or being likely to act in a way that could threaten security, without warrant, hold them incommunicado for investigation, and detain them indefinitely without the detainee ever being charged with a crime in a court of law. The priority of the criminal justice system then was to address public order offenses. The use of the ISA and Criminal Law was primarily designed to contain the twin problems of communism and communalism and the violence associated with Chinese secret societies in Singapore, which rose phenomenally in the immediate postwar period. The Maria Hertogh riots of December 1950, the 1964 communal riots between the Malays and the Chinese in Singapore sparked off during a religious procession on the birthday anniversary of the Prophet Mohammed, and the 1969 race riots in Kuala Lumpur are reminders of the traumatic origins of Singapore. The national priority of economic and political stability diffused

into the ideology and practice of the criminal justice system in the aftermath of Singapore’s separation from Malaysia in 1965.

Crime Classification of Crimes Crimes in Singapore are classified into six classes. Class I: crimes against persons, which include murder and causing grievous hurt; Class II: violent property crimes, which include robbery, extortion; Class III: housebreaking, motor theft, and related crimes; Class IV: theft and related crimes; Class V: commercial crimes such as cheating, fraud, forgery, among others; Class VI: miscellaneous crimes that are subdivided into A: seizable offenses and B: nonseizable offenses. Seizeable offenses are those in which the police may act without an order from a magistrate and without a warrant of arrest may apprehend the suspect. The Children and Young Persons Act of 1949 defines the “child” as being a person below the age of 14 years and a “young person” as being a person who is between 14 and 16 years of age. Offenders who belong to these age categories are tried in the juvenile courts, except in situations where the juvenile is charged for a capital offense or jointly tried with an adult for a capital offense where the case is heard in the High Court. The law specifying the age of criminal responsibility states that “nothing is an offence which is done by a child under 7 years of age or if the child is above seven and under 12 years of age who has not attained sufficient maturity of understanding to judge [of] the nature and consequence of his conduct on that occasion (Penal Code, Cap. 224, s. 82 & 83). In practice, however, case laws dictate that this presumption might be rebutted by a showing by the prosecution that the offender had sufficient mental capacity to distinguish right from wrong. The issue of nonculpability also applies to an act of a person of unsound mind where the law states that “nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”


Singapore

In light of the above classification, some crimes have come to be viewed as particularly challenging to the country. For instance, the great cost of investigating white collar crimes (WCC) such as occupational crime (e.g., insider trading, credit card fraud, among others) and corporate or organizational crime (e.g., price fixing, antitrust laws, among others) and the lack of statistical information on WCC pose a great challenge to authorities. Nevertheless, the Commercial Affairs Department (CAD), as a specialized and nontraditional police department, was conferred a new status as a law enforcement agency, which allows it to better deal with WCC. A more recent challenge is that of terrorism and the subsequent escape of a Jemaah Islamiyah (JI) detainee, Mas Selamat Bin Kastari, on February 27, 2008. In the area of drug offenses, the Misuse of Drugs Act provides for strict and mandatory punishments where it empowers the police with extensive powers of search and arrest. An important feature of this law is that it does not distinguish between drug trafficking and possession (and for purposes of personal consumption), as any person found to have the proscribed drug in his or her possession is deemed to be involved in trafficking—the most serious of offenses in the drug law. For example, the Misuse of Drugs Act states that “any person who is proved to have had in his possession more than (a) 100 grammes of opium; (b) 3 grammes of morphine; (c) 2 grammes of diamorphine; (d) 15 grammes of cannabis; (e) 30 grammes of cannabis mixture; (f) 10 grammes of cannabis resin; (g) 3 grammes of cocaine; (h) 25 grammes of methamphetamine . . . whether or not contained in any substance, extract, preparation, or mixture shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose.” The Misuse of Drugs Act distinguishes between three classes of controlled drugs—A, B, and Cwhich warrant different punishments. Some of the commonly abused drugs in Singapore belonging to the A category include buprenorphine, opium, heroin, cannabis, Ecstasy, methamphetamine, and ketamine (previously a Class B drug). The respective

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punishments the different classes of controlled drugs warrant are listed in the following table. CLASS A

CLASS B

CLASS C

Maximum 20 years Maximum 20 years and Maximum 10 years and and 15 strokes 10 strokes 5 strokes Minimum 5 years and 5 strokes

Minimum 3 years and 3 Minimum 2 years and 2 strokes strokes

A death sentence is prescribed under the Misuse of Drugs Act for possession of larger quantities of cannabis, cocaine, heroin, methamphetamine, and morphine.

Crime Statistics According to the official crime statistics provided by the SPF, Singapore’s crime situation registered an improvement in 2007. The overall crime reported in 2007 fell from 33,263 to 32,545 cases when compared to 2006. In addition, the overall crime rate also fell from 742 to 695 per 100,000 population in 2007, which was the third-lowest in 10 years. Of the six classes of crime, only commercial crimes recorded a significant increase of 330 cases (from 3,159 to 3,489 cases in 2007). Violent property crimes increased slightly, while crimes against persons and miscellaneous crimes did not register any significant change. Housebreaking and related crimes fell, from 1,201 to 925 cases in 2007. Theft and related crimes, which generally constitute more than half of overall crime each year, fell for the second year running from 20,301 to 19,522 cases in 2007. The SPF has attributed Singapore’s overall crime rate—which is the third-lowest in 10 years—to the firm police-community partnership that has been forged over the years.

Finding of Guilt The accused person is presumed innocent until proven otherwise and must be notified of the grounds of arrest. The accused person has the right to (1) consult and be defended by a legal practitioner of his or her choice, and (2) to remain silent in the course of a police investigation (Constitution, Art.9 [3]). Nevertheless, one must be reminded of


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the presumption clause—in that a person is deemed guilty unless otherwise proven, which contradicts the presumed innocence integral to the accused’s rights. The available forms of assistance provided to accused persons include the Legal Aid Bureau of the government that provides legal aid for civil cases; the Law Society of Singapore that provides legal aid in noncapital cases; and in the cases of crimes carrying the death penalty, the Registrar of the Supreme Court in the government’s behalf assigns a lawyer for the defense. In minor cases, an officer will go to the scene of a crime to investigate the offense and to arrest any alleged offenders. Officers are also authorized to have special powers to initiate investigations of serious offenses. When a police investigation discloses an offense, the Attorney General’s Chambers (AG) has the discretion to initiate a criminal prosecution. Upon completion of that investigation, the prosecutor will initiate the criminal prosecution and the case will be prepared for trial. The charge notifies the accused of the offense. The accused may be tried in a magistrates’ court, a district court, or High Court depending on the seriousness of the offense. After a review of the case, the magistrate issues a summons or a warrant of arrest to the accused. An examining magistrate then conducts an investigation to determine if the case against the accused justifies proceedings in the High Court. All criminal cases are tried by a single judge, with the exception of capital offense trials, which are conducted by courts consisting of two High Court judges. In short, all criminal proceedings for the state are represented by the public prosecutor. The AG Chamber has the sole prosecutorial discretion and is responsible for all criminal prosecutions. To ease the workload of the AG’s office, deputy public prosecutors adopt the role of supervising specially trained police prosecutors to conduct the prosecution of lesser crimes. The alternatives to going to trial must also be noted. In 1991, the Singapore International Arbitration Centre (SIAC), an institution administering arbitration, was established. Committed to complete impartiality and transparency in all that it does for parties, the SIAC seeks to meet the demands of the international business community for a neutral,

efficient, and reliable dispute resolution institution in a fast-developing Asia. Broadly, it helps parties in three ways: first, the appointment of arbitrators when they cannot agree on an appointment; second, the management of the financial and other practical aspects of arbitration; and, third, the facilitation of the smooth progress of arbitration. In 1994, the Court Mediation Centre, whose primary function is to pull all the mediation processes in the various courts that come under the Subordinate Courts together, was first introduced as an alternative (civil) avenue of dispute mediation. Subordinate Courts is divided into 4 divisions—the Criminal Justice Division, Civil Justice Division, Family Justice Division, and Juvenile Justice Division. The Court Mediation Centre handles the mediation of civil, family, small claims, and criminal matters (i.e., relational disputes and juvenile matters). In May 1998, the Court Mediation Centre was renamed as the Primary Dispute Resolution Centre (PDRC). In line with the development of alternative dispute mediation, the Singapore Mediation Centre (SMC), a nonprofit organization guaranteed by the Singapore Academy of Law, was incorporated on August 8, 1997, and officially launched by the Honourable Chief Justice Yong Pung How on August 16, 1997. Fundamentally, the SMC is dedicated to promoting the amicable and fair resolution of dispute and aims to create an environment where people can cooperate to find enduring solutions to conflicts by broadening awareness of, and providing access to, constructive means of dispute resolution. Since then, mediation is routinely conducted in the Ministry of Community, Youth and Sports’ Maintenance of Parents Tribunal (Cap. 167B), small claims tribunals, the Family Court, and the juvenile courts. In addition, the Subordinate Courts have also harnessed the “e@dr” or “eAlternative Dispute Resolution” scheme to allow for parties to resolve their disputes on the Internet via an e-commerce transaction. On certain legal grounds, incarceration before or awaiting trial is allowed. On arrest, an individual may be searched and brought to a police station for questioning. Pending questioning, that individual may be detained in a lock-up for a maximum period of 48 hours from the time of the arrest. If


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the officer wants to detain that individual for more than 48 hours, the officer must bring him or her to court. If the police or other officers do not wish to detain an individual for more than 48 hours, they may let him or her go on a personal promise or put the person on police bail to make sure he or she goes back to the station or attends court when told to do so. Based on the Subordinate Courts’ Annual Report 2006, there are about a total of 51 judges, all working in the Criminal Justice, Civil Justice, and Family and Juvenile Justice Divisions. There are also 14 judges on the Supreme Court Bench. Supreme Court judges are appointed by the president, who acts on the advice of the prime minister and the chief justice. A person is qualified for appointment as a judge of the Supreme Court if he or she has for an aggregate period of not less than 10 years been a qualified person within the meaning of Section 2 of the Legal Profession Act or a member of the Singapore Legal Service, or both. District court judges and magistrates are appointed by the president on the recommendation of the chief justice. All judges must first be “qualified persons” under the Legal Profession Act. The Juvenile Justice Division marks a separate system for juveniles in Singapore. The Juvenile Court was created by the Children and Young Persons Act of 1949. This act prescribes the method for processing juvenile delinquents between 14 and 16 years old. The focus is on counseling and community intervention to resolve issues involving juveniles between 14 and 16 years of age, a form of restorative justice nonetheless. If remanded, juveniles are either placed in an approved home for two to three years or placed on statutory supervision for a specified period, not exceeding three years, under the supervision of a social worker.

Punishment Types of Punishment The kinds of punishment typically used include banishment, caning, compensations, corporal punishment, fines, forfeiture of property, house arrest, prison, probation, public punishment, publicity of punishment, reparations, treatment, and the death

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penalty. The punishments and the crimes for which they are prescribed are as follows: Murder, piracy, kidnapping, and various drug offenses Attempted murder Culpable homicide

Theft

Rape

Robbery

Death

Imprisonment 10 years to life Imprisonment for life; imprisonment 10 years plus fine or caning Imprisonment up to 3 years, or with fine, or with both Imprisonment up to 20 years, plus fine or caning Imprisonment 2 to 10 years, 20 years if gang robbery; plus 6 strokes, more if committed at night, not less than 12 strokes if armed

Since Singapore was a British colony, capital punishment has been a legal form of punishment and is still present today. Legally, the Penal Code provides for the death sentence for at least 10 offenses including the crimes of murder, endangering a person’s life during an act of piracy, and “offences against the President’s person”; these typically carry a mandatory death sentence. However, in recent years, the death penalty is only known to have been imposed for drug trafficking, murder, and firearms offenses, all of which carry a mandatory death sentence. According to the Criminal Procedure Code, the death penalty may not be imposed on pregnant women or on youth offenders who are aged below 18 at the time of the offense. In addition, four other acts also provide the imposition of the death penalty: first, the Misuse of Drugs Act (MDA) provides for a mandatory death sentence for at least 20 different drug offenses; second, the Internal Security Act (ISA) stipulates a death sentence for certain offenses involving firearms, ammunition, or explosives; third, the Arms Offences Act provides for a mandatory


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Candles are lit during a vigil held for Ngyuen Tuong Van, an Australian national, just hours before his execution in Singapore, December 2, 2005. The Singapore government rejected repeated appeals for clemency for Nguyen, who was convicted of trafficking almost 14 ounces of heroin through Singapore’s Changi Airport. Photos of Ngyuen Tuong Van are seen on the table. (AP Photo/Wong Maye-E)

death sentence for anyone, including accomplices, using or attempting to use firearms or trafficking in arms; and fourth, the Kidnapping Act provides for the death penalty for kidnapping for ransom. According to the Prison Service Annual, the average daily population in penal institutions and drug rehabilitation centers (DRCs) in 2006, excluding inmates placed on special programs, was 12,643 and 216, respectively. The number in drug rehabilitation centers has declined dramatically since 1995. In contrast the prison population reached a peak of some 16,000 in 2003 but has declined in recent years. Eighty-nine percent of inmates of penal institutions are men, 11 percent women. Eighty-two percent of drug rehabilitation centers are men, the rest women. Currently, the types of prisons and DRCs in Singapore are Changi Prison Cluster A, Changi’s

Women Prison, Khlasa Crescent Prison, Admiralty West Prison, Queenstown Remand Prison, Tanah Merah Prison, Sembawang DRC and Selarang Park DRC, and the Kaki Bukit Prison School meant for youth offenders. Singapore’s biggest prison is the Changi Prison Complex (CPC), which has been an ongoing project that commenced in 2000. This complex marks the consolidation of all existing medium-security and maximum-security facilities and the construction of four clusters of institutions, support facilities, and prison headquarters, which will be implemented in phases. Strategically, the use of high-rise complexes addresses the problem of limited land space to accommodate up to 23,000 prisoners. The infrastructure, design, and technology of CPC would enable economies of scale, additional capacity, enhanced security, more


South Korea (Republic of Korea)

focus on rehabilitation, more employment opportunities as well as better management in general. Part of the inmates’ incarceration and rehabilitation experience includes work programs and education. The work program, administered by Singapore Corporation of Rehabilitative Enterprises (SCORE), includes linen services, food services, subcontracting services, industrial space leasing and digital media services. In addition, vocational and employability training is also made available. Educationally, inmates have access to the Institute of Technical Education (ITE), general education (secondary level, 1 to 3), General Certificate of Education (GCE) for Ordinary (“O”) and Advanced (“A”) levels, moral education, religious counseling, and enrichment activities such as sports and music, among others. These education programs are administered by the Kaki Bukit Prison School. The visiting policies of prisons state that only family members are allowed. Friends and others will be subjected to approval by the authorities in charge. The frequency of visits is once every two weeks or once every month. Items that are allowed to be brought in or bought from the institution for inmates include reading materials (maximum three), spectacles, dentures, medication, and hearing aids. Televisits in the form of videoconferencing visits at prison link centers (PLCs) are also approved. The Extradition Policy states that prisoners can only be exchanged or transferred with nation-states that have signed treaties with Singapore. The extraditing of political offenders is impermissible. For declared Commonwealth countries, an “extraditable” crime is an offense (wherever committed) against the law in force in Singapore and the maximum penalty for which is death or imprisonment for a period of not less than 12 months. For Malaysia, the offense would be an offense punishable on conviction with imprisonment for six months or more under the law of Malaysia. Narayanan Ganapathy and Anil Singh Sona Further Reading Chan, Wing Cheong, and Andrew Phang. (2001). The Development of Criminal Law and Criminal

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Justice in Singapore. Singapore: Singapore Journal of Legal Studies, Faculty of Law, National University of Singapore. Ganapathy, Narayanan. “Criminal Justice Policy: Social Order, Risk and the ‘Governmental Project.’ ” In Social Policy in Post-Industrial Singapore, edited by C. K. Tong and K. F. Lian, pp. 247– 278. Leiden and Boston: Brill. Ganapathy, Narayanan. (2002). “Rethinking the Problem of Policing Marital Violence: A Singapore Perspective.” Policing and Society 12(3): 173–190. The Subordinate Courts of Singapore: http://app. subcourts.gov.sg/subcourts/index.aspx Yeo, Stanley M. H., Neil Morgan, and Wing Cheong Chan. (2007). Criminal Law in Malaysia and Singapore. Singapore: LexisNexis.

South Korea (Republic of Korea) Legal System: Civil/Customary Murder: Low-Medium Burglary: Medium Corruption: Low Human Trafficking: Low Prison Rate: Medium Death Penalty: Yes Corporal Punishment: No

Background The modern legal system of the Republic of Korea took shape after the Kabo Reforms (1894–1895). Previously, kings in an oriental monarchy system ruled Korea while governmental agents oversaw judicial matters, which included the prosecution and punishment of offenders. In 1894, the Office of Legal Affairs, the modern judicial branch, was established to handle legal affairs, prosecution, and court functions. This separation of judicial operations from the government administration was recognized as a major step toward the foundation of the modern legal system. After the end of Japanese colonial rule (1910–1945), the Ministry of Justice


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was created as part of the executive branch, separated from the judiciary, through the Government Organization Act on July 17, 1948. Today, the Korean legal system consists of a highly centralized and hierarchical organization. Accordingly, police and the prosecutorial system have been under centralized and inclusive state control.

Political and Social Context The Korean criminal justice system cannot fully be understood without considering the authoritarian and repressive features of the political regimes of the era of industrialization between 1960 and 1980. The degree of authoritarianism and repression fluctuated within and across regimes until the first civilian president was elected in 1992. Under authoritarian rule, the criminal justice apparatus was tightly controlled by the regime. In line with the investigation and prosecution process, for example, public prosecutors are quasijudicial officials who independently carry out their authorities and duties. According to the “principle of identity,” however, public prosecutors belong to the executive branch and must follow orders from their superior. This hierarchical structure has sometimes allowed regimes to affect prosecutorial decisions in favor of their own interests. Furthermore, military regimes forcefully obtained compliance from the judiciary by using a punitive nonreappointment and transfer system. As a result, criminal justice practices may have been affected more by political forces of that era than by economic and organizational factors.

Criminal Justice System Police The police organization is the largest government department of professional civil servants in South Korea. The national police organization, in a modern sense, was established in 1945 after the end of Japanese colonial rule when the Korean police modeled their organization after the structure and practices of the Japanese. The Korean police are directed by the Ministry of Home Affairs (or the Ministry of Public

Administration and Security). Police functions have been organized under the National Police Agency, which is an independent organization with a commissioner general, a vice minister–level official, as its head. The National Police Agency has nine provincial and seven metropolitan police agencies as special local administrative headquarters. Each provincial and metropolitan police office directs many police stations and substations. As of 2008, there were 239 police stations, 813 police offices, and 579 police boxes under the police stations. In 2007, South Korea employed 147,651 police officers. Of these, 96,324 were sworn officers. The population per police officer was 509. When a crime is committed, a police officer initiates an investigation. However, although crime control is a police function, the police do not have exclusive authority during criminal investigations. Police officers are required to report to the appropriate prosecutor, who guides and supervises “judicial police officers” on the investigative process.

Public Prosecutor’s Office The public prosecutor’s office has vast authority and discretionary power over criminal justice matters. Public prosecutors initiate and complete criminal investigations, during which they supervise and direct judicial police officers and have exclusive power to request various warrants for searches, seizures, and detentions. After investigative authorities conclude that sufficient evidence exists against a suspect and decide to prosecute, the suspect becomes the “accused” and the prosecutor creates a deposition, deciding whether the case amounts to a crime. Prosecutors can choose to indict or not indict a suspect. They may choose to suspend the prosecution of offenders whose crime is relatively minor, who do not have long criminal records, or who show remorse for their behavior. There are 62 prosecutors’ offices nationwide, which include 1 supreme prosecutor’s office, 5 high prosecutors’ offices, 18 district prosecutors’ offices, and 38 branch offices. The public prosecutor’s office is attached to the Ministry of Justice. The supreme prosecutor’s office is responsible for commanding



and supervising the investigations and operations of all other prosecutors’ offices in South Korea. The prosecutor general is in charge of all duties within the supreme prosecutors’ office and directs all civil servants of prosecutors’ offices. High prosecutors’ offices handle High Court criminal proceedings, civil and administrative litigation in which they represent the government and government agencies, and appeals against nonprosecution decisions of district prosecutors’ offices and branch offices. District or branch prosecutors’ offices are divided into investigative and prosecutorial departments, allowing investigators, prosecutors, and staff to work as a team. As of March 2008, there were 1,680 prosecutors in South Korea. Public prosecutors must pass the judicial examination and complete a two-year training course at the Judicial Research and Training Institute. Upon completion of training, graduates may choose, in principle, to become a judge, a public prosecutor, or a private attorney. Actual selection does not seem to be determined only by the preference of the applicants. Judgeships are generally reserved for the top students. Public prosecutors and private attorneys tend to be regarded as the second choice. The total number of registered attorneys has risen from 3,845 in 1996 to 9,280 in 2007. The president appoints and assigns public prosecutors upon the recommendation of the minister of justice.

Courts Unless otherwise stipulated by the Constitution, the courts have the power to judge all civil, criminal, and administrative disputes in South Korea. The judiciary system consists of three basic levels: the Supreme Court, the High Court, and the District Court with its branches. As the highest judicial organization in South Korea, the Supreme Court hears appeals against decisions of lower courts. It has exclusive jurisdiction concerning the validity of presidential and parliamentary elections. Finally, the Supreme Court has the power to review the constitutionality or legality of orders, rules, regulations, and actions taken by administrative entities. One chief

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justice and 12 justices, including the minister of the National Court Administration, comprise the Supreme Court. Its chief justice, who is appointed by the president with the consent of the National Assembly, serves six years and cannot be reappointed. Other Supreme Court justices are appointed by the president upon the recommendation of the chief justice. Their term is also six years, but reappointment for one other term is possible. High Courts typically consist of one chief judge and several other judges. Currently, there are five High Courts in Korea. Judgments from High Courts are rendered by a panel of three judges. Appeals against judgments or rulings from a panel of three judges by district courts or the Family Court, or by the Administrative Court, are heard by High Courts. There were more than 313 High Court judges in 2007. District courts have primary jurisdiction over most cases and are usually presided over by a single judge. A three-judge panel is mandatory, however, in criminal cases punishable by death or more than one year of imprisonment. District courts can be assisted by one or more branch courts, overseen by a single judge, to alleviate a portion of the district court’s caseload. Additionally, municipal courts hear criminal cases involving less than 30 days’ penal detention or a fine not exceeding 200,000 Korean won (approximately US$200 as of June 2007). In 2007, there were 18 district courts, with 43 branch courts and 101 municipal courts. On average, district court judges preside over 170 criminal trials per year, which include the penal code and many special laws. South Korea also established specialized courts to alleviate the burden on the judicial system. The Constitutional Court handles cases concerning constitutional issues. Laws or articles decided unconstitutional by the Constitutional Court lose their legality from the day the decision is given. The Family Court hears domestic relations and juvenile offense cases. However, South Korea currently has only one Family Court, located in Seoul. Passing the judicial examination is the first qualification for judgeship. After two years of training at the Judicial Research and Training Institute (JRTI), those who choose judgeship as their career usually


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start their service in district courts. Every two years, district court judges generally rotate from Seoul to provinces or from one province to another. As a result, about 700 judges are moved to other provinces annually. In 2007, there were 2,294 judges in South Korea.

Crime Classification of Crimes The Analytical Report on Crime, published by the Supreme Public Prosecutor’s Office, contains the most comprehensive compilation of statistical data on crime, police activity, and dispositions of public prosecutors in Korea. The report divides crime into two broad categories: offenses that violate the Criminal Code and offenses that violate many Special Laws. According to the Criminal Code, offenses are classified into seven subcategories: violent crimes, property crimes, forgeries, crimes committed by government officials, crimes against public morals, crimes of negligence, and others. Of these, violent and property crimes comprise approximately fourfifths of all Criminal Code Offenses (CCO). The violent crime category includes criminal homicide, robbery, arson, rape, assault, aggravated assault, intimidation, kidnapping, and illegal confinement. Of these, homicide, rape, robbery, and arson have been regarded as the most serious crimes in South Korea. On the other hand, property crimes consist of larceny-theft, stolen property, fraud, embezzlement, malfeasance in office, and destruction of property. In recent years, larceny-theft, fraud, and assault were the three most frequently committed CCOs in South Korea. In 2007, for example, one out of four CCOs reported to the police was larceny-theft, followed by fraud (22.0%), assault (11.5%), and aggravated assault (11.0%). Violations of Special Laws (VSL) include various laws regulating all aspects of society. In 2000, there were approximately 200 Special Laws. Typical examples of these laws include the Road Traffic Act, the Special Act on Disposition of Traffic Accidents, and the Act Concerning Punishment for Violent Acts (APVA), which deals with minor forms of

assault. Violations of these three laws comprise approximately 80 percent of all violations of Special Laws. In relation to drug crime in South Korea, the abuse of marijuana in and around American military bases became a major social problem during the 1970s. Since the beginning of the 1980s, methamphetamine (hi-ro-ppong) has been one of the most serious drug problems in South Korea. The abuse of a variety of drugs such as marijuana, cocaine, methamphetamine, heroin, and many types of pharmaceutical drugs, as well as the use of chemical solvents (e.g., model glue, paint thinners, and butane gas) among teenagers, become a large concern in recent years. To address drug problems, Korea enacted three major laws prohibiting the abuse of drugs: the Narcotic Act of 1957, Cannabis Control Act of 1976, and Psychotropic Medicine Control Act of 1979. Of these, violations of Psychotropic Medicine Control Act occupied almost 80 percent of all drug crimes in 2007, while the Narcotic Act comprised 9 percent, and the Cannabis Control Act comprised 11 percent.

Crime Statistics Data on crime, arrests, and prosecutions come in large part from the Analytical Report on Crime. An annual publication of the White Paper on Crime, published by the Legal Research and Training Institute, it may be used in part to calculate crime and arrest rates. Data on convictions and incarcerations are available in the Judiciary Yearbook, which is published annually by the Administrative Office of Courts. The total number of crimes occurring in Korea has increased 3.8 times over the past three decades, from 513,165 in 1978 to 1,965,977 in 2007. The crime rate, which is defined as the total number of crimes that take place per 100,000 people, has also increased approximately 2.9 times over the same period, from 1,388 in 1978 to 3,988 in 2007. During the past decade (1998–2007) in particular, the total number of crimes that occurred in South Korea increased 11.3 percent. The crime rate also increased 4.5 percent over the same period. The total number



of crimes steadily increased to 810,416 in 1985, 1,171,380 in 1990, 1,399,085 in 1995, 1,867,882 in 2000, and 1,893,896 in 2005.

Criminal Code Offense (CCO) Violent and property crimes consist of approximately four-fifths of all CCOs in South Korea. The total number of CCOs increased 86.9 percent, from 452,260 in 1998 to 845,311 in 2007. CCOs increased every year until 2003 with 857,488, after which the total number of CCO crimes declined from 2004 to 2006, then increased again in 2007. There has been a steady increase in most serious crimes (homicide, rape, robbery, and arson) during the past decade. However, there have been only minor changes in the crime rate of homicide since 1998. Murder increased 1.2 times, from 966 cases in 1998 to 1,124 cases in 2007. There was a steady increase in the incidence of rape (including sexual assault) during the same time period. With the exception of 2002, rape increased every year from 7,886 in 1998 to 13,634 in 2007. In the case of robbery, the number of crimes dropped from 5,407 in 1998 to 4,712 in 1999, after which it showed a steady increase until 2003 with 7,327 cases. It then showed a decreasing trend, reaching 4,470 in 2007. Arson showed a steady increase until 2003 with 1,713 cases, but then began to fluctuate. The total number of property crimes experienced minor changes over the past decade. These crimes increased from 338,943 in 1998 to 469,654 in 2007, which is a 40 percent increase. However, this increase has not been consistent; the number of property crimes in South Korea declined from 1998 to 1999 and from 2003 to 2005. Major property crimes in 2007 consisted of larceny-theft (45.3%), fraud (39.6%), destruction of property (8.2%), embezzlement (5.1%), malfeasance in office (1.1%), and stolen property (0.7%). In general, there has been a steady increase in larceny-theft, stolen property, and destruction of property crimes. South Korea experienced a sharp increase in stolen property crimes (i.e., receiving, selling) over the last decade. There has also been a drastic increase in larcenytheft cases since 1999 with the exception of the year

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2004. The number of cases rose from 82,584 in 1999 to 212,530 in 2007. Stolen property also increased from 1,581 in 2004 to 3,050 in 2007. Fraud and embezzlement has remained somewhat stable and shown patterns of minor increase and decrease over the last decade.

Violations of Special Laws (VSL) In terms of the number of incidents of crime, offenders who violated Special Laws were more numerous than those who violated CCOs. For example, while the total number of CCOs was 845,311 in 2007, the total number of violations of Special Laws was 1,120,666. The number of incidents of VSL rose to 1,432,307 in 2001, showed a sharp decrease from 2002 to 2006 (1,001,190 in 2006), and then rose again to 1,120,666 in 2007. The number of drug crimes has risen from 8,350 in 1998 to 10,649 in 2007. However, this has not been a steady increase. After a sharp increase in 1999 to 10,589, the number of crimes remained relatively stable until 2003, when the number of crimes dropped to 7,546. After this sharp decline, drug crimes again remained stable until 2007, when they experienced a sharp increase in 2007.

Finding of Guilt Investigative Process and Rights of the Accused The legal system of South Korea is adversarial in nature. When a crime is reported or detected, police officers initiate an investigation and search for the suspect. When it comes to the age of criminal responsibility, a person who is 14 years old or above is criminally liable for his or her crime. The suspect has the right to remain silent and can refuse to answer questions by the police or prosecutor. In principle, police investigators fall under the supervision of public prosecutors, who have the original authority to initiate and complete criminal investigations, and should follow their orders. However, in practice, the police initiate most investigations (over 90%). In cases concerning complex offenses or white-collar crimes, the prosecutor usually initiates the investigation ex officio or without previous investigation by police officers.


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South Korean chief justice Yun Young-chul, center, presides over a hearing on the impeachment of President Roh Moonhyun at the Constitutional Court in Seoul on April 30, 2004. (AP Photo/KIM Jae-hwan)

When detention is necessary for an arrested suspect, the police should have a warrant, which must be sought by the public prosecutor and issued by a court judge (Criminal Procedural Law, article 201). Because the ability to obtain a warrant lies solely with public prosecutors, the police must ask prosecutors, who then must decide whether or not to request a warrant from the court. However, in cases where the suspect is caught committing a crime or exigent circumstances exist, the suspect may be arrested immediately and a warrant may be obtained within 48 hours after the arrest. If investigative authorities seek a warrant of detention, the suspect or a concerned party (i.e., defense counsel or family member) can request an examination of the suspect by the judge before deciding whether to issue the warrant. The public prosecutor or police officer must inform the suspect of this right at the time of arrest. In addition, the judge may examine the suspect before deciding to issue a warrant of detention for a suspect who is not

under arrest. The judge takes into account the result of the examination as well as records submitted by investigative authorities to determine whether circumstances justify detention. Once a suspect is detained with a warrant, police officers should transfer the case, its documents, and evidence to the public prosecutor’s office (SongChi) within 10 days. After a review of legality, the court can order the release of the accused if there is a valid argument for the request. The court may release the accused on bail, which can be substituted for a written undertaking or a surety insurance policy, at the request of the accused or ex officio. When release is granted, the court often orders defendants to remain within the physical boundaries of their neighborhoods or homes. After receipt of a case, the public prosecutor may continue and complete the investigation and decide whether or not to pursue a trial. When there is not sufficient evidence, prosecutors often decide to dismiss the case (nonprosecution). Nonprosecution



includes “suspension of prosecution,” “free of suspicion,” “does not constitute a crime,” and “no right for prosecution.” The percentage of nonprosecution was 45 percent of all cases reviewed by prosecutors in 1980; it increased to 62 percent in 1990, and then dropped to 38 percent in 2007. Customarily, about 10 percent of offenders who are brought to the public prosecutor’s office receive a “suspension of prosecution.” Excluding these cases, public prosecutors decide which of the remainder will resume to trial. There are two kinds of prosecution: summary indictment and formal trial proceedings. When public prosecutors request a summary indictment, the court relies only on documentary evidence prepared by public prosecutors and the presence of the accused is not required. The chief candidates for summary trial proceedings are offenses punishable by fines of $250 or more. On the other hand, formal trial proceedings are reserved for severe offenses and repeat offenders, whose crimes are punishable by incarceration or death. However, the accused can request a formal trial proceeding within seven days of receiving a summary order notification. In 2007, 24.7 percent of all CCO cases in South Korea were disposed by summary trials, while only 7.6 percent proceeded to formal trials.

Court Trial Process The trial process in criminal courts for less serious crimes is usually presided over by a single judge in district or branch courts. In 2007, about 85.6 percent of 312,317 cases were tried before a single judge. On the other hand, cases punishable by a minimum of one-year incarceration or more, including the death penalty, are tried by a collegial court of three judges. In certain cases, depending on the brevity and expeditiousness of the proceedings, the speedy-trial procedure is applicable. This option is available for minor offenses punishable by no more than 200,000 Korean won (around US$200). The chief of police, not the prosecutor, refers these cases to the court. One judge presides over this trial in a public place other than the police station. Speedy-trial sentences are supervised by the chief of police and reported to the prosecutor. Defense attorneys are mandatory for minors or individuals more than 70 years old, the mute, the

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mentally incapable, and for those who commit crimes punishable by more than three years’ imprisonment. When the accused is too poor to afford a private defense attorney, a public defender may be appointed at the request of the accused. At the adjudication stage the public prosecutor, defense attorney, and judge interrogate the accused about the commission of the crime. Investigation of the material evidence and cross-examination of witnesses are also conducted and the public prosecutor makes a statement about proper application of the law and recommends the type and severity of punishment. The hearing concludes with the judge rendering a verdict. A confession alone cannot produce a guilty verdict. If the judge renders a judgment of not guilty, the accused may receive compensation if he or she has been placed under detention. Both the accused and the prosecutor can appeal the decision of the court within seven days from the date of the judgment. When delivering the sentence following a conviction, judges generally impose a less severe sentence than that recommended by the prosecutor. The Supreme Court established the Sentencing Commission on May 2, 2007, to implement fair and objective sentencing practices. The commission was given authority to establish or revise sentencing guidelines. Judges must respect the sentencing guidelines established by the commission in rendering decisions (i.e., category and period of sentencing), although these guidelines are not legally binding. South Korea established a Family Court on October 1, 1963, to handle domestic relations and juvenile offense cases. However, because South Korea currently has only one Family Court, located in Seoul, all functions related to the Family Court in other jurisdictions are performed by the district court. Beginning January 1, 2008, South Korea adopted the Lay Participation system, which allows citizens to act as jurors in criminal trials. The jury’s verdict and sentencing opinions do not have a binding effect on the judge’s decision.

Punishment There are four major types of criminal sanctions classified in the Criminal Law: life sentence (e.g.,


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death penalty), imprisonment sentences (e.g., penal detention, imprisonment, penal servitude), financial sentences (e.g., confiscation, minor fine, fine), and status sentences (e.g., suspension of status, deprivation of status). Of these, fine, probation, and imprisonment are the three most typical punishments in South Korea. In 2007, half of all original sentences included imprisonment. Of these, 17 percent of sentenced offenders were incarcerated, while 32 percent received suspension of execution under probation. Another 34 percent of offenders were ordered to pay a fine. Detention cannot exceed 30 days of confinement, during which detainees are generally placed in a local police jail. Penal servitude contains forced labor while imprisonment does not. However, those who receive imprisonment can work upon request. South Korea still has the death penalty as a criminal sentence for serious murder, but few criminals have been sentenced to the death penalty in recent years (20 cases in 2000, 12 in 2001, 5 to 8 each year during 2002–2006, and 0 in 2007). However, there has not been a single execution for those sentenced to death penalty during the past decade. Even when a criminal receives a guilty verdict, judges can suspend the imposition of the sentence for offenders who commit crimes punishable by not more than one year of imprisonment. Unless the offender commits other crimes punishable by more than a suspension of status for two years, the sentence for the original crime looses its validity. Judges may also impose the appropriate penalty, but postpone the execution of punishment for a given period of time. About one in three imprisonment sentences earned a “suspension of execution” in 2007. If an offender commits other crimes punishable by imprisonment after receiving a suspension of execution, the suspension is revoked and the offender must serve the imposed sentence for the original crime.

Prison There has been a steady decrease in the number of prisoners in South Korea during the past decade. The total number of inmates in prisons and

jails declined from 67,883 in 1998 to 46,313 in 2007, which is a 31.8 percent decrease. The greatest change occurred in the number of suspects housed in jails, which dropped 66 percent from 2,930 suspects in 1998 to 996 in 2007. Jails experienced a 49.7 percent decrease in the number of defendants during the same time period. Prison inmates also declined 16.6 percent over the past decade. Overall, the total number of inmates has shown a steady decrease with a few exceptions (e.g., inmates in prisons in 1998, the number of suspects in 2000 and 2002, and the number of defendants in 2003, 2004, and 2006). The Korea Correctional Service (KCS) under the direction of the Ministry of Justice oversees the administration and operation of correctional facilities in South Korea. The KCS utilizes a system of incarceration and supervision to segregate inmates from society while still providing educational and rehabilitation programs to increase the chance of successful reentry into society after release. Work and self-improvement opportunities are organized by the KCS in an effort to assist offenders in becoming law-abiding citizens after their release. Correctional facilities in South Korea can be divided into two categories: prisons, which secure sentenced inmates for all security levels, and detention centers (or jails), which mostly house defendants awaiting trials and remand inmates. Inmates are provided the opportunity to learn and improve basic academic skills. A variety of classes from collegiate courses to vocations programs are offered by the KCS to meet the diverse educational needs of inmates. Additionally, the KCS encourages inmates to choose a single religion to cultivate morality through the purification of the mind by religious devotion. The KCS has recently created a video monitoring system that allows inmates to have medical checkups via remote medical staff and visitation with family members without a correctional officer present. Inmates awaiting trial are generally allowed visitors every day, including holidays, Saturday afternoons, and Sundays. However, the number of visits allowed per month for convicted offenders varies depending on the classification level of the inmate.



Although the maximum visits allotted per month are four, exemplary inmates are often allowed to see their families on an unlimited basis per month. Unless the institution prohibits it for security or rehabilitation reasons, inmates are allowed to write letters to anyone outside the facility as long as the inmate pays the postage. Inmates may also make telephone calls to their families after purchasing a phone card and agreeing to a screening of the phone conversation. Four correctional institutions in South Korea established Conjugal Visitation Houses in June 1999, which allowed exemplary long-term inmates to stay with their spouses or families in a house for one night. This opportunity sustained the relationship between inmates and their families. Exemplary inmates are also eligible for the furlough program after serving at least one year of their sentence and passing at least one-third of their sentence term. Inmates are often allowed to spend 72 hours on a weekend or holiday with their families to maintain family ties and adjust to society life after release. By March 2008, the KCS included 4 regional headquarters and 47 correctional institutions: 32 prisons, 10 jails (detention centers), 1 vocational training correctional institution, and 4 correctional branches. Each of the regional headquarters performs intermediate supervision by directly overseeing local correctional institutions within its jurisdiction and administers front-line correctional facilities. The KCS employs more than 17,000 professionals (14,500 correctional officers and 2,500 defense guards) throughout South Korea.

Probation and Juvenile Justice The Korean probation system was established as a juvenile corrections program in 1989. Due to the implementation of the Criminal Act in 1995, the court can now sentence adult offenders to probation, community service, or an attendance center when suspending the imposition or execution of a sentence. South Korea currently has 16 probation offices, 5 parole examination committees, and 28 branch offices. If a juvenile is sentenced to probation or released on parole, a probation officer supervises the

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juvenile and supports rehabilitation, executes community service and attendance center orders, and prepares presentence investigation reports for the Family Court. A Parole Examination Committee decides whether juveniles housed in juvenile training schools should be released on parole. There are 16 juvenile protection facilities, which include 1 juvenile classification and examination center (JCEC), 9 juvenile training schools, and 6 juvenile delinquency prevention centers, which handle rehabilitation programs for juvenile delinquents. Training schools accommodate and protect juvenile delinquents by providing educational, vocational, and character-building opportunities. The first juvenile training school was established in 1942, and a revision of the Juveniles Act required the incorporation of the regular school system into juvenile training schools in 1989. The curriculum of juvenile training schools has now changed to run specialized education programs, which focus on practical English and computer skills, in an effort to provide juvenile delinquents with a more practical education. Schools are equipped with multimedia language labs and computer rooms and employ competent teachers to provide students with vocational training. Hee-Jong Joo Further Reading Korea Correctional Service. Korea Correctional Service Web site: http://www.corrections.go.kr. Korean Department (or Ministry) of Justice. Korean Ministry of Justice Web site: http://www. moj.go.kr. Korean Institute of Criminology. Korean Institute of Criminology Web site: http://www.kicjp.re.kr. Korean National Police Agency. Korean National Police Agency Web site: http://www.police.go.kr/ eng/index.jsp. Supreme Court of Korea. Supreme Court of Korea Web site: http://eng.scourt.go.kr/eng/ main/Main.work. Supreme Prosecutor’s Office. Supreme Prosecutor’s Office Web site: http://www.spo.go.kr.


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altogether, the Parliament is vested with the exclusive law-making capability.

Sri Lanka Legal System: Civil/Common/Customary Murder: High Corruption: Medium Human Trafficking: Medium Prison Rate: Medium Death Penalty: Maybe Corporal Punishment: Yes

Background Sri Lanka is an island nation situated off the southeast coast of India. It was known as Ceylon until 1972. According to the CIA World Factbook, Sri Lanka has a population of 21,128,772, and a total land area of 65,610 square kilometers (25,332 square miles). Sri Lanka gained sovereignty from colonial British rule in 1948 and has since developed as an independent nation subscribing to a republican form of government. As set forth in the Constitution, adopted in 1978, the legislative arm of the Sri Lankan government resides in Parliament, also formerly known as the National State Assembly or the House of Representatives. The legislative or parliamentary branch of the Sri Lankan government is composed of members who are elected by democratic vote. The president of Sri Lanka constitutes the head of the Sri Lankan Republic, and this office is also democratically elected. The executive arm of the Sri Lankan government is represented by the president and his or her cabinet. Hierarchically, the president oversees the executive affairs of the state, and the president’s deputy is the prime minister, who leads the ruling party in Parliament. Subsuming the law-making capacity of the Sri Lankan government, the Parliament is hence also termed the legislature. The Sri Lankan unicameral Parliament is composed of 225 seats, and members are elected by popular vote on the basis of an open-list, proportional representation system by electoral district to serve six-year terms. Notwithstanding the fact that the president possesses the authority to summon, suspend, or end a legislative session and dissolve Parliament

Legal System The Sri Lankan legal system is reflective of its culturally and religiously pluralistic society. As such, the Sri Lankan criminal justice system accommodates and incorporates diverse jurisprudential philosophies that reflect its complex colonial history and rich society. Hence, the Sri Lankan legal system is a complex admixture of old English common law, Roman civil law, Islamic law, and customary international laws. The essential tenets of Sri Lankan criminal law rules of criminal procedure are predicated on old English common law roots. According to the earliest known written records, Roman-Dutch law was the initial formal law administered in Sri Lanka. Amidst political unrest, this Roman-Dutch law has remained the framework for Sri Lankan general and common law.

Criminal Justice Under Sri Lankan criminal law, the accused is presumed innocent until proven guilty. Within the Sri Lankan executive branch of government, the attorney general is the principal law-enforcing agent of the state. Subservient to the attorney general, the district attorney and state counsels conduct criminal prosecutions. Most of these cases are adjudicated in the magistrates’ courts by the charging officer. In keeping with the British common law tradition, the police play a heightened role in the prosecution of crimes. The police, first and foremost, are exclusively charged with the investigative capacities and prosecution of ordinary criminal cases. The public prosecutors for criminal cases are usually the state councils or the state attorneys themselves. These prosecutors are given the task of prosecuting serious crimes that are generally tried in the High Court.

The Penal Code The original Penal Code of Sri Lanka was put into effect in 1833. Since this initial codification of


Sri Lanka

criminal law in Sri Lanka, numerous developments have taken place. The original 1833 Sri Lankan Penal Code was based on the corresponding Indian law. A few decades after the institution of this Penal Code, procedural requirements were much needed. This was met with the establishment of the first Criminal Procedure Code in 1882, 1898, 1973, and amended by the Judicature (Amendment) Act of 1979.

General Exceptions to Criminal Liability The principal general exceptions to criminal liability recognized by the Sri Lanka Penal Code are insanity, intoxication, necessity, duress, and private defense.

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imminent danger to life or limb. The Sri Lankan police have the authority to arrest any person with or without a warrant. Under Sri Lankan law, a person arrested is required to appear before a judicial magistrate within 24 hours in case of arrest without a warrant or be released on bail. Pursuant to these laws, the magistrate may order detention of the person arrested for a maximum of 15 days. Upon proof of probable cause, the police are required to obtain a search warrant from a magistrate before property can be seized. Notwithstanding this general rule, in specific circumstances, the police have the authority to seize illegal possessions without a warrant.

Crime Classification of Crimes

Age of Criminal Responsibility A defendant above and including the age of 6 years can be charged with criminal responsibility. Defendants between the ages of 6 and 12 years are not punished unless there has been a judicial determination at the discretion of the magistrate that the defendant has attained sufficient maturity. Competency to stand trial is also a judiciary-determined standard. The codes of criminal procedure (Code of Criminal Procedure Act of 1979 and the Judicature Act of 1978) serve as the jurisdictional basis of judiciary administration. Socially relevant laws cater to the local customs and mores of the Sinhalese, Tamils, and Muslims. Each of these groups is geographically and socially diverse.

Police The Sri Lankan police force is a centralized system that emulates that of the British police system. The Sri Lankan police department is directed by the inspector general of police. This official oversees all personnel and deputies. Emulating Scotland Yard, the Sri Lankan Central Investigation Department conducts complex and sensitive investigations. Sri Lankan police are authorized to use deadly force only in specific situations wherein there is an

The Sri Lankan Penal Code and Criminal Procedure Code define and classify crimes, describe the punishments for crimes under the code, and general exceptions to criminal liability. Crimes are classified in two main categories, and further subdivided into 21 categories. The broad classifications of crimes are as follows: 1. Grave crimes: crimes that are indictable 2. Minor crimes: crimes that are nonindictable The distinction between grave and minor crimes is somewhat analogous to the delineation among index and nonindex crimes in American criminal law. Within the grave crime classification, there are 21 subclassified crimes that are organized into seven categories. 1. 2. 3. 4. 5. 6. 7.

Crimes against the state Crimes against public tranquility Crimes affecting the human body Crimes against property Crimes relating to religion Sexual and marital crimes Crimes relating to coins and government stamps

Crime Statistics The Sri Lankan police collect and publish the main data on crimes reported to the police. The total


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number of crimes reported for 2007 was 56,454, of which theft of various kinds accounted for over half the crimes reported to the police, followed by roughly one-third crimes against the person. There are also some striking regional differences with the highest levels of homicide/suicide found in Jaffna, but the highest total crimes found in Nugegoda and Mt. Laviniya. None of the Colombo districts display exceptionally high rates; in fact, the South Colombo district has one of the lowest levels of crime. The level of crime can also be measured according to the number of those convicted of crimes, in contrast to cases reported to police. This statistic measures offenders, whereas the police-recorded statistics measures offenses. According to the Department of Sri Lanka Prisons, there have been slight differences in the total number of convicted persons sent to prison over the years between 2004 and 2007. For example, there were 26,113 male and 785 female prisoners with a total of 26,898 convicted persons in 2004 as compared to 30,292 male and 1,014 female prisoners with a total of 31,306 in 2007.

1. 2. 3. 4.

The right to notification of the charges The right to answer to the charges The right to present witnesses The right to confront and cross-examine opposing witnesses 5. The right to legal representation 6. The right to a trial by jury in cases involving indictable grave offenses

Jury Trials In Sri Lanka, the accused are also afforded the right to a trial by jury for any indictable grave crime. The accused person also has the option of pleading guilty to a lesser crime. All criminal trials are open to the public. Indigent persons are afforded legal representation by the government under Sri Lankan law. Pursuant to Sri Lankan criminal law, grave crimes, including murder, attempted murder, and rape, are tried at the first instance in the High Court. Such a case is handled as a bench trial or a jury trial. The jury is composed of seven jurors, randomly selected from the jury list.

Drug Crimes

Courts

The sale and use of specific dangerous substances is prohibited under the Poisons, Opium and Dangerous Drugs Ordinance. Under Sri Lanka law, it is a crime to sell and use drugs termed “harmful substances.” These are cannabis, opium, heroin, morphine, hashish, hashish oil, cocaine, LSD, and psychotropic substances. The number of admissions for drug crimes has increased considerably over the 10-year period 1996–2007, although it appears that the proportion of total admissions that are for narcotic-related offenses has not increased.

The Court of Appeal hears appeals for criminal convictions and the Supreme Court exercises final appellate jurisdiction. In addition, the Supreme Court retains special jurisdiction for alleged violations of fundamental constitutional rights and freedoms. In the Sri Lankan criminal justice system, the magistrates’ court has subject matter jurisdiction over grave criminal matters, while the primary court adjudicates minor criminal cases. Pursuant to the Sri Lankan Constitution, the judiciary is independent and autonomous, in relation to the other branches of government. The judiciary in Sri Lanka is constituted by the Supreme Court, Court of Appeal, High Court, and a number of subordinate courts. The justices of the Supreme Court, Court of Appeal, and High Court are all appointed by the president. The Supreme Court is made up of 11 justices including the chief justice. In contrast, justices of the lower courts are appointed

Finding of Guilt Judicial Process The Sri Lankan Constitution affords the accused certain rights and immunities. In addition to the presumption of innocence, the accused has the following rights:


Sri Lanka

by the Judicial Service Commission. This commission is the administrative arm within the Supreme Court and consists of the three Supreme Court justices headed by the chief justice. Justices can be impeached for misconduct following an inquiry conducted by the president and the Parliament. Analogous to American law, the Supreme Court affords the appeal of last resort for both criminal and civil cases. As such, the Supreme Court has the authority to review judicial and legislative decisions. The Attorney General’s Department has authority over all government institutions as well as state corporations, statutory boards, and business undertakings fully owned by the government.

Juvenile Court In Sri Lanka, there is one juvenile court at Bambalapitiya in Colombo.

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Death Penalty Sri Lankan law permits the application of death penalty for certain crimes. Following a previous ban on capital punishment, the death penalty was reintroduced in 1960. Albeit rarely employed, the most frequent method used for death is hanging. Since 1997, there has not been any death sentence actually carried out. In 1997, there were 58 convicts sentenced to death and in 2007, there were 176 convicts sentenced to death. In 1997, 34 convicts had their death sentences commuted to imprisonment and in 1998, 16 had their death sentences commuted to imprisonment. All other convicts sentenced to death during 1997–2007 are under appeal awaiting execution or final decision for commutation of execution.

Probation Probation has been in effect since 1944 in Sri Lanka but is infrequently employed.

Types of Punishment Punishments prescribed under the Penal Code are as follows: 1. 2. 3. 4. 5. 6. 7 8. 9.

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Death Imprisonment (simple and rigorous) Whipping Forfeiture of property Fine Probation Suspended sentence Community service Institutional treatment

Disenfranchisement is used occasionally for offenses committed while holding public office. Corporal punishment, public punishment, banishment, and exile are not used or available under the law. By far the most common punishment for serious crimes is imprisonment. In 2003, 6.7 percent of the total convicted persons were sentenced to under a month as compared to 8.4 percent in 2007. Similarly in 2003, 1.4 percent of the total convicted were sentenced to more than 10 years as compared to 1.7 percent in 2007.

Prisons The Sri Lankan Central Government has jurisdiction over prisons. The commissioner of prisons oversees the Department of Prisons. Prison headquarters are located in the capital of Sri Lanka, Colombo. All prisons function pursuant to the Ministry of Justice and Law Reforms, Sri Lanka. Sri Lankan law classifies prisons into seven categories as follows: Closed prisons for convicted prisoners Remand prisons Work camps Open prison camps Correctional centers for youthful offenders Training schools Lock-ups

3 18 8 2 2 1 25

Pursuant to the Sri Lankan Constitution, executive clemency, parole, and good time credit earned for good behavior can be used to remit sentences.


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Sri Lankan law provides for the institution of educational and vocational programs for prisoners serving their sentence in prison. All prisoners are entitled to visitation and medical assistance. Prisoners in Sri Lanka can be released under three different schemes: (1) a work release scheme, (2) a license scheme (parole), and (3) a home leave scheme. Suman Kakar Further Reading Code of Criminal Procedure Act of 1979. Colombo: Government Printing Office. Cooray, A. (1996). “Sri Lanka: Oriental and Occidental Laws in Harmony.” In Studies in Legal Systems: Mixed and Mixing, edited by E. Ötücü, E. Attwooll, and S. Coyle, pp. 71–88. London: Kluwer International. Derrett, J. D. M. (1956). “The Origins of the Laws of the Kandyans.” University of Ceylon Review 14: 149. Nadaraja, T. (1972). The Legal System of Sri Lanka in Its Historical Setting, pp. 183–188. Leiden: E. J. Brill.

Taiwan (Republic of China) Legal System: Civil/Customary Murder: Medium Corruption: Low Human Trafficking: Medium Prison Rate: High Death Penalty: Yes Corporal Punishment: No

Background Taiwan, officially known as the Republic of China (ROC), lies off the southeastern coast of mainland Asia, across the Taiwan Straits from Mainland China. It consists of a main island and numerous islets. Its total land area encompasses about 36,000 square kilometers (13,900 square miles) with an estimated population of 23,037,031 as of December

2008. Today, people of Han extraction make up approximately 98 percent of Taiwan’s population, while the remaining 2 percent are of Austronesian ancestry. Coinciding with a decrease in government ownership of major industries, the nation underwent tremendous economic growth beginning in the 1980s and today is recognized as one of East Asia’s economic “Tigers,” exporting products to countries around the world. Its estimated GDP—per capita in 2007 was $30,100, which ranked 40th in the world. Politically, it is a multiparty democratic republic. Elections for national and local officials are held every four years.

Legal System Taiwan’s current legal system is based on civil law and Western philosophies of jurisprudence. Prior to 1895, laws in Taiwan were dominated by Chinese legal traditions. However, Taiwan’s legal system was gradually introduced to a subverted concept of Western law during Japan’s colonial occupation (1895–1945), and then by the Chinese nationalist government during the second half of the century (1945–2000). The modernization/Westernization of law by these two regimes has dramatically but not entirely changed the legal system in Taiwan. The original motivation for Japan and China to adopt Western laws in their own lands was simply an attempt to compete with Western countries, not to protect people’s human rights. Both regimes had imposed special criminal codes in their own lands to suppress social movements, demonstrations, and freedom of speech. When they imposed themselves on Taiwan, each regime enacted new criminal codes and intentionally ignored existing laws. Their goal was to eliminate any possible threat and thus to secure their ruling. The legal system of the Kingdom of Prussia was adopted by Japan, and later adopted by the Chinese nationalist government. As a result, continental European law, particularly German law, became prevalent in Taiwan, even though the term “Western Law” could equally refer to common law. Additionally, because many Taiwanese scholars attended advanced studies in Germany and Japan and later helped to update the legal system in Taiwan, the


Taiwan (Republic of China)

continental European legal tradition has persisted on the island. The criminal justice system in Taiwan unsurprisingly looks much like the German criminal justice system. At least before 2003, the criminal process was purely inquisitorial. The judge played the key fact-finding role during each case at trial. The prosecutor assisted the judge in a search for the truth. However, in reality, the prosecutor seldom appeared in court and when he or she did often played a very passive role in the truth-finding process. The defendant was thus forced to argue his or her case against the judge. To improve this situation, in 2003 and 2004, the Code of Criminal Procedure was dramatically restructured. It now has several elements that are crucial to the accusatorial system, such as crossexamination, the hearsay rule, and the exclusionary rule. The purpose of adopting cross-examination was to give the prosecutor a more substantial role in court. Additionally, to further the interest of justice, plea bargaining was introduced as a legal procedure, as was deferred prosecution. Legislators called the new mixed system a “refined accusatorial system.” However, in essence, the new mixed system is more like a “refined inquisitorial system,” because the judge still has the ultimate responsibility to find the truth and thus to decide the case. In fact, the Code of Criminal Procedure has been modified or amended quite frequently in the past two decades. In 1997, legislators revised the laws concerning the right to counsel and pretrial detention. They also added a law to protect the defendant’s right to remain silent and the right to counsel. In 2001, the laws concerning search and seizure were revised. Under these new laws, only the court can issue a search warrant. The police can make a warrantless search only under certain urgent circumstances or secure voluntary consent from an individual prior to the search. The reform of Taiwan’s criminal procedures can be attributed to a gradual democratization that began in the 1980s. Taiwan had been under authoritarian rule since the nationalist government declared martial law on May 19, 1949. Under martial law, free assembly, association, demonstration, and the right to petition were prohibited. Criminal laws and criminal procedure were used by the nationalist

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government to suppress political dissents. Therefore, abolishing or modifying those special criminal codes and empowering defendants with the enactment of new criminal procedure was central in the process of democratization. After martial law was lifted in 1987, numerous legal provisions that unreasonably restricted the civil and political rights of individuals have been reexamined, modified, or even abolished. The discretion afforded to police and prosecutors has been considerably restricted, including the police’s ability to make a stop and frisk on the open road without probable cause. Various measures were also taken to ensure the independence of the judiciary, and to elevate the public confidence of the judiciary. In 2000, Taiwan underwent its first peaceful transfer of political power when the Nationalist Party lost control of government to the Democratic Progressive Party. In 2008, the nationalist candidate Ma Ying-jeou won the presidential election and became the 12th president of Taiwan. Even though control of government transferred back to the Nationalist Party, the election was free and democratic.

Police The police system in Taiwan is centralized and defined by the Police Act, which states that the police shall perform the following duties: (1) maintain public order, (2) protect social security, (3) prevent hazards, and (4) promote citizens’ welfare. The National Police Agency (NPA) was established in 1972 and is responsible for the administration of all police services in Taiwan. The NPA comprises administrative support units and operational units. The administrative support units include a command center, a planning committee, and various support units within divisions (e.g., police administration, public order, education, household registration, foreign affairs, civil defense, traffic, economic affairs, logistics, internal affairs, and general affairs). The operational units, under direct supervision of the NPA, include eight bureaus, namely, criminal investigation, aviation police, highway police, railroad police, and four harbor police bureaus at Taiwan’s principal ports: Keelugn, Tiachung, Kaohsiung, and Hualien, and seven security police corps. While


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Protesters attempt to break the line of police on December 23, 2008, in Taipei, Taiwan. The protestors want authorities to penalize businesses that force employees to take unpaid leave. (Chunche/Dreamstime)

the missions of the above units are national in scope, they also provide direct or indirect support to Taiwan’s two municipal police jurisdictions and its various city (county) level police forces. As of February 2008, Taiwan employed 67,802 police officers, which includes 13,997 officers assigned to administrative support and operation units, and 53,805 officers assigned to municipal and city (county) level police bureaus. The two municipal police bureaus operate under the jurisdictions of the largest city, Taipei, and the second-largest city, Kaohsiung City. In addition, there are 23 city (county) level police bureaus nationwide. Officers are tactically posted in police bureaus, precincts, or substations. To date, there are 154 police precincts and 1,604 police stations in Taiwan. Before martial law was lifted in 1987, police officers in Taiwan were assigned to a wide assortment of duties, which may not be considered normal police

practice in other countries; for example, the management of census records, provision of customs services at the nation’s seaports and airports, prevention of disasters, fire fighting, and so forth. In recent years, several agencies had been separated from the police organization. This has allowed the police to concentrate on issues like crime and traffic control. The agencies that were separated from the NPA include the National Fire Agency (1995), Coast Guard Administration (2000), Airborne Service Corps (2005), and the National Immigration Agency (2006).

Crime Classification of Crimes Offenses are normally classified into three groups: (1) offenses against the person, (2) offenses against the society, and (3) offenses against the state. In the criminal code, offenses against the person include



69 different types of offenses, such as homicide, assault, abortion, restraining one’s liberty, obstruction of reputation and credit, intrusion to privacy, larceny, robbery, embezzlement, kidnapping, property destruction, and so forth. Offenses against the society include 70 different types of offenses, such as arson, driving while intoxicated, forging documents and seals, counterfeiting securities, public indecency, gambling, manufacturing, selling, and using narcotics. Offenses against the state consist of 61 various types of offenses, including armed rebellion, treason, bribery, malfeasance in office, obstruction of justice, obstruction of governmental operations, disorderly conduct, interference with voting, destruction of evidence, perjury, malicious accusation, and so on. The age of criminal responsibility in Taiwan is 14. Those who are older than 14 are held accountable for their behaviors. However, in cases where individuals are between 14 and 18 years of age or those who are older than 80, the judge can exercise discretion and reduce their sentences, if warranted. Although offenders who are less than 14 are not punishable by the criminal law, those who are older than 12 can be remanded to juvenile court and placed on probation. In view of the above categorization of crime, some of the latest methods involved in crime have posted a great challenge to authorities in Taiwan. Since 2003, fraud crime has been rampant and become a major concern for society. According to the statistics provided by NPA, in 2008, there were 42,910 fraud cases reported to the police, which recorded an increase of 6.35 percent (or 2,562 cases) compared to the figures of 2007. Since 2006, telephonebased fraud has been a frequently used tactic by criminals. Perpetrators often impersonate police or court officials and ask victims to follow their orders to transfer money to certain accounts. Considering the number of accounts and the huge amounts of money that can be quickly accessed by the perpetrators, this crime has tremendous real and potential damaging effect on banking security and people’s confidence in the criminal justice system. The government has focused its efforts on increasing public awareness of the latest methods involved in fraud

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crime. To help prevent people from being victimized by this type of fraud, NPA officials staffed a special task force and established a 24-hour toll-free antifraud hotline.

Drug Crimes Drugs have also been a major concern for society in Taiwan. Drug crimes have always been punished harshly in Taiwan. Since the Criminal Code was promulgated in 1935, it has been illegal to manufacture, transport, or to sell narcotics. Violators could be incarcerated up to seven years. However, because of the dangers illegal drugs posed to society, a special code, the Statute for Eradicating Narcotics, was enacted in 1955. This statute enhanced the punishment for drug violations. From 1955 to 1992, it was punishable by a mandatory death sentence, to manufacture, transport, or to sell narcotics and opium. However, the harshness of the statute often presented the court with sentencing difficulties. For example, anyone who merely sold a small portion of narcotics was to be sentenced to death. This situation aroused public criticisms. Therefore, in 1992, a new statute was enacted that provided another possible punishment for the court—the life sentence. Because of increased drug use and high recidivism rates, the policy against drug crimes has changed from punishment to treatment. In 1998, the Statute for Eradicating Narcotics was renamed—the Statute for Narcotics Hazard Control (SNHC), which classified violation into three types: the first degree, the second degree, and the third degree. The Statute for Narcotics Hazard Control places an emphasis on treatment and rehabilitation rather than punishment. In 2003, this statute was revised again when narcotics violation were classified into four types: (1) first-degree narcotics includes heroin, morphine, opium, cocaine, and the like; (2) second-degree narcotics includes poppy straw concentrate, coca, marijuana, amphetamine, pethidine, pentazocine, and the like; (3) third-degree narcotics includes secobarbital, amobarbital, nalorphine, and the like; and (4) fourth-degree narcotics includes allobarbital, alprazolam, and the like.


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The punishment for drug-related crimes is differentiated according to the type of narcotics and the kinds of criminal activity involved. For example, to manufacture, transport, or sell first-degree narcotics, an individual can be punished by death or a life sentence with punitive fines up to 10 million NTD (approximately US$296,200). To manufacture, transport, or sell fourth-degree narcotics, an individual can be sentenced from 3 to 10 years in prison with punitive fines up to 3 million NTD (about US$ 88,860). According to article 10 of the SNHC, using first- or second-degree narcotics is punishable. The SNHC mandates individuals arrested for using first- or second-degree narcotics to complete a twomonth detoxification program. Prior to completion of the detoxification program, the individual will be assessed if he or she is required to participate in a six-month to one-year compulsory substance abuse treatment. The assessment is primarily based on a diagnosis of the individual’s tendency of drug dependence. If an individual uses narcotics again within five years, he or she will get the punishment the law prescribes. According to article 10 of the SNHC, an individual can be sentenced from six months to five years in prison for using first-degree narcotics and up to three years’ imprisonment for using second-degree narcotics. To encourage drug users to rehabilitate, for those who voluntarily go to the hospital or other facilities for detoxification treatment before they are discovered by criminal justice system, the hospital is exempt from reporting the case to law enforcement.

Crime Statistics According to crime statistics compiled by the Criminal Investigation Bureau of the NPA, the overall number of crimes reported to the police declined from 512,788 (in 2006) to 491,815 in 2007. The overall crime rate dropped from 2,247 in 2006 to 2,146 for every 100,000 population in 2007. According the official crime statistics recorded by police, there were 881 murder cases and 1,530 murder offenders in 2007, which registered a murder rate of

3.8 per 100,000 population. It also indicates a decline in murder rate compared to 4.0 per 100,000 population in 2006. In addition, there were 2,487 rape cases and 2,405 rape offenders in 2007. Theft has been a prominent crime in Taiwan. In 2007, there were 241,091 larceny and automobile theft cases and 42,053 offenders, with a registered offender rate of 1,052 per 100,000 population. With regard to drugs, there were 52,835 drug offenses and 53,681 offenders in 2007. Thus, figures show a decline in the crime rate across different types of crime in 2007 compared to the figures in 2006. Since Taiwan is densely populated and urbanized, there are few differences in the type of crime between urban and rural areas.

Finding of Guilt The finding of guilt can be divided into three stages: investigation, prosecution, and adjudication. Different authorities are in charge of each stage: the police and the prosecutor investigate crimes, the prosecutor (but not exclusively) pursues the cases, and the court hears and decides the cases.

Investigation According to the Code of Criminal Procedure in Taiwan, the prosecutor has the main responsibility in criminal investigation. Whenever the prosecutor is alerted to a possible crime, he or she has the obligation to start the investigation. The police are the prosecutor’s assistants. The prosecutor can give orders to the police, asking them either to make an arrest or to conduct a search. But in reality, the police are the main criminal investigators. About 70 percent of criminal investigations were initiated by the police. The police often conduct the criminal investigation on their own. When the police gather enough evidence, they must transfer the case to the prosecutor. But if the prosecutor is dissatisfied with the result of the police investigation, the prosecutor can return the files and the evidence to the police and ask the police to conduct further investigation within a certain period of time.



Prosecution At the stage of prosecution, the prosecutor also plays a crucial role. He or she alone can decide whether and how to pursue the case, including prosecuting the case, deferring the prosecution, or dropping the case. As long as the decisions by the prosecutor are made in compliance with the Code of Criminal Procedure in Taiwan, these decisions need not be approved by the head prosecutor before they become effective. The decision made by the prosecutor generally decides whether a case can be tried by the court. According to the statistics offered by the Ministry of Justice in Taiwan, about 99.99 percent of the criminal prosecutions are brought by prosecutors. For example, in 2007 of 186,991 prosecutions, 185,874 were brought by the prosecutors, while 827 were brought by private persons. But the prosecutor does not monopolize the prosecution. According to the Criminal Code in Taiwan, the prosecution of certain crimes, such as theft between family members, needs to be approved by the victim. Besides, the victim can bring the charge against his or her perpetrator, too. According to the Code of Criminal Procedure in Taiwan, the victim and the victim’s close family members, such as the victim’s spouse or his or her guardian, are allowed to bring private prosecution against the offender. In private prosecution, the victim takes over the role of prosecutor and bears the burden of proof. To make private prosecution more efficient, a 2003 amendment requires that anyone who wants to bring a private prosecution must have a lawyer to represent him or her at trial. The legislators added another restriction on the private prosecution in 2003: if the prosecutor has already initiated a criminal investigation, no private prosecution is allowed, unless the case can only be indicted upon the victim’s complaint.

Adjudication There is no jury trial in Taiwan. Criminal cases are tried exclusively by professional judges. Under the relevant regulation, every district court, High Court, and the Supreme Court must establish civil courts

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and criminal courts. Criminal cases are thus handled by criminal courts in different levels of courts. Unfortunately, there are no official statistics about the number of the criminal court judges in Taiwan. Statistics provided by the Judicial Yuan only tell us how many judges are in different level of courts. As of 2007, there were 1,172 judges in all district courts, 344 in High Courts, and 65 in the Supreme Court. Criminal court judges must be Taiwanese citizens. They have to pass a special exam for judges and prosecutors first, and then receive professional training. After training, they will be assigned to district courts or district prosecution offices based on their wishes and grades during the training. A newly trained judge is generally assigned to the criminal court first, simply because there are more vacancies there. A substantial number of senior criminal court judges prefer civil courts, for they believe the pressure as a criminal court judge is higher. These senior judges apply for reassignments, and thus leave more vacancies in criminal courts. Fortunately, many senior judges also stay in criminal courts and pass their experiences to the junior judges. According to the relevant regulation, every district court, High Court, and the Supreme Court must establish civil courts and criminal courts. Criminal cases are exclusively handled by criminal courts in the different levels. In addition to civil courts and criminal courts, the Juvenile Accident Act (JAA) requires that every district court must establish juvenile courts. The objectives for juvenile procedure are to reform and to protect the juvenile. The juvenile court takes persons ages 12 to 18 years old who are accused of crime(s) or delinquent acts. According to JAA, the juvenile procedure must not be open to the public, and the personal information of the juvenile defendant must be removed from the court judgment. In 2007, the juvenile courts handled 44,156 cases, about 9 percent of the district criminal courts’ load in the same year.

Rights of Defendants In the past two decades, the protection of the defendant has been greatly improved. The issues that


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received most attention are (1) the right to counsel, (2) pretrial detention, (3) the presumption of innocence, (4) the right to remain silent, and (5) the right to confrontation.

RIGHT TO ATTORNEY The right for the defendant to have legal assistance was the first issue that caught the legislators’ attention, even before martial law was lifted. In 1982, the first bank robbery in the history of Taiwan took place. Twenty-three days later, the police arrested the suspect, and the suspect confessed to his crime in the police station. But, later he committed suicide to protest his innocence. This event shocked the conscience of society. The legislators immediately revised the law to allow the defendant to have a lawyer to protect him or her any time in the criminal process. In 1997, the legislators further gave any government official the legal obligation to inform suspects/defendants of their right to attorney before interrogation. In addition to legal assistance before trial, the Code of Criminal Procedure mandates the court to provide legal assistance at trial in certain circumstances, if the defendant does not hire a lawyer for himself or herself. Circumstances include when the defendant is charged with serious crimes, or if the defendant is mentally challenged. In 2006, the legislators amended the law to provide more legal assistance to a mentally challenged defendant. According to the new law, the prosecutor is obligated to provide the defendant legal assistance even during the investigation. Additionally, in a plea bargaining procedure, if the defendant is willing to accept a sentence longer than six months’ imprisonment, the court is obligated to provide legal assistance.

PRETRIAL DETENTION Over the past two decades, pretrial detention has probably been the most controversial issue concerning the criminal process. In 1995 and 2008, the Council of Grand Justices—the constitutional court in Taiwan— has made two constitutional interpretations concerning the pretrial detention. Interpretation No. 392

withdrew the prosecutor’s discretion to detain the suspect. Interpretation No. 653 gave detainees the legal right to appeal to the administrative court, if they want to object to their treatment in detention. Currently, the Code of Criminal Procedure in Taiwan allows two kinds of pretrial detention: general and preventive detention. For general detention, the prosecutor has to file a motion to initiate a proceeding and prove in front of the judge(s) by preponderance of evidence that the defendant is highly probable (1) to be convicted of the crime charged by the prosecutor, and (2) to flee or to tamper with evidence, including destroying evidence, or instigating perjury. If the defendant is charged with a very serious crime—offenses punishable by the death penalty, life sentence, or incarceration for more than five years—the defendant is assumed to have a high risk of flight or evidence tampering. The prosecutor also has to prove that the pretrial detention is absolutely necessary to prevent the defendant from flight or tampering with evidence. For preventive detention, the prosecutor needs to file a motion to initiate the detention proceeding and prove in front of the judge(s) by preponderance of evidence that the defendant is highly probable (1) to be convicted of the crime charged by the prosecutor, and (2) to repeat any one of the following crimes: arson, sexual assault, larceny, mugging, restraining one’s liberty, or extortion. The prosecutor similarly has to prove that the pretrial detention is necessary to prevent the defendant from repeating her or his crimes. According to statistics offered by the Ministry of Justice in Taiwan, the rate that the court approves the prosecutor’s motion of pretrial detention is about 85 to 86 percent, at least in the past four years.

THE PRESUMPTION OF INNOCENCE The rule of presumption of innocence is a fundamental right for the defendant in every criminal trial. This right should have come to Taiwan with the adoption of the Western criminal procedure. But in the past, the extent to which this rule been respected in practice remained a big question. To highlight its importance, in 2003, the legislators explicitly put this rule in the Code of Criminal Procedure.



THE RIGHT TO REMAIN SILENT The right to remain silent is another fundamental right the defendant should have in the criminal procedure. This right derived from the privilege against self-incrimination. The defendant can refuse to testify on the grounds that the answer would incriminate him or her in a criminal offense other than the current one. No adverse inference can be drawn from the defendant’s silence. In 1997, the legislators revised the law and gave government officials the legal obligation to inform the suspect/defendant before interrogation of the right to remain silent.

THE RIGHT TO CONFRONTATION How to protect the defendant’s right of confrontation is another issue that has caught the attention of many people in the past few years, including the legislators, the Grand Justices, and the Supreme Court in Taiwan. In 2003, the legislators introduced the hearsay rule to exclude the out-of-court statements that cannot be cross-examined during the trial. They also introduced the rules of crossexamination, not only hoping to force the prosecutor to participate actively in the trial, but also hoping to improve the truth-finding process. In addition to the efforts by the legislators, in July 2004, the Council of Grand Justices issued Interpretation No. 582, which has given the defendant the right to confront any witness, even if the witness is the accomplice. This interpretation deliberately corrected an old practice among the courts. In fact, even the courts themselves have changed their attitude toward the defendant’s right to confrontation. In the last two years, the Supreme Court in its decisions set up more procedural restrictions on the application of the hearsay exceptions, which shows that the importance of the right of confrontation is gradually recognized in Taiwan.

Alternatives to Trial In the past decade, the number of criminal cases has increased dramatically. But the number of judges has not increased correspondingly. The caseloads for judges and prosecutors are already heavy. When

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the legislators have added more safeguards to protect the rights of the defendant, which has made the criminal procedure more complicated and take more time, how to alleviate the caseloads for the court without sacrificing the rights of the defendant has also become an important issue in the past decade. The legislators have introduced the summary procedure, the plea bargaining procedure, and the deferred prosecution to alleviate the caseloads for judges.

Summary Judgment The summary procedure has existed in Taiwan’s Code of Criminal Procedure since the code was promulgated. But the pressure of the caseload has forced the legislators to expand the application of this procedure. Currently, if the case is not serious (i.e., the court can only sentence the defendant to probation, a short prison term that can be commutated to a fine, detention, or punitive fine) and if the defendant has already confessed during the investigation, or if there is enough evidence to convict the defendant, the prosecutor is given the discretion to ask the court to make a summary judgment. In the summary procedure, many procedural rules, including the hearsay rule, do not apply. The summary judgment that the judge needs to render in this procedure is quite simplified, which has made the procedure rather appealing to the prosecutor as well as the court. In 2007, about 41 to 42 percent of cases have been handled in the summary procedure.

Plea Bargaining In addition to the summary procedure, the legislators also introduced the plea bargaining procedure to the criminal justice system in Taiwan. According to the new amendments to the Code of Criminal Procedure in 2004, those who are not charged with serious offenses can ask for making a deal with the prosecutor. But before the prosecutor and the defendant begin their negotiation, the prosecutor must consult with the victim and get the court’s approval. In the bargaining procedure, the prosecutor will generally recommend a more lenient punishment, such


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as a shorter prison time or lesser punitive fines, to the judge, in return for the guilty plea from the defendant. According to the legislative notes, count and charge bargaining are not allowed in Taiwan, because legislators as well as many scholars are convinced that it violates many important principles to let the defendant plead guilty to lesser offenses. Once the defendant makes a deal with the prosecutor, there will not be an open trial for his or her case. Many procedural rights, such as the right to confrontation, are automatically waived by agreeing to enter the sentence bargaining procedure. Therefore, before making the judgment as recommended by the prosecutor, the court has to make sure that the defendant makes the deal voluntarily. Compared to the summary procedure, the plea bargaining procedure includes more types of cases, which can supposedly further alleviate the caseloads for the prosecutor and the judges. Nevertheless, statistics show that plea bargaining is rarely used in Taiwan. Only about 2 percent of cases were handled in the plea bargaining procedure in 2007. Researchers point out that this is because the plea bargaining procedure takes more time for the prosecutor than the summary procedure. Most of all, whether it is fair for the victim or the society to make a deal with the defendant is still a controversial issue in Taiwan. Prosecutors in Taiwan prefer using either the summary procedure or deferred prosecution.

Deferred Prosecution Learning from Germany and Japan, in 2002, the legislators added a new system of “deferred prosecution” to the Code of Criminal Procedure in Taiwan. The purposes of introducing this new system are multiple. Most importantly, it could alleviate the caseloads. By deferring the prosecution, it allows for the defendant’s pretrial rehabilitation, possibly abnegating a trial. According to the new laws, if the defendant is not involved in a serious offense, and not prosecuting the defendant would not obstruct the public, then the prosecutor can impose some obligations on the defendant, such as community service or money donations, and defer the

prosecution within a period of time. If the defendant fulfills all the obligations that the prosecutor has assigned to him or her and does not commit another crime within a certain period of time, then his or her case will not be prosecuted by the prosecutor. Statistics show that about 13 to 14 percent of cases were handled with deferred prosecution.

Punishment According to the criminal code, there are five kinds of punishment in Taiwan: death penalty, life sentence, timed imprisonment, detention, and punitive fine. Timed imprisonment refers to incarceration of a term from two months to 15 years. But if the case has any mitigating or aggravating factor, the judge has the discretion to decrease the defendant’s sentence to less than two months for the former or to increase his or her sentence up to 20 years for the latter. Detention refers to the short-term imprisonment for one day to two months. However, the judge is allowed to increase the detention time up to four months, if necessary. According to the statistics provided by the Ministry of Justice in 2008, about 60 percent of convicts are sentenced to timed imprisonment. Of those sentenced to timed imprisonment, about 60 percent received a term of less than six months, and more than 85 percent are sentenced for less than two years. But not all of those sentenced serve the prison time. Those who received sentences of less than six months can convert their prison time to punitive fines, if their prosecutors do not oppose. According to the statistics provided by the Judicial Yuan in 2007, the main district court punishment for intentional killing is to be sentenced to a term of imprisonment from 10 to 15 years. The typical punishment for rape is incarceration for three to five years. The typical punishment for theft is detention and incarceration for six months to one year. The typical punishment for robbery (with force) is incarceration for 7 to 10 years. Typical punishment for the most serious drug offense— that is, manufacture, transport, or sale of first or second degree of narcotics—is incarceration for 7 to 10 years.



Death Penalty The offenses that are punishable by death have been changed a lot in the past decade. Before 2000, the death penalty remained mandatory for 65 different offenses. This situation has been harshly criticized as unconstitutional. Therefore, from 2000 on, the legislators have begun to revise these laws. By the end of 2006, the death penalty became discretionary for all capital offenses. During the same period of time, the legislators rescinded the law allowing the use of the death penalty for minors. The number of offenses carrying a death penalty has also been reduced. Currently, offenses such as sedition, hijacking, pirating, kidnapping, manufacturing or sale of narcotics, and intentionally killing are all punishable by death. Nevertheless, due to the pressure from the abolitionist groups, only offenders who have taken a victim’s life will be sentenced to death. The death penalty has existed in Taiwan for a very long time, while its application has varied in different periods. According to an investigation by the International Committee for Human Rights in Taiwan, from 1982 to 1985, at least 102 individuals were sentenced to death and at least 32 people were actually executed. Executions increased dramatically after martial law was lifted in 1987, with 69 people executed in 1989, 78 in 1990, and 59 in 1991. Since 1993, nevertheless, the number of executions has decreased. In the last five years, less than 10 people have been executed, with 3 people executed in 2004, and 3 in 2005. From 2006 to 2008, there was no execution in Taiwan at all, even though the death penalty has never been officially abolished. By the end of 2008, there were still 31 inmates on death row. Some of them have been there for a long time. This de facto abolition is attributed to the relentless efforts by capital punishment abolitionist groups in Taiwan. Activists have successfully made the abolition of the death penalty an important human rights issue for the Taiwan government. In 2003, the Taiwan government unveiled a draft of the Human Rights Basic Law, which includes provisions for the gradual abolition of the death penalty. However, even though this de facto abolition has

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been applauded by human rights groups, both international and domestic, it has upset a lot of people in Taiwan. Criticisms mostly come from supporters of the death penalty, which are the majority of Taiwanese people.

Prison According to the Department of Corrections (DOC), Ministry of Justice, there were 77 correctional institutions as of 2008, including 24 prisons, 3 training institutes, 2 juvenile reform schools, 2 juvenile correctional high schools, 19 detention centers, 18 juvenile detention houses, and 9 drug abuser treatment centers. The prisons serve to execute criminal sentences against convicted offenders, while the training institutes hold prisoners who were sentenced to mandatory work programs and to disciplinary programs. The juvenile reform schools hold offenders who were sentenced by a juvenile court to receive reformatory education. As for juvenile correctional high schools, they provide schooling for juveniles who were sentenced to prison terms, detention, or correctional punishment. The detention centers hold suspects during investigation as well as defendants prior to the trial, while the juvenile detention houses hold those under 18 years of age who were under investigation or trial. The drug abuser treatment centers were established to hold drug abusers for substance treatment programs. Based upon the statistics provided by DOC, there were 34,991 (31,427 males and 3,564 females) people admitted into correctional institutions in 2007. As of March 2008, the daily number of inmates incarcerated was 54,620, which includes 50,340 male and 4,280 female inmates. The biggest prison, Taiwan Taichung Prison, is located in the central part of Taiwan. As of March 20, 2008, 5,144 inmates were held in Taiwan Taichung Prison. It is mandatory for inmates to work or attend training programs. If inmates refuse to follow, a penalty will be imposed. For example, according to article 19 of the Prison Camp Act, for an inmate with disciplinary violation or being slow at work, the following punishments may be imposed


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through the verdict of a prison committee’s meeting: (1) admonishment, or (2) suspension of outdoor activities for one to seven days. In Taiwan, there is a progressive stage system that regulates inmate’s visitation and correspondences. According to article 56 of the Prison Serving Progressive Treatment Act, inmates’ privileges on visitation and mail correspondence should be regulated based upon their different grades: 1. 2. 3. 4.

Grade IV prisoners: once each week Grade III prisoners: once or twice each week Grade II prisoners: once every three days Grade I prisoners: no restriction

Prisoners at Grades II through IV can only receive visits at the visitation rooms, while prisoners at Grade I may receive visits at any approved locations (article 57 of the Prison Serving Progressive Treatment Act). In addition, prisoners at Grades I through II do not have to be monitored during their visits (article 58 of the same act). According to article 3 of the Enforcement Rules of the Prison Serving Act, if the convicted offender had a foreign nationality or did not have a nationality, he or she should be moved to a designated prison if deemed necessary. As defined by law, international prisoners can be transferred back to their own countries in compliance with a mutual treaty of prisoners’ exchange. Nevertheless, in practice, there has been no such treaty signed as of yet. To date, there have been no transfers. Chia-Wen Lee, Charles K. M. Chang, and Doris C. Chu

Further Reading Ministry of Justice, Taiwan: http://www.moj.gov. tw/mp095.html. National Police Agency, Taiwan: http://www.npa. gov.tw/NPAGip/wSite/ct?xItem=36854&ct Node=11349. Vaughn, M. S., F. Deng, and L. J. Lee. (2003). “Evaluating a Prison-Based Drug Treatment Program in Taiwan.” Journal of Drug Issues 33: 357–384.

Tajikistan Legal System: Civil Corruption: High Human Trafficking: Medium Prison Rate: Medium Death Penalty: Yes Corporal Punishment: Yes

Background Since 1929, Tajikistan had been a separate, subordinate republic of the Soviet Union. Following the Soviet Union’s breakup in 1991, Tajikistan formally declared its independence. Unfortunately, the country endured a brutal civil war from 1992 and 1997. Government forces, led by old-guard former Soviet elites, fought against the United Tajik Opposition (UTO), a loose confederation of Islamists and others. The conflict killed an estimated 50,000 and displaced an estimated 1.2 million people before regional powers and the UN brokered a cease-fire and power-sharing agreement in 1997, implemented in 2000. The 1994 Constitution formalized the country as a parliamentary republic that is secular, unitary, and sovereign. The president and the bicameral legislature, the Supreme Assembly, are to govern by the rule of law and respect civil rights. In reality, the polity is much more authoritarian than democratic. Emomali Rahmon, a leading governmental figure during the civil war, has been president since 1994 and has essentially been entrenched as president-for-life through successive elections that Human Rights Watch (HRW) concludes were “marred by flagrant fraud” and fell well short of international standards for fair elections. He and his People’s Democratic Party (PDP) possess nearly total control of the government, and the notion of separation of powers is nonexistent. Media restrictions and reprisals for criticizing the government or drawing attention to pervasive official corruption are prevalent. Reprisals include harassment and even prosecution for criminally


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defaming the president, which under article 137 of the Criminal Code is punishable through exorbitant fines or up to five years’ imprisonment. As the American-based Freedom House (FH) observes, Rahmon’s and the PDP’s power base is rooted in the country’s Kulob region, based upon traditional, patriarchal clan-based figures who exercise power through patronage and networks composed of common ancestral ties. The ruling elite have mobilized around nationalism and the primacy of Tajik culture since the civil war that experienced ethnic cleansing and an exodus of ethnic Russians. Tajiks represent about 80 percent of the population, with Uzbeks as a significant minority of about 15 percent, and the rest being primarily Russians and Kyrgyz. About 85 percent are Sunni Muslims, while 5 percent and 10 percent are Shia Muslims or members of other predominantly Christian affiliations, respectively. The liberalized economy, combined with the resurgence of patriarchal discourses and practices, themselves rooted in traditionalist and religious doctrines, have made women and children extremely vulnerable. Previously outlawed by Soviet authority, practices such as bride prices, early and polygamous marriages, and unregistered religious marriages have returned.

Legal System The legal system is based upon the civil law and does not provide for the judicial review of legislative acts. Since independence, and particularly following the civil war, Tajikistan has adopted or amended several laws. These include several that are directly related to criminal justice such as the 1998 Criminal Code, 1998 Family Code, 1999 Civil Code, and the 2001 Penal Enforcement Code. The 2001 Constitutional Law on the Courts of Tajikistan was adopted to consolidate and systematize previous laws. The ordinary court system includes Rayon and city courts. These act as Courts of First Instance in civil, criminal, and administrative cases. These courts can refer cases involving constitutional questions to the Constitutional Court. Other ordinary courts include Oblast Courts, the Court of the Badakshan Mountainous Autonomous

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Region, and the City Court of Dushanbe, which is Tajikistan’s capital and largest city. These can act as courts of cassation or first instance of civil, criminal, and administrative cases. The presidium of each of these courts supervises activities. Military courts at the garrison level function as courts of first instance. These, along with the Military Chamber of the Supreme Court, are part of the ordinary court system. Military courts consider both criminal and civil cases, provided that at least one of the crimes or accused individuals falls within military jurisdiction. A military judge and two officers drawn from the service ranks hear cases. There is also a system of special economic courts. The Higher Economic Court is the highest jurisdictional body for the resolution of economic disputes. The Supreme Court is the highest jurisdictional body. It supervises the activities of the military courts at the garrison level, the Court of the Badakshan Mountainous Autonomous Region, the regional courts, the Dushanbe City Court, city courts, and district courts in civil, criminal, administrative, and other cases. It acts as a court of first instance in criminal cases. The court also includes three divisions (collegia) addressing civil, criminal, and military jurisdiction cases. The Constitutional Court was established in 1995 to protect constitutional provisions. It mainly deals with constitutionality of legal acts and disputes between state organs relating to their competencies. It also hears individual complaints from citizens who allege violations of their constitutional rights and freedoms resulting from the implementation of potentially unconstitutional laws. The Council of Justice (CoJ) was established in 1999, ostensibly to grant judicial independence, moving the judicial administration from the Ministry of Justice (MoJ) to the CoJ. The CoJ is a collegiate body responsible for organizing work of courts (excluding the Constitutional Court, the Supreme Court, and the Higher Economic Court) regarding resources, finances, and logistics. The CoJ has seven members, only one of whom is a judge (the chairperson of the Supreme Court). Three members are appointed by presidential decree, as are the chairpersons and deputies and judges of the Rayon and


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city courts. The CoJ proposes, and the president approves, judges for the Oblast Courts, the Court of the Badakshan Mountainous Autonomous Region, and the City Courts of Dushanbee. The president proposes, and the upper chamber of Parliament, the National Assembly, ratifies the chairperson and judges of the Supreme Court. Consequently, the CoJ effectively subordinates the judiciary to the president and his administration. Judicial corruption is widespread. However, in 2007 alone, the government arrested five justice system officials. This resulted in two judges and two notaries being convicted.

Police Nearly all police agencies operate under the auspices of the Ministry of Interior (MoI). The MoI shares law enforcement responsibilities with the Drug Control Agency (DCA), the Agency on State Financial Control and Fight against Corruption (Anti-corruption Agency), the Tax Committee, the Customs Service, and the State Committee for National Security (SCNS). The SCNS is responsible for intelligence matters and controls the Border Service. Law enforcement agencies often have overlapping responsibilities and typically defer to the SCNS. According to a 2008 UN Special Rapporteur, there are few specialized police departments that formally record and investigate domestic violence claims. Traffic police have been known to pocket fines paid for traffic violations. Police and security forces have been notorious for brutal practices since the civil war, especially regarding behavior occurring inside police-controlled facilities. Victims of police abuse may complain in writing to the abusive officers’ supervisors. Naturally, most do not. In 2007, the government arrested just 67 officials for criminal violations, 29 of which were for corruption. Radio Free Europe reported that one of those cases was resolved in a Dushanbe court. Two police officers were each sentenced to two years’ imprisonment for torturing a 16-year-old boy during a robbery investigation, subjecting him to beatings and electric shocks. Another officer was fined

US$1,700 for failing to intervene. Overall, the FH concludes that the police forces remain unreformed and a serious threat to human rights.

Crime It is difficult to accurately gauge common crime levels since there are no official statistics available.

Domestic Violence A 2009 UN Special Rapporteur concluded that crime rates among children and adolescents are low. However, some investigators reaffirmed the widely held belief that domestic violence against women and children is quite high and culturally accepted, so that it is largely unreported and unacknowledged. Human rights investigators believe that about 8 of 10 acts of violence occur within the home. The 2009 Special Rapporteur estimates that between onethird and one-half of all women regularly suffer some form of familial violence, with about 20 percent experiencing both physical and sexual violence. Also, probably between 20 and 60 percent of children endure familial or school violence. There is no specific law pertaining to domestic violence or violence against women. Institutional responses are insufficient. The Institute for War and Peace Reporting suggests that in 2009, suicide among abused women had become an epidemic. Victimized girls are often detained in hospital wards or “special schools.” Likewise, victimized boys may be incarcerated in closed institutions.

Human Trafficking Men, women, and children are all victimized by crimes involving the exploitation of migrant labor and human trafficking. Men and boys are subjected to forced labor in Russia and Kazakhstan. In 2009, the Military Commission chief in the Sughd Province and two associates were sentenced to one year of imprisonment at forced labor when they were convicted of forcibly conscripting young men into military service. It appears to be common practice for military officials to illegally “hunt” young men to fill the army’s shrinking ranks.


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In 2004, as a result of the Interministerial Commission on Combating Trafficking in Persons, the Law on Fight against Human Trafficking was adopted. These are believed to be positive developments. Articles 130 and 132 of the Criminal Code address this crime. Still, reports persist of officials being involved in trafficking of women and children. The Committee against Torture (CAT) has expressed concern over a notable absence of information on the sentences actually being handed down for these crimes. Women are most likely to be trafficked to Russia and the United Arab Emirates (UAE) for sexual labor. In 2000, 300 went to the UAE. According to the International Organization for Migration (IOM), there were 45 mostly successful cases against traffickers in 2005, and 107 victims were repatriated. The Tajik General-Prosecutor’s Office opened 24 criminal cases of child trafficking in 2007, and it had repatriated 80 women over the prior four years. The IOM operates two victim shelters in Dushanbe and Khujand.

Terrorism The government has heightened its sensitivity to Islamist terrorism. This appears to be a function of the regime’s long-running secular policy of hostility toward Islamist political opposition as well as the lucrative interest that the United States has shown in Tajikistan’s Afghan border as a base of military operations following the 9/11 terror attacks in New York City. Disaffected with the 1997 cease-fire agreement, many UTO fighters joined the Islamist Movement of Uzbekistan (IMU). Former president George W. Bush later linked IMU with Osama bin Laden. Rahmon’s regime has outlawed the IMU as well as the Hizb ut-Tahrir (Freedom Party), equating both with “Islamic extremism” as both seek to establish Islamic law in the region. Articles 189 and 307 of the Criminal Code prohibit “extremist organizations” and “religious incitement.” In 2008, the U.S. State Department noted concern that the regime has seized upon the prosecution of “extremism” as a valuable pretext for policing and harassing a broad spectrum of regime opponents and political

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dissidents. In 2009, Radio Free Europe reported that seven Hizb ut-Tahrir activists were imprisoned from three years and seven months to nine years and seven months for belonging to the illegal group.

Corruption Endemic corruption is the heart of the country’s crime problem. It continues to affect all spheres of private and public life. The State Financial Control and Anticorruption Agency initiative has consolidated nearly all governmental anticorruption functions. Officials claim that the initiative successfully dealt with 300 corruption cases, recovering US$24 million in 2007. There were criminal cases against 20 police officers and several court employees.

Drug Trafficking Drug trafficking also appears to be a major source of corruption. Since late 2001, there has been a massive upsurge in cultivation and trafficking from Afghanistan through Tajikistan. The FH reports that Tajikistan has one of the highest rates of both drug trafficking and interdiction in the world. However, local use appears to be relatively low. According to the 2009 World Drug Report, the annual prevalence of opiate use as a percentage of the population aged 16–64 was 0.54 percent. Cannabis use prevalence was 3.4 percent. In recent years, there were 589 persons in drug treatment at any one time, about 99.2 percent of these for opiate abuse.

Finding of Guilt The Constitution and the Criminal Procedure Code provide for the protection of important rights of arrestees, detainees, and criminal defendants. However, in practice, the criminal justice process is quite authoritarian and severely violates due process rights at all stages. By law, police cannot enter a private home without authorization from a prosecutor unless a delay would hurt national security. If they do, they must inform a prosecutor within 24 hours. But as the U.S.


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State Department reports, police frequently ignore the law, and they violate prohibitions on monitoring private communications. Police have also been known to knowingly arrest and frame innocent persons to clear cases. Constitutional article 19 says that individuals are entitled to legal counsel assistance from the moment of arrest. But article 49 of the Criminal Procedure Code delays this from the moment of arrest to 24 hours after arrest, and in practice, this only occurs once the arrest is actually registered, which may take days. Also, a UN Special Rapporteur observes that this is further obstructed by the requirement that the lawyer receive permission from the official in charge of investigating the case and sometimes also the head of the remand center. Many detainees are unaware of their right to counsel and are sometimes forced or persuaded to sign a declaration renouncing this right. There is no explicit constitutional guarantee to free legal assistance for indigent arrestees. In practice, two collegia of advocates and NGOs such as the League of Women Lawyers, the Bureau on Human Rights and Rule of Law, and the Human Rights Centre provide counsel. Article 412 of the Criminal Procedure Code requires notification of arrest to the family in juvenile cases. But it does not specify the time delay and is regularly disregarded in practice. While they detain arrestees, police frequently harass families to pressure detainees to confess. Articles 6, 90, 413, and 415 of the Criminal Procedure Code provide guidance for pretrial custody. In general, prosecutors can impose remand custody for offenses punishable by a year or more imprisonment. Pretrial detention is supposed to be an exception. But in practice, prosecutors frequently use it without sufficient justification. By article 221, detainees can appeal. They rarely do, and courts tend to agree with prosecutors. By article 92, pretrial detention should not exceed two months. Under exceptional circumstances, district prosecutors can extend detention up to three months. Then a regional prosecutor or a prosecutor of the Badakshan Mountainous Autonomous Region can extend detention for up to six months. The general

prosecutor and the senior military prosecutor can extend it up to nine months. In exceptional circumstances, if the detainee is accused of a grave crime, it can be further extended up to one year and three months. Constitutional article 20 and Criminal Procedure Code article 8 formally enshrine the presumption of innocence, as well as the principle of equality of arms between prosecution and defense. But in practice, these are undermined due to the overarching might of the prosecutor, and the media frequently refer to suspects in inflammatory ways, such as labeling them “criminals.” Trial courtrooms are even equipped with holding cages in which to display defendants during proceedings. The Law on Advocacy has been downgraded from a constitutional law to an ordinary law. So it is inferior to the Constitutional Law on the Prosecutor’s Office. Powerful prosecutors have authority to supervise the propriety of judicial proceedings while they prosecute suspects. They have powerful arrest and remand authority. The law gives prosecutors the authority to issue arrest warrants, indirectly initiate legislation, to “protest” against judicial decisions, and temporarily defer the execution of judicial decisions, as well as other powers. According to both the Constitution and the Criminal Procedure Code, defense lawyers have a right to access relevant evidence, but this is not always requested. The prosecutor or the investigating officer has de facto power to deny access until the investigation is completed. Courts have rejected defense requests to call witnesses that are not already on the prosecutor’s list. Further, based on Criminal Procedure Code article 233, common practice is to return cases for complementary investigation rather order defendants’ release. There are even cases where the defendants have only learned of the charges against them when their trials began. Courtrooms are in poor condition, often requiring judges to hold trials in their own offices, and they are in short supply. Facility limitations make it difficult for interested parties to observe. Public access to trial records is not guaranteed. There is no separate juvenile system. Thus juvenile defendants are processed according to the


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same procedures under the same laws as are adults. During the investigation, a pedagogue’s presence is mandatory, and at trial, the presence of a defense lawyer is supposed to be mandatory. The presiding judge, with the aid of two “peoples’ assessors” with unclear qualifications, determines guilt or innocence. Judges often favor even uncorroborated testimony from police, especially SCNS, and discount physical evidence that contradicts it. Judges mainly base their decisions upon prosecutorial arguments. Judges hesitate to independently pronounce judgments for fear that prosecutors will retaliate against them by charging them with corruption, accusing them under article 349 of the Criminal Code of knowingly rendering an illegal verdict. Prosecutors bring and win such cases. The legal codes provide insufficient protection for defendants in the event of torture. Torture is still regularly used to determine guilt, despite rulings by both the Constitutional and Supreme Courts against doing so. Judges still base their decisions on confessions even when defendants withdraw them while alleging torture. According to the CAT, there is no legislation for effective, independent mechanisms that would enable torture victims to even complain and seek redress. As well, victims are denied the access to independent medical examinations. Worse, there is concern that recent amnesty laws have immunized perpetrators of torture and ill-treatment committed between 1995 and 1999, thereby entrenching impunity. Like judges, witnesses fear prosecutors. They too may be prosecuted, and there is no witness protection system. Not surprisingly, acquittal rates are quite low. In 2005, only 1.7 percent of cases ended in acquittal.

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and five years’ experience, while at the Supreme Court level, judges must be at least 30 years old and have five years’ experience. The age requirement is the same for Constitutional Court judges, but the experience requirement rises to 10 years. Since Tajikistan’s independence, the number of law faculties has grown to its current eight. In 2005, there were 286 judges total at the Oblast, Rayon, and City Court levels. Female and minority representation in the judiciary and legal profession apparently diminishes with the status level of the position. In 2005, of 334 judges, only 66 were women. While 30 percent of advocates were women, only 10 percent of prosecutors were. About 16 to 19 percent of advocates were ethnic minorities, while just 5 percent of prosecutors were. The standards governing admittance into the legal profession are unclear, and there is need for a single, self-governed, independent body responsible for administering all issues related to the profession and its training and standards. There are currently three principal lawyers’ organizations, or collegia, and there is concern that allowing the MoJ to retain licensing authority potentially threatens the profession’s independence relative to executive power. The executive already exerts a good deal of authority over the removal of judges. The general prosecutor can initiate criminal investigations against judges and try them in the Supreme Court. The CoJ can propose the removal of a judge. The Qualification Collegium of the CoJ reviews it and submits its opinion to the president who then decides. The president also has constitutional authority to propose the removal of judges from the Constitutional, Supreme, and Higher Economic Courts. The National Assembly dominated by the president’s party then removes the judges.

Judges Since the CoJ is responsible for selecting judges, a collegium composed solely of judges was established within it, and in 2003, the Training Centre for Judges was as well. According to Constitutional article 85, judges must be at least 25 years old and have at least three years of experience in the legal profession. At the Oblast level this is 30 years old

Punishment Since independence, Tajikistan has had a secretive system of penal punishment to match its authoritarian criminal justice process. In particular, human rights organizations have criticized its use of the death penalty. Historically, officials have used it frequently, convicting defendants in the Supreme


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Court or by secret trials that have been flagrantly unfair. The condemned have been executed in secret as well. The proceedings and executions have been so secretive that attorneys and family members have not known if and when the condemned had been executed or where their bodies have been discarded. However, in 2004, the president declared a death penalty moratorium and signed it into law. This commuted previous sentences to 25 years’ imprisonment. A year later, the Criminal Code was amended to establish life imprisonment as a death penalty alternative. As well, women and children who previously were eligible for execution may no longer even be subject to life imprisonment. In 2007, the International Helsinki Federation for Human Rights expressed its support for the moratorium. But it fears that given the historical treatment of anything related to the death penalty as a state secret and the nature of regional politics, if these reforms are not solidified into a total elimination of the death penalty option, changing political wills may simply overturn the moratorium.

Prison In 2002, administrative authority for the prison system was successfully transferred from the MoI to the MoJ, in a move that international observers widely desired. However, the MoI still retains authority over pretrial detention facilities. The penal system includes 19 facilities. Six of these are pretrial facilities while 13 are prisons. According to the World Prison Brief, the prisoner population was 7,350 in 2008, which gave the country an imprisonment rate of 109 per 100,000 civilians. Fifteen percent of these were pretrial/ remand prisoners, while 4.9 percent were foreigners. Females comprise a small fraction of the prisoner population, just 1.6 percent in 2008. There is no separate juvenile prison system. Human rights investigators report that authorities frequently detain children found on the streets, even if they have not committed a particular crime, and often detain them with adults rather than giving

them some alternative placement. Police can use the Temporary Isolation Centre for children detained in Dushanbe. Officially, the prison capacity is 11,950, with room for 2,500 and 9,450 pretrial/remand detainees and convicted prisoners, respectively. Officials therefore report that the system is at 44 percent and 66 percent capacity for its pretrial/remand and convict prisoner populations, respectively. This would leave the overall system at just 61.5 percent of its capacity. No outside investigators have corroborated this figure. Indeed, prison officials have been quite secretive, and according to the UN Special Rapporteur, the prisons remain inaccessible to independent monitoring. The International Committee of the Red Cross has not visited since 2007. The CAT reports that the prisons suffer from poor conditions, particularly overcrowding, poor sanitation, staffing shortages, and a lack of medical attention. They also expressed concern about the high number of deaths in custody. Tajikistan’s Center for Human Rights and the FH have both echoed this overall assessment. The president signed an amnesty for prisoners who had been held on charges dating back to the civil war. Some 400 were released. But potentially severe sentences can keep prisons filled. For example, those convicted of sexual harassment may face two-year sentences. Those convicted of trafficking in persons could face from 5 to 15 years, while rape convicts may serve up to 20 years in prison. In 2008, officials accepted custody of a detainee transferred from America’s Guantanamo camp, and more may follow. Such detainees may be expected to serve long sentences. Already, particularly long sentences have been meted out to women convicted of killing their partners, such as those imprisoned at the Nurek women’s prison for terms of 7 to 20 years. Paul Schupp Further Reading Conciliation Resources. Key Elements of the Tajikistan Peace Agreement: http://www.c-r.org/ourwork/accord/tajikistan/key-elements.php.


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Social Institutions and Gender Index (SIGI). Gender Equality and Social Institutions in Tajikistan: http://genderindex.org/country/ tajikistan. United Nations. Constitution of the Republic of Tajikistan. Dushanbe. (1994): http://unpan1. un.org/intradoc/groups/public/documents/untc/ unpan003670.htm. United Nations Development Fund for Women. Tajikistan: Women Demand Law to Criminalize Domestic Violence. (2008): http://www.unifem. org/gender_issues/voices_from_the_field/story. php?StoryID=366. United Nations Development Programme. (2007). Annual Report. Tajikistan. Project on Promoting Transparency and Accountability: http://74.125.47.132/search?q=cache:lu Lab00PwpUJ:www.undp.tj/files/project_ profiles/PTA%2520PHR/Annual%2520Pr oject%2520report%2520PTA%2520–2007. doc+”Corruption+in+Tajikistan:+ Public+ Opinion”&cd=5&hl=en&ct=clnk&gl=us.

Thailand Legal System: Civil/Common Murder: High Corruption: Medium Human Trafficking: Medium Prison Rate: High Death Penalty: Yes Corporal Punishment: No

Background The Kingdom of Thailand was established in the mid-14th century and was recognized as a nation in 1783. It is the only country in Southeast Asia that was never colonized by a European power. This fact is shown in the country name, Thailand, meaning the land of freedom. Thailand has a total area of 514,000 square kilometers (198,457 square miles), with a population of 65,493,296 (as of July 2008)

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and comprises 76 provinces. Thailand has a bicameral National Assembly, consisting of the Senate and the House of Representatives. The judiciary and justice system in Thailand was created around the mid-1200s to mid-1300s by King Ramkhamhaeang the Great during the Sukhothai Period (1238–1350). The period for the emergence of the modern judiciary and legal system in Thailand was between 1868 and 1910. It was during this period and under the reign of King Chulalongkorn the Great (1853–1910) that the Ministry of Justice was established. Because of historical antecedents of the Thai justice system, the modern Thai legal system is a mixture of both the civil and common law elements. Two European colonial powers (England, the representative of common law, and France, the representative of civil law) asserted their influence over Thailand, since to maintain its independence, Thailand had to allow the European legal system to be established for a certain period of time that had a jurisdiction for all legal cases that involved a European person. Because of this practice, Thailand later adopted and embraced both legal systems, resulting in the modernization or Westernization of Thailand at the turn of the 20th century. However, the processes of adjudication follow the civil law tradition, which is an inquisitorial system. Judges in Thailand take a position to question involved parties as well as advising lawyers and witnesses. The biggest change in the Thai legal system in the late 20th century was the enactment of a new constitution in 1997. This new constitution set the framework of laws and administrative procedures. Among other goals, it protects individual liberties, restricts the power exercised by state officers against individual rights, and advocates an independent judiciary. Many procedures in criminal law have been altered. For example, the 1997 Constitution decreases the time period of booking and detention during the arrest and investigation processes by the police from 7 days for serious crimes to 72 hours. It also transfers the authority to issue an arrest warrant and search warrant from the police authority to magistrates or judges.


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Police The Royal Thai Police is a centralized police system. All of the police personnel are sworn officers, which number approximately 240,000. The policepopulation ratio is about 1 to 260. All police officers in Thailand are under the command of the commissioner general of the Royal Thai Police. According to the Criminal Procedure Code, the police in Thailand are the primary mechanism for conducting criminal investigations. The Royal Thai Police is a militaristic-style, service-oriented police organization and is divided into three main components: general-staff units, operation units, and support units. The general-staff units are responsible for collecting information, filtering materials submitted

to management, planning, and giving support and advice to high-ranking officers. All of the general staff-units are located in Bangkok, the capital of Thailand, including the finance division, police aviation division, traffic, and civil service planning division, among others. The operation units are the main groups that are generally responsible for crime prevention and suppression. These units consist of various bureaus located throughout the country, including a total of 1,500 police stations in Thailand. The responsibilities of these units are making arrests and investigating criminal cases, maintaining public order, controlling traffic, and maintaining security along the border areas, enforcing drug laws, acquiring and managing intelligence concerning national security, providing security for His Majesty the king and the royal family. The bureaus in the operation units include Metropolitan Police Bureau, the Provincial Police Regions 1 to 9, Border Patrol Police, Narcotics Suppression Bureau, Special, Police Immigration Bureau, and Office of the Royal Court Security Police. Lastly, the support units are in charge of promoting and supporting police work in the areas of education, training, medical services, and scientific functions. The Police Cadet Academy, Office of Forensic Science, Office of Information and Communication Technology, and Office of SurgeonGeneral are all part of the support units.

Crime Classification of Crimes

Royal Thai Police dressed in riot gear prepare for an antigovernment demonstration on March 13, 2010. (Dreamstime)

The criminal code of Thailand does not clearly classify criminal behaviors into types of offenses. It only defines petty offenses to cover any illegal act punishable by a jail time of no more than one month and/or a fine of no more than 1,000 baht (about US$32). Felonies then refer to criminal acts, which are not included in petty offenses. The criminal code stipulates five penalties for violating the code: death penalty, imprisonment, detention, fines, and forfeiture of property to the state. Based on Thailand’s criminal code, there are 12 groups of offenses that can be considered as felonies.


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1. Crimes against the security of the kingdom, including crimes against the royal family, treason, espionage, acts that damage friendly relationships with foreign countries, and acts of terrorism (which were added into the criminal code in 2003). 2. Crimes relating to public administration (offenses against public officials and official misconducts). 3. Crimes relating to justice (perjury, offenses against the police and the judiciary and their orders, destruction of evidence, and misconducts of the judiciary and the persons who carry their orders). 4. Crimes against Buddhism. 5. Crimes against public order and safety including gang-related activities. 6. Acts against public order and safety (e.g., arson and acts to sabotage public transportation). 7. Offenses of counterfeiting money, seals, and other documents. 8. Crimes against trade (using false weights and measures, distorting information about goods on sale, and violating trademarks). 9. Sexual offenses, including procuring business and pornography. 10. Crimes against the person, including abortion and neglect of child and elderly person. 11. Crimes against liberty and reputation (e.g., criminal threatening, kidnapping, libel, and illegally disclosing information by public officials). 12. Crimes against property. Petty offenses in the criminal code of Thailand cover a wide range of violations classified as misdemeanors. These offenses include the following: 1. Refusal to disclose a real name and address or falsely give a wrong one to an official. 2. Refusal to follow an order of an authorized official. 3. Damaging any sign or announcement posted by an authorized official. 4. Carrying weapon openly to a village, city, or public pathway.

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5. Creating loud noise that is threatening or disturbing public. 6. Fighting in public and disturbing the community. 7. Shooting a gun that uses gun powder in public. 8. Showing or drawing a weapon during a fight. 9. Drunk in public. 10. Inflicting a cruel killing upon or torturing an animal. 11. Public nudity. 12. Carelessly causing an injury to a person without any intention. 13. Assault resulting in minor injury. 14. Disposing a body of dead animal, which may cause disturbing smell on a pathway. 15. Torturing a child under 15 of age or elderly person whose life depends on the person who commits the offense. Children under 7 years of age are not subject to criminal penalties. Children between ages 7 and 14 may not be punished, but judges may give instructions or require their parents to come to the court to ensure that there will be no repeated violations. The court may then send the child to a vocational training school, release on probation, or restrict the child to his or her home. When juveniles older than 14 but not older than 17 years of age commit delinquency, judges may give a sentence in one-half of the penalties of fines or a period of confinement prescribed by the code. Finally, judges may give a sentence in one-half or two-thirds of the penalties for the offenses committed by juveniles older than 17 but not older than 20 years of age.

Challenging Crime Problems Although various crime problems plague the country, the two major problems are drug use and human trafficking. According to Thai laws, narcotics are illegal substances. However, reliable information about the use of the substances in Thailand is not available because very few large-scale studies on this matter have been conducted. Most studies surveyed students to learn about their drug use.


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It was estimated that the number of drug users in Thailand was 450,000 in 1980, according to an East-West Center working paper, and it had risen to 3 million in 2002. Methamphetamine (as opposed to heroin, opium, and marijuana) is their primary substance of consumption. One survey estimated that 29 percent of 1,736 students in the sample of a Thai vocational school reported having used methamphetamines. Glue and other solvents have recently gained popularity among children in the country. Thailand’s drug problem among adolescents and children is considered a serious issue and could definitely stymie the development of the country. The International Labor Organization, a specialized agency of the United Nations, estimated that 12.3 million people are in forced labor, bonded labor, forced child labor, and sexual servitude at any given time around the world. Although Thailand’s effort to suppress human trafficking is ranked favorably, it still needs to address this issue more effectively. One obvious indication of the problem is the presence of more than 20 UN agencies and nongovernmental organizations in Bangkok dealing with matters of human trafficking. Thailand is located in the center of many other developing countries, such as Myanmar, Cambodia, Laos, and China. Therefore, its suitable location has been used as a transit point in trafficking men, women, and children for sexual exploitation and forced labor. Thai and hill tribe women and girls along the Thai border are sexually exploited both domestically and internationally. Organized crime groups use Thailand as a transient place for transferring women and girls to other foreign destinations, including Bahrain, Canada, Europe, Japan, Malaysia, Middle East, Singapore, South Africa, and the United States. Many types of businesses use women and girls to sell sex, such as bars, karaoke, strip shows, and sex-massage. The main reason driving the flow of human trafficking in and to Thailand is the economic disparities. Boys and young men, many from Myanmar and Cambodia, are the main sources for labor work in begging gangs. Many young men and women from Myanmar, Laos, and Cambodia migrating illegally to Thailand have been exploited as they are drawn

into many small-sized businesses, such as small labor factories, as well as for household work. Currently, the Thai government responds to the problems by setting its priority to safeguard the welfare of Thai women and children. In 1996, the criminal law was amended to increase penalty for a person engaging in sexual activities with a minor. The law also aims to control the sexual exploitation of minors by criminalizing people involved in a sex trade, such as customers, procurers, pimps, owners, and operators of brothels. Moreover, the law also targets the parents who sell their children to profiteers. The problem of human trafficking for labor exploitation in Thailand, however, still does not receive much attention from the government, as well as law enforcement agencies. Labor exploitation in Thailand has been found mostly in fisheries and the seafood and garment industries. The main reasons law enforcement agencies are lethargic in addressing these issues are the lack of understanding of the problems and the lack of collaboration and coordination between and among the agencies involved. Several interventions are suggested to better address these issues, including providing proper police investigative training and more coordination between criminal justice agencies and other stakeholders, supporting and protecting the survivors to bring their cases to the courts, and amending laws to focus more on comprehensive trafficking.

Drug Offenses The Narcotics Act of Thailand enacted in 1979 criminalizes the production, importation, exportation, disposing, or possession of narcotics unless a license is obtained from a licensing authority. Another law involving narcotics is the Psychotropic Substances Act 1975. This law intends to control the psychotropic substances, including gamma hydroxybutyrate (GHB), ephedrine, ketamine, dormicum, phenyl cyclohexyl piperidine, psilocybine, psilocine, and amineptine. It is illegal to possess or consume these substances without a license or prescription. Finally, the Emergency Decree on Prevention against Abuse /Using of Volatile Substances 1990 was promulgated to prevent the use of


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volatile substances, an increasing problem among teenagers. The volatile substances controlled by this law are thinners, lacquers, and synthetic or organic adhesive. However, the law does not prohibit the possession of volatile substances because they are still used in many legitimate activities, such as painting and construction.

Crime Statistics The statistics of crime cases recorded by the Royal Thai Police for 2006 were as follows: Murder Nonnegligent manslaughter Negligent manslaughter Rape Robbery Extortion Drug offense

4,687 336 277 5,308 1,244 246 110,904

The crime rates of violent crimes were 14 per 100,000 population. Crimes against persons and crimes against property were 69.74 and 123.17, respectively. The rates were calculated based on the country’s population of 62,418,054. The most typical crimes in the rural areas of Thailand are the stealing of agricultural tools and equipments as well as animals used for agriculture (e.g., cows, water buffalos, tractors, and irrigation pumps). Statistics in 2006 show that the majority (47.7%) of the stealing of agricultural tools and equipments occurred in Provincial Police Region 6, which covers provinces in the lower northern part of Thailand, while these types of crimes did not happen at all in a big city like Bangkok. In the same year, cases of stealing of animals used for agriculture were highest in Provincial Police Region 5, the upper northern part of the country; similar cases did not occur at all in Bangkok that year. For the urban areas, common crimes are drug abuse and trafficking, prostitution, and possession or distribution of pornographic materials. In 2006, more than a quarter (28.9%) of the arrests of all drug offenses took place in Bangkok. In the same year, 83 percent of all arrests made under the auspices of the Prevention and Suppression of Prostitution

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Act occurred in Bangkok, while the number of arrests involving pornography taking place in Bangkok was 53.5 percent of all arrests.

Finding of Guilt Rights of the Accused The Thai Constitution guarantees to the accused the presumption of innocence and the right to defend himself or herself, including the right to have a counsel and other standard treatment of human rights protection. No judgment of conviction shall be delivered unless and until the court is fully satisfied that an offense has actually been perpetrated and that the accused has committed that offense. In case of doubt, the benefit will be granted to the accused. In criminal justice procedure, a person shall have the right to an uncomplicated, convenient, quick, thorough access to justice procedure. Basic rights in judicial process must at least guarantee an open court hearing; right to factual information and sufficient cross-examination of documents; right to present facts, witness, or evidence, and express his or her dissent or disagreement with judges or arbitrators; right to require full quorum of judges or arbitrators in the hearing of his or her case; and right to hear the clarification of court decision, judgment, or order. Children, youths, women, and disabled persons are eligible for special protection during judicial procedure. The Thai Criminal Procedure Code (CPC) also empowers the court to declare evidence obtained through illegal means (the exclusionary rule) inadmissible at trial. However, in practice, this rule is seldom applied by the court because the law of search and seizure gives the police so much power that almost all searches and seizures are deemed legal.

Legal Assistance for the Accused The Constitution of Thailand and the CPC guarantee the right of the accused to counsel during pretrial stages, as well as during the preliminary hearing and trial. The laws stipulate that the court appoint a lawyer for the accused who does not otherwise obtain one and faces a possible prison term.


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A court-appointed lawyer is granted to criminal defendants to prevent oppression by both private and public prosecutors. The defendants, however, have a right to proceed without counsel when they choose to do so, and a judge may not force a lawyer upon them if they insist on conducting their own defense. The court will pay a fee, specified by the Regulation of the Ministry of Justice, to court-appointed lawyers. In August 2006, the Ministry of Justice established a “justice fund” to facilitate legal advice and a lawyer, out-of-court settlement, and other legal expenditures to defendants who are innocent and unable to bear legal expenditures. Eligibility to receive a justice fund depends on the financial means of the individual and the merit of the case being defended. In addition to legal assistance provided by the government, several private institutions such as the Institute of Legal Education, Thai Bar Association, Office of the Attorney General, the Law Society of Thailand, and the Legal Clinic of Thammasat University also offer legal assistance to the criminal defendant.

Investigation and Prosecution According to the Thai CPC, criminal investigation rests solely on the responsibility of the police, who play the role of “inquiry officials.” The court has no role in the fact-finding process both during pretrial and throughout the trial period. Thai laws do not empower public prosecutors to initiate investigations nor institute the case themselves. The prosecutors begin their role after receiving investigation files from the police. After reviewing the file and the police recommendation on whether the case should be prosecuted, prosecutors may decide to prosecute the case and file the charge directly to the Criminal Court of First Instance. The fact that prosecutors do not take part in the investigation process at the beginning causes the problems of check and balance of powers and distortion of evidence and witness. Several cases of wrongful convictions have been found due to the unjust fact-finding process by the police.

Alternatives to Going to Trial As a viable alternative to the formal criminal justice process, the Thai justice system has recently adopted a restorative justice initiative aiming to reduce not only the heavy court workload but also prison overcrowding. The restorative juvenile justice initiative, also known as the Family and Community Group Conferencing (FCGC) initiative, occurred in 2004 because of Section 63 of the Act for the Establishment of and Procedure for Juvenile and Family Court 1991 that allows public prosecutors to use their discretion to drop charges and refer cases for a restorative process. The FCGC is a restorative justice process that aims to repair harm. The FCGC allows young offenders to talk about their offenses and show their remorse for committing the crime harming the victim. Family members participate in the process of deciding an appropriate response to their juvenile’s offending behavior. In addition, the FCGC provides a crime victim the opportunity to be a part of the process in dealing with the offense. Victims and young offenders determine a mutually acceptable response to repair the material, psychological, and social damages caused by the crime. The community also has an opportunity to take part in the process to support the child and parents and to bring the child back to the community. To be eligible to participate in the FCGC process, juveniles must meet these four criteria: (1) the penalty for the offense must be less than five years’ imprisonment; (2) the child must be a first-time offender; (3) the child must admit responsibility for the offense and show his or her intention to repair the harm; and (4) the victim must give consent to use the FCGC approach.

Outcomes of Criminal Cases In general, conviction rates are very high in Courts of First Instance. Acquittal rates are about only 2 to 3 percent. At the appellate levels, conviction rates are much lower. Based on statistics in the 1990s, criminal cases submitted to the Courts of Appeal resulted in approximately 55 percent conviction versus 45 percent acquittal rate. In the Supreme Court,


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conviction rates were even slightly lower than those decided in the Courts of Appeal. The same statistics also reported types of punishment the convicted offenders received. It showed that of all the offenders convicted, about 58 percent were fined, 30 percent had their punishment suspended, and 10 percent received imprisonment between one month and three years.

Incarceration before Trial Thai law allows incarceration before or when an accused is awaiting trail. The law requires the police take the arrestee to the police station immediately after arrest. The police can keep the arrestee no more than 48 hours from the time of his or her arrival at the police station, with extensions of up to three days permitted. If the inquiry is not complete and a longer detention period is necessary, the police must bring the alleged offender to the court and submit a motion for a detention warrant. The court can grant a remand to detain the alleged offenders for additional periods (up to a maximum of 82 days for serious offenses).

The Courts of Justice and Judges Compared to other criminal justice agencies in Thailand, the Courts of Justices has been viewed as the most honorable and most trustworthy agency in the eyes of the public. The Courts of Justice in Thailand is divided into three tiers: (1) the Courts of First Instance; (2) the Appellate Courts; and (3) the Supreme Court. For adjudication, Courts of Justice have power to hear and adjudicate cases relating to criminal, civil, bankruptcy matters, including all other cases that are outside the jurisdiction of other types of courts. When a jurisdictional problem arises, the Commission on Jurisdiction of Courts chaired by the president of the Supreme Court will decide the outcome. The Courts of First Instance are divided into general courts, juvenile and family courts, and specialized courts. The General Courts are ordinary courts with the authority to try and adjudicate both criminal and civil cases. Some of the general courts are civil court, criminal court, provincial courts, and

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municipal court. The Juvenile and Family Courts are set up separately and are explained later. The Special Courts (including the labor court, the tax court, the intellectual property and international trade court, and the bankruptcy court) deal with other criminal and civil issues. The appellate courts comprise the Court of Appeal and nine Regional Courts of Appeal. Each of the Courts of Appeal hears an appeal against the judgment of the lower criminal and civil courts. The Supreme Court is the highest and final court of appeal whose jurisdiction covers all civil and criminal cases. The Court’s members are president, vice presidents, the secretary, and a number of justices. The president of the Supreme Court also acts as the chief of the Courts of Justice. The Supreme Court judges are appointed from the appellate court judges with qualified experience, knowledge, and seniority. Generally, like the appellate courts, at least three judges of the Supreme Court are required to form a quorum. In Thailand, judges are professionals like police officers and prosecutors. There are four types of judges: career judge, senior judge, associate judge, and Datoh Yutithum (or Kadis). For a person to serve as a career judge, one must be a Thai citizen who is at least 25 years old with more than twoyears’ working experience in a legal professional career and who passes both a Thai Bar Association examination and a competitive examination given by the Judicial Commission. After passing this competitive recruitment process, the applicants are required to be a judge trainee for one year before the Judicial Commission renders its approval and officially defers to His Majesty the King for royal appointment. Lay judges or associate judges are ordinary citizens who are selected for their knowledge and expertise in a special field so that they can assist a career judge in adjudicating cases. Courts that need the presence of lay judges include the Juvenile and Family Courts, the Labor Court, or the Intellectual Property and International Trade Court. There also are different qualifications for lay judges. For instance, lay judges are a temporary position, and they will get appointed in a position for a term of a


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certain number of years depending upon which specialized court they are in. Datoh Yutithum (or Kadis or Islamic judge) is a special type of judge serving jurisdictions in the four southern provinces of Thailand (Pattani, Narathiwat, Yala, and Satun). In accordance with the Act on the Application of Islamic Law in the Territorial Jurisdictions of Pattani, Narathiwat, Yala, and Satun Provinces, the Islamic Law on Family and Succession shall supplant the Civil and Commercial Code in rendering judgment in civil cases regarding family and succession of Muslims. In such cases where both parties are Muslims, a Kadi (who is an expert in Islam) is required to help a career judge adjudicate the case. A Kadi must be at least 30 years old, proficient in the Thai language at the prescribed level, and conversant with the Islamic laws relating to family and succession. As of April 2007, there were 3,805 judges in Thailand, comprising 3,332 judges, 246 assistant judges, and 227 senior judges.

Juvenile Justice System Thailand uses the Act for Establishment of and Procedure for Juvenile and Family Court of 1991 to regulate all the juvenile cases and family affair issues. For the age of criminal responsibility, a child younger than 7 years of age is not to be punished for committing an illegal act. The act divides the juvenile’s age into two groups. The first group is a child whose age is between 7 and 14 years old. The child may be exempted from penalty with certain conditions imposed by the court. The second group is a young teen whose age is between 14 and 18 years old. The jurisdiction of the juvenile court is, therefore, over the juvenile offender whose age does not exceed 18 years. Under the act, the rights of juveniles are protected throughout the juvenile justice process. When a child is taken into custody, the police are required to immediately notify the director of the Observation and Protection Center (OPC) and parents, as well as guardians or the person with whom the child lives. The police must complete the initial inquiry

within 24 hours and then send the child to the OPC. After the OPC receives the juvenile, the OPC’s director can decide whether to detain the juvenile at the center until adjudication or to release the juvenile to his or her parents or guardian with or without bail. At the OPC, the probation officer assigned to a case must gather information about the case by interviewing with the child and his or her parents, as well as his or her schoolteachers. To protect the child, the law requires the presence of a counselor, a public prosecutor, a psychologist or social worker, and parents during this administrative procedure. After finishing the investigation, the probation officer must submit a case report to the public prosecutor for adjudication consideration. The law empowers the prosecutor to use discretion to either adjudicate or drop charges based on information in the investigation report and the recommendation given by the director of the OPC, which is a unique characteristic of the juvenile justice system. The law also protects the child during the adjudicatory hearing. The hearing must be closed to the public, and only the witnesses and relevant persons involved with the case are allowed to be present. The photo or personal data of the juvenile are strictly confidential and are unavailable to the public. The hearing must be carried out in a simple way that is easy for the juvenile to comprehend. The judge panel consists of two career judges and two associate judges whose backgrounds and experience are related to young people and family affairs with the condition that one of the associate judges must be a female. If the juvenile is found to be delinquent, the court may choose one of the following: (1) placing in a detention center or a commitment program or a psychological counseling center until a time before the juvenile becomes 24 years old; (2) probation under certain conditions as an alternative to paying a fine; or (3) suspending the punishment for a certain period of time. Even if the judges found the child to be nondelinquent, for the juvenile’s best interest, the act stipulates that the judges may still put the juvenile on probation under certain conditions. The Ministry


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of Justice appoints the OPC’s director who reports to the chief judge of the Juvenile Court.

Punishment

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the surrounding circumstances and other aggravating factors such as defendant’s intention, murder victim, and murder method.

The Typical Punishment for Rape

Types of Punishment The death penalty is the most severe type of punishment and is reserved for the most heinous crime. The current method of execution is lethal injection. In practice, only a small number of prisoners have been executed. The statistics from the Department of Corrections revealed that 48 prisoners were executed in Thailand from 1990 to 2006. The majority of the prisoners who received the death sentence have had their sentences converted to life imprisonment. Imprisonment is the most common form of punishment in Thailand. The lengths of imprisonment range from a minimum of one day to a life term. As stated by Thai law, a term of imprisonment is a determinate sentence, which means that the convicted offender must serve the full sentence handed down by the court. Confinement is a less severe type of punishment than imprisonment and death sentence. The sentence to confinement is usually given to those who committed petty offenses and to those offenders who failed to pay fines. Fine is another type of sentence applicable to petty crimes. When offenders are ordered to pay a certain amount of money to the authority for their crimes and fail to do so, the court can convert a fine to confinement. Forfeiture of property is the last form of punishment. The court may issue an order to forfeit any items, weapons, and assets that the offenders used to commit an offense or acquired as a result of crime.

The Typical Punishment for Murder Penalties for murder include death penalty, lifetime imprisonment, or incarceration between 15 to 20 years. In deciding which type of punishment to sentence, the court usually takes into consideration

According to the Penal Code of Thailand, penalties for rape are death penalty, lifetime imprisonment, or incarceration between 4 and 20 years, and fines ranging from 8000 baht (about US$250) to 40,000 baht (about US$1,250), depending upon the surrounding circumstances and other factors such as defendant’s intention, victim’s relationship with the offender, or the method used to commit rape. If the rape victim is dead, the offender is subject to death penalty or life imprisonment.

The Typical Punishment for Serious Robbery The law stipulates that every person who shall commit (1) robbery by the use of a dangerous weapon, (2) robbery where a victim is injured, or (3) robbery where the victim is a person who is severely impaired or an elderly person shall be guilty of firstdegree robbery and shall be imprisoned from 5 to 10 years, or may be imprisoned for life, or fined not more than 20,000 baht (about US$625). The punishment, however, can be more severe under various aggravating circumstances.

The Typical Punishment for the Most Serious Drug Offense The penalties for drug offenses vary considerably, ranging from diversion to death penalty. Thailand’s narcotic act classifies drugs into five categories. Those who were found to be in possession of the most dangerous category of drugs, including no less than 20 grams of heroin, amphetamine, methamphetamine, Ecstasy or LSD, are subject to 1 to 10 years in prison and fined large amounts of money. The most severe penalty for heroin and methamphetamine traffickers is capital punishment, which is imposed as a deterrence mechanism. For instance, on March 31, 2000, the criminal court sentenced two men to death when they were found guilty of


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possessing 470,000 methamphetamine tablets with intent to supply. The government also passed the Narcotics Addict Rehabilitation Act of 2002 aiming to divert from the criminal justice system drug addicts, drug users, and those who support their habits by selling small amounts of drugs. Under this new law, drug users are considered as “patients” in need of rehabilitation rather than criminals and will receive treatment instead of prosecution. To be eligible for treatment, the drug users must be involved in a small amount of drugs either as users, sellers, or in possession.

Death Penalty After an eight-year moratorium of the death penalty in 1995, the Department of Corrections has resumed executions. Surveys of the public’s attitudes toward the death penalty indicated that 90 percent of Thai citizens still favor the death penalty and consider the death penalty not only as a necessary and effective tool for dealing with the high rates of serious crimes, but as a deterrence mechanism. Under the Thai Criminal Code, the death penalty is mandatory for felony offenses such as murder or attempted murder of any member of the royal family or for any offense likely to endanger the life of a king, murder of a public official or anyone assisting a public official in performing his or her duty, murder committed in perpetrating another offense or in an attempt to escape punishment, matricide or patricide, premeditated murder, or murder by torture. However, it cannot be imposed on juveniles under the age of 18 or women who are pregnant when on trial. The number of executions has been relatively low for several reasons. First, the Thai Criminal Code assures a convicted prisoner the right to appeal to the appellate courts. Second, every convicted prisoner has the right to petition to the king for individual royal pardon, as well as collective royal pardon on special national anniversaries. If collective royal pardon is granted, the death sentence shall be reduced to life imprisonment. Therefore, in practice, only a small number of executions have been carried out. From 2001 to 2006, there were only 26 executions, compared to 58 executions in the 1970s,

53 executions in the 1980s, and 21 executions in the 1990s. The Department of Corrections has changed the methods of execution several times. Prior to 1934, beheading the death row inmates was the method of choice. Later, from 1934 to October 2001, as a result of the amendment of the Thai Criminal Code, any prisoners sentenced to death were to be shot to death by a firing squad. From October 19, 2001, to present, the Department of Corrections has replaced the firing squad with lethal injection. The first executions in Thailand by lethal injection took place on December 12, 2003. This involved three male prisoners who had been convicted of drug offenses and murder. As of July 31, 2007, there have been no further executions.

Prison According to the Department of Corrections 2007 statistics, there have been significant changes in the prison population in Thailand over the last decade. In 1997, the inmate population was 125,870, and it had climbed up to 244,240 in 2001 and reached the highest level of 245,801 in 2002. The number of inmates then started to descend sharply and went down to 151,586 in 2006. The rapid increase of prison population during the late 1990s was mainly attributed to the Thai government’s war on drug policy that resulted in a considerable number of drug-related offenders going into prison. Later, the government enacted the Narcotic Addict Rehabilitation Act of 2002, with the main purpose to diverting drug offenders (i.e., drug users) from the criminal justice system into treatment programs, thus reducing the prison population, as well as the courts’ caseload. In 2004, the government also declared the Royal Pardon Decree to commemorate the Queen’s Sixth Cycle Birthday, resulting in many of prisoners’ receiving shorter sentence terms or being released. In 2004, there were 11,288 correctional officers (9,240 males and 2,048 females). Among all officers, 570 (5%) work at the headquarters, while the other 10,460 officers (95%) perform their work in prison facilities. The prisons have a normal capacity


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for housing about 105,748 inmates, which indicates a long-time problem of prison overcrowding. The ratio between the number of correctional personnel and inmates is about 1 to 12 in 1997, 1 to 22 in 2002, and 1 to 13 in 2006. As of 2007, there were 140 prisons throughout Thailand under the supervision of the Thai Department of Corrections, including 26 central prisons, 4 remand prisons, 24 correctional institutions, 55 provincial prisons, 27 district prisons, 2 houses of confinement, 1 house of relegation, and 1 medical prison. Central prisons are responsible for housing convicted prisoners whose prison terms are between 10 years and 30 years. Bangkwang Central Prison, located in a small suburb north of Bangkok called Nonthaburi, is the only maximum-security prison in Thailand that houses death row inmates, lifers, and those with more than 30-year sentences. Because of its classification, Bangkwang Central Prison is the biggest prison for high-sentenced and dangerous prisoners and is the most well-known in Thailand. In terms of size, Klong Prem Prison, which is also located in Bangkok, is the biggest one. Remand prisons are used to detain offenders during their trial period. Upon conviction, the convicted offenders will be transferred to central prisons based on the type of sentences. At present, Thailand has three remand prisons (Bangkok Remand Prison, Thonburi Remand Prison, and Minburi Remand Prison), and one remand prison located in Chonburi Province (Pattaya Remand Prison). Correctional institutions have been built to house and provide suitable treatment for particular groups of inmates, including young offenders, women, drug addicts, and the open institutions. As of 2007, a total of 24 correctional institutions were in operation, which included 4 correctional institutions for young male offenders, 6 women’s correctional institutions, 7 correctional institutions for drug addicted offenders, and 7 open correctional institutions. Provincial prisons and district prisons are responsible for detaining offenders who are awaiting trial, including convicted offenders with less than 10 years of imprisonment. Provincial prisons are found in all the provinces that have a criminal court, but district prisons serve a criminal court only in major districts.

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A House of Confinement accommodates offenders with the sentence to confinement and those who failed to pay fines. A House of Relegation is the institution that keeps habitual offenders whom the court believed are less likely to be rehabilitated. The courts also may choose to confine the offenders for a certain length of time as a security measure as stipulated in the Penal Code. The medical prison was built to provide health care for ill prisoners who require long-term treatment, and it is the only medical detention facility located in Bangkok with a capacity of 350 beds. Each correctional facility, however, can provide necessary medical assistance to its inmates with minor illness. For inmates with serious illness, the corrections agency can transfer those inmates to the medical prison in Bangkok or a nearby hospital. All inmates have to work while serving time in a correctional facility. In addition, article 51 requires that the correctional institution provide inmates aged under 25 years old with appropriate education and vocational training and order awaiting-trial offenders to work for the institution for prison hygiene and sanitation purposes. Regarding education and vocational training in prisons, the Department of Corrections has launched an adult education school in every prison as part of its rehabilitation program effort. Inmates have access to various kinds of education (including religious courses) and vocational training that will help to equip them with sufficient knowledge, as well as essential skills needed after their release. In collaboration with the Department of Non-Formal Education, the various courses offered in prison schools are certified and accredited by the Ministry of Education. Inmates who passed these courses receive a certificate, which can be used to apply for a job after release. The prison administration accommodates inmates’ religious needs through course offerings in Buddhism, Islam, and Christianity. The Department of Corrections receives support and cooperation from private and public agencies in teaching inmates needed skills for today’s market. The emphasis is to enable inmates to open their own business upon release. After completing these courses, inmates receive a certificate issued by the


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Ministry of Education. Every year, the Department of Corrections holds the Annual Prison Products Exhibition in Bangkok, where products derived from vocational training programs in prison will be for sale. Thai prison products are also currently sold online under the “e-prison product” through the Department of Corrections Web site. About 50 percent of the net profits from product sales go to inmates. For visitation, the corrections facility usually allows inmates to have a visit during office hours on weekdays at least once a week. There is a limit of 30 minutes per visit, but it does not limit the number of visitors. The visiting room has the iron bar barrier with 1-meter distance between inmates and visitors. During the visit, the law allows correctional officers to hear their conversations, patrol around visiting areas, search visitors, and terminate the visit if necessary. Inmates are allowed to receive permitted items from visitors, except for cash, which needs to be deposited in the inmate’s account. In addition to general visitation mentioned above, the prisoners who are classified as good class or higher are entitled to have a contact visit twice a year. As the Department of Corrections values the importance of family bonding and close ties among family members, it allows inmates to have family contact visits and conjugal visits. The conjugal visit policy has been implemented since 1993. In 2004, 781 inmates received conjugal visits in 13 open correctional facilities throughout the country. For family visits, a group of no more than five persons is allowed to enter the prison and stay in the designated areas with an inmate. During this special two-hour family visit, the inmate can talk freely and have a meal with his or her family members. Prison privileges are also available to inmates based on their behavior, which is classified according to six different categories: excellent, very good, good, fair, bad, and very bad. Upon conviction, inmates will be classified as fair, but they will be classified as bad if they have a prior conviction history in the past five years. Privileges include promotion to a higher classification, being appointed as a trustee, receiving a furlough, being considered for parole, receiving good conduct allowance, and being sent

to engage in public work outside the prison and earn sentence remission. Thanks to Resolution 13 adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Caracas, Venezuela, in 1980, Thailand has been part of an international agreement of transferring and exchanging of inmates with 24 countries. The objective of the bilateral treaties is to facilitate the transferring of qualified foreign or Thai nationals committing crimes in foreign countries to return and serve the remaining sentences in their own countries. These 24 countries are France, Spain, Canada, Italy, the United States, Sweden, the United Kingdom and Northern Ireland, Finland, Germany, Portugal, Austria, Israel, Poland, Denmark, Hong Kong, Switzerland, Norway, Philippines, Estonia, Czech Republic, Australia, Nigeria, Netherlands, and Mali. As of 2006, Thailand has transferred 726 foreign nationals back to their respective countries, and 8 Thai nationals have been transferred from other countries to Thailand. Unisa Lerdtomornsakul, Prapon Sahapattana, and Sutham Cheurprakobkit

Further Reading Kittayarak, Kittipong. (2003). The Thai Constitution of 1997 and Its Implication on Criminal Justice Reform. Asia and Fareast Institute for the Prevention of Crime and the Treatment of Offenders Web site: http://www.unafei.or.jp/pdf/ no60/ch06.pdf. Naigowit, Prapan. Criminal Justice in Thailand: http://www.iap.nl.com/speeches_asia_confer ence_2003/criminal-justice-inthailand-by-pra pun-naigowit.html. Royal Thai Police. Office of Information and Communication Technology: http://www.royalthai police.go.th/. Sungkawan, Decha. Thai Community-based Correctional Programmes for Narcotics Addicts in Response to the 2002 Rehabilitation Act: A System Approach: http://www.unafei.or.jp/english/ pdf/PDF_rms/no64/ch08.pdf.


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Suriyawong, Vitaya. Thai Correctional System Profile: http://www.acpf.org/Asia/Thailand/ CorrectionThaiVitaya(E).html.

Timor-Leste Legal System: Civil/Customary/Islamic Corruption: High Human Trafficking: Medium Prison Rate: Low Death Penalty: No Corporal Punishment: No

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November 12, 1991, presented a significant shift, with smuggled footage of the Indonesian shooting and beating to death of about 270 people in a Dili cemetery broadcast to the world. From this time, the campaign for self-determination in Timor-Leste gained a momentum that eventually could not be stopped by the Indonesian government. On January 27, 1999, it announced that the Timorese people could choose between autonomy or independence in a referendum. Despite increased violence against the Timorese population, to “encourage” votes in support of Indonesia, 78.5 percent voted for independence on August 30, 1999.

Background

Crimes during Occupation

Timor-Leste (East Timor) is located to the north of Australia. Inhabited by peoples from Melanesia and continental Asia, the island of Timor became a Portuguese colony in 1702. For many decades, Portugal’s position with regard to Timor-Leste was one of “benign neglect” and the vast majority of Timorese were relatively untouched by colonial powers, continuing to live without basic services under traditional rulers in mountain communities. In 1974, following a coup in Portugal, the Portuguese government began an immediate process of decolonization, leaving a power vacuum in TimorLeste. Three principal parties—Fretilin (Front for an Independent East Timor), UDT (Timorese Democratic Union), and Apodeti (Timorese Popular Democratic Association)—developed and following a short civil war, Fretilin emerged as the leading party. The ensuing period of “peace” was short-lived. For various reasons—including local oil reserves, an ideological commitment to fight supposed communists, and a political demand to retain control over islands in the region—Indonesian officials began a campaign of destabilization. Fretilin leaders declared the independence of Timor-Leste at the United Nations on November 28, 1975. Nine days later, the Indonesian government launched an attack. The subsequent occupation lasted almost 25 years. Following years of resistance to this occupation, Timor-Leste finally garnered international attention in the 1990s. The Santa Cruz massacre of

The Commission for Reception, Truth and Reconciliation estimates that up to 183,000 people were killed during occupation. Timorese people died in massacres, bombing raids, and killing sprees as well as in strategic military operations wherein civilians were used as human shields against Fretilin resisters. Thousands were forcibly displaced from their homes and land and slowly starved to death in socalled resettlement camps, and individuals thought to be sympathetic to Fretilin and their military wing, Falintil, were similarly exiled on the island of Ataúro, where they suffered illness and starvation. Alongside these killings, Timorese people were routinely raped, tortured, ill treated, and detained without trial. The criminal justice system was an integral part of this repression. Indonesian police as well as the military operated everywhere in the region. Soon after the start of occupation, special commands were established throughout Timor-Leste. Provincial, district, and subdistrict police units worked alongside military police, riot control brigades, elite counterinsurgency forces, intelligence task forces, combat team regiments, and military commands so that all aspects of life were policed and controlled. East Timorese experienced little protection from this treatment through the courts. Trials to convict those East Timorese who were suspected of supporting Fretilin were often closed and relied on “evidence” from informants. Presiding judges would


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commence trials by speaking about their support for Indonesia. Timorese defendants would not have adequate access to defense counsel and rarely understood legal procedures. Indonesian criminal justice officials were also assisted by Timorese auxiliaries. Local people worked within the Indonesian army and police; many also participated in militias, intelligence units, and civil defense forces. In these roles, they provided a means by which Indonesian officials could distance themselves from the violence and avoid international scrutiny, while presenting the idea that they were a neutral force in a country made volatile by internal conflict. The complicity of Timorese people in repression was particularly significant during 1998–1999, in the time before, during, and after the referendum. During this period, the Indonesian military funneled millions of dollars to militia commanders who were paid a salary to recruit, coordinate, and mobilize local members. Militia members were used to intimidate the population, to convince the Timorese to vote in favor of Indonesian rule and, in the wake of the vote for independence, to engage in swift retribution. Guided by and operating alongside Indonesian officials (a point still denied by Indonesia), they caused massive destruction. A UN multinational military force eventually landed on September 20, 1999, and, over the following months, a fragile peace was established. In May 2002, the country finally joined the United Nations as a sovereign state.

Recent Insecurities The worst violence of the postindependence period began in early 2006, sparked by the dismissal of 593 soldiers. These members of the F-FDTL (FalintilForças de Defesa de Timor Leste) had petitioned the government for better pay and conditions, finally deserting their posts in protest. Many soldiers alleged widespread discrimination in the armed forces, based on supposed distinctions between westerners (loromonu) and easterners (lorosa’e). Despite the ethnically and historically arguable nature of these categories, this rhetoric fueled disputes

between the F-FDTL and the Policia Nacional de Timor-Leste (PNTL) that ultimately spilled onto the streets, beginning with shootings and rioting at a demonstration on April 28, 2006. The desertion of Major Alfredo Alves Reinado, then head of the military police, and 17 of his men, deepened the conflict. A self-appointed spokesperson for the aggrieved loromonu, Reinado used media channels to decry government inaction and pledged support for the political camp of President Xanana Gusmão. His ambush of F-FDTL troops in the outskirts of Dili, in which one soldier was killed and seven wounded, put further pressure on an embattled Fretilin administration. Skirmishes between various loosely defined civilian and armed forces groups overtook the capital, with 2,200 international troops then arriving to quell the violence. Facing opposition within his own party, and rising public anger against his governing Fretilin party, Mari Alkatiri—accused of inflaming the violence— was forced to step down as prime minister on June 26, 2006, in favor of a compromise candidate, diplomat and Nobel laureate José Ramos Horta. Shortly after, Reinado and his followers, called by President Gusmão to disarm and participate in a national dialogue, were arrested and imprisoned, having continued to stockpile weapons. Though calm had been restored with the aid of newly deployed Australian, Malaysian, New Zealand, and Portuguese forces, a humanitarian emergency had been precipitated. Over the course of these events, more than 100,000 people moved into camps and makeshift homes around the country. Poor living conditions in the camps heralded ill health and a reported increase in violence against women and children. Despite attempts to mobilize youth, the aftermath of the 2006 crisis eroded Fretilin’s historical dominance of Timorese politics. The 2007 elections saw Ramos Horta ascend to the presidency and a coalition headed by Gusmão’s CNRT party take government. Disputes over the constitutionality of this arrangement prompted renewed violence across the country, and the destruction of properties owned by the Catholic Church, which was seen as having unduly interfered.


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In recent times, Reinado—having escaped with his followers from a Dili prison—became a symbol of generalized discontent. Having evaded recapture by international forces, he broke cover on February 11, 2008, and was killed in an exchange of fire outside the president’s residence in which Ramos Horta was also shot and wounded. Soon after, an attack was made on Prime Minister Gusmão, who escaped. Despite claims of a coup attempt, the motivation for these assaults remains largely unknown. Fearing a backlash, a state of emergency was declared and a curfew imposed for several months. At the time of writing, Reinado loyalists—following a formal surrender—are on trial for their role in the events of February 11, 2008.

Building the New State of Timor-Leste Following the 1999 vote for independence and the related violent retribution from Indonesian officials and their militias, Timor-Leste was faced with the challenge of building most things—homes, churches, hospitals, roads, schools—again. In criminal justice terms, police stations, court buildings, and prisons had all been decimated; the vast majority of legal personnel had left the country, there was not a single judge in the territory; there were only a handful of police officers with very basic skills; and the written records of the previous regime had been destroyed. Further, as Timorese people had traditionally been excluded from judicial work, most individuals did not have the professional skills or training to work in the legal system. The task of building new criminal justice institutions has been made more problematic by poverty. With a population of just under 1 million, half of which are under 18, Timor-Leste is one of the poorest countries in the world, and it is also getting poorer. Life expectancy is just 55.5 years, almost 50 percent of the population is illiterate, many adults do not possess work skills, and unemployment is high (among young people, there is a 40% unemployment rate). Basic health, housing, clothing, education, and transport needs are not met for most of the population. While the funds that will

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inevitably flow from the production of oil and gas from the Timor Sea will assist to change this situation, in the short term the building of criminal justice institutions has been dependent on international assistance. In this context, the United Nations has engaged in a number of missions in Timor-Leste, beginning in 1999 and continuing through 2009. In terms of criminal justice, each UN mission has had a mandate to provide law enforcement and security and to assist in the development of new criminal justice institutions. Accordingly, UN staff members have had dual duties not only to operate criminal justice institutions but also to build capacity among local staff. Given the violence endured by the Timorese population, the UN also established that it would bring to justice those perpetrators involved in gross human rights violations during the Indonesian occupation.

Legal System The legal regime in Timor-Leste incorporates a number of distinct and sometimes competing influences. The first regulation, issued by the United Nations Transitional Administration (UNTAET) in the postindependence period, determined that all previously operating statutes would continue to be upheld except where superseded by forthcoming interim UN regulations or ultimately by domestic law. This overlapping of legal authority has rendered some confusion, with Indonesian law, carried over from occupation, often applied even where it appears inconsistent with subsequent legislation or with the human rights and treaty obligations entered into by Parliament. Aside from constitutional underpinnings and other ad hoc legislation, the basic framework of the legal system remains predominantly Indonesian in origin. Despite the passage of domestic penal and civil procedure laws in 2003 and 2006, respectively, until recently, the law itself remained as it had been under occupation—one exception being the end of capital punishment, according to UN dictate. A Timorese penal code was passed in 2009, following considerable public debate. One area of concern


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related to criminal defamation offenses, which have been used in other jurisdictions as a means of quashing political dissent. The decriminalization of procuring and performing abortions was also bound to be controversial in such an overwhelmingly Catholic country. A clause was passed in the original statute allowing exception from prosecution in cases of medical emergency. An amendment swiftly followed, however, that imposes onerous practical conditions, the constitutional validity of which is, at the time of writing, under examination. The process of drafting and interpreting law has been made more complex by the governmental choice of Portuguese as the principal language of administration. Though measures of fluency vary, surveys suggest that less than 7 percent of Timorese speak Portuguese—likely fewer would ably negotiate the technical lexicon of the legal profession. This seemingly counterintuitive political decision has been connected to the occupation-era exile of the initial Fretilin leadership in Mozambique and other Lusophone nations. Portugal, the former colonial power, retains a large aid presence and holds significant influence in legislative development and judicial training. This linguistic divide certainly hampers the ability of the public to navigate the legal system. No formal channel presently exists for the dissemination of laws, and much of this duty has fallen to the United Nations and civil society. Nongovernment organizations such as the Asia Foundation are progressively translating statutes into Tetum, the dominant indigenous language, to provide greater local understanding and hopefully access to justice.

Crime District courts operate as courts of first instance, hearing crimes that include, among others, the following: crimes against the security of the state and president, crimes concerning state duties and state rights, crimes against public order, endangering persons or property, crimes against public authority, perjury and false testimony, counterfeiting, forgery, crimes against decency, abandonment, defamation, causing death or bodily harm by negligence, theft,

extortion and blackmail, embezzlement, fraud, damage to property, crimes committed by officials, and receiving stolen property. In addition, there are misdemeanors that include, among others: misdemeanors concerning the security of persons, property, and public health; relating to public order; against public authority; relating to descent and marriage; relating to destitute persons; relating to morals; and relating to officials.

Crime Statistics Since 2002, official crime rates (as available) have been relatively low, perhaps in part reflecting a continued recourse to traditional methods of dispute resolution. The authors of The PRIME System: Measuring the Success of Post-Conflict Police Reform report that the total reported crimes decreased each year between 2002 and 2005, from 5,234 in 2002 to just 1,558 in 2005. Conversely, reports of gender-based violence have increased, perhaps as a result of increased societal awareness. Indeed, during 2005, such cases represented more than half of all filed complaints to police in some districts, according to the United Nations Integrated Mission in Timor-Leste in 2007. Traffic violations have risen, related to an influx of cars to Dili roads. Recent violence can also be expected to result in a sharp rise in criminal complaints since mid-2006, and rates may increase further if current high unemployment rates, and limited opportunities for young people, do not abate. Comprehensive statistics on the number of arrests and convictions are not publicly available, and institutional records are often incomplete. Recent documentation from the Office of the Prosecutor-General suggests a greater than two-toone conviction rate, though this may relate to the prioritized lodgement of cases with strong testimonial evidence. Prison records divulge an emphasis on violent crime, with 87 of Timor’s tiny prison population—comprising in 2007 just 132 postsentence inmates—incarcerated for murder. These include some individuals sentenced under the UN serious crimes process. A further 27 were recorded as serving terms for sexual offenses, and 69 are


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reported as being in pretrial detention for illegal weapons possession or disturbing the peace, resulting from post-2006 crises.

Particular Challenges External donor states, such as Australia, have lately focused their attention on crimes in Timor-Leste that may have implications for their own security, such as terrorism, immigration offenses, drug smuggling, and human trafficking. The level of such transnational criminal activities is, however, believed to be relatively low in Timor-Leste, although there has been recent concern about the numbers of women forced into sex work from Timor-Leste and abroad as a result of unemployment, internal displacement, and the increased presence of international workers in the region. Some international groups have also claimed an increase in the manufacture and use of illegal amphetamines, a problem believed to be linked to the incidence of violent clashes between local youth, or martial arts gangs. These issues are exacerbated by the smuggling of goods over Timor’s largely porous border with Indonesia. Though a Border Patrol Unit has been formed, it has been plagued by political maneuverings and allegations of corruption. The passage of the Special Crime Prevention Operations Law in 2006 was intended to provide broader powers to stamp out organized crime, but little reportable effect can yet be attributed to this, perhaps due to a shift in police priorities related to outbreaks of violence and the recent state of emergency. The struggle to address the justice needs of women is made difficult by a legacy of violence and a largely patriarchal cultural heritage. These factors have combined to produce an alarmingly high rate of gender-based violence, with a 2003 study finding that nearly half of the female respondents had experienced physical abuse from a partner over the previous year, according to a report by the Dili International Rescue Committee. Such incidents are rarely reported, with matters commonly resolved within families or by traditional processes in which women have only a superficial role.

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The United Nations introduced gender officer roles within the mission as well as a discrimination policy. Accusations of sexual misconduct among its members have, however, tarnished this record. The Timorese government has undertaken its own efforts, establishing an Office for the Promotion of Equality. The Women’s Network of Timor Lorosa’e, the East Timor Women’s Communication Forum, and the Women’s Justice Unit of the Judicial System Monitoring Programme, among others, advocate for reform and provide services to vulnerable groups. Timor’s legal system has been much criticized for its handling of such cases. Though there have been successful prosecutions under the UN serious crimes process for sexual offenses dating from the preindependence period, a sense of impunity persists. Constitutional and international sources of law are infrequently considered by the courts, even as irrelevant facts such as the chastity of a victim are included in judicial reasoning. Custodial terms are generally at the lower end of the discretionary spectrum, and suspended sentences are common. Cause for optimism exists, however, in the establishment of a police Vulnerable Persons Unit and a rise in reporting that may reflect greater awareness of gender-based violence as a crime. In 2007, 157 such cases entered the Prosecutor-General’s Office, up from 75 in 2006. Even allowing for a suspension of judicial activity due to the 2006 crisis, existing records show a rise not only in the reporting of sexual crime and domestic assault, but also in court decisions, according to the Judicial System Monitoring Programme. Timor-Leste’s legal framework remains ill equipped to promote justice and equality for women. Yet, a domestic violence law soon to be considered by Parliament, and anticipated debate on witness protection, are positive signs.

Courts and Commissions for Serious Crimes A range of truth and justice initiatives have been implemented to deal with the serious crimes committed over the previous 25 years.


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The Ad Hoc Human Rights Court The Indonesian government established this court in 2000. Despite proclaiming a commitment to justice, the government and the Attorney General’s Office consistently failed to support the court to bring Indonesian officials to account. Commencing work in March 2002, it focused its investigations on just 3 (Liquiça, Suai, and Dili) of Timor-Leste’s 13 districts, for events that occurred during just two months, April and September 1999. Of the 18 defendants brought to trial, 12 were initially acquitted and 6 convicted of crimes against humanity. Following various appeals, the 6 had their convictions overturned. The last man to be released (Eurico Guterres, the Timorese leader of the Aitarak militia) ran for Parliament in the last Indonesian election.

The Serious Crimes Process In June 2000, the UN established the serious crimes process in Dili. The Special Panels for Serious Crimes (SPSC) was a hybrid tribunal that brought together international and national judges to try serious criminal offenses. The SPSC took universal jurisdiction over charges of genocide, war crimes, and crimes against humanity. Prosecutors initially considered serious crimes from 1975; however, the Serious Crimes Unit (SCU) subsequently changed policy to focus all attention on cases from January–October 1999. Completing trials by May 2005, the final statistics for the serious crimes process are quite impressive for an internationalized court: 95 indictments against 440 accused were filed; 55 cases were tried and 84 defendants were convicted (with three acquitted and one ruled unfit to stand trial). The serious crimes process faced criticisms in respect of departures from international standards of fairness and due process. For instance, in 2003, the SCU had only eight investigators, each with responsibility for more than 300 murders across multiple districts. Similarly, the defense team was impossibly small and had no access to a reliable IT system. Further, although the courts operated across four languages (Indonesian, Portuguese, English, and Tetum), translators were not always present.

The serious crimes process failed to deal with high-ranking perpetrators. The 84 convicted men were all minor players (in 2009, just one remained in prison). There are 339 indictees who remain at large principally within Indonesia, with many continuing to serve in the Indonesian armed forces. This issue has consistently undermined the success of this process. In February 2008, the UN and the Timorese government established a new agreement to prosecute outstanding serious crimes cases. In 2009, there does not appear to be much political will—or resources—to make this happen.

The Commission for Reception,Truth and Reconciliation (CAVR) The Commission for Reception, Truth and Reconciliation (CAVR) started work in January 2002. With a remit to determine an official truth regarding human rights violations between April 1974 and October 1999, the commission also had the duties of supporting the reintegration of individuals who had harmed their communities, promoting reconciliation, and referring serious crimes matters to the SCU. The CAVR’s final report, Chega! (meaning “no more,” “stop,” or “enough”), was released onto the Internet in December 2005. It shows that, although Timorese people engaged in violence, the conflict was one precipitated and sustained by international influences. While Indonesian officials were principally responsible for serious crimes, the CAVR concluded that most UN members also failed to stop Indonesian activities or to provide support to Timor-Leste. Further, the United States, the United Kingdom, and Australian administrations provided significant aid and trade, as well as military and political support, to Indonesia. Despite its significance, this report has not yet been discussed by either the Timorese government or the UN Security Council. One unique aspect of the CAVR was the Community Reconciliation Process (CRP). Local leaders and CAVR staff conducted CRP hearings in affected communities, and following discussions, made reconciliation agreements through which perpetrators


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had to make amends, often by making an apology, paying a fine, or undertaking community work. Following these acts, the perpetrator gained immunity from any court action. The incorporation of customary law—specifically the traditional practices of “lisan” or “adapt” (see below)—encouraged wide community participation. An estimated 40,000 people attended these hearings, and while there were criticisms of the CRP (particularly when perpetrators were less than honest about their past actions), they enjoyed wide popular support.

The Commission of Truth and Friendship The Commission of Truth and Friendship (CTF) was formed by the governments of Indonesia and Timor-Leste in 2005. Billed as an attempt to forge friendlier relations between the two governments, the main objective of the CTF was to establish a definitive and unifying truth with regard to the events of 1999. This mandate was criticized for repeating the work of previous truth and justice measures, and the CTF has also faced intense opposition due to its ability to recommend amnesty for those perpetrators who fully cooperated in revealing the truth. The Catholic Church and victims’ groups repeatedly argued that this heralded a potential official immunity from prosecutions; similarly, the UN declared that it would not cooperate with the CTF as these terms did not comply with human rights standards. Overall, truth and justice initiatives for TimorLeste have, thus far, failed to bring serious human rights violators to account. These measures have been, as the UN Commission of Experts (CoE) argued in 2005, “manifestly inadequate.” In light of these failings, the CoE recommended that the UN create an ad hoc international criminal tribunal. This position, echoing the continuing demands of Timorese grassroots organizations, has not been met with a warm reception from Timorese leaders.

Domestic Courts There are four district courts in Timor-Leste, located in Dili, Baucau, Oecusse, and Suai. The highest

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tribunal is the Dili-based Court of Appeal. The Office of the Prosecutor-General initiates indictments and prosecutions and the Ministry of Justice is responsible for the administration of the courts and the Public Defenders Office as well as the prisons. There is no separate system for juveniles. Serious offenses—those which may result in a prison term of five years or more—are heard before a panel of three judges while lesser crimes are heard before a single judge. All courts in Timor-Leste are run jointly by national and international staff. The first group of 27 national judges, prosecutors, and public defenders (including nine women) was appointed in July 2007, following their completion of a prolonged training program. A further 12 (including three female) national workers were expected to join them in 2008. There is currently no accreditation program for the approximately 80 private lawyers who operate in Timor-Leste, an issue that has resulted in the variable quality of workers. The Dili District Court conducts hearings on a daily basis. Staffed by six judges (three international, three national), four prosecutors (two international, two national), and nine public defenders (six international, three national), it is by far the best resourced and managed court. Between January–September 2007, this court registered 706 criminal cases and issued 304 decisions, according to the Judicial Monitoring Program. Many of these cases dealt with the violence that erupted in 2006. Before 2006, the Baucau District Court operated on an ad hoc basis. It currently handles daily cases, although there have been recent intermissions due to the burning of court buildings during the conflict of 2007. With three judges (one international, two national), two prosecutors and several public defenders, this court decided 109 criminal cases between January and July 2007. Some of these cases dealt with matters from as long ago as 2002. In Oecusse, the district court conducts hearings once or twice a month. There are no permanent judicial staff presently located at this court and legal workers (one judge, one prosecutor, and one defender) travel from their residence in Dili to hear cases. Attempting to hear approximately eight cases


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per month, the court registered 33 criminal cases between January–September 2007. At the Suai District Court, hearings are held three times a month, again by a single judge, prosecutor, and public defender who travel into the region from Dili. Between January–April 2007, the court handed down judgments in 10 minor cases. During 2007, the Court of Appeal had six judges (three international, three national). There has been confusion about the authority of the national judges, who also serve on the Dili District Court. Between January and September 2007, the Court of Appeal registered 44 criminal cases and decided 34 cases. The Courts Registry is dependent on international clerks. The UNDP recently asserted that there are no national clerks trained for this work and that there is still no effective case-management system. Since 2000, there have been consistent reports that thousands of case files have been lost, and there are numerous examples of cases in which final written judgments have not been recorded. From its inception, the court system in TimorLeste has been severely affected by a lack of material resources. In January 2006, the UNDP launched a US$10 million project to strengthen the justice system. This program builds on a previous (2003– 2005) project that was critiqued for its lack of action with regard to the training and mentoring of local staff. Recent conflict in Timor-Leste has also taken a significant toll on the court system. This violence meant that many international staff left the territory and trials were postponed. Court offices were looted and files, forensic evidence, computers, translation equipment, and transport were stolen. The increase in violent crimes has also burdened the system with further complex cases.

Impact of Weak Resources on the Rights of Defendants The shortage of court staff has had repercussions throughout the system. For instance, the law requires judicial warrants to be issued prior to police searches and arrests. Given the scarcity of judges,

this provision has been frequently violated. Similarly, government regulations require a first judicial hearing within 72 hours of an arrest so that judges can review the lawfulness of detention, assess the strength of evidence, and decide on matters of pretrial detention. Invariably, detainees have been forced to wait long periods for this first hearing, an issue that has become particularly acute outside Dili. In many instances, it appears that the police have taken to releasing detainees after the 72-hour period, when a hearing cannot be arranged in good time. Timorese law also provides the right to a fair trial. Under the Penal Procedure Code, defendants enjoy the presumption of innocence; they have the right to be present during trial and the right to legal representation; they may present witness testimony and evidence; they have access to prosecutorial evidence; and they have the right to appeal. Due to staff shortages, however, these rights are often negated. The lack of resources and poor administration have also resulted in situations in which defendants, victims, and witnesses have not attended court hearings. There are numerous reasons for this, including the fact that individuals are often not informed of trial dates. Those who live outside Dili often have no transport options and police officers—who also lack vehicles and fuel—are similarly incapable of delivering civilians to courtrooms. The issue of funding has inevitably impacted on the speed at which cases can be processed, and there is a significant backlog within the courts—in Dili alone, the backlog of cases was reported, by the United Nations Integrated Mission, to have increased from 1,658 in January 2007 to 2,413 cases in July 2007.

Training Issues The training of court personnel has, as detailed above, been a particular issue of concern. A range of problems has been associated with the transfer of skills, including that mentoring has been dependent on the individual personalities or skills of international judges; differences in the legal backgrounds of international staff have made training


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difficult; and internationals have focused on maintaining basic services rather than mentoring. Yet, the biggest obstacle to training has been the Portuguese language. With national law now written in Portuguese, the Judicial Training Centre conducted its operations in Portuguese. Perhaps unsurprisingly, all trainee judges, prosecutors, and defenders failed their first written examinations during 2005, making them unable to hear and present cases in the district courts. This situation was widely attributed to language difficulties rather than issues of competence or understanding.

The Relationship between the Police and the Courts In the move to independence, approximately 3,000 police (PNTL) officers were recruited and trained by UN Civilian Police Officers. From the start, the establishment and training of the PNTL was lacking in effective management, planning, and policy development, culminating in a police force that lacked critical skills and proficiency. While some officers had a degree of professionalism, UN police advisors detailed that over half of the new recruits were incompetent. Indeed, the police began to gain a reputation for ill-treatment and abuse. For instance, PNTL officers were accused of meting out their own punishments—by illegally detaining citizens or abusing them—instead of pursuing cases through the courts. With the majority of cases presented to the newly established Office of the Provedor (Ombudsman) focusing on human rights abuses and maladministration by PNTL members, Timorese people have not always been keen to report crimes. Moreover, the PNTL have not always pursued investigations either from a lack of ability to deal with complex cases or as a consequence of differential attitudes to certain sections of the population (an issue particularly felt with regard to crimes of physical or sexual violence against women and children). Problems of inadequately trained police officers, and their difficulties in making initial assessments of evidence, has also been linked to the high rate of cases struck out by the courts.

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During the 2006 conflict, the PNTL disintegrated, particularly in Dili. Allegations ensued that some police officers were involved in criminal activity and mob violence. Such claims were reasserted during the recent “state of siege” that followed the attacks on the president and prime minister. UNMIT, under an Australian command, took over policing responsibilities and every member of the PNTL was to undergo a new registration, screening (to check previous involvement in criminal activity), and mentoring (over six months) program. At the end of 2007, 3,110 national officers had registered and undergone screening, 1,274 officers remained under UN supervision and just 186 had been fully certified and were able to operate independently. Increasingly, community policing responsibilities are being handed back to PNTL.

Punishment and Prisons The Indonesian code offers limited sentencing options for judges. Potential sentences include community service (that is relatively underused), fines, and jail terms. The draft Timorese code adds verbal “admonition” for young offenders. The postindependence leadership of Timor-Leste made grand claims for the reestablishment of the prison system, emphasizing the need to rehabilitate prisoners. The destruction of facilities during Indonesian withdrawal, and the lingering influence of a regime marked by abuse and torture, has made this a substantial challenge. Institutional provisions were made with the assistance of the United Nations Transitional Administration (UNTAET). Immediately postindependence, the UN maintained a Civilian Detention Centre in Dili. Detainees were transferred to newly reconstructed facilities as they became available from 2000. Reconstruction first took place at Becora in Dili, where three new cellblocks now provide capacity for 260 prisoners, and at Gleno, in Ermera district, which can house up to 100. A further prison has been established at Baucau, although ongoing renovations forced relocation of the 22 prisoners located there in late 2007. Prisons now fall under the portfolio of the Ministry of


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Justice and are administered by the National Directorate for Prison Services and Social Reinsertion. Prison populations appear to be diminishing, as is the proportion of detainees awaiting trial (as opposed to serving a sentence). Data collected in December 2007 by local human rights network Forum Tau Matan put the total number of prisoners at 232 (including 4 women and 3 juveniles), of whom 47.8 percent were awaiting trial. This compares favorably with figures collected by the Office of the UN High Commissioner for Human Rights in 2003, which reported a total of 320 prisoners (including 1 woman and 6 juveniles), of whom 70.9 percent were yet to be sentenced. Despite improvements, delays in accessing justice are still of concern, with 45 detainees in Timor’s main prison having waited more than six months for a hearing date. Courts often sentence only to time served. Alongside prisons, criminal suspects are also detained at district police locations. In 2007, the UN Police Vulnerable Persons Unit reported that over the last reporting year, 1,272 persons were held in police custody for up to 72 hours. Observer groups claim cells are often unsuitable, with a lack of access to sanitation and bedding. Police often receive no budget for food or transport related to persons in custody, resulting in a reluctance to detain or in privations for detainees. Compounding this is a mentality among certain police members that substandard conditions are an appropriate way of “teaching [presumptive] criminals a lesson.” Conditions within the prisons appear to be more appropriate. Accommodation and sanitation standards have generally been held to comply with international standards. Medical services are provided by nurses at each location, and generators guarantee power supply. Nevertheless, concerns were raised in 2004 over the disrepair of infrastructure and inconsistent water supply at Gleno. Additionally, outbreaks of violence in 2003 saw the Becora prison administration complex burned down—this was replaced the following year. Prisoners have access to a small range of recreational and vocational opportunities. Various charities and nongovernmental organizations intermittently run carpentry workshops and classes on

tailoring, construction, and weaving. The United Nations Development Programme is piloting a literacy scheme, and UNICEF provides writing materials and sporting goods for young people in detention. Social workers are sometimes available, and family members and independent observers are allowed access to prisoners, although this is discretionary. Detainees whose families cannot visit them use Red Cross messages to maintain or reestablish contact. Prior to the opening of the newly refurbished prisons, more than 30 Timorese wardens were recruited. The New Zealand government, in particular, sent experts and equipment to support the training and daily activity of these first staff. Fourmonth training courses have regularly been run for new guards, variously providing human rights training and workshops in self-defense and nonlethal incapacitation methods. However, there are continuing claims that some guards remain poorly trained. Staff recruitment has been an issue and insufficient human resources have been blamed for the limits on prisoner movement, as well as the 2003 prisoner attacks on prison infrastructure. In 2004, 112 personnel were reported as working across the three prisons; this rose to 168 by 2006. The ratio of prison officers to inmates is now reported to be reasonable by regional standards. There have been relatively few reports of staff violence against prisoners; those that have emerged highlight violence in the first 72 hours of detention. Worryingly, there is no formal complaints mechanism. Security is an ongoing problem and there have been several cases of mass prisoner escape. In 2002, 181 prisoners broke out from Becora. Many escapees protested at Parliament over the poor conditions in the prison and the delays in reaching trial; they voluntarily returned to confinement. In 2006, 57 inmates fled, including now-deceased rebel leader Alfredo Reinado. A further escape in 2007 is being investigated by a government commission. While male and female prisoners are segregated, the system yet fails to deal effectively with minors who commit crimes. No legislation currently exists to regulate the status of underage suspects, and there is no definitive minimum age for criminal


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responsibility, as required by the Convention on the Rights of the Child. Without clear legal guidance, reports are emerging of police simply releasing offenders younger than 17, even those detained in relation to serious offenses such as rape or arson. Concerns have also been raised over the housing of juveniles with serious and/or habitually violent criminals, again contrary to international law obligations. Incidents have been reported of child inmates being beaten or brutalized by other prisoners. In some cases, advocacy groups such as Forum Communicacoes Juventude, with support from UNICEF and local defense lawyers, have successfully lobbied for minors to be released into protective care. Similar alarm is felt over the reported lack of understanding or treatment for mental illness in detention facilities, especially as high rates of posttraumatic stress disorder are reported.

Alternatives to Formal Justice Provisions Perhaps 70 percent of the country’s population live outside of the urban and regional centers where court facilities are located. This fact, coupled with frustration at the slow process of state reconstruction, may have bolstered local support for various customary mechanisms for maintaining peace and good order, known broadly as “lisan” or otherwise by the Indonesian “adat.” This traditional approach to dispute resolution offers advantages in terms of being more embedded in community tradition, not to mention being relatively quick and cheap. Critics have, however, pointed to its potential for abuse and to its frequent dissonance with more globally accepted standards of justice, especially in relation to the status of women. Under the United Nations Transitional Administration in East Timor, there was little consultation on customary law and legal process. There appeared to be a prevailing sense that it was anathema to the development of a modern legal sector. Certainly, no more than symbolic recognition was given to lisan in the Constitution and the province of law was explicitly given to formal instruments of state.

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Despite this apparent denial of legitimacy, frontline personnel such as outposted UN police were, in the absence of guidelines on how to constructively engage with lisan, discovering its usefulness as a means of deescalating conflict and keeping order. A survey conducted by the Asia Foundation across all districts found that a staggering 94 percent of respondents had confidence in the lisan system, which is effectively to say that its presence and dependability are articles of faith for local peoples. Notably, though, 75 percent acknowledged that it could use some reform. There have been several attempts in Timor to pilot legal structures fusing elements of customary practice with court-based proceedings. For example, the Oecusse Diversionary Justice Program drew on Western juvenile justice principles to diminish the risk of recidivism among young offenders, using social authority to reinforce legal messages and preferring community work sentences over custody. It settled 23 land disputes and three criminal disputes with the aid of local elders before the term of the pilot was completed. Similarly, the UN Land and Property Unit undertook negotiations to refer some title and boundary cases to traditional forums. The CAVR process also used “nahe biti” ceremonies to facilitate the reintegration of ex-militia personnel. Meaning to unroll, or lay out the mat, “nahe biti” can be considered analogous to Western notions of mediation, conciliation, and arbitration. Elizabeth Stanley and Andrew Marriott Further Reading Commission for Reception, Truth and Reconciliation. (2005). Chega! The Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste. Dili: CAVR: http://www.cavrtimorleste.org/en/index.htm. Globalism Institute Timor-Leste Research Library: http://www.timor-leste.org/index.html. Hohe, Tanja, and Rod Nixon. (2003). Reconciling Justice: “Traditional” Law and State Judiciary in East Timor. Dili: United States Institute of Peace.


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Judicial System Monitoring Programme Web site: http://www.jsmp.minihub.org/. Shoesmith, Dennis, ed. (2007). The Crisis in TimorLeste: Understanding the Past, Imagining the Future. Darwin, Australia: Charles Darwin University Press. Stanley, Elizabeth. (2008). Torture, Truth and Justice: The Case of Timor-Leste. London: Routledge.

Turkey Legal System: Civil Murder: Medium Burglary: Medium Corruption: Medium Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background Before converting to Islam, the Turks were ruled by a single ruler (hakan) and his family. The ruler gathered his high-rank commanders and administrators twice a year to decide about the issues concerning the state, including peace and war. Laws consisted of the decisions made in those gatherings; traditions were not in written form and religion did not play a significant role in state or legal affairs. Starting from the 10th century, the Turks adopted Islamic criminal law, while in some Turkish states traditions were used more than the Islamic legal system. Especially during the Ottoman period (1299–1922), the Islamic legal system, which depended on the Holy Koran and the interpretations of its verses, was strictly used and traditions were applied only on the points where the Koranic resources did not explain them. However, especially during the reign of Sultan Suleiman the Magnificent, a tendency to codify those new rules in thick books (Kanunname) developed. In the Islamic legal system, there are some principles that are used in modern criminal justice systems. Some of those principles are:

1. Individuals are innocent until proven guilty: The general principle is that people are born into this world innocent and free of debt. Crimes and loans emerge later; therefore, whoever claims that a person has committed a crime or has not paid a loan is required to prove that allegation. 2. Suspicion is used in favor of the accused. Toward the end of the 19th century, Westernization of the criminal system began. The foundation of the Turkish Republic in 1923 was followed by the Turkish Penal Code of 1926, which was partly a translation of the Italian Penal Code of 1889. That code was replaced with the new Penal Code in 2005. The Criminal Procedures Code of 1929 was a translation of the German Procedures Code of 1877. This code was then replaced with a more up-to-date one in 2004. One major reason for the adoption of those two laws was Turkey’s unification efforts with the European Union. The modern legal system that was used with the inauguration of the republic is the continental European civil law system; and therefore, the type of criminal procedures system is “mixed” or “cooperative” where judges may not initiate prosecution on their own, but the initiation of a public prosecutor is needed. In this system, judges have an efficient position during the procedures; however, the defendant (and/or his or her representatives) and the prosecutor may also actively contribute to the judicial process. Judges are not bound by the evidence presented, but they also may search for new evidence. In this system the pretrial period is confidential, whereas trials are open to the public.

Police Law enforcement in Turkey is carried out mainly by two institutions: the police and the gendarmerie. While the jurisdiction of the police is urban or municipal areas, the gendarmerie enforces law in rural areas, but their responsibilities and authorities are basically the same. The police are completely the civilian part of law enforcement. On the other hand,


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the gendarmerie is a part of the Turkish Army and connected to the Commander in Chief in terms of its military duties, education and training, while it is connected to the Ministry of Interior (like the police) in terms of its responsibilities regarding public order. The role of the military in politics and maintenance of public order has historically been very important. The Turkish police, like the gendarmerie, have a centralized structure of administration. At the center (the capital city of Ankara), the General Directorate of Security functions under the Ministry of Interior and has extensions in 81 districts throughout Turkey. As of 2009 the number of police officers in Turkey was more than 250,000. Regardless of where they work, all police officers work under the authority of the General Directorate. The structure of the police at the center is quite similar to that in districts. Both at the central headquarters and in districts, there are specialized departments, such as antiterrorism, antismuggling, and organized crimes, public order, riot control, in city and highway traffic, juvenile, intelligence, and so forth, along with support units. The police have no structural connection with the military except for the instances of martial law and state of emergency. Naturally, cooperation between the gendarmerie and the police is provided for cases that have extensions with both cities and rural areas.

Crime Classification of Crimes In the rescinded Turkish Penal Code of 1926, the classification of offenses as “felony” and “misdemeanor” existed; however, the current Penal Code does not categorize offenses. Following the current trend in the continental European criminal system, the Law on Misdemeanors adopted in 2005 transferred most misdemeanors in the previous code to the jurisdiction of the administration. While such punishments as imprisonment, juridical fines, and other juridical precautions may be awarded to violators of crimes in the Penal Code, only administrative fines and measures may be applied against violators of misdemeanors. Crimes in the context

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of the Penal Code are more serious ones, such as genocide, murder, torture, rape, assault, threat, and violation of freedoms. On the other hand, misdemeanors listed in the Law on Misdemeanors are less serious ones, such as begging, gambling, unlawful use of public places, violation of public order by making noise, and smoking in prohibited areas.

Age of Criminal Responsibility Criminal responsibility begins after age 12; and children younger than that age may not be punished or investigated for any offenses. Punishments given to minors between 12 and 15 are deducted by 50 percent if they have the ability to discern; otherwise, they go unpunished. For minors between 15 and 18, punishments are deducted by one-third with the maximum limit of 12 years of imprisonment.

Crimes Challenging Turkey Terrorism could be considered as the most serious problem for Turkey. The country has been suffering from revolutionary and separatist movements for many years, but it was the worst in the 1990s when the Kurdish separatists (PKK) were active in the southeast of the country. Around 32,000 people are believed to have been killed during the surge of the PKK terrorism. The leader and founder of PKK, Abdullah Ocalan, was arrested on February, 15, 1999, and has been held under solitary confinement as the only prisoner in an island prison in the Sea of Marmara. He was first sentenced to death; however, when the death penalty was abolished in Turkey, his punishment was commuted to lifelong aggravated imprisonment. In terms of ordinary crimes, no crime is as disturbing for the public as terrorism. Among such crimes, however, are traffic-related misdemeanors committed on Turkish roads by Turkish drivers and casualties are to such an extent that they are referred to as “traffic terrorism.”

Drug Offenses For drug-related offences, Turkey is seen as a transit country; however, numbers regarding usage are on the rise. Drug offenses in the Turkish Penal Code


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Police forensic officers examine and collect evidence in front of the Neve Shalom Synagogue in Istanbul, Turkey, November 16, 2003. (AP Photo/Burhan Ozbilici)

include illegal production, inducting, exporting, selling, giving, transporting, storing, and possessing sedative or stimulative substances. If the substance is heroin, cocaine, morphine or morphine-based, the punishment given to violators is increased by half. Although use of sedative and stimulative substances is prohibited and punished by the code, the law does not identify any substance as requiring an increased punishment.

Crime Statistics

Total number of murders: Premeditated killing of people: Imprudently killing of people: Total number of sex-related crimes: Serious property offense total: Theft: Robbery: Serious drug offenses total:

5,788 3,991 1,797 6,836 7,714 6,603 1,111 2,198

Finding of Guilt

An overview of crime statistics at the national level as of 2006, according to the Turkish Bureau of Statistics (http://www.tuik.gov.tr/Start.do), is as follows. (Crimes that are reported to the police and investigated by the prosecutor and/or the police have been included. Those numbers have been taken from the Ministry of Justice database.)

Rights of the Accused In general there are two alternative ways that can be followed by the accused: going to trial and reconciliation. While the former alternative is the most common and has been used since the acceptance of the rescinded Criminal Procedures and Penal Code,


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the latter was introduced by the new codes adopted in 2004 and 2005, respectively. Other than going to trial and reconciliation, there are no other ways for the defendant, prosecutor, or victim, such as going to trial by jury, plea bargaining for lesser offense, and so forth. Reconciliation is limited to certain offenses listed in the Penal Code, such as causing minor injury, minor thefts, causing minor property damage, and so forth. If a reconciliation agreement is reached between the offender and the victim, the case is automatically dropped. No other way of reconciliation agreement (e.g., between the offender and the prosecutor) is possible. Rights of the accused are taken very seriously in Turkey, as illustrated by the example of a case that occurred in the city of Manias on December 26, 1995. The police arrested 16 youths, most of whom were high school students. The allegation against them was that they were members of an illegal leftist terrorist organization. However, the case is not known by the allegation against the youth, but the allegations that the police tortured them during their arrest. The case has been the symbol of the struggle for the protection of human rights and required a long time to be resolved. At the end of the trials, the youth were found not guilty, but a police captain and officers were found guilty and were punished by a total of 85 years of imprisonment. The officers were also dismissed from the police force. The officers’ punishments ranged from 2.5 years to 12.5 years.

Assistance Provided in Defense Starting with the arrest by law enforcement officers, the accused must be made aware of his or her rights, which are as follows: • Knowing the accusation: The accused is given information about the accusation and his or her rights at the time of the arrest. • Right to remain silent: The accused is not legally required to give information except that regarding his or her identification. • Directing the prosecution: The accused may provide information about the allegation and submit evidence.

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• Informing others of the arrest: Law enforcement officers contact a person (either a family member of the accused or a person he or she determines) and make him or her aware of the arrest. If the arrestee is a foreign national, his or her country’s consulate is given information unless the arrestee wishes otherwise and puts his or her consent in written form. • Right to remain unblemished during the investigation phase: The investigation phase is confidential and the accused is deemed innocent until proven guilty. In the light of those rights and principles, the accused is expected to defend himself or herself. The right to defend starts with the time of the arrest when the arresting officer notifies the arrestee that he or she may benefit from aid of a defender of his or her own choice. The arrestee is assigned a public defender free of charge upon his or her request if he or she states that he or she is unable to hire one. For juveniles it is a legal obligation to assign a defender regardless of his or her or his or her parents’ demand.

Prosecution and/or Investigation of the Case In general it is the public prosecutor who conducts the prosecution. Immediately after being notified about a violation of law, the prosecutor has to investigate the allegation either directly or through the use of law enforcement in his or her jurisdiction. There is a hierarchical structure between prosecutors and law enforcement in terms of prosecution of an allegation or its investigation: law enforcement officers must follow the prosecutor’s command. Except for emergencies, law enforcement has no authority to initiate or continue criminal investigation without approval of the prosecutor. Magistrates may also be involved in criminal investigation and prosecution in case the prosecutor is not reachable or the decision for arrest of the suspect is needed during the investigation.

Resolution of the Majority of Criminal Cases Due to the general character of prosecution in Turkish criminal prosecution, most cases end up in


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trials. As mentioned above, only a small portion of offenses are closed with the agreement of reconciliation between the victim and the offender.

Incarceration before or Awaiting Trial In the Turkish Penal System, incarceration is allowed both before and during trial, and the decision of incarceration must be given by a judge. At the investigation phase, it is the magistrate court judge who decides the incarceration, while it is the judge(s) of the court where the case is handled during the trial phase. For incarceration to be decided, there are certain requirements in the Turkish Penal Criminal Procedures Code.

Number of Criminal Court Judges

are four degrees for criminal judges, and each criminal judge may be assigned to positions depending on the degree possessed. To determine his or her qualifications, each criminal judge is graded depending on the speed of the trial, whether there were unnecessary delays, wording of decrees, whether some sample decrees have been taken into consideration, and so forth.

Separate System for Juveniles In Turkey there is a separate system to deal with juvenile offenders, and the system shows several differences with the common procedures. While for adult offenders the investigation can be carried out by both the police and the prosecutor, only the prosecutor may carry out the investigation against juvenile offenders. A defender is assigned to the minor even if he or she does not ask for one; minors are kept separate from adults; all the procedure is confidential; and handcuffs or similar devices may not be used. If the prosecutor deems it necessary, a social worker may also be called to be present and provide psychological aid during investigation at any phase. As mentioned above, punishments are deducted for juvenile offenders, and the limit of 12 years of imprisonment may not be exceeded.

In addition to the specialized ones such as military courts, there are three types of criminal courts in Turkey depending on the severity of the punishment required for the alleged action: (1) the Magistrate Criminal Court handles cases that require up to two years of imprisonment; (2) the High Criminal Court handles cases that require aggravated lifelong imprisonment, lifelong imprisonment, and those requiring imprisonment for more than 10 years; and (3) the Criminal Court of First Instance handles cases that are outside of the responsibilities of the other two criminal courts. There is only one criminal judge in each of the Magistrate Criminal Courts and the Criminal Courts of First Instance, while there are three in the High Criminal Court.

Punishments in the Penal Code are divided into two types: sanctions and security measures.

Qualifications of Judges

SANCTIONS

According to the Law on Judges and Prosecutors, all criminal judges must be selected from people having a law degree, which requires successfully completing a four-year law school (bachelor’s degree) in Turkey or a respected law school abroad with the requirement that some additional courses are successfully completed. If a person with that degree wishes to be a criminal judge, he or she has to pass an exam and complete the following two-year candidacy. There

In some instances the sanction of the crime committed can require quite a short time of imprisonment, or the sanction could be mentioned as payment of a certain or calculable sum of money. If the judge of the case decides the payment of some money as the sanction or converts the short period of imprisonment into payment of money, then the sanction is called “judicial fine.” The condition of conversion is that the term for imprisonment

Punishment Types of Punishment


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must be between 5 and 730 days. The judge determines a multiplier for each day according to the economic and personal conditions of the indicted. Then the number found is multiplied by the number of the days of imprisonment determined as the punishment. Lifelong aggravated imprisonment requires the prisoner to serve lifelong in principle; however, prisoners serving lifelong aggravated imprisonment may be released on parole after staying in prison with good behavior for 30 years. The difference between this type of punishment and life imprisonment is the regime followed during the execution of the punishment: the inmate may be deprived of some rights, and the conditions of living differ. Although lifelong imprisonment requires the inmate to serve lifelong, if he or she is on good behavior, after 24 years he or she may be released on parole. Compared to those who have been punished with lifelong aggravated imprisonment, these prisoners have more privileges in prison and have better living conditions. Imprisonment is called “limited time” if the imprisonment is between 1 month and 20 years.

SECURITY MEASURES The convicted may be deprived of some certain rights listed in the Penal Code, such as prohibition from public service, deprivation of political rights, losing rights of parenthood of a child, prohibition of being managers or controller of public institutions or political parties, and prohibition of carrying out a certain profession. If a material item has been used during the commitment of a crime in particular, or it has been prepared to be used in the commitment of a crime but has not been used, or some benefit has been provided by the commitment of the crime, the judge may decide to confiscate the item or the benefit provided. If a foreign national has been convicted of a crime and the person has been put on probation, he or she is deported. If the convicted foreign national has been put in prison, he or she is deported after the end of serving his or her term in prison.

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Since the insane do not have the ability to discern, they are not punished for their violations. In case of violation, they are hospitalized in highsecurity institutions for their treatment until they are recovered from that ailment. Within the context of those measures, protective and supportive measures, consultation, education, training, care, and sheltering are listed in the Law on Protection of Minors. Typical punishment for intentional murder is lifelong imprisonment, for rape between 7–12 years of imprisonment, for serious theft between 3–7 years of imprisonment, and for serious burglary between 10–15 years of imprisonment. The death penalty was abolished in August 2002 for any type of crime. Before that, all decisions of death penalty had to be approved by the National Assembly to be executed. Since the assembly had not approved any death penalty decision after October 1984, it was practically abolished even before 2002.

Prisons According to the official Web site of the Ministry of Justice (http://www.cte.adalet.gov.tr), as of December 1, 2008, there were 103,296 inmates in 384 prisons in Turkey. Of those people, 44,038 were convicted and 59,258 were arrested. The biggest prison is located in Silivri, Istanbul (it is also the sixth biggest prison in Europe), which is an “L” type prison with a total capacity of 6,000 inmates. In that prison all rooms have windows (double layer, transparent); all inmates live in individual rooms; inmates may use courtyards or common living spaces in day time; all entrances are equipped with sensitive doors, X-rays, and devices for retina scans. In that prison there is one warden, assistants to the warden, an accountant, and an adequate number of administrative officers, medical doctors, dentists, psychologists, social workers, teachers, secretaries, paramedics, guards, technicians, nurses, laundrymen, repairmen, and workers. Each common living place is equipped with a television antenna input, a small kitchen, an electric outlet, and an emergency button.


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Inmates in Turkish prisons are not required to work; however, inmates having served in prison for at least one year could be allowed to work inside the institution as long as they are in good standing. Inmates cannot be asked to work in personal businesses of prison administrators and other staff. On the other hand, juvenile inmates may not be allowed to work in any case. Inmates who work at prisons are allowed to get wages and social privileges in turn for their labor. Inmates are offered classes for the development of their personality, rehabilitation, and gaining skills that prepare them for their postincarceration lives. Inmates can be visited by their family members listed in the law and have access to free health care. Prisoners of foreign nationality can be transferred to their countries for execution of their crimes and the conditions to be met are listed in the Penal Code. However, a prisoner having Turkish nationality may not be transferred to other countries with the exception that the crime committed falls within the jurisdiction of the International Court of Justice. Erkan Sezgin and Sener Uludag Further Reading Justice and Prison Statistics (Adalet ve Ceza I·nfaz Kurumu I·statistikleri): http://www.adli-sicil. gov.tr. Law on Execution of Punishments and Security Measures (Ceza ve Güvenlik Tedbirlerinin I·nfazı Hakkında Kanun): http://www.mevzuat. adalet.gov.tr/html/1433.html. Law on Protection of Minors (Çocuk Koruma Kanunu): http://www.mevzuat.adalet.gov.tr/ html/1527.html. Ministry of Justice Statistics (Adalat Bakanlıgˇı I·statistikleri): http://www.cte.adalet.gov.tr. Özbek, V. O., P. Bacaksiz, and K. Dogˇ an. (2006). Knowledge on Criminal Law (Ceza Hukuku Bilgisi). Ankara: Seckin Publishing. Özbek, V. O., N. Kanbur, P. Bacaksiz, and K. Dogˇ an. (2007). Knowledge on Criminal Procedures Law (Ceza Muhakemesi Hukuku Bilgisi). Ankara: Seckin Publishing.

Regulation on Visiting Convicted and the Arrested (Hükümlü Ve Tutukluların Ziyaret Edilmeleri Hakkında Yönetmelik).

Turkmenistan Legal System: Civil/Islamic Murder: Medium Corruption: High Prison Rate: High Death Penalty: No Corporal Punishment: No

Background Turkmenistan has been an independent nation since October 27, 1991. Prior to that time, it was incorporated into larger countries or empires, including the Union of Soviet Socialist Republics (USSR), the Russian Empire, and the Persian Empire. Contemporary Turkmenistan shares a border with Iran to the southwest, Afghanistan to the southeast, Uzbekistan to the northeast, Kazakhstan to the northwest, and the Caspian Sea to the west. While the majority of the 5 million people in the country are Turkmen, they identify with a variety of nomadic tribes. There are five major tribes—Ersary, Goklen, Teke, Yasr, and Yomut—each of which has a distinct origin and dialect. Most Turkmens are Muslims. During the 66 years in which Turkmenistan was part of the Soviet Union, it followed the communist model for politics, economics, and ideology. When the communist government of the Soviet Union collapsed in 1991, the First Secretary of the Turkmenistan Communist Party, Saparmurad Niyazov, became the first president of the newly independent Turkmen nation by winning an uncontested election on June 21, 1992. Unlike other postcommunist countries in this region, Niyazov did little to reform the Soviet political and economic systems. Instead he consolidated power and wealth into his own hands, isolated Turkmenistan from the international community, and ruled through a combination of fear and a cult of personality.


Turkmenistan

In a 1994 referendum, Niyazov’s term was extended an additional five years, precluding the presidential election scheduled to take place in 1997. In 1999, he was elected President for Life and continued to rule until he died of cardiac arrest on December 21, 2006. He was succeeded by his vice premier, Gurbanguly Berdimuhamedow, who won the 2007 presidential election.

Government Structure The Constitution of Turkmenistan, adopted May 18, 1992, is the supreme law of the land. While it states that there are three separate branches of government—executive, legislative, and judicial—in reality the executive branch has centralized and virtually unrestrained power. The Constitution also claims that Turkmenistan operates under the rule of law, but the president has overridden the law on numerous occasions. The legislative branch is composed of two parliamentary bodies, the Mejlis (National Assembly) and the Halk Maslahaty (People’s Council). The Mejlis is composed of 50 officials elected by popular vote to serve five-year terms. Although the Mejlis previously functioned as the country’s supreme legislative body, amendments to the Constitution in August 2003 subordinated it to the People’s Council, a body composed of 2,500 delegates. The president serves as Chairman for Life of the People’s Council and Supreme Leader of the Mejlis. Thus, for all practical purposes, the president of Turkmenistan is the head of both the executive and legislative branches. The judicial branch is composed of three separate levels—the Supreme Court, six regional courts, and 61 district and city courts. The Constitution states that judges are independent. They are only subordinate to law and are guaranteed immunity from criminal and civil liability. To ensure this independence, the Constitution specifies that judges may not hold other paid positions or take part in political associations during their term. However, judges at all levels are appointed by the president. They serve five-year terms that may be renewed indefinitely. The president also has the sole author-

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ity to dismiss judges, thereby making the judiciary subordinate to the executive branch.

Legal System The legal system in Turkmenistan is still strongly influenced by the Soviet model plus Islamic law. The Soviet Union created the socialist legal system, which was rooted in the civil law tradition, but adapted to conditions specific to communism. In particular, it was characterized by a large number of public laws related to the regulations of the state, especially economic functions. The legal system was also used to administer political justice and consolidate power for government leaders. Although the Soviet Union tried to ban all religions, Turkmenistan reclaimed its Islamist heritage with independence. As a result, the legal system is also influenced by Islamic law, which recognizes rules of behavior as revealed by God rather than created by people.

Policing Turkmenistan’s criminal justice system remains much as it was during the Soviet era. The structure and practices of policing are no exception. The various security forces in Turkmenistan operate independently of the military. The Ministry of Internal Affairs maintains jurisdiction over the national police force, continuing to direct the operations of police departments throughout the country as it did during Soviet times. Given that the Office of the Procurator General fulfills all investigative needs, the role of the police is generally restricted to the routine maintenance of public order and to performing administrative tasks. The Ministry of National Security retains most of the same functions as the Soviet-era Committee for State Security (KGB). Its primary responsibility is to ensure that the government remains in power. The criminal police, operating through the Ministry of Internal Affairs, work closely with the Ministry of National Security on national security issues. In addition to the above-discussed ministries, the president’s personal security force also performs policing functions. According to Freedom House, the Presidential Guard is composed of 2,000 to 3,000 former


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security agents and it is not subordinate to any of the other security services. As with the Ministry of National Security, it operates with impunity. Turkmenistan’s security agencies have traditionally been viewed as instruments of state repression, and accusations of police abuse are rampant. According to the Department of State Report on Human Rights Practices in 2007, Turkmenistan’s human rights problems include the torture and mistreatment of detainees, incommunicado and prolonged detention, and arbitrary arrest and detention. The abuse and torture of suspects for confessions are also widespread. While President Berdimuhamedow created a commission to review citizens’ complaints of abuse by law enforcement agencies, it is questionable whether members of law enforcement were being held accountable. Notably, in July 2007, the chair of the Supreme Court, who served as the leader of the police complaints commission, was fired and later arrested, in part for failing to assure that cases of abuse were properly reviewed.

Crime Classification of Crimes Turkmen law distinguishes four categories of crime: light, average, serious, and grave. These categories indicate the severity of the criminal act and the maximum punishment that may be applied in the form of deprivation of freedom. Light crimes are punishable by a maximum sentence of 2 years; average crimes can go up to 8 years; serious crimes carry up to 15 years; and grave crimes up to 20 years. Prior to 1999, grave crimes were also punishable by death. Under Turkmen law, an individual may not be held criminally responsible if he or she failed to reach the age of majority prior to committing the crime under consideration or if he or she was legally insane at the time of the crime. The age of majority is 18; however, 14- to 16-year-olds may be subject to criminal liability in some cases. Juveniles charged with more serious crimes, such as intentional murder, rape, and robbery, may be held criminally responsible for their actions. The criminal code defines sanity as the ability to appreciate the nature and quality of one’s actions (or inaction) at the time

of the crime. While individuals, such as the mentally ill, may be deemed not responsible under Turkmen law, the court retains the authority to mandate treatment. With regard to alcohol and drug use, intoxication does not relieve one of criminal responsibility; however, the court may consider the reason for one’s intoxication, degree of intoxication, and the influence of intoxication on one’s criminal act at sentencing.

Drug Trafficking Although Turkmenistan is not a significant producer or source country for illegal drugs, its geographical position makes it attractive to drug smugglers. According to the International Criminal Police Organization (INTERPOL) in 2008, an estimated 24 percent of all Afghan heroin is smuggled along the Silk Route, which runs through Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan. Turkmenistan’s vulnerability to drug trafficking is largely due to the 744-kilometer (462.3-mile) border that it shares with Afghanistan and the 992kilometer (616-mile) border that it shares with Iran, both of which are rugged and remote, making them difficult to police. Turkmenistan is primarily a transit country for Afghan narcotics, including opium and heroin, bound for Russia, Western Europe, and heroin to Turkey. Turkmenistan’s counternarcotics activities are carried out by the Ministry of National Security, Ministry of Internal Affairs, State Customs Service, Border Guards Service, and Prosecutor General’s Office under the supervision of the State Counternarcotics Coordination Commission. Vowing to wage a large-scale war against drugs, President Berdimuhamedow implored these law enforcement agencies to devote all of their time and resources to combating the drug trade at a meeting of the cabinet of ministers in June 2007. Although Turkmenistan’s government has shown a commitment to counter narcotics, it lacks the requisite equipment, training, and resources to tackle a problem of this magnitude. According to the United Nations Office on Drugs and Crime, law enforcement officials in Turkmenistan seized more than 1,000 kilograms (2,200 pounds) of illegal narcotics in 2005.


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Domestic Drug Use Domestic drug abuse, specifically of opium and marijuana, is on the rise in Turkmenistan. According to the Silk Road Studies Program and the Central Asia-Caucasus Institute, the number of registered drug users has increased from around 3,000 in 1995 to 13,000 in 2002. This is not surprising given the increased presence of narcotics resulting from the drug trade. The Turkmenistan Helsinki Foundation, a human rights group operating out of Bulgaria, estimated that Turkmenistan has the highest number of regular drug users per capita in Central Asia. In an effort to combat this problem, the Turkmen Ministry of Health runs seven drug-treatment facilities where narcotics addicts can receive confidential drug treatment. This is imperative since drug addiction is a prosecutable offense that may result in jail time, though drug addicts are traditionally sentenced to treatment if convicted. In addition to drug addiction, a Library of Congress Report has suggested that the presence of illegal drugs has resulted in an increase in street crimes related to drug addiction. Likewise, the Bureau of International Narcotics and Law Enforcement Affairs cited President Berdimuhamedow as reporting in March 2007 that the number of drug-related crimes was on the rise.

Corruption Corruption has also proved challenging for Turkmenistan. Transparency International gave it a score of 1.8 on its Corruption Perception Index (CPI) for 2008. With scores ranging from 0 “highly corrupt” to 10 “highly clean,” this ranking indicates that Turkmenistan is one of the most corrupt nations in the world. Of the 180 countries receiving a CPI ranking in 2007, only 13 received lower rankings than Turkmenistan. Though corruption takes many forms, Turkmenistan is mainly beset by problems of embezzlement and bribe taking. This is not surprising given the low salaries of law enforcement officials and the broad extent of their power. Numerous reports from human rights organizations have suggested the involvement of police and other high-level officials in bribe solicitation and narcotics smuggling.

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In 2002 former president Niyazov embarked on a campaign against corruption among the elite, during which more than 200 state workers were arrested. Although the government is ostensibly addressing the problem of corruption by regularly purging the government of corrupt officials, human rights organizations such as Freedom House have suggested that authorities exploit such campaigns to remove potential rivals and that they merely serve as a pretext for maintaining the current power structure.

Crime Statistics Relatively little information is available concerning the prevalence of crime in Turkmenistan. Although the government does not publish any crime statistics, the Overseas Security Advisory Council (OSAC) reported in 2007 that the overall crime rate is reasonably low. The center of Ashgabat was noted for being particularly low in crime because of the high police presence in the area. However, the OSAC reported that Turkmenistan’s burglary rate is rather high, likely due to the common practice among residents of keeping money at home rather than in a bank. Some statistics concerning the frequency of crime are available from international organizations. For example, the World Health Organization Mortality Database reports that the rate of registered homicides has hovered around 2 to 3 per 100,000 population for the period 1981 through 1998, with the male rate approximately double that of females. According to the Ninth United Nations Survey on Crime Trends and the Operations of Criminal Justice Systems, police recorded 373 intentional homicides in 2004 or 8.06 intentional homicides per 100,000 population. The United Nations Children’s Fund (UNICEF) also supplies information related to the incidence of crime in Turkmenistan. The UNICEF TransMONEE database, which contains data on the situation of children in Central and Eastern Europe, the Commonwealth of Independent States, and the Baltic States, provides estimates for Turkmenistan’s juvenile crime rate and total crime rate. The juvenile crime rate was 45 per 100,000 population in 2002 and the total crime rate was 169 per 100,000 population in 2002. These statistics should be interpreted


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cautiously given how little information about crime in Turkmenistan is made public.

Finding of Guilt The Office of the Procurator General supervises criminal investigations. The procurator general is appointed by the president to a five-year term. All regional procurators are also appointed by the president, although staff at lower levels is appointed by the procurator general.

Rights of the Accused The Turkmen Constitution guarantees equality of citizens before the law regardless of gender, religion, or nation of origin. It protects against arbitrary arrest and detention and violations of the home. It guarantees the right to remain silent, right to a public trial, and the right to appeal court decisions and sentences. The law also provides for rights of due process, including the right to call witnesses; the right to self-representation; the right to an attorney, courtappointed if necessary; access to government evidence; and the right to be free from double jeopardy. While Turkmenistan has guaranteed a number of rights to the accused, these rights are often disregarded in practice. For instance, the Constitution recognizes the right to professional legal assistance at all stages of the legal process; however, a number of sources, including the U.S. Department of State and the Library of Congress, have indicated that there is a shortage of independent defense attorneys in Turkmenistan. This problem is likely exacerbated by the fact that the Ministry of Justice has forbidden the establishment of an organized bar. Human rights organizations have also alleged that Turkmen authorities frequently deny the accused access to defense attorneys. Defendants have also been prevented from confronting their accusers, have often not enjoyed a presumption of innocence, and have been denied their right to a public trial. Defendants and their attorneys have also been denied access to accusatory materials and have been prevented from entering exculpatory materials into evidence. While the Constitution stipulates that evidence may not be acquired using psychological

or physical force or by unlawful means, Freedom House and other human rights organizations have observed that convictions are commonly based on coerced confessions, extracted through the use of torture and psychotropic substances. At times, state-sponsored television networks have been used to present suspects publically “confessing” their guilt. This practice was especially prominent following the attempt on President Niyazov’s life in November 2002. The International Helsinki Federation for Human Rights has suggested that torture and humiliation were used to obtain these publicized declarations of guilt. Although the state also guarantees equal protection under the law, numerous reports indicate that members of religious minorities, especially Baptists, Protestants, and Jehovah’s Witnesses, are subjected to harassment by authorities. The International Religious Freedom Report released by the Bureau of Democracy, Human Rights, and Labor reported that adherents to minority religions were threatened with fines, loss of employment, and imprisonment in 2007. Protections against arbitrary arrest and detention are also regularly violated. A warrant is not required for arrest. The chair of the cabinet of ministers, a position filled by the president, must approve those that are issued. Turkmen law dictates that suspects may be detained for up to 72 hours without a formal arrest warrant. Law enforcement officials are required to obtain an indictment within 10 days of arrest to continue holding a suspect. Bail is not an option in Turkmenistan. Once a bill of indictment is issued, the detainee’s right to counsel attaches. Turkmen law dictates that pretrial detention should last no longer than two months or, in exceptional cases, one year. However, the various limitations on pretrial detention are often exceeded. Authorities hold suspects for an average of two to three months before trial in pretrial detention facilities. Reports indicate that detainees are sometimes held incommunicado, leaving family members in the dark concerning their whereabouts. Some of the more egregious violations of the protection against arbitrary arrest and detention occurred subsequent to the attack on Niyazov’s motorcade in November 2002. In the months that followed, authorities


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detained several hundred suspects in addition to some of their families and friends.

The Turkmen Court Structure Turkmenistan does not use a jury system. All cases are tried by a panel of judges or, in some cases, by an individual judge. The basic structure of Turkmenistan’s court system has remained essentially unchanged since the Soviet era. It is composed of three separate levels—the Supreme Court, 6 regional courts, and 61 district and city courts. The Supreme Court, which is composed of 22 members, including a president, judges, and associate judges, hears cases of national importance only. The Supreme Court is separated into civil, criminal, and military chambers. The regional or appellate level is composed of five provincial courts (i.e., the Provincial Court of Ahal, Balkan, Dashhowuz, Lebap, and Mary) and a separate court for the capital city of Ashgabat. Lastly, the district and city courts, located within the provinces, hear cases concerning civil, criminal, and administrative matters. Criminal cases involving members of the armed forces are also tried in the district and city courts. Beyond these three levels, there are military courts, in which disciplinary cases are tried and those criminal cases involving crimes committed by and against military personnel, and the Supreme Economic Court, which settles disputes between enterprises and state agencies, as did the State Arbitration Court of the Soviet era. Information regarding Turkmenistan’s juvenile justice system is not widely available. A report by the UN Committee on the Rights of the Child indicates that persons under 18 are subject to the same criminal procedures as adults, that children may be held up to six months pending trial, that youth offenders are not always separated from adults, that confessions are sometimes extracted by force, and that deprivation of liberty is not always used as a last resort.

Punishment Types of Punishment The Constitution of Turkmenistan originally provided for capital punishment, but it was amended

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on December 29, 1999, by presidential decree. In its current form, the Constitution stipulates that no one may be deprived of his or her right to life. Prior to its abolition, the death penalty was reserved for the most serious crimes, such as intentional homicide, rape, genocide, treason, espionage, terrorism, and the illegal production, processing, acquisition, storage, and transportation of narcotic drugs for the purpose of sale. Today, the maximum sentence for these crimes is life imprisonment without possibility of parole, pardon, or amnesty. President Niyazov proposed life imprisonment as the new maximum shortly after the attempt on his life in 2002. Before that time, the 1998 Criminal Code of Turkmenistan allowed for prison sentences between 6 months and 20 years. On January 16, 2003, the National Assembly passed a decree allowing for life sentences in cases of treason. Under the new law, one may be classified as a traitor for harming or threatening to harm the president, questioning the authority of the president and his policies, and generally opposing the state. Other serious crimes are punishable by up to 25 years in prison. Sentences depend upon the level of violence involved and the offender’s record. In addition to confinement, Turkmen law allows for other penalties, including house arrest and internal and external exile. Exile is typically a punishment reserved for political opponents and former government officials.

Prison According to the Ninth United Nations Survey on Crime Trends and the Operations of Criminal Justice Systems, the total number of prisoners in Turkmenistan was 14,015 in 2004 and the prison population rate was 302.71 per 100,000 of the national population. Turkmenistan has 19 incarceration facilities, including traditional prisons, education-labor colonies, and correctional-labor colonies. All prisons are run through the Ministry of Internal Affairs. One of the more controversial prison facilities in Turkmenistan is Ovadan-Depe, an incarceration center located just outside of Ashgabat in the Kara-Kum (“black sands”) desert. Ovadan-Depe, meaning “Picturesque Hill,” was built in 2003 at


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the insistence of former president Niyazov to house his political opponents, mostly former state officials and persons implicated in the 2002 attack on his life. Niyazov had a hand in designing the prison and personally oversaw its construction. Reports suggest that he would take newly appointed state officials on visits to the facility as a warning of what would become of them if they were to question his authority. Accounts of the prison indicate that inmates live in terrible conditions and are subject to torture. On December 21, 2006, Niyazov’s death triggered a riot at Ovadan-Depe. After news of his death reached the prison, inmates demanded to be set free, banging on the prison bars with their dishes. Soldiers with trained dogs were sent in to take control of the situation; however, their presence merely encouraged the prisoners. In the end, the prison administration enlisted military aid to suppress the revolt. The Turkmenistan Helsinki Foundation for Humans Rights reported that 23 people were killed after servicemen with machine guns arrived on the scene. President Berdimuhamedow has since indicated that the prison will be demolished. Though unique in its inception and prison population, conditions at Ovadan-Depe are not exceptional when compared to those at other detention centers in the country. Prison conditions in Turkmenistan are generally poor. According to human rights organizations, the abuse of prisoners is a consistent problem. Countries have denied extradition requests made by Turkmenistan for this very reason. One high-profile case of prisoner abuse concerns the death in custody of Ogulsapar Muradova, a reporter for Radio Free Liberty and an activist for the Turkmenistan Helsinki Foundation. Muradova was convicted of illegal arms possession and antistate activities in August 2006 during a closed trial in which she was refused legal assistance. Amnesty International suggests that the charges against her were fabricated. On September 13, shortly after receiving a six-year prison sentence, Muradova was found dead. Although authorities maintain that she died of natural causes, witnesses said her body showed signs of torture. As of yet, there has been no independent investigation into her death.

Aside from prisoner abuse, a number of other factors contribute to the generally poor conditions of Turkmenistan’s detention centers. Prison facilities are badly overcrowded and unsanitary, producing outbreaks of tuberculosis (TB) and other infectious diseases. What’s more, inadequate medical care has prompted some concern that inmates are released prior to their being tested and treated for TB, thereby putting the larger community at risk for this disease. According to the World Health Organization, TB case identification rates in general rose in Turkmenistan from 58.6 per 100,000 population in 1980 to 79.3 in 1997. Food and water supplies are also insufficient. The Department of State Report on Human Rights Practices in Turkmenistan observed that inmates must often depend on family members to supplement their diets. Notably, those convicted of treason are forbidden from receiving provisions from their relatives. Access to prisoners by relatives and international organizations is frequently limited. According to Human Rights Watch, regular access to incarcerated family members is generally denied and some are held incommunicado. Visiting policies and privileges commonly depend upon one’s crime of conviction, with political prisoners having the most restricted visitation rights. Organizations such as the International Committee of the Red Cross, which has engaged in activities designed to fight drug-resistant tuberculosis in Kyrgyzstani prisons and to reduce the TB mortality rate in Azerbaijani prisons, have also been denied access to Turkmenistan’s incarceration facilities. Mass prisoner amnesties became a common occurrence under Niyazov’s regime and have continued to be a regular event under the direction of Berdimuhamedow, largely due to prison overpopulation. There were four prisoner amnesties in 1999 alone, one of which involved pardoning more than 10,000 inmates. Before their release, prisoners were required to pledge that they would refrain from criminal activity and be loyal to the Ruhnama, Niyazov’s “Book of the Soul,” during a televised event. In the same year, a law was passed regarding annual amnesty and pardoning that mandated an amnesty take place each year at the end of Ramadan, a Muslim holy


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month. While mass prisoner amnesties cut down on the overcrowding in Turkmenistan’s incarceration facilities, relief is short-lived due to the high number of arrests and lengthy prison sentences. The majority of the prisoners eligible for amnesty are petty felons. Those convicted of more serious crimes, including rape, murder, and terrorism, are officially barred from receiving pardons. Freedom House has suggested that, with the exclusion of political prisoners, such individuals are routinely freed after the payment of bribes. Therefore, it is not surprising that amnesties are generally followed by a rise in crime. For example, according to Freedom House, an amnesty in October 2005 was reportedly followed by an increase in the incidence of muggings and burglaries. Roughly two-thirds of the prison population (8,145 inmates) were released during that amnesty. Two mass pardons have occurred since Berdimuhamedow became president. Eleven prisoners were released on August 9, 2007, and 9,013 on October 9, 2007. Although these pardons did not include a significant number of political prisoners sentenced under Niyazov’s regime, a few high-profile inmates, including environmental activist Andrey Zatoka and three Jehovah’s Witnesses who had refused mandatory military service, were pardoned. Jennifer Lynn Owens and Janet P. Stamatel Further Reading Cummings, Sally N. (2003). Oil, Transition and Security in Central Asia. London: Routledge. Open Society Institute. Turkmenistan Project, a Division of the Open Society Institute’s Central Eurasia Project: http://www. eurasianet.org/turkmenistan.project/index. php?page=about&lang=eng. Siever, Eric W. Law and Environment Eurasia Partnership (LEEP). (1992, May 18). “Constitution of Turkmenistan.” University of Texas at Arlington. (Translated in 1997). http://www.uta. edu/cpsees/TURKCON.htm. Stalbovsky, Oleg, and Maria Stalbovskaya. A Research Guide to the Turkmenistan Legal System: GlobaLex: http://www.nyulawglobal.org/ globalex/turkmenistan.htm.

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Uzbekistan Legal System: Civil Murder: Medium Corruption: High Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background The Republic of Uzbekistan has a population of 27,780,059 as of July 2007, approximately 37 percent of this being urban and 63 percent rural. Common to Central Asia, the populace of Uzbekistan is quite young. It continues to be protected and supported by Russia even after gaining its independence from Soviet rule. On December 8, 1992, the republic replaced the Constitution of the Uzbek Soviet Socialist Republic, adopted in 1976, with a new Constitution oriented toward the development of private property and an open market economy. The new Constitution introduced a separation of powers into the legislative, executive, and judicial branches. The Constitution outlines the human rights provisions in 23 separate articles, comprising over 18 percent of the entire Constitution. These include protection of basic rights, including the right to life and personal inviolability; freedom of speech; protections against torture, arbitrary arrest and incarceration, forced labor; as well as the right to legal defense and a public judicial process. However, according to the World Organization against Torture (OMCT)—Europe and the Legal Aid Society human rights assessment in 2005, these changes have been largely cosmetic.

Policing The law enforcement system is led by the Ministry of Interior. Information regarding its personnel and budget is a state secret; therefore, there are no accurate data on the number of officials within the ministry. Human rights organizations estimate the total


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number reaching 200,000. This is nearly three times the size of the army. The responsibilities of this ministry include maintaining public law and order, firefighting, automotive inspection, passport services, and extension of visas for foreign citizens. Special units include those developed to combat terrorism and corruption and internal military units made up of troops trained to handle mass disorder and terrorism. The ministry enjoys a direct relationship with the president’s office. The public does not have the opportunity to oversee its activities because the mass media is given no access. The Library of Congress estimates that the Uzbeki police force is made up of about 25,000 individuals who are trained according to Soviet standards. Recently, the U.S. Department of Justice also began programs in the country to train law enforcement agents in Western techniques. The chief intelligence agency in Uzbekistan, the National Security Service (NSS), which is mainly staffed by former KGB personnel, is made up of approximately 8,000 paramilitary troops. Police are under direct control of the Ministry of Interior (MoI). Corruption, organized crime, narcotics, and other national security issues are handled by the NSS, which is run by a chairman who answers directly to the president. The Bureau of Democracy, Human Rights, and Labor reported in 2008 that, although human rights training is incorporated into the training of all officers, one of Uzbekistan’s most difficult problems is the corruption of law enforcement personnel. According to the World Bank’s Worldwide Governance Indicators, corruption is a severe problem in this country. There have even been cases in which false charges have been raised by law enforcement officers against individuals believed to have knowledge of corruption. Bribery of police agents as well as arbitrary detainment of citizens is commonplace. Bribery is even widespread within traffic enforcement. In a recent survey, reported by the Library of Congress, the majority of Uzbek citizens stated that bribery is a routine occurrence in not only police departments, but also in courts and in the office of the state procurator. Such abuses are investigated and disciplined internally, but the government rarely punishes law

enforcement agents involved in such undertakings. Narcotics and the trafficking of weapons are also believed to be sustained and supported by law enforcement and government officials. In this same survey, 25 percent of responding police agreed that other officers were in the practice of taking bribes or involved in the sale of narcotics. Bribery is not restricted to law enforcement and political figures. Judges are also often influenced by bribes when deciding civil suits. Common services in Uzbekistan also often come at a price. In the survey mentioned above, more than two-thirds of respondents stated that bribes were necessary to receive services that are intended to be provided for all citizens free of charge. For example, in 1993, it was determined that the cost of admission to a prestigious institution cost nearly twice the average annual salary in Uzbekistan.

Finding of Guilt Procurator/Prosecutor The Procurator’s Office functions to ensure consistent and accurate application of the law and to protect the rights and freedoms of citizens, including due process. It carries out investigations for many types of crimes and represents the state in prosecution. It is a centralized system of supervision, prosecution, and surveillance led by the procurator general. The procurator operates independently from the government, abiding only to the law. However, in practice, this office is controlled and influenced by the executive power, as the procurator general is appointed by the president for five-year terms. According to the Criminal Procedure Code (CPC), prosecutors oversee the inquiry and pretrial investigation of each case. Their responsibilities include ordering arrests; supervising investigation in regard to measures of restraint, search, and seizures; pretrial investigations; monitoring telephone and other communications; recommending sentences; and forwarding criminal cases to court. At trial, the prosecutor conducts the prosecution; expresses his or her opinion on the application of Criminal Code provisions, sentencing, and other issues including


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Alleged participants in an uprising in the city of Andijan sit behind bars during a trial in Tashkent, Uzbekistan, November 14, 2005. (AP Photo)

dismissing the case if he or she concludes that court findings show the defendant is not guilty.

Investigation Investigative agencies include the police; military commanders; national security service officials; head of punishment enforcement systems, penitentiary facilities, convict colonies, correction colonies, investigative isolation wards, and prisons; fire security officials; border guard agents; captains of seagoing vessels; and customs agents. Heads of these agencies have the power to initiate, or refuse initiation of, criminal cases and begin the process of inquiry. Under their supervision, inquiry officers conduct investigations into criminal cases as well as assist investigators throughout their investigations. Investigators of the prosecutor’s offices, internal affairs agencies, and the NSS conduct pretrial investigations. Investigators have the power to initiate

and discontinue criminal cases, detain and interrogate suspects, conduct investigations, prosecute, and impose measures of restraint. They also have the right to object to the decisions of prosecutors including classification of the offense, scope of the charge, imposition of detention as a measure of restraint, or dismissal of a case.

Public Accusers and Public Defenders Representatives from public organizations or communities are elected to act as public accusers or public defenders in court hearings. During court proceedings, public accusers and public defenders have the power to review case files, introduce evidence and participate in its examination, and file motions. Public accusers have the right to substantiate accusation while public defenders have the right to justify the crime or show mitigating circumstance.


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Local Self-Governance Issues can also be settled at the local level through the use of local self-governance organs. These are known as Mahalla Committees (mahalla meaning community). Decisions made in this capacity can be based on local interests, customs, and traditions as well as on national and spiritual values. Powers of these Mahalla Committees are kept separate from state power. However, in practice, state interests are upheld, as the chair of the Mahalla is paid by the state. One of the key principles of the Mahalla Committee is the preservation of families. These committees act as courts on family issues. This dedication to the family comes at a cost, though, as it is considered unacceptable for one member of a family to press charges or raise claims against another. Therefore, Mahalla Committees will deny abused wives permission to file a divorce, instead sending them home to their violent husbands. This is a clear violation of the law of Uzbekistan as well as a violation of the right to legal defense.

Judicial System There are a number of types of courts in the Republic of Uzbekistan, categorized by the nature of the cases each handles. These include the constitutional court, which reviews laws, decrees, and judicial decisions to ensure compliance with the Constitution; the Supreme Court with general jurisdiction, which handles cases of national significance; the Higher Economic Court, as well as economic regional and city courts; supreme civil courts as well as civil courts operating on the city, district, interdistrict, and provincial levels; supreme criminal courts as well as criminal courts operating on the city or district level; and martial courts. The legal system of Uzbekistan is based on the civil law system. The three branches of government act independently, and the judicial branch also operates independently from political parties and other community associations. However, the courts exercise little independence in practice, taking direction from the executive branch, particularly the General Prosecutor’s Office.

Judges are greatly influenced by the process of appointment and dismissal. After examination to prove qualifications, candidates are selected by the Judicial Qualification Commission under each court to then be interviewed by the Higher Qualification Commission. This commission is greatly influenced by the president, as all members of the commission are appointed by the president and are accountable to him. After candidate recommendation from this commission, final approval comes directly from the president. All terms last only five years. The removal of Supreme Court judges must be confirmed by Parliament, which is also greatly influenced by the president. This entire process is known for being nontransparent and almost entirely subjective. These processes are not only found in the Supreme Court, as judges in lower instance courts are also appointed by this process. In this way, the courts remain under complete control of the executive branch of government.

Trial Most trials are officially open to the public, although, in practice, access is often restricted. To gain access, it is necessary to obtain written permission from the court chairman or from the Supreme Court. This permission is both difficult to obtain and time-consuming. The government also limits the access of international observers at trials. Uzbekistan does not hold jury trials. Instead, a panel of three judges is selected to preside over each trial. These panels are chosen either by committees of worker collectives or neighborhood committees and consist of one professional judge and two people’s assessors. According to the CPC, the people’s assessors are entitled to all judicial powers but rarely participate in any active role, and the professional judge usually defers to the recommendations of the prosecutor on all matters, including those that are of a legal nature. For this reason, the role of the courts is often seen as of rather low standard. Judicial errors are numerous and defects in the work of the investigator and procurator are often left unnoticed. Beyond this, the possibility of acquittal is rarely considered.


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Juveniles In the past, Uzbekistan has had a separate law enforcement department to handle minors’ issues— the Inspection on the Issues of Minors, which was part of the Ministry of Interior, and there was a similar department on minors’ issues in the Procurator’s Office. Since 2001, these departments were abolished and their functions were transferred to local inspectors and special commissions within institutes of local self-governance. Currently, there are no special requirements for the arrest and detention of juveniles. Likewise, there are no separate courts for juveniles.

Rights of the Accused There are a number of rights specifically outlined within the CPC. These include the right to be free from violence, torture, or other cruel or degrading treatment as well as from acts or decisions degrading dignity, violating privacy, endangering health, or causing unjustified suffering. The law also protects the inviolability of dwellings and the confidentiality of correspondence and communications including mail and conversations both in person and over the telephone. These rights can only be legally violated in circumstances specifically outlined in the criminal code. The law mandates that all detainees be questioned within 24 hours and be afforded the right to remain silent. Formal charges must be made within 72 hours of detention, although the prosecutor has the option to extend this period for an additional seven days. After this extension, the individual must either be charged or released. As outlined in the CPC, once accused, an individual has the right to be informed of charges against him or her; to give testimony and provide explanations about the charges and circumstances of the case; to file motions and challenges; to introduce evidence; and to participate in investigative actions, with the permission of the inquiry officer or investigator. During criminal proceedings, through the use of interpreters, participants have the right to use a language over which they have a command for all communications including making statements,

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giving testimonies, and filing complaints. Appeals do not result in the reversal of convictions, but it is not uncommon for sentences to be reduced or suspended after appeal. All suspects have the right to defense from the moment of apprehension or announcement of their recognition as a suspect and to have unlimited confidential meetings with defense counsel in private. It is the responsibility of the inquiry officer, investigator, prosecutor, or court to inform the accused of his or her rights and ensure the individual has the opportunity to secure defense. If it can be shown that the suspect cannot afford the expense of this defense, the cost is covered by the state. The rights of the defense counsel are also outlined in the CPC. These include the right to be informed of charge against the defendant; to participate during questioning and interrogations of the defendant, witnesses, experts, and specialists; to introduce evidence; and to file motions, challenges, and complaints. Individuals have the right to serve as their own defense. However, in certain circumstances, it is mandatory that the suspect be aided by legal counsel. These include cases in which the defendant is a juvenile, has mental or physical disabilities, or has no command of the language. Legal defense counsel is also mandatory in cases regarding a capital crime. According to the 2007 Country Reports on Human Rights Practices, the above rights are generally observed in high-profile human rights and political cases. However, according to the Bureau of Democracy, Human Rights, and Labor, guilty verdicts are often the product of confessions and witness testimonies obtained through torture, threats to family members, or other types of coercion. Furthermore, this report claims that although the government is legally required to provide citizens with the opportunity to examine court documents and decisions, in practice, this information is not made available. This is in part due to the broad definition used for information considered classified, and thus protected, by the state. Other violations of rights are also commonly found within the criminal justice process. Inquiry officers and investigators often will not inform


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detainees of their rights but will have the individuals sign a form stating that they were informed of their rights. Also, although the law dictates that suspects be either charged or released within a set period of time, authorities will go so far as to file false charges against an individual to keep the person in custody beyond this time period. Defense lawyers often play a role of intermediary between the investigators, prosecutors, and judges, holding little influence on the judicial process in the absence of a jury. They often have limited access to case files and evidence and, in many cases, the defendant is not allowed to meet with legal counsel before being questioned by the prosecutor, at times under torture, according to the World Organization against Torture. When lawyers claim that confessions were brought about through coercion or torture, judges often refuse to investigate. According to the Country Reports on Human Rights Practices, state-appointed counsel is often incompetent and their involvement in the case is frequently limited to submitting confessions and mercy pleas.

Human Rights Violations The Constitution of the Republic of Uzbekistan outlines extensive human rights protections to Uzbek citizens. Legislation in the mid-1990s also enhanced individual rights. However, these rights are not evenly protected, and the government continues to suppress political movements, fabricate charges to justify the arrest of figures opposing the government, and ban independent media as well as unsanctioned public meetings and demonstrations. In 1996, the president founded the National Human Rights Center of the Republic of Uzbekistan. Headed by a director appointed by the president, the center’s functions include the preparation of national reports on human rights protections, ensuring cooperation between the Republic of Uzbekistan and international and national human rights organizations. Yet in 2003, the publication of the UN Special Report (UNSR) on torture drove the Uzbek government to develop further a strategy for the protection of human rights. The only concrete measure resulting from this plan has been a single revision made to the Penal Code to include

an article redefining torture and outlining its liability. Only a few offenders have been punished for the use of torture since this amendment. Human rights violations have especially victimized two target populations: 1. Muslim groups; members of religious organizations considered terrorist groups; human rights groups; opposition parties; and journalists reporting on the views of these groups. 2. Vulnerable people, such as women, children, socioeconomically marginalized individuals, and those accused or convicted of criminal activity. The most common violations of human rights are torture, arbitrary arrest, and restriction of freedom of speech. These rights are often violated by the same forces set up to protect them. Many reports have been made by international human rights organizations regarding cases of violence and torture in prisons, pretrial facilities, and local police and security service precincts in Uzbekistan. The government in Uzbekistan insists that torture is not systematic but the UN Committee against Torture (CAT) has concluded that torture and abuse were a systemic problem in Uzbekistan.

Crime Crime Statistics Uzbek police and security services do not supply official crime statistics for the country, so crime rates are not specifically known. Estimates vary, one such estimate by the United Nations Office on Drug Crimes claims that the total crime rate in 2005 was 300 crimes committed per 100,000 people, and another by the Embassy of the Republic of Uzbekistan puts this figure at only 146 crimes per 100,000 people as of June 2006. The embassy reports low incidents of many crimes compared to neighboring countries. However, according to the Uzbekistan 2007 Crime and Safety Report of the Overseas Security Advisory Council, violent crime is on the rise. Theft, robberies, and violent crimes are not uncommon, and it is believed that this is in part due to the economic conditions of the country. Also, each


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year thousands of prisoners are set free by government amnesty. Reports showed that in 2005, approximately 28,000 prisoners were pardoned. These individuals then find themselves without assets or stable income and often will return to a life of crime to survive.

Classifications of Crime Crime is defined in the Criminal Code of the Republic of Uzbekistan as any culpable socially dangerous act causing or inviting a real danger, either by action or inaction. Crimes are classified by character and degree of social danger. Four categories are used: insignificant social danger, less serious, serious, and especially serious. Those classified as crimes with insignificant social danger are any intentional crimes punishable by imprisonment up to three years as well as crimes committed unintentionally and punishable by imprisonment up to five years. Less serious crimes are intentional crimes punishable from three to five years and unintentionally committed crimes punishable by imprisonment more than five years. Intentional crimes punishable by 5 to 10 years’ imprisonment are classified as serious crimes and those punishable by more than 10 years are considered especially serious crimes. In Uzbekistan, only individuals aged 16 years or older and deemed sane at the moment of commission of the crime are subject to liability. One exception to this is in the case of intentional aggravated killing. For this crime, individuals as young as 13 can be held liable. Insane individuals by law are those who, due to a chronic or temporary mental disorder, could not be aware of the character of their actions and control them. If the court recognizes an individual as insane when committing a socially dangerous act, it can apply compulsory medical measures. Being under the influence of alcohol, narcotics, or other substances affecting cognitive functioning is not grounds to discharge an individual from criminal liability.

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• Assault is an intentional infliction of serious bodily injury endangering life, disfiguring the body, causing illness, interrupting a pregnancy, causing the loss of eyesight or hearing, or causing disability. Such acts are punishable with imprisonment from three to five years. An offender can be sentenced to up to 10 years if there are various aggravating circumstances. • Rape, sexual intercourse committed by force or threats of abuse, is punishable with three to seven years’ of imprisonment. This sentence can be raised to 10 years if there are multiple victims or multiple offenders, and up to 15 years if there are other various aggravating factors. Although the law prohibits rape, cases are rarely reported to the press, as cultural norms discourage women and their families from speaking openly about this topic. Marital rape is implicitly prohibited under the rape laws but never has such a case been known to be tried in court. • Robbery is punishable with correctional labor up to 5 years’ imprisonment and up to 15 years with aggravating factors, especially if organized. • Theft is defined in the criminal code as “larceny in secret” and is punishable with a fine up to 50 minimum monthly wages, correctional labor up to two years, arrest up to six months, or imprisonment up to three years. A larger sentence can be ordered in cases of pickpocketing or in cases in which the offender illegally entered a dwelling. • The intentional killing of another person is punishable by imprisonment from 10 and 15 years. Aggravated intentional killing is punishable with up to 25 years’ imprisonment. The intentional killing of a newborn child committed by the mother during childbirth or immediately thereafter is punishable with imprisonment up to three years.

Drug Crime Types of Crime The Uzbekistan Criminal Code defines the following major crimes:

Use of narcotic, psychotropic, or other substances that affect intellectual ability is punishable with correctional labor up to three years or imprisonment


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up to three years. A second offense is punishable with up to five years’ imprisonment. Individuals convicted of lesser drug offenses may be relieved of the penalty for their crime if they voluntarily surrender the substances.

MANUFACTURE AND SALE The illegal raising of opium, oil poppy, cannabis, or other plants that contain narcotic or psychotropic substances is punishable with a fine from 25 to 50 minimum monthly wages, correctional labor up to three years, or imprisonment up to three years. Punishment may be increased up to 20 years’ imprisonment according to the size of operation and type of drug and amount.

TRAFFICKING Uzbekistan’s central location makes it a prime area for narcotics trafficking. Since independence, border security has become more lax, allowing more drugs to be brought in and out of the country across the Afghanistan border, bound for Russian and Western European markets, according to the CIA World Factbook. At the same time, it is estimated that each year between 2,000 and 3,000 hectares (4,942 and 7,413 acres) of opium poppy is grown domestically. Cannabis is also increasingly problematic as it grows wild in Uzbekistan. Since the 1990s, drug sales have been increasingly connected to arms sales and funding of armed groups in neighboring Afghanistan and Tajikistan. Consequently, drug-related crime has risen significantly in Uzbekistan. In 2005, it was estimated that there were 31 drug-related crimes per 100,000 people. Since the 1990s, rates of domestic drug use have also sharply risen. In 1994, it was estimated by the Ministry of Health that the country had about 44,000 drug addicts. As of 2005, it was estimated that there were 74 registered drug abusers per 100,000 people. More than 64 percent of these individuals were heroin users. In 2005, there were 467 reported heroin seizures in Uzbekistan, 108 opium seizures, and 445 cannabis seizures, according to the United Nations Office on Drug Crimes.

Domestic narcotics processing was first recognized as a problem in 1995 when several kilograms of locally produced heroin were seized by authorities. In this year, the National Commission on Drug Control was established in Uzbekistan to raise public awareness and improve coordination between the National Security Service, the Ministry of Internal Affairs, and the State Customs Committee— all sharing jurisdiction in this arena. A new criminal code also outlined harsher penalties for drug-related crimes and the government’s eradication program was significantly expanded.

Punishment Measures of Restraint There are several different measures of restraint. These include allowing release on bail, recognizance to show good conduct, and personal surety. The court can also order a suspect into pretrial detention for the duration of the investigation. If a suspect is released on bail, the amount of bail is determined by the inquiry officer, investigator, prosecutor, or court. Bail can be paid with money, valuables, or immovable property. If the suspect violates the obligations of bail, the bail is transferred to the government and a more severe measure of restraint is applied. The most restrictive measure of restraint is pretrial detention. Detainees are kept in areas separate from the general population of individuals serving their prison terms. Within the areas used specifically for detainees, men are kept separately from women and juveniles from adults. Individuals believed to be especially dangerous recidivists are also kept separate from the others. In the cases in which the crime committed is classified as serious or very serious, defendants are held in prisons or in cells within investigation isolation wards. In some instances, defendants charged with the same offense or a series of interconnected offenses will be kept in separate premises. This measure of restraint is not used in cases of juvenile defendants or if the defendant is over the age of 60, severely ill, or has a psychiatric disorder.


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Defendants held in custody may be kept in detention facilities for no longer than 10 days. In the event that it is impossible to deliver the detainee to the investigation isolation ward within 10 days, the person may be kept in detention facilities for no longer than 30 days. Defendants can be held in investigation isolation wards for no longer than three months. After this time, it is necessary to seek approval for continued custody if it is impossible for the investigation to be completed in this time frame. The maximum allowable time frame with extensions is one year. This extension can only be granted by the general prosecutor. If there is a conviction, the court credits one day of commitment to a disciplinary unit or three days of correctional labor for each day of pretrial detention.

Penalties There are a number of possible punishments that can be ordered by the courts including fine, correctional labor, arrest, and imprisonment. Military servicemen are penalized by suspension from office or commitment to a disciplinary unit. An additional punishment of the deprivation of certain rights can be used as additional penalty or as the primary punishment. Fines range from 5 to 600 times the minimal monthly wages. Correctional labor can be ordered with terms ranging from six months to three years. If ordered to correctional labor, 10 to 30 percent of the offender’s salary is turned over to the state. The place of employment for correctional labor is determined by agencies in charge of the execution of the penalty. This form of punishment is not used for individuals who are pregnant, disabled, or on military service. Imprisonment is defined as isolation through the commitment to a prison or to what is known as a “colony of execution of penalty.” Imprisonment can be ordered for a time period of six months to 20 years. Colonies are categorized into three types: settled, general security, and high security. Settled colonies are used for individuals convicted of less serious crimes or those crimes deemed not socially dangerous. Those convicted of intentional less serious and

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serious crimes are held in colonies of general security, and high-security colonies are reserved for individuals convicted of especially serious crimes or those offenders who have been convicted of a crime for which they have previously been imprisoned. Also held in high-security colonies are those prisoners for whom, by an act of pardon, capital punishment was commutated to imprisonment. Compulsory medical measures may be also be ordered in cases in which the offender is found to be insane at the time of the act or has become mentally diseased before the sentence has been rendered or during the term of his or her sentence. The purpose of these measures is both treatment and prevention of further crime. These measures may include outpatient supervision and psychiatric treatment or in-patient treatment in a psychiatric institution. Compulsory medical measures may also be ordered for those suffering from alcohol, drugs, and toxic substances addiction. The courts also have the option of ordering a conditional conviction. If the court determines that a person sentenced to imprisonment, committed to a disciplinary unit, suspended from office, or sentenced to correctional labor may be corrected without serving the sentence, the court may decide not to execute the imposed penalty. This may be determined because of the nature and degree of the crime, the personality of the offender, or other circumstances of the case. In such a case, the individual will be placed under supervision for a period of probation. If during that period of supervision, there emerge no reasons for revocation of the conditional conviction, the original penalty will not be executed. Probationary periods range from one to three years. During this time, the offender may be ordered to compensate the victims of the crime, find employment, or enroll in an educational program. The individual may also be required to undergo alcohol or drug rehabilitation or be restricted from going to certain places. Conditional conviction cannot be ordered in cases of especially serious crimes or repeat offenders unless the offender is a juvenile, disabled, female, or over the age of 60. Conditional early release may also be ordered if the offender has completed one-third of a sentence


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for a less serious crime, one-half of a sentence for a serious crime, or two-thirds of a sentence for an especially serious crime. Conditional early release is not allowed in cases in which capital punishment was commutated to imprisonment or in cases in which the offender is considered a dangerous recidivist or is known to participate in an organized criminal group. It is also not allowed in cases of aggravated intentional killing, rape, crimes against the Republic of Uzbekistan, smuggling of weapons of mass destruction, or smuggling of drugs. A first-time offender who commits a minor or less serious crime may be relinquished entirely from liability for the crime if the offender has undone the damage caused by the act; surrendered to authorities and admitted his or her guilt; repented for his or her behavior and reconciled with the victim; and assisted in the detection of the crime. Crimes for which this discharge of liability is possible include intentional infliction of medium or trivial bodily injury, infliction of intentional serious bodily injury in the heat of passion, infliction of unintentional serious or medium bodily injury, professional negligence, neglect of the helpless, failure to take care of a minor or disabled person, insult, infringement of copyright, larceny by embezzlement, fraud, theft, and the intentional destruction or damage of property.

Capital Punishment Capital punishment through firing squad was once allowed as penalty for an intentional aggravated killing, aggression, genocide, and terrorism. The death penalty could not be imposed on men over the age of 60 or below the age of 18 or on women. Although exact numbers cannot be found, Mothers against the Death Penalty and Torture estimates that, in the recent past, well over 100 people were executed each year in Uzbekistan. Families of those sentenced to execution were given no notification by the government of the sentence, the date of execution, or the burial place. This was deemed cruel and inhuman by the UNSR on torture. Furthermore, it was noted in the Country Reports on Human Rights Practices that local and international observers reported that

those sentenced to death often did not have adequate legal defense and were not given adequate opportunity to appeal their sentence after conviction. As of January 1, 2008, legislation was adopted abolishing the death penalty and replacing it with terms of imprisonment ranging from 20 years to life, which by Uzbek law is equivalent to 25 years. This legislation mandates that prisoners sentenced to life must serve 20 years before making their first appeal. It also limits lifetime imprisonment to those individuals convicted of premeditated murder and terrorism. Those offenders sentenced to life imprisonment are held under incredibly harsh conditions and allowed only one short meeting with family and one telephone call each year during the first 10 years of the sentence, according to Kuban Abdymen writing for the Inter Press Service in 2008. He also reports that after the death penalty was abolished, Amnesty International requested that Uzbek authorities release details regarding the past operation of the death penalty, including the sites of burial, but this information has not yet been obtained. However, according to Penal Reform International, some human rights activists have estimated that about 1,000 prisoners were on death row when the punishment was abolished.

Juvenile Punishment There are two types of correctional facilities used for juveniles: general and high security. Upon a male juvenile’s first offense, he will be sentenced to a general security facility. After subsequent offenses, he will serve his sentence in a facility of high security. Female juveniles, on the other hand, are always held in colonies of general security. When determining sentencing, the court will consider such things as the minor’s level of development, personality, life conditions, and reasons for commission of the crime. If sentencing a juvenile to imprisonment or correctional labor, the court may decide to impose a conditional conviction in much the same manner as it would for adult offenders. If it is determined that correction is possible without penalty, for reasons related to the nature of the crime, the individual’s personality, or other


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circumstance, the court may discharge a first-time juvenile offender from liability if the crime was of a minor social danger. If it is determined that, due to underdevelopment, the juvenile was unable to fully understand the consequences of his or her action, the court is obliged to consider substituting compulsory measures for the penalty. These measures may include offering an apology to the victims of the crime, compensating the victims for damages caused by the crime, or commitment to an educational colony. Punishments for juveniles include fine, correctional labor, arrest, and imprisonment. Fines can range from 2 to 20 minimal monthly wages; correctional labor (imposed only on employable juveniles) can range from one month to one year; and arrest periods can range from one to three months. Juveniles can be sentenced to a maximum of 10 years’ imprisonment for the most serious offenses. Like their adult counterparts, juveniles may be eligible for conditional early release from imprisonment or correctional labor under certain circumstances. After completing one-quarter of the sentence for a less serious crime, one-third of the sentence for a serious crime, or one-half of the sentence for an especially serious crime, conditional early release may be allowed.

Prisons According to prison officials reporting to the United Nations Office on Drug Crimes, as of 2004, there were 168 prisoners per 100,000 people in Uzbekistan. As of 2007, approximately 34,000 inmates were held at 53 detention facilities throughout the country. Prison conditions are very poor and potentially life-threatening, as tuberculosis and hepatitis are widespread. Accurate numbers of infected prisoners cannot be found as international health organizations and other outside monitors are not granted access to assess the situation. Reports of severe abuse are commonplace and prison overcrowding remains a problem. In many cases, prisoners are held for extended periods of time without any communication with family or attorneys. Many prisons do not have enough food or medical supplies for

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the inmates, and prisoners must often rely on visits from relatives to obtain food and medicine.

Religious and Political Prisoners In the Country Reports on Human Rights Practices published by the Bureau of Democracy, Human Rights, and Labor, it was reported by human rights activists that political prisoners and members of banned religious extremist groups were held in specially demarcated sections of prisons under harsher conditions, subjected to more horrid treatment than other prisoners as well as undergoing particularly severe interrogations. In a 2003 interview with an Uzbek political prisoner reported by the UN Office of Humanitarian Affairs, it was stated that, during his sentence, political prisoners were treated much more harshly than other inmates, being tortured, humiliated, left in the cold of winter without outerwear, forced to perform tasks that were filthy and degrading, and given rotten food and undrinkable water. Those inmates known for opposing the government are even subjected to beatings from other inmates who are persuaded, and at times even paid, by authorities to inflict such treatment. Further reports stated that prisoners convicted of religious extremism are often not released after completing their sentences. This is accomplished by fabricating claims of crimes committed while imprisoned, thus extending prison terms. The international NGO, Human Rights Watch, claims that more than 15 political prisoners have been tortured to death in prisons in Uzbekistan since 2000. A large number of inmates in Uzbekistan are political prisoners. Although it is impossible to know the exact number, human rights activists believe that the number of political prisoners sentenced each year is more than the number of these prisoners given amnesty or released after completion of their sentence. The majority of these prisoners are being held on charges of anticonstitutional activity, involvement in illegal organizations, or preparation or distribution of material threatening of public safety. Others are convicted of extortion and hooliganism, especially human rights activists or journalists who are penalized to repress their freedom of speech.


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Extraditing Offenders Citizens of the Republic of Uzbekistan, as well as those permanently residing in Uzbekistan, are held liable for crimes committed outside the republic if a court in the country where the crime was committed has not sentenced them. An Uzbek citizen cannot be extradited for a crime committed on a foreign state’s territory unless in accordance with international treaties or agreements. Kristen Lee Hourigan Further Reading Abdymen, Kuban. (2008). Death Penalty: Uzbek Abolition Draws Line under Past. Inter Press Service: http://ipsnews.net/news.asp?idnews=40819. Combating Crime in CIS Countries: Through Lens of Statistics. Embassy of the Republic of Uzbekistan Web site: http://www.embuzisr.mfa.uz/ modules.php?op=modload&name=News&file= article&sid=2221. IRIN News: UN Office for the Coordination of Humanitarian Affairs: Interview with Former Uzbek Political Prisoner Jora Murodov, September, 16, 2003. Muslim Uzbekistan Web site: http://muslimuzbekistan.net/en/centralasia/ genocide/detail.php?ID=514.

Vietnam Legal System: Civil/Socialist Murder: Low Corruption: Medium Human Trafficking: Medium Prison Rate: Medium Death Penalty: Yes Corporal Punishment: No

districts, and villages, and 5 municipalities. Hanoi is the political capital of Vietnam, and Ho Chi Minh City is considered the center for economic and industrial development. In the last 20 years, Vietnam experienced tremendous social changes as a result of renovation (or doi moi in Vietnamese), which moved the country’s economy toward the market system, facilitated urbanization, and increased consumerism. Up until the late 1980s, the political and economic organizations in Vietnam had certain features in common with those in the Soviet Union and the socialist states of Eastern Europe. Under this system, the ruling party, the Vietnamese Communist Party, exercised a monopoly of control over the state bureaucracy, armed forces, and mass organizations. Party members were appointed to overlapping leadership positions in the government bodies. Consequently, the party penetrated and controlled all legal agencies, set their goals and objectives, determined their structures, and approved their leading personnel. Since 1986, Vietnam has formally embarked on a program of renovation that involved the restructuring of the economy and the reforms of political and legal institutions. The most dramatic reform occurred in 1992 with the creation of a new constitution that recognized five economic sectors, including the private sector. The 1992 Constitution emphasized the democratization of society and its institutions through legal and constitutional reform and the development of a new legal framework to regulate domestic economic activities and foreign investment. The 2001 amendment to the 1992 Constitution increased the role of the National Assembly and accelerated the reform of the state apparatus. Despite many changes in the Constitution, the Socialist Republic of Vietnam remains a oneparty state under the leadership of the Vietnamese Communist Party.

Background The Socialist Republic of Vietnam, with an area of 331,114 square kilometers (127,844 square miles) has a population of more than 82 million. It consists of 59 provinces, which are subdivided into towns,

Legal System The current Vietnamese legal system follows the Roman-Germanic, or Continental tradition, with French, Chinese, and socialist inheritances. The first


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penal code since the country reunification was enacted in 1985, followed by the Criminal Procedure Code enacted in 1988. Within more than 10 years, five revisions were made to the Penal Code (1987, 1991, 1993, 1997, and 2000) and four to the Criminal Procedure Code (1990, 1992, 2000, and 2003). The Penal Code reflected the country’s political system as socialist in the East European style of socialism. Consequently, it was closer to East European than to the West European variant of the Continental tradition. French influence was found in the inquisitorial style of criminal investigation and trial. The influence of the socialist system is evident by a lack of separation of powers as seen in the United States and other Western cultures. Chinese culture, particularly Confucianism, has its imprint on the definition of crime, determination of crime seriousness, and the severity of treatment based on Confucian principles of hierarchical social relationships. For example, crimes committed against family members, particularly parents and grandparents, are considered more serious than if they are committed against strangers. Prior to 1985, legal analogy, the practice whereby a person could be punished for an act analogous to an offense made criminal by legislation, had been used in Vietnam due to a lack of criminal laws. This practice has been eliminated by the Penal Code.

The Police In Vietnam, crime detection and fighting, law enforcement, and peacekeeping activities are treated collectively under the heading of “public security.” Four clusters of agencies with different organizations in urban and rural areas are responsible for crime prevention and the maintenance of public order and internal security. The People’s Security Force or the People’s Police (Cong An Nhan Dan), which is a law enforcement agency in the same sense as the term used in the West, operates primarily in urban areas. Its responsibilities include maintaining public order and security, protecting public property as well as lives and property of individuals, and preventing crime. The People’s Police are authorized to arrest, temporarily detain and release suspects,

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and search people and their homes and belongings. Since the mid-1980s, responsibilities of the People’s Police have also included traffic control, residence registration, immigration and border control, counterespionage, and counterreactionary activities. In 1997, the antinarcotic police force was established at the central level with 21 provincial branches to deal with increased illegal drug activities. The second cluster of law enforcement is the plainclothes or secret police. In rural areas, the People’s Public Security Force (Luc Luong Anh Ninh Nhan Dan) is responsible for both law enforcement and internal security. In addition, each village administrative committee has a security section composed of trusted party members who are concerned with surveillance and detection of suspects. The security section receives considerable amount of information from local residents who are encouraged by the Constitution to participate in law enforcement and crime prevention. Villages also maintain their own local watchmen for patrol and guard duties. The last cluster is the People’s Armed Security Force (Luc Luong Vu Trang Nhan Dan), a quasimilitary organ that operates mainly in villages and rural areas and is concerned with both crime and antistate activities. Although official information about the size of law enforcement is considered a national secret by Vietnamese government, it was estimated in 1987 that the People’s Army Security Force had at least 500 personnel in each province with a total of more than 20,000. The responsibilities of the People’s Armed Security Force tend to overlap with those of the People’s Public Security Force because no sharp division exists between the internal security duties of the People Armed Security Force and those of the civilian People’s Public Security Force.

The Procuracy The Vietnamese Constitution provides for a prosecutorial system (also called the procuracy or Kiem Sat in Vietnamese) to oversee the compliance with the law by ministries and other state bodies and to exercise the power of public prosecution in both criminal and military courts. Thus, within the legal


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system, the procuracy plays a double role, working as a prosecutor while also reviewing the work and decisions of the court. Since the application of renovation policies in 1986, the organization of the procuracy has received increased attention from the government. After a series of reforms within the context of renovation and consistent with the Constitution, the prosecutorial system now consists of a three-level hierarchy that matches the three levels of court. At the top of the hierarchy is the Supreme People’s Procuracy (Vien Kiem Sat Nhan Dan Toi Cao), which contains 22 subordinated bodies, including specialized tribunals for criminal, civil, economic, and administrative cases. The Supreme People’s Procuracy is headed by the procurator general (chief prosecutor). This office is independent from the Ministry of Justice, and the chief prosecutor answers directly to the National Assembly. About 150 prosecutors and legal specialists work in the Supreme People’s Procuracy Headquarters in Hanoi. Two branch offices in Danang and Ho Chi Minh City have 200 staff. The chief prosecutor and prosecutors at the Supreme Court level are appointed by the National Assembly. The Supreme People’s Procuracy is in charge of prosecuting extremely serious or complex cases that are initially tried by the criminal tribunal of the Supreme People’s Court (e.g., mass homicide; government officials charged with corruption offenses that could result in the death penalty). Below the Supreme People’s Procuracy are procuracies in 53 provinces with more than 1,500 procurators. Provincial procuracies are responsible for prosecuting criminal cases that fall outside the jurisdiction of district people’s courts (e.g., serious crime against national security). The third level consists of 600 local procuracies, which are located in rural districts, provincial capitals, large towns, and urban districts. Local procuracies are staffed by more than 3,000 district procurators. Women account for 40 percent of all prosecutors at the provincial and local level. Each local procuracy is headed by a local procurator general who reports to the Supreme People’s Procuracy in Hanoi and local people’s councils via the provincial procuracy. Normally, district procuracies are in charge of

prosecuting offenses punishable by imprisonment for no more than seven years. Provincial and district prosecutors are appointed by the chief prosecutor.

The Court Vietnam has a three-tiered judicial system. At the top is the Supreme People’s Court (Toa An Nhan Dan Toi Cao) headed by the chief justice who is appointed by and reports to the National Assembly. The Supreme People’s Court, which is the highest court of appeal and review, consists of a Council of Judges, a Committee of Judges, and six specialized divisions, including a criminal division. The Board of Judges and the Committee of Judges have particular responsibilities with regard to developing and disseminating new laws and policies. The Board of Judges is responsible for reviewing decisions of the Committee of Judges, guiding courts on the application of laws, guiding the conduct of trials, and drafting bills for submission to the National Assembly. The Committee of Judges is responsible for reviewing decisions by lower courts, guiding courts in the implementation of resolutions issued by the Board of Judges, and approving the chief justice’s reports prior to their going to the National Assembly. In addition, the Supreme People’s Court issues guidance to lower courts, either as circulars or as statements. Under the Supreme People’s Court are provincial people’s courts, people’s courts in the cities that are directly under the central government (e.g., Hanoi, Hai Phong, and Ho Chi Minh City) as well as people’s courts in districts, precincts, and towns. In 2004, nearly 4,000 judges served at the district-level people’s courts. People’s courts at all three levels can be courts of first instance. The Supreme People’s Court can be a trial court for cases that have national level of importance. Courts at higher levels have to review decision of lower courts and guide them in making correct decisions. Essentially, decisions are reviewed to see whether they protect the people’s democratic regime; protect social order, public property, and legitimate interests of the people; and contribute to the construction of a socialist society.


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There are two main types of judicial officers working within the Vietnamese court system: judges and people’s assessors (lay judges or jurors). In 2004, Vietnam had 3,700 district judges. Prior to 1992, judges were elected by the National Assembly and local People’s Committees. As the selection of judges could have negative influences on judicial independence, changes were made to the recruitment and administration of judges. Since 1992, judges have been appointed, rather than selected. In 2002, the authority over local courts was transferred from the Ministry of Justice to the Supreme People’s Court. Both movements were aimed at increasing judicial independence. However, due to a lack of the separation of powers among branches of government, and due to the influence of the party on the outcomes of cases that involve perceived threat to the state or the party’s dominant position, there is little evidence that these changes can help achieve judicial independence. The second group of judicial officers in the Vietnamese court system includes people’s assessors. The use of people’s assessors was introduced to Vietnamese courts in the late 1940s after Ho Chi Minh declared independence from France. The role of the people’s assessor was to assist judges to reach a decision that reflected the will of the people. Originally, people’s assessors were explicitly connected to the socialist revolution. This practice still exists today, as people’s assessors are recruited among members of local committees affiliated to the party.

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Crime Classification of Crimes Crime is defined as an act that not only contains the elements prohibited by the Penal Code but also that causes harm to the state, the socialist economy, and/ or the rights of citizens. Crimes are classified under nine categories as follows: 1. Crimes against national security with the punishment ranging from three years of imprisonment to a death sentence. These crimes are broadly defined to include nonviolent acts in opposition to the socialist regime, such as

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“making, storing and/or circulating documents and/or cultural products with contents against the Socialist Republic of Vietnam.” Crimes against persons and human dignity, which include murder, rape, assault, assisting suicide, and spreading HIV, are crimes against human life and health. Slander and defamation are also crimes against human dignity, as are illegal arrest and search. The seriousness of crimes against persons is determined by the age of the victim, family relationships, and the influence of cultural practices. Murder is punishable by long prison terms or death, but murder of a newborn is treated more leniently. In this case, the offender will face noncustodial reform for up to two years or three months and two years of imprisonment. Various aggravating circumstances are also recognized and result in increased punishment. Property and economic crimes, which are divided into two groups. The first group is crimes against ownership rights, including robbery, kidnapping for ransom, extortion, theft, vandalism, swindle, and embezzlement. The second group includes a wide range of behaviors in violation of economic and business rules and regulations, from smuggling, illegal production, illegal business, tax evasion, speculation, loan sharking, and counterfeiting to making false management reports and advertisements. The Penal Code distinguishes the severity of punishment between theft from the state, which receives harsher penalty, and theft from individuals, which receives a less severe penalty. Crimes against marriage and family institutions include incest, mistreatment of parents, bigamy, child stealing, organizing and arranging child marriages. Drug crimes, which include growing plantbearing narcotic substances; illegal production, transportation, storing, and trading drugs; organizing drug use (e.g., drug houses or opium dens); and harboring illegal drug use (leasing or renting property used in organizing drug use). Long prison terms or life


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sentences can be applied to those who are convicted of producing, transporting, storing, or trading drugs, and the death penalty can be used for drug crimes involving large amounts of drugs (e.g., 600 grams of heroin or cocaine powder). On the other hand, drug users and drug addicts are considered victims, rather than criminals, and they are required to undergo compulsory medical treatment in rehabilitation and reeducation centers. Relapse into drug use is punishable up to five years of imprisonment. 6. Crimes against public safety and public order, which include violations of vehicle and road safety, hijacking, computer-related crime, gambling, prostitution, pornography, and money laundering. The law only prohibits promoting and procuring prostitution (clients), who can face imprisonment up to five years. Being a prostitute is not considered a crime; they are seen as victims rather than criminals and are required to undergo treatment and job training. Both engaging in gambling and organizing gambling are criminal behaviors. Light sentences, including warning, noncustodian reform, fines, or a prison term up to two years can be applied to gamblers, but harsher sentences (fines or a prison terms up to five years) can be applied to gambling organizers. Although abortion is legal in Vietnam, the Penal Code indicates that illegal abortion is a crime punishable by imprisonment up to five years. However, the Penal Code does not explain what constitutes illegal abortion. 7. Violations of administrative orders and regulations, which include evading military service, deliberately and unintentionally disclosing state secrets, forging documents, violations of media production and distribution regulations, and illegally entering or leaving the country, are punishable by imprisonment of several months to several years. 8. Position-related crimes and violations of judicial duty, which are crimes resulting from abuse and misuse of authority such as corruption, bribery, embezzlement, disclos-

ing state secrets, and losing state documents. A desire to curb widespread corruption has led to the creation of harsh sentences for corruption-related offenses. Embezzlement of state property worth VN$500 million (US$33,000) or more and receiving bribes worth VN$300 million (US$20,000) or more are punishable by life in prison or a death sentence, in addition to possible fines and confiscation of the bribed property. Crimes related to the violations of judicial duty are punishable with up to 10 years of imprisonment. 9. Environment crimes (pollution), crime against peace and humanity, and war crimes. Punishment ranges from prison terms for pollution to death for war crimes.

The Extent of Crime and Crime Statistics Limited statistics from the government’s news agency show that between December 2006 and October 2007, more than 43,000 cases of various crimes were reported to authorities, but the true figures may be much higher. Research conducted in the mid-1990s indicated nearly 70,000 crime incidents per year, with half of these crime incidents occurring in Hanoi and Ho Chi Minh City, and more than 70 percent of apprehended criminals were between the ages of 14 and 28. Since the implementation of renovation programs, crime incidents have increased substantially. Changes in the country’s economy resulting from a movement toward the market system, rapid urbanization, and a lack of emphasis on the rule of law have created an environment for illegal behaviors to flourish. For the period between 1990 and 1997, murder increased 25 percent and robbery 18 percent. Other serious violent crimes, including assault and robbery, and gang activities are on the rise. In 2007, an estimate of 250 gangs with more than 1,200 members were located and had activities in Ho Chi Minh City, a crime hot spot, in addition to other thousands of mobile gangs whose members frequently moved from one locality to another. Since 1990, there has been an increase in several types of crime that rarely occurred before, such as


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killing and assaulting for hire, assaulting teachers, and child prostitution. Illegal behaviors associated with the market system, such as tax evasions, false advertisement, and violations of business management regulations, are also on the rise. Despite increases in violent crime, the most common crimes in the renovation era are property and economic crimes. Between 1990 and 1997, trading illegal products increased 56 percent. The widespread availability of counterfeit goods, including fake fertilizers that have caused harm to many farmers, is a massive problem. Smuggling is a big business in Vietnam with many items, including television sets, videos, and automobiles, coming across the long borders with China, Cambodia, and Laos, or arriving by sea. The smuggling of hardwood timber out of Vietnam has been a big business and a major cause of the destruction of Vietnam’s forests. Corruption is a widespread problem in Vietnam. Party cadres and members have committed numerous violations of economic rules and regulations. An estimate of 26 percent of party members have violated economic regulations, and this figure could be as high as 45 percent in Ho Chi Minh City. Given the low pay for government officials, it is not surprising that bribery of officials is a major problem. The lenient sentences imposed on convicted officials are among reasons that corruption has not been curtailed. The lack of an independent judicial system is another reason. Judges and members of the jury (people’s assessors) are often under strong pressures from the local party organization or governments. Besides increases in economic crimes, drug crime is one of the top concerns among government officials. From 1990 to 1997, drug crime incidents increased 110 percent. In the six years between 2001 and 2007, law enforcement agencies arrested 119,286 drug offenders involved in 76,443 drug cases (an average of 20,000 arrests per year), and the court tried 55,663 drug cases involving 77,348 offenders (an average of 10,000 cases per year). The growing of opium poppies and the distribution of heroin have constituted the most serious drug problem in Vietnam. Law against drugs in Vietnam is considered one of the harshest in the world, and it is not uncommon for young men who are caught transporting or selling

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drugs to be executed, but drug trade, trafficking, and usage have not decreased. In 2007, the number of drug addicts was estimated around 170,000; another unofficial estimate indicated that the number of heroin users alone was 160,000, and these numbers are expected to rise in coming years.

Finding of Guilt Legal and Procedural Safeguards Although certain concepts in Western laws such as “proof beyond reasonable doubt” have no equivalent in the Vietnamese system, the Constitution and the Criminal Procedure Code contain a number of provisions that set out guarantees and respect for the rights of the defendant. The Criminal Procedure Code places the burden of proof on the state. Other protections and safeguards include the presumption of innocence; protection from illegal arrest, search, and seizure; the right to legal counsel; the right to an impartial criminal proceeding; and the right to appeal. The role of a jury in the criminal justice process in Vietnam is not the same as it is in the United States where a jury can decide either guilt or sentence or both. In Vietnam, both jurors and trial judges make decisions on guilt and sentences, and the law provides guarantee for the participation of the jury in criminal proceedings. Actual practices do not often match up with laws in the book, however. Government officials often avoid or nullify these rights and guarantees. A lack of knowledge about the law, unfamiliarity with the rights guaranteed in the recent Constitution, and judicial incompetence have reinforced the reluctance of judicial officials to recognize these basic rights and safeguards. In addition, the continuous control by the party over the state also serves as a barrier to compliance with the rule of law.

Investigation According to the Criminal Procedure Code (article 110), criminal investigations are carried out by the People’s Police. Under some situations, other investigating bodies may be involved, such as the People’s Procuracy or the People’s Army. The procurator


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has a supervisory role to ensure that investigations are conducted in compliance with the law and in a manner that does not infringe on the rights of the defendant. When there are grounds to believe that a person has committed a crime, the investigating body will file a criminal case against the defendant. The document must clearly state the time and the place of the filing decision and the details of the offense charged. A copy of the document must be sent to the defendant and advise him or her of his or her rights and obligations. These rights include the right to request a change of persons who conduct the criminal proceedings on the grounds of conflict of interests and the right to retain counsel of his or her own choice. During the investigation, investigating officials may conduct search and seizure and/or order arrest and preventive detention. Arrest and search warrants are issued by a procurator, an assistant to a procurator, a judge, or an assistant to a judge. After making an arrest, the police must question, interrogate, and obtain statements from the suspect immediately. However, there are exceptions to the requirement of arrest warrant. The police can make arrest without warrant when they believe that a crime is in progress or if a suspect is accused of rape, murder, attempt to overthrow the government, or other serous crimes, or if the police believe that the suspect may destroy evidence or flee. Additionally, a warrantless physical examination of a person under arrest may take place when there is strong grounds to believe that this person is hiding on his or her body something that should be seized.

Bail and Preventive Measures The decision to grant bail is made by either a procurator, a judge, or a chief of law enforcement at the provincial level based on the seriousness of crime committed and the likelihood that the defendant will flee. Release awaiting trial can be obtained through sponsorship by relatives, friends, an agency, or a business or by depositing a sum of money or a property. Due to a lack of emphasis on the principle of separation of powers, the rules on bail and preventive measures, which give procurators and chiefs

of law enforcement the authority to decide on bail or pretrial detention, cause serious conflicts of interest and are inconsistent with the International Covenant on Civil and Political Rights (article 9.4).

Criminal Defense The Constitution (article 132) and the Criminal Procedure Code (article 11) guarantee the right to criminal defense. Although the law guarantees the right to legal counsel, the implementation of the law raises several important issues. First, defense lawyers must have approval from criminal justice officials to do their job. Second, defense lawyers are not always able to participate in all critical stages of the criminal process. In principle, defense lawyers can assist all suspects after arrest and during the initial investigation by the police. In reality, investigative agencies often question or interrogate the suspects without the presence of legal counsel, and in only few cases are lawyers able to participate from the beginning of the investigation. Lawyers and attorneys are placed under the control and administration of the Ministry of Justice. Barristers (legal advocates), solicitors (legal consultants), and lay advocates can defend before Vietnamese courts. As of 2007, nearly 3,700 lawyers belonged to 61 provincial bar associations. These lawyers had diverse legal training in different legal systems, including USSR, French, and Vietnamese, and many lawyers have training that cannot be applied to new situations in Vietnam. The shortage of legal counsel poses serious problems to the exercise of the right to legal counsel for many groups. Prior to 2007, defendants did not have a right to an appointed attorney except in capital cases and cases in which the suspects were mentally ill or under the age of 20. Thus, indigent defendants who did not fall into one of these three categories were most likely to go through the criminal justice process without the benefit of legal counsel. A new law on legal aid, which was enacted in June 2006 and took effect in January 2007, expands the list of persons eligible for legal aid service to include the poor, war veterans, lonely elderly, people with disability, orphans, and ethnic minorities living in economically


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disadvantaged areas (article 10 of Law on Legal Aid). In principle, judges and the procuracy can ask a provincial bar association to select an attorney if the suspect does not have one. Members of bar associations have a constitutional duty and are supposed to be dedicated to helping criminal defendants. For the most part, however, the provision of legal aid is not systematic. In 2007, an estimated 3,400 lawyers served in 64 legal aid centers at the city and provincial levels, providing legal consultation, legal defense in court, and legal counsel outside the court for those who were eligible. This number was considered too small to meet the demand. In many provinces, only 2 to 10 lawyers agreed to work for legal aid. Young lawyers who received the most recent legal training often refuse to work for legal service in remote areas due to low salary and poor working conditions. The quality of legal counsel is also influenced by the level of professionalism. Laws in Vietnam were not codified until recently. By 2002, several legal information databases were established in the Office of the National Assembly, the Government Office, and the Ministry of Justice, but each legal database was incomplete, was not linked to the Internet, and was not well maintained. Consequently, there is no comprehensive and accessible compendium of national legal databases and court decisions for lawyers as well as other legal professionals to consult. In addition, the power of the party and its members at all levels, as well as a lack of respect for the rule of law, render professional skill less important. For many Vietnamese lawyers, the most crucial aspect of successful advocacy work is a good relationship with judges. It is not uncommon in Vietnam for legal counsel to visit a judge before a hearing to explain the evidence, and it is not unusual for judges in tort cases to be offered a fee linked to the case outcomes.

Criminal Prosecution The chief procurator, or his or her deputy, has the authority to file and dispose of cases. When the procuracy receives a file from the investigating body, it must decide whether to prosecute the defendant

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and issue an indictment decision, remand the case for additional investigation, or suspend the case either temporary or permanently. This decision must be taken within 30 days, but in case of necessity, the procurator general is allowed one extension of no more than 30 days. This prosecutorial rule raises concerns about the violation of human rights because the detention period can be imposed twice without the benefit of a court hearing and because a person can be detained for 60 days without formal charges against him or her. In reality, many persons arrested for involvement in prodemocracy activities have been detained for several months or years without being formally charged. Within 30 days of the issuance of the prosecutorial decision, the procuracy must send the case to the court. Due to substantial increases in court cases in recent years, there has been a significant increase in delay at the investigative, prosecutional, and adjudicative stages.

Criminal Trials and Appeals The people’s courts are authorized to try cases of criminal offenses committed on Vietnamese territory. Upon receiving a case from the procuracy, the court has 45 days to three months to decide whether to proceed with a trial, remand the case for additional investigation, or suspend the case temporarily or permanently. In complicated cases, the president of the court may allow a 30-day extension. Once the court decides to proceed, the trial must begin within 15 days to 30 days from the decision. Normally, a professional judge hears a criminal case with two lay judges called people’s assessors who are representatives from the local people’s committee. If the accused is charged with an offense punishable by the death penalty, the trial court will consist of two professional judges and three lay judges. Each of the professional and lay judges has an equal vote on all questions before the court. In the Vietnamese judicial system, a trial judge is not only an adjudicator who listens to the procurator and the defense counsel, but he or she also poses questions to the witnesses and the defendant. When there are differences among members of the bench, a verdict is rendered by the majority.


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Under the Criminal Procedure Code, persons other than witnesses for the prosecution or the defense are allowed to participate in criminal trials. In addition, persons who have civil claims arising out of criminal incidents may take part in criminal trials. The Criminal Procedure Code also includes the participation of various social organizations and private citizens, such as the Fatherland Front, the Trade Union, the Association of Farmers, the Youth Union, and the Federation of Women. Under the Constitution, these social organizations and citizens have the right and duty to contribute to the fight against crime by participating in the criminal justice process. During trials, judges cannot dismiss charges, but they can only find the defendant not guilty if conviction is not warranted. Plea bargaining is not often used to shorten the criminal justice process. If the accused admits guilt during the court proceeding, his or her statement will be recorded in the file, and the court will continue as usual. The right to remain silent is not recognized as a legal safeguard, but the accused’s silence is not taken to imply an acknowledgment of guilt. In reality, it is rare for the accused to remain silent because he or she is expected to tell about the case. Trials are supposed to be public, except in special cases where the trial can be closed, but court outcomes must always be publicly disclosed. In recent years, the trials of major corruption cases involving high-ranking government officials and political cases involving individuals who had engaged in prodemocracy activities were closed to the public, and members of the international press were allowed to watch trials televised live in a separate room. Judgments and court decisions acquire legal force 15 days after the trial. Within this period of time, the accused and the civil parties in a criminal case may appeal, and the procurator may file a protest against the judgment or court decision to the next higher court. The Vietnamese court system that gives people’s courts at all three levels the jurisdiction to act as trial court of first instance creates a problem for appeal. This happens when a case is tried as first instance in the Supreme People’s Court

(e.g., extremely important or serious cases), because there is no higher tribunal to which the accused may appeal. A conflict of interest arises because of the ability of the Supreme People’s Court to both try and review cases, making the practice inconsistent with international criminal law (article 14.5 of the International Covenant on Civil and Political Rights). Until recently, specific qualifications were not set for those who could be elected to judgeship, except for the requirement that candidates should have several years of working in governmental agencies before their appointment, but a law degree was not necessary. After being elected, judges were expected to take continuing legal education via short courses offered by the Supreme People’s Court or the Ministry of Justice. In most part, those who led the training and developed curriculum were trained in socialist legal systems. A lack of competence among trial judges is evident in large numbers of judgments and decisions deemed incorrect by courts of appeal. In the context of renovation, new recruitments are expected to have a law degree. As the teaching of law only began in the 1980s, there are not many qualified graduates for judgeship. The organizational structure of the legal system and the overall power of the party over the state exert a great deal of influence on judicial independence. Under the Constitution, courts are accountable to the National Assembly, and this reflects their subordination to political authority led by the party. In addition, the Fatherland Front, an organization affiliated with the party, plays an integral role in the selection of judges at all levels. Moreover, judges may be removed at the end of a five-year probationary period following their appointment. Judges are also under much influence from the electorate at the local level. Not only are members of the court connected to the party, but the party also influences their decisions. Senior figures in the party are able to suggest directly to a court how particular cases ought to be decided. If a judge refuses to cooperate with the party’s direction, he or she will face the possibility of dismissal. Corruption is worse at the provincial, district, and


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village levels where local party leaders are the most powerful persons.

Alternatives to Trial The use of alternatives to trial is common in Vietnam. By 2002, there were 120,000 conciliation groups with 427,000 conciliators working at the grassroots level. The capacity of conciliation groups and the conciliators to mediate and conciliate is often poor due to a lack of knowledge about basic legal principles and citizens’ fundamental rights. The Ministry of Justice at the provincial levels is responsible for legal education for conciliators, but officials responsible for the training tend not to have the professional skills necessary for carrying out this task. Consequently, conciliation processes are not always consistent with basic legal principles and do not always secure citizens’ fundamental rights. In 2003, the Program on Legal Education and Dissemination was created, hoping to strengthen the capacity and efficiency of the conciliation groups and conciliators.

Juvenile Cases According to the Penal Code (article 12), the age of criminal liability begins at 14 years. Children under the age of 14 who commit criminal acts are dealt with by administrative measures, which may involve working off the offense or being sent to a reeducation center. Young persons who are between the ages of 14 and 16 will be held responsible for very serious and serious crimes. Persons who are 16 years old or older will bear responsibility for all crimes they have committed. Special procedures are applied to persons aged 14 to 20. First of all, defense counsel or other approved representatives must be present in case proceedings. In addition, investigators, procurators, and judges who conduct an investigation, a prosecution, and a trial involving a juvenile offender must have necessary knowledge of psychology and education as well as experience in the field of juvenile delinquency. The Criminal Procedure Code indicates that one of the lay assessors of the trial

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court must be either a teacher or a representative of the Ho Chi Minh Youth Union. Consistent with the emphasis on reeducation and rehabilitation, more lenient sentencing provisions are applied to juvenile offenders. Neither the death penalty nor life imprisonment is used for juvenile offenders. Fifteen years is the maximum term of imprisonment for an accused between 14 and 16 years of age, and 20 years for those between 16 to 20 years of age. If a juvenile under the age of 18 is sentenced to prison, he or she must be housed separately from adult offenders. Imprisoned juveniles are entitled to education training during their prison terms. In reality, the detention of juvenile offenders in Vietnam has not fully complied with international standards, particularly the Convention on the Rights of the Child, as reported by the International Center for Criminal Law Reform and Justice Policy (University of British of Columbia).

Punishment In recent years, an increase in crime resulting from changes in Vietnam’s economic and political circumstances and the urgent demand for crime suppression has led to an increase in the severity of punishment. Rehabilitation through labor is a prominent feature of penology in Vietnam, and at the same time, sentences for major offenses have become much more severe in recent years.

Types of Punishment Types of punishment typically used in Vietnam include warning, fines, house arrest, probation, compulsory treatments, confiscation of property, imprisonment, and death. In addition, deprivation of certain civil rights, including prohibition against employment in certain occupations, prohibition against holding certain governmental positions, and residential restrictions as a consequence of a criminal conviction are parts of criminal punishment determined by criminal courts. In pursuit of rehabilitation, the Penal Code makes extensive provision for reeducation without


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detention. The Penal Code authorizes suspension of the prison sentence if it is deemed more rehabilitative than serving the sentence in prison. Suspension of a prison sentence is permitted only if the sentence is for five years or less. The court grants a probation period between one to five years and entrusts the convicted person to his or her employment organization or a social organization in the local area where he or she resides for the purpose of oversight and education. These groups serve the role of probation officers. This type of penalty permits a person convicted of minor offenses to continue working under the condition that his or her employer and/or coworkers must agree to take responsibility for his or her rehabilitation. A 5- to 20-percent salary deduction as a penal fine is also imposed, and the arrangement may exist for two years. Reeducation without detention is considered more beneficial than incarceration because it can avoid costs associated with incarceration, including expenses for construction of prison buildings, salaries paid to guard personnel, and prison management. It also serves the socialist aim of transferring some governmental functions to social organizations. A similar type of punishment called “correctional task” permits a convicted person to continue his or her previous employment under a condition that his or her wages will be deducted to certain amounts as a penal fine for a period of time. Current penal law requires in-custody drug treatment from one to two years for drug addicts who are 12 to 18 years old. For those who are older than 18, besides the time in custody for treatment, they are also subject to administrative penalty, such as prohibition against employment in certain occupations or prohibition against holding certain government positions. However, drug treatment centers in the country only have ability to house one-third of drug addicts who are in the custody list (about 170,000 in 2007). Media reports indicate that a substantial majority of those who finished drug-treatment programs (80% to 85%) relapsed and used drugs again. More severe punishments, including life imprisonment and death, have been applied to those who engaged in trading, storing, and transporting drugs.

Detention for reeducation is permitted by law in Vietnam through processes administered outside the court. Decrees and regulations at the national and provincial levels permit detention through administrative processes without a court trial. Officially, this type of detention is not considered a criminal penalty, although it can last for years. For example, a regulation issued by Ho Chi Minh City in 1987 provides up to two years of detention for counterrevolutionary elements who refuse to be reeducated. A circular issued by the Democratic Republic of Vietnam in 1961 was used to detain without trials hundreds of thousands of former civil and military personnel of the Republic of Vietnam in reeducation camps across the country for three months to 15 years.

Prison Detailed information on Vietnam’s prison system is not easy to access. A report from Human Rights Watch has indicated that “Vietnamese officials unnecessarily withheld basic information such as the number and location of labor camps, prisons, and temporary detention centers; . . . general statistics on detainees.” Information from the International Centre of Prison Studies at King College (University of London) showed that the prison population in Vietnam increased 120 percent during a 10-year period from 43,000 inmates in 1996 to 98, 556 inmates in 2006. Female inmates account for 12 percent of the prison population. Information from other sources suggests that at least 150 prisons and reeducation camps exist across the country, and that each of the 59 provinces and five major cities has at least one prison with various capacities, according to a Library of Congress report. Hoa Lo Prison, the most notorious prison located in Hanoi, also known as the Hanoi Hilton where American prisoners of war were detained, has been demolished, and prisoners have been moved to other prisons located outside the city or even prisons in other provinces. Other major prisons in Vietnam include Chi Hoa Prison located in Ho Chi Minh City, Thu Duc Prison located outside Ho Chi Minh City, and a branch of Hoa Lo Prison located in Hai Phong


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City. Each major city also has several detention centers where individuals are held awaiting trial. Unlike prisons, reeducation camps tend to be located in remote rural areas or deep in the jungle. Camps are divided into subsections, which are several miles apart. Larger camps are under the jurisdiction of the Ministry of Public Security (formerly the Ministry of Interior), and smaller camps are under the jurisdiction of the Ministry of Defense. Major reeducation camps are located in several provinces, including Son La, Ha Nam, Dong Nai, Phu Yen, Nghe An, Ha Tinh, and Thanh Hoa. In addition, there are also many detention centers, which are under the control of local authorities. Due to a lack of research on prisons in Vietnam, information about detention conditions comes mainly from reports by human rights organizations and testimonies by former prisoners and detainees. Prison conditions have been reported as short of international standards, with poor sanitary conditions, heavy labor, and grossly inadequate medical care. Abuse, such as the beatings by prison guards and the use of dark cells for solitary confinement, does exist. Generally, relatives of inmates and detainees are allowed to visit periodically, and these visits are often essential to provide inmates and detainees with food, medicines, and other supplies, or money to buy these items. In principle, prisoners are entitled to complain about unlawful treatment, but those who make their complaints known to the outside world are likely to experience retaliations through restricted family visits or solitary confinement.

Death Penalty The Penal Code lists the number of offenses punishable by the death sentence at 29. These include crimes against the state, murder, armed robbery, drug trafficking, sexual abuse of children, and a string of economic crimes, such as embezzling state property worth 500 million dong (equivalent to US$33,000) or more, or receiving bribes worth the same values. In recent years, the death penalty was mainly applied to major drug trafficking and corruption cases. As drug trafficking became

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widespread, government officials perceived that the death penalty would have the deterrent effect. The death sentence can be applied for those who traffic, trade, and store 600 grams or more of powder heroin or cocaine (or 20 kilograms of opium resin or coca plasma). Under the Criminal Procedure Code, the state is obliged to carry out the death sentence as soon as possible once the appeal for clemency has been turned down. In practice, persons condemned to death are usually kept on death row for at least a year before being executed. Executions in Vietnam are often carried out in public and at dawn by a firing squad of five. The convicted are blindfolded and tied to a stake. Relatives are not informed beforehand, but they are asked to collect the belongings of the executed two to three days after the death. To defuse criticism by Western governments and international human rights organizations on its use of the death penalty, the Vietnamese government has classified death penalty statistics as a “state secret.” A decree signed in January 2004 makes it an offense for publishing and disseminating information on death sentences and executions. Human rights organizations have indicated that at least 214 persons were executed within four years, from 2002 to 2005, with the highest number (82 executions) in 2004 and the lowest number (27 executions) in 2005. It was also suggested that the low number in 2005 might result from the 2004 government decision to consider statistics on the death penalty a state secret, and the actual numbers of executions may be much higher than those reported by human rights watch organizations. In fact, a report by a Vietnamese magazine, Thanh Nien, which is an official magazine of the Youth Union (ThanhNien News.Com), estimated that around 100 persons were executed each year for drug offenses. In 2006, government officials admitted that the deterrent effect of the death penalty was not as strong as expected, but the imposition of the death sentence did not seem to slow down. Within two months, November and December 2007, 43 heroin traffickers were sentenced to death in the country. In January 2008 alone, the Ho Chi


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Minh City Court sentenced three members of a drug-trafficking ring to death. Hoan N. Bui Further Reading Nicholson, Penilope (Pip). (2010). “Judicial Independence and the Rule of Law: The Vietnamese Court Experience.” The Australian Journal of Asian Law 3: 37–58. Quigley, John. (1988). “Viet Nam’s First Modern Penal Code.” New York Law School Journal of International and Comparative Law 9: 143–193.

Quin, Brian J. M. (2003). “Vietnam’s Continuing Legal Reform: Gaining Control over the Courts.” Asian-Pacific Law and Policy Journal 4: 432–468. Vietnamese Penal Code, Vietnamese Criminal Procedure Code, and Vietnamese Law on Legal Aid (English Version) Web Sites: http://vbqppl3. moj.gov.vn/law/en/1991_to_2000/2000/200001 /200001040005_en/lawdocument_view; http:// vbqppl3.moj.gov.vn/law/en/2001_to_2010/2003 /200311/200311260010_en/lawdocument_view; http://vbqppl3.moj.gov.vn/law/vi/2001_to_2010/ 2006/200606/200606290017.


Pacific Australia Legal System: Common Murder: Medium Burglary: Medium Corruption: Low Human Trafficking: Low Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background Australia is an island continent with a landmass of 7.69 million square kilometers (2.97 million square miles). While Australia is the largest island in the world, it also is the smallest continent. Australia is home to nearly 22 million people, most of whom live within 100 kilometers (62 miles) of the coast. Australia’s criminal justice system has a federal structure, with six state jurisdictions, two territories, and a limited commonwealth jurisdiction. The federation was formed in 1901 from separate British colonies. The first of these colonies was the penal settlement of New South Wales, established in 1788. Contemporary Australia is a stable, prosperous liberal democracy with regular free elections and a Westminster tradition of responsible government through ministers. Criminal law is largely the province of the states and territories. Federal police and courts have province over crimes against the commonwealth and commonwealth laws, such as fraud and drug importation, and make use of

state prisons. The criminal court system is primarily adversarial. The overflow of British prisons in the late 18th century, and the desire to relocate the worst elements of the “criminal classes,” led to the selection of Australia as a British penal colony. Crime was a major social problem in the penal and frontier periods of the 19th century. In the latter part of the century, crime was mitigated by the professional organization of policing and social factors such as a growing middle class of farmers, artisans, and skilled laborers. Lower crime rates continued through the 20th century. However, consistent with many Western countries, rapid rises in offenses reported to police occurred from the 1970s. With a small federal police force and no local police, policing is carried out by large state forces. Military involvement in policing is limited to an emergency or disaster support role. Police departments follow a common four-part structure, with frontline patrol services; detectives who engage in follow-up investigations; a wide range of specialist squads such as water police, traffic, juvenile aid units, and scenes of crime (forensics) officers; and nonsworn civilian support staff.

Crime Criminal law in Australia has followed two main traditions. Queensland, Western Australia, Tasmania, and the Northern Territory enacted criminal codes, based on a draft written in the 1890s. The criminal law of the remaining states (New South Wales, Victoria, and South Australia) is based on common law 299


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(i.e., diverse statutes and previous case decisions). Over time, criminal codes have been subject to modifications through precedent-setting cases as well as parliamentary additions and amendments. The Commonwealth adopted a criminal code in 1995. This was intended to serve as a national model for all jurisdictions. However, adoption of the model has so far failed to eventuate. Criminal law remains fragmented, although all jurisdictions share the following common broad categories: • Against property—e.g., theft, robbery, vandalism, fraud. • Against the person—e.g., murder, manslaughter, assault.

• Against morality—e.g., prostitution, drug offenses. • Against the state—e.g., corruption. • Against public order—e.g., public drunkenness, unlawful assemblies. The primary classification of crimes in Australia also follows a nomenclature common to many Western democracies. The terms “summary” and “indictable” offenses are favored over “misdemeanors” and “felonies.” Summary offenses are less serious offenses usually heard by a magistrate, whereas indictable charges concern more serious charges usually heard before a judge and jury. Age of criminal responsibility begins at 10, with a juvenile court system applying up to age 16 (for Queensland and Victoria) or 17 or 18 (for all other states and territories). Jurisdictions also have hierarchies of offenses where the seriousness of offenses is linked to the severity of penalties. Since 1993 the Australian Bureau of Statistics (ABS) has reported national figures on crimes reported to or detected by police for each calendar year. These data cover offenses categorized according to the Australian Standard Offence Classification (ASOC). The 16 ASOC offense divisions, listed below, are ordered to reflect the seriousness of offense, with homicide at the top and “miscellaneous offenses” (such as sanitation offenses and defamation) at the bottom. 1. 2. 3. 4. 5. 6. 7.

An Australian Customs Service officer holds shark fins found on a suspected illegal fishing boat in the waters off Cape Wessel in the Northern Territory of Australia on April 5, 2006. (AP Photo/Australian Customs Service)

8. 9. 10. 11. 12. 13. 14.

Homicide and related offenses. Acts intended to cause injury. Sexual assault and related offenses. Dangerous or negligent acts endangering persons. Abduction and related offenses. Robbery, extortion and related offenses. Unlawful entry with intent/burglary, break and enter. Theft and related offenses. Deception and related offenses. Illicit drug offenses. Weapons and explosives offenses. Property damage and environmental pollution. Public order offenses. Road traffic and motor vehicle regulatory offenses.


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15. Offenses against justice procedures, government security and government operations. 16. Miscellaneous offenses. The Australian Bureau of Statistics reported the total figure of 1,062,621 offenses reported to the police in 2006, which can be compared to Australia’s population at the time of approximately 20.7 million. Murder accounted for only 0.02 percent of offenses compared with much less harmful volume crimes such as “other theft” (including shoplifting) at 48.70 percent. However, it also should be kept in mind that although a serious crime such as sexual assault, for example, accounted for only 1.71 percent of the total, in reality this was 18,211 incidents reported in a category where there is substantial underreporting. For many decades Victoria has had low recorded crime rates and the Northern Territory has had very high crime rates. Crime can also vary enormously by local area. For example, some communities have up to six times the rate of offenses of other communities. Australia also has the common problem of a “dark figure” of unreported crime. Reportage of burglary is around 74 percent and motor vehicle theft around 90 percent. However, surveys indicate reportage of assault is low, around 31 percent, and very low for robbery, around 38 percent, according to the Australian Bureau of Statistics. Time series data of crimes reported to police show that Australia has followed a fairly typical pattern of steep rises from the early 1970s, peaking around the 1990s or turn of the century, with declines in many crime categories. Consistent national crime statistics have only been collated since 1993. Prior to this, national figures were taken from the annual statistical reports by the state and territory police forces, which were often highly inconsistent. Nonetheless, the sources have a degree of internal consistency and retain value for comparative purposes. They indicate that from 1973–1974 to 1995–1996, the rate of stealing increased 120 percent, burglary increased 123 percent, motor vehicle theft increased 92 percent, robbery increased 243 percent, and serious assault increased 558 percent. At the same time, the homicide rate declined by 8 percent.

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In the 1990s, increases in recorded crime rates began to slow down, many peaking around the turn of the century, with declines setting in, mainly in property crimes. For example, total unlawful entry with intent (UEWI) peaked in 1998 at 2,319.5 offenses per 100,000 population and dropped to 1,271.2 in 2006. Motor vehicle theft peaked in 2000 at 725.2 and fell to 364.6 in 2006. Other theft peaked in 2001 at 3,607.0 and fell to 2,511.8 in 2006. Robbery offenses peaked in 2001 at 137.0 and fell to 83.9 in 2006. The murder rate has been fairly stable reaching 2.0 in 1999 and dropping to 1.5 from 2004 to 2006. Increases in reported sexual assault slowed from around 2003 but continued to increase slowly to 88.4 in 2006. Assault increased fairly steadily, standing at 829.4 in 2006. The downward trend in crime is supported by the results of the International Crime Victims Survey (ICVS), which has been conducted in Australia four times since 1989. The most recent survey was in 2004. The percent of respondents who reported being a victim of one or more of 10 types of crimes in the preceding year increased from 23.3 percent in 1989 to 24.0 in 1992 to a peak of 25.2 percent in 2000, and then dropped to 17.3 percent in 2004. (The latter is a projected figure from 16.3 percent for nine crimes. The sexual assault question was considered inconsistent with previous years and countries.) Of note is the fact that ICVS uses a category “assaults and threats,” rather than just assaults. The responses for this category were 5.2 percent in 1989, 4.7 percent in 1992, 6.4 percent in 2000, and 3.8 percent in 2004. Fear of crime, or a sense of safety, is also an important part of the official national picture in Australia. In the ICVS survey for 2004 the majority of Australians felt either very safe or fairly safe in their neighborhoods after dark. However, males were more likely to feel very safe (44%) or fairly safe (42%) walking alone after dark than females (21% and 38%, respectively). Women (39%) were much more likely to feel unsafe walking alone after dark than men (13%). Trafficking in, and use of, illicit drugs are considered major crimes in Australia. Two sources are reported on here: arrest data and usage surveys. The Australian Crime Commission monitors drug


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arrests made by all police departments. Total arrests increased from 73,959 persons in 2001–2002 to a peak of 80,020 in 2003–2004, down slightly to 77,333 in 2004–2005 and back up slightly to 78,533 in 2005–2006. Of note is a change in proportions, from 75.2 percent for cannabis in 2001–2002 down to 71.0 percent in 2005–2006, heroin down from 4.4 percent to 2.9 percent, and “amphetamine-type stimulants” up from 10.8 percent to 15.1 percent. The National Drug Strategy Household Survey asks persons questions about drug use in the past 12 months. The most recent data show a pattern of rise and fall, and partly mirror the arrest pattern. Responses regarding any illicit drug use increased from 15.3 percent in 1991 to a peak of 22.0 percent in 1998, back to 15.3 percent in 2004. Similar to the arrest data, cannabis use declined from 13.7 percent in 1991 to 11.3 percent in 2004, and heroin declined from 0.4 percent to 0.2 percent. At the same time, methamphetamine (speed) increased from 2.6 percent to 3.2 percent, and Ecstasy use increased from 1.1 percent to 3.4 percent. In Australia, like all countries, the very large majority of offenders are male. Criminal convictions indicate that about 80 percent of crime, and about 90 percent of violent crime, is committed by males. The average for the three most violent crimes (homicide, sexual assault, and robbery) is even higher for males, around 95 percent. For the least violent crime category—deception (primarily “fraud”)—the split is higher for females, although females are still in a minority, at 33 percent. For victims of recorded crimes, the gender differences are more complicated. Males make up the large majority of victims of murder, attempted murder, robbery, and assault—approximately 65 percent. But females make up the very large majority of sexual assault victims (82%) and kidnapping/ abduction victims (63%). Race also is a significant variable in offending and victimization. Indigenous persons make up just under 2 percent of the population but a much greater proportion of persons arrested and jailed. According to the Australian Institute of Criminology, the imprisonment rate is approximately 16 times the nonindigenous rate; and indigenous women are 44 times more

likely to be hospitalized for assault than nonindigenous females. Australia’s prosperity, its social and political stability, its foreign entanglements, and its fragile ecosystem make it vulnerable to a range of other crimes including people smuggling, terrorism, money laundering, the illegal importation of pests and diseases, and Internet-based crimes. People smuggling peaked as a problem around 2000–2001 when more than 4,000 persons arrived illegally by boat. Subsequently, a controversial system of rapid interdiction and offshore detention of asylum seekers virtually eliminated the problem. There have been no deaths from terrorist attacks on Australian soil since the heightened terror alert of September 11, 2001. However, Australia’s participation in the Iraq and Afghanistan wars has made it a target for attacks by Muslim terrorists both offshore and domestically. The worst example was the 2002 Bali bombings in which Australians made up 89 of the 202 fatalities. In February 2008, in a home-grown terror case, the trials began of 17 Muslim men from Melbourne and Sydney accused of planning attacks on critical infrastructure. The most recent estimate for money laundering was that AU$2.8 billion (about US$1,992,368,000) had been laundered in 2004, with most of the money coming from fraud. Most offshore banking havens for Australian criminals were in Asia. One of the biggest security challenges for Australia is border protection. At airports alone each month, in 2004–2005 about 45,000 quarantine items were seized. Nonetheless, audits indicate that 21 percent of prohibited items passed through airports undetected and 31 percent of prohibited items passed through mail centers. Illegal foreign fishing also represents a serious threat to the environment and commercial fishing. In 2005–2006 Customs and Navy apprehended 367 vessels engaged in illegal fishing. The Australian Computer Crime and Safety Survey provides data on Internet crime and organizations. The 2006 Australian Computer Crime and Security Survey found that 22 percent of responding organizations had experienced damaging “electronic attacks” in the year. Average losses per organization


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were AU$241,150 (about US$171,593). The survey also found that the number of organizations free from damaging attacks increased dramatically from 28 percent in 2002 to 73 percent in 2006, probably as a result of the application of better security software and security procedures. Although in 2006 only 10 percent of respondents said they were “managing all aspects of security well,” this was an improvement from a low of 5 percent in 2004.

Finding of Guilt The Australian court system is complex, with variations between jurisdictions. Nonetheless, there are a number of common characteristics. For example, in all jurisdictions a hierarchy of courts deals with varying levels of seriousness of cases and appeals. These are magistrates (or local) courts, intermediate (or district) courts (in larger jurisdictions), and supreme courts. A federal high court presides over appeals from supreme courts. Australian jurisdictions lack standing commissions to investigate possible miscarriages of justice. However, apart from the appeals process, there are various procedural safeguards designed to protect the accused. The presumption of innocence puts the onus on the prosecution to prove their cases “beyond reasonable doubt.” Committal procedures for indictable offenses entail an appearance before a magistrate where the evidence is scrutinized. The magistrate can dismiss charges if the evidence appears inadequate. Additional protections include the right to legal representation, the right to silence, and the right to trial by jury for more serious offenses. Despite the expansion of fixed or mandatory sentencing, discretion in sentencing is a mainstay of the work of judges and magistrates. In addition to these courts, specialist courts deal with specific types of offenses or clientele, such as juvenile or children’s courts, drug courts, and indigenous courts. Prosecutions in lower courts are conducted by police prosecutors, whereas higher court cases are conducted by public prosecution lawyers in departments of justice (administratively separate to the courts). Legal defense is provided by private and public lawyers. Australia has an extensive

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system of publicly funded legal aid that applies an income-based “means test” to applicants. As noted, Australian criminal law has adopted an adversarial system in which the prosecution and defense attempt to “win” a contest, “played” within rules, to convince the magistrate or jury of the justice of their case. Plea bargaining is a regular practice, and police and prosecutors will drop some charges in return for a plea of guilty on others. Although justice is meant to be swift, extensive delays in bringing matters to court are a major problem. For example, in 2005–2006, the Australian Institute of Criminology reported that only 32 percent of matters finalized in the higher courts took less than 13 weeks to finalization. Twenty percent took more than 52 weeks. Remand time in prison is also highly variable, and a source of some controversy. The very large majority of cases are minor and dealt with by magistrates’ courts—97 percent. Of the defendants appearing in the higher courts, 20 percent are either never adjudicated or are acquitted, and 12 percent of defendants in the magistrates’ courts are not sentenced because of nonadjudication or acquittal. However, of those cases adjudicated, the very large majority of cases—91 percent and 96 percent, respectively—result in a guilty verdict. Also of note is the fact that 81 percent of defendants who are proven guilty in the higher courts receive custodial sentences, whereas in the magistrates’ courts an even larger proportion of defendants (91%) received noncustodial sentences. The Australian criminal justice system is a site of change and controversy. One such area is preventive detention—or selective incapacitation. It was once considered anathema to imprison a person without a conviction for a past offense. However, the problem of serious repeat offenders prompted Queensland in 2003 to introduce legislation allowing for the indefinite detention of offenders deemed “dangerous”; and several other jurisdictions have since adopted similar legislation.

Punishment The last time the death penalty was applied in Australia was in 1967, and the last state to abolish


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the death penalty did so in 1984. Australia does not have a mandatory sentencing regime. Instead, judges (sentencing in the higher courts) and magistrates (sentencing in the lower courts) are guided by a criminal code act, a penalties and sentencing act, and by case law, which sets out sentencing precedents. It is important to note that there is a great deal of variation in sentencing outcomes across crime types both within and across Australian jurisdictions. However, some patterns are discernible. For instance, throughout much of the 1980s and throughout all of the 1990s, sentences for violent offenses such as murder and assault have become tougher. There also has been an increasing trend toward the use of parole-type sentences. It would appear, however, that this trend toward tougher sentences has not effected any declines in violent crime rates. In fact, it would appear that sentencing outcomes and crime rates remain independent. A major feature of Australia’s prison system and source of criticism is the increase in imprisonment. In the 23 years between 1984 and 2006 the national total increased from just under 9,500 to more than 25,500. The rate of increase in the numbers of prisoners was higher than the increase in the general population: 88 persons were imprisoned per 100,000 in 1984 compared to 163 in 2006. From 1984 to 2005, remand rates more than tripled from 10 per 100,000 to 35. At the same time, the rate of imprisonment of juveniles has declined sharply from 65 per 100,000 in 1981 to 30 in 2006. As indicated earlier, an additional concern is the persistent very high rates of imprisonment of indigenous men. The first national census of prisoners conducted by the Australian Institute of Criminology in 1982 showed that approximately 10 percent of the Australian total were of indigenous heritage. The most recent survey showed that in 2006 they comprised 24 percent of the total (while just under 2% of the population). In the early 1980s, women were 2.5 percent of all prisoners, but comprised 7 percent in 2006. Imprisonment rates vary considerably between jurisdictions. The high rate of imprisonment of indigenous people in the Northern Territory—with

an overall indigenous population of approximately 25 percent—in large part accounts for the fact the territory has over three times the national rate of imprisonment. Western Australia, with the highest state imprisonment rate, imprisons just over twice as many persons as Victoria, with the lowest rate. Noncustodial sentences entail a number of options. Offenders can be given community work orders or allowed to live in the community under supervision. Under these arrangements, offenders may be required to stay at home outside work hours, with monitoring by correctional officer visits and/or electronic “bracelets.” They can also be ordered to pay fines, including compensation payments to victims. Periodic detention involves offenders staying in secure facilities for varying periods of time each week, such as for weekends or outside work hours. Another key feature of Australian criminal justice is the increasing use of restorative justice interventions in response to crime. Like New Zealand, Australia is a world leader in the use of restorative justice principally in cases of youthful offending. Restorative justice takes the form of youth justice conferences where offenders and their victims come together to discuss the impact of the crime and what young offenders can do to make up for harms they have caused. Key aims of restorative justice include making offenders accountable, meeting the needs of victims, reparation, and restoration. There are three referral pathways to a restorative justice conference. Young offenders, who have admitted to their offending, may be referred to a restorative justice conference by either the arresting police officer or a youth court magistrate. If referred by a magistrate, the referral may be the court outcome (e.g., the sentence), or the young offender may be referred to a conference before sentencing. In the latter case, the outcome of the conference will serve to inform final sentencing outcomes. A restorative justice conference typically lasts about 60–90 minutes. This is very unlike typical youth court appearances, which are usually very brief (e.g., about 20 minutes in duration). In a conference, the facilitator (the “convenor”) opens with general introductions and explains what the conference is meant to achieve and what everyone is expected to do.


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In addition to the convenor, attendees include the arresting police officer or representative, the young offender, the victim, and support people for the offender and victim (e.g., parents of young offenders and partners of adult victims). After introductions, the convenor asks the young offender to explain the circumstances leading up to the offense. Then the victim is asked to describe the impact of the offense and is given an opportunity to ask the offender questions about motive. This “storytelling” phase of the conference serves to provide the offender and victim with a shared understanding of the offending and its impact. During this phase, victims can regain a sense of security because they receive answers to important questions they have about the offense. Victims often receive apologies during the storytelling phase, which also are important to them. Support people are given an opportunity to comment on the offending and its impact. Finally, once everyone has had an opportunity to speak, all participants negotiate ways that the young offender will make up for harms caused. This is the outcome of the conference, or the “agreement.” Common agreements include verbal and written apologies, performing some work for the victim and/or the community, or monetary restitution. Advocates claim that restorative justice initiatives should reduce crime. However, the empirical literature on restorative justice and reoffending has produced mixed results. This is largely because restorative justice takes many forms as we observe different jurisdictions around the world. In Australia, research on restorative justice and reoffending demonstrates that it has the potential to reduce crime. However, it still is not clear what features of restorative justice effect changes in offending behavior. Tim Prenzler and Hennessey Hayes

Further Reading The Australian Component of the International Crime Victim Survey: http://www.wodc.nl/ onderzoeksdatabase/icvs-2005-survey.aspx. Australian Institute of Criminology. The statistics section of its Web site has a variety of crime

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data in different formats for different jurisdictions and aggregations, both current and historical: http://www.aic.gov.au/stats/. Australian Institute of Criminology. Australian Crime: Facts and Figures. The annual series is an AIC publication of about 100 pages in booklet form packed with vital statistics about crime and criminal justice: http://www.aic.gov.au/ publications/facts/. Bronitt, S., and B. McSherry. (2005). Principles of Criminal Law. 2nd ed. Sydney: Thomson Law. Hayes, H., and T. Prenzler, eds. (2009). An Introduction to Crime and Criminology. 2nd ed. Sydney: Pearson Educational.

Melanesia FIJI ISLANDS Population in 2007: 837,271 Legal System: Common Murder: Medium Human Trafficking: High Prison Rate: Medium Death Penalty: No Corporal Punishment: No NEW CALEDONIA Population in 2008: 244,600 Legal System: Civil Prison Rate: Medium Death Penalty: No Corporal Punishment: No PAPUA NEW GUINEA Population in 2000: 5,171,548 Legal System: Common/Customary Murder: Medium Burglary: High Corruption: High Human Trafficking: High Prison Rate: Low


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Death Penalty: Maybe Corporal Punishment: Yes SOLOMON ISLANDS Population in 2008 (projection only): 506,992 Legal System: Common/Customary Corruption: Medium Prison Rate: Low Death Penalty: No Corporal Punishment: Yes VANUATU Population in 1999: 186,678 Legal System: Common/Customary Corruption: Medium Prison Rate: Low Death Penalty: No Corporal Punishment: Yes

Background Melanesia is one of the three major sociogeographical groupings most widely recognized in relation to the Pacific (the other two being Polynesia and Micronesia, which are considered elsewhere in this collection). While there is some discussion as to where the boundaries of Melanesia lie, for the purposes of this section, it is taken to comprise the following countries and territories: Papua New Guinea (PNG), Solomon Islands, the Republic of Vanuatu, Fiji Islands, and New Caledonia. With the exception of New Caledonia, all of these are independent states. New Caledonia is a French territory. Fiji became independent in 1970, Papua New Guinea in 1975, Solomon Islands in 1978, and Vanuatu in 1980. New Caledonia was annexed by France in 1853. In 1984 the French national assembly passed a law that granted internal autonomy to New Caledonia, and this came into effect through the operation of an “Organic Law” in 1999. In 1998 the Noumea Accords postponed discussions about independence for the territory until 2013. The Westminster system of government operates in all except New Caledonia. At the time of writing, Fiji Islands is governed by a military regime following

the 2006 coup (the third since independence), and although elections were scheduled for early 2009, it now seems unlikely that these will take place leaving open to question if or when democratic rule will be restored to that country. Papua New Guinea, Solomon Islands, Vanuatu, and Fiji Islands are members of the Pacific Islands Forum, and they also form the Melanesian Spearhead Group (MSG). The MSG was formed in 1986 and its Secretariat was established in Port Vila, Vanuatu, in 2008. The membership and affiliations of this grouping illustrate some of the controversial issues that arise in relation to nationhood within the region. At the inception of the MSG in 1986, observer status was granted to the people of Kanaky (New Caledonia) as represented by the Front de Liberation National Kanak et Socialist (FLNKS). Subsequently in September 2007, the Australian West Papua Association (based in Sydney) called upon MSG leaders to grant the same status to the Melanesian people of West Papua (currently under Indonesian rule). This call was taken up by the government of Vanuatu, which made a push for this at the MSG leaders’ meeting in 2008, but it was blocked by Sir Michael Somare, prime minister of Papua New Guinea.

Language and Culture Melanesia is a part of the world characterized by extreme cultural and linguistic diversity; this marks a significant point of difference between Melanesia and both Polynesia and Micronesia whose populations are, generally speaking, more homogenous in nature. For example, in Papua New Guinea (PNG), more than 700 different languages are spoken, including two national languages (English and Tok Pisin), and Vanuatu has the highest density of languages per capita in the world with approximately 112 languages (including 3 national languages— Bislama, English, and French) spread across a population of just under 200,000 people (according to the 1999 census).

Economy and the Significance of Aid With the exception of New Caledonia (whose economy is skewed by virtue of its being a French


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territory), the countries in Melanesia are ones with small developing economies and whose populations are low earning as compared with those in other parts of the world. In terms of donor partnerships, Australia is the largest player in Melanesia, although other assistance is provided by New Zealand, the European Union, China, Japan, Taiwan, and others, including numerous arms of the United Nations. In 2006, Vanuatu signed a compact with the Millennium Challenge Corporation (USA) in relation to major infrastructure projects worth US$66 million, making Vanuatu the only Pacific island country to have benefited from this funding opportunity. Donor partners have emphasized governance and strengthening of law and justice agencies within their aid assistance programs, with perhaps the most significant of these in terms of size and impact being the Regional Assistance Mission to Solomon Islands (RAMSI), led by Australia and the Enhanced Cooperation Programme in PNG. Papua New Guinea is the largest single recipient of Australian aid and the estimated expenditure for the period 2003–2009 in relation to law and justice in PNG is AU$200 million. In PNG, the Enhanced Cooperation Programme places seconded Australian personnel in in-line positions in several key agencies, including the Office of the Public Prosecutor. This program was originally designed to include a policing element with Australian Federal Police (AFP) officers actually policing the streets of Port Moresby and performing other key in-line roles. This component was excised following a dispute between the governments of PNG and Australia over the issue of immunity from prosecution for AFP posted officers. AusAID (the aid agency for the government of Australia) also funds a Law and Justice Sector Program in PNG to provide multiagency support as well as the Justice Advisory Group, which works with senior officials in the agencies of the sector to enhance coordination and cooperation. The government of New Zealand (through NZAid) provides funding to assist with the strengthening of law and justice in the Autonomous Region of Bougainville through activities such as the Bougainville Community Policing Project.

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Mention has already been made of RAMSI in Solomon Islands, which has a “whole of government” approach and operates extensively in the law and justice sector, particularly in the area of correctional services. Although this is a regional assistance program, AusAID is the most significant in terms of amount of funds contributed. As part of the work done within the RAMSI Law and Justice Program, AusAID has contributed to work done to improve security and professionalism within the Solomon Islands Correctional Services authorities. NZAid also contributes to the RAMSI Law and Justice Program, primarily by funding expatriate High Court judges and magistrates to work within the court system of Solomon Islands. NZAid also supports a Save the Children project focused on protecting the rights and interests of young people within the justice system and on reducing youth crime. In Vanuatu, AusAID funds a Legal Sector Strengthening Project that provides support (through advisers and assistance with training) to the State Law Office, the Office of the Public Prosecutor, the Public Solicitor’s Office, and the State Prosecutors’ Office (within the Vanuatu Police Force). This project is now in its third phase. AusAID also funds the Vanuatu Kastom Governance Partnership and provides support to the Vanuatu Women’s Centre, which has a particular focus on the impact of violence against women. Within the realm of correctional services in Vanuatu, the New Zealand government funds an institutional strengthening project within the Department of Correctional Services (previously located within the Vanuatu Police Force) and plans to be involved in building a new prison farm outside Port Vila. This construction project was scheduled for 2009. As of May 2010, a site has been identified and set aside but the building project has yet to begin. On a regional basis, the government of Australia funds the Pacific Regional Policing Initiative (PRPI), which is concerned with the standardization and improvement of police training in Pacific island countries, including those in Melanesia (with the exception of New Caledonia). The government of New Zealand also provides a funding contribution


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to this program. The government of New Zealand provides core funding to the Pacific Islands Chiefs of Police Secretariat, which brings together police commissioners from 21 Pacific island countries and is co-funder (with AusAID) of the Pacific Judicial Development Program.

Legal Systems It is certainly the case that the colonial powers, and in particular the United Kingdom and Australia (in relation to PNG), have left their mark on the laws of Melanesian countries and may continue to exert some influence in the jurisprudential development in this part of the world. However, the countries of Melanesia have a plurality of legal sources or resources that both lend color to their sociolegal environments and create numerous ambiguities and complexities.

Constitutional Documents All of the countries of Melanesia have constitutional documents that were adopted at independence. In relation to criminal procedure, these documents are important as they contain provisions relating to rights and freedoms, some of which take on particular significance within the context of the criminal justice system. For example, a suspect’s right to be informed of charges in a language that he or she understands is recognized by article 2(c) of the Constitution of Vanuatu. Constitutional issues have been and continue to be very frequent bases of litigation in the courts of Melanesia, as is the case elsewhere in the Pacific island region. A key area in this context is the availability of legal advice and representation. Such a right, where it exists, is of importance at the trial (or other hearing) stage of the criminal justice process and, more problematically, at the pretrial stages, particularly during periods of detention and/or police questioning. The question of resources is one that is central in this context. As we have already seen, the countries of Melanesia have small economies with limited amounts of available public funds, which are subject to many pressures and demands. Therefore, it is problematic as to who should bear the cost of legal representation

for suspects who cannot afford to pay for such representation themselves. Each country has a public solicitor (or equivalent), but these agencies are both underresourced and overworked, leaving them often unable to meet the demands for their services. In Vanuatu, the right to legal representation is contained in article 5(2)(a) of the Constitution. However, this right is limited to cases where a person has been charged with a “serious offence.” It is not clear from either the Constitution or the Criminal Procedure Code (Cap. 136) how a “serious offence” should be defined. It may be that a serious offense should be deemed to be the same as a cognizable offense, that is, one for which it is possible for the police to make an arrest without having first obtained a warrant. Such offenses are listed in a Schedule to the Criminal Procedure Code (Cap. 136). In Fiji, the right of a charged person to defend himself or herself in person or to be represented at his or her own expense by a legal practitioner is encapsulated in S.28(1)(d) of the Fiji Constitution Amendment Act 1997. Significantly, S.27 of the act makes specific reference to the rights to be accorded to arrested and detained persons (before the charging stage); the right to consult with a legal practitioner is recognized in this context. In both Fiji Islands and PNG, the right to appeal against conviction or sentence is given constitutional recognition.

Locally Enacted Legislation All of the countries of Melanesia, with the exception of New Caledonia, have an Anglo-Welsh legacy in the realm of criminal law and procedure as in many other areas. Unlike other areas of law (such as family law and land law), criminal law and criminal procedure law in Melanesian countries is largely codified. PNG is unique in having one code that covers matters of substantive criminal law and procedural issues. In Solomon Islands and Fiji, there is a principal act concerned with criminal law. These documents set out offenses and the relevant penalties. They also often include interpretation sections and statements of criminal liability and available defenses. Some minor offenses may be contained in other pieces of legislation such as the Minor Offences Act of Fiji (Cap. 18) and the Public Order


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Act of Vanuatu (Cap. 84). In relation to criminal procedure, a codified approach is also favored, so in these jurisdictions there is a separate codified document that covers matters of criminal procedure. Other versions of these codes exist elsewhere in the world. The penal codes of Fiji Islands and Solomon Islands largely resemble the criminal codes of Queensland and Western Australia. By contrast, the Vanuatu Penal Code (Cap. 135) is a recent (i.e., postindependence) and original code, enacted in 1981. This code exhibits the influence of the AngloWelsh common law approach to criminal law but does not appear to reflect the effect of the French contribution to the country’s administration during the period when the New Hebrides (the preindependence name of Vanuatu) was administered as a condominium by the governments of the United Kingdom and France.

(English) Statutes of General Application During the colonial period, statutes of general application applied in colonies as well as in the home jurisdictions of the colonial powers. Over time, a cut-off date was nominated by the colonial power. This designated the date after which legislation enacted by the colonial power ceased to apply in the colony in question. As the colonies attained independence, these dates were maintained. For example, in Solomon Islands the cut-off date in relation to statutes of general application enacted by the English Parliament is January 1, 1961. Pre-1961 legislation continues to apply (in the absence of relevant local legislation or express provisions to the contrary) unless it is considered unsuitable to local circumstances. In relation to criminal law and procedure, the difficulties associated with the applicability of received legislation that are prevalent in other areas of law are not so marked, as this is an area of law in which there is a great deal of comprehensive locally enacted legislation. In fact, in most situations throughout Melanesia, there will be no need to refer to legislation from outside the jurisdiction because locally enacted statutes will cover the relevant circumstances. This point was considered in the Solomon Islands’ case of R. v Ngena [1983] SILR 1. The court held that the Homicide Act 1957

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of the United Kingdom no longer applied in Solomon Islands (even though it had been enacted prior to the cut-off date) as all issues relating to homicide were dealt with in the Penal Code.

The Impact of Case Law There is more than one type of case law available as a source of law in the countries of Melanesia. The availability of these sources and their relative importance may not always be easy to ascertain and may vary from jurisdiction to jurisdiction. The general rules of precedent apply in the courts of the countries of the region. The law of England and Wales is considered to have a particular significance to the courts of the region in the context of interpretation of relevant legislative provisions, owing to the historical importance of the United Kingdom as a colonial power. For example, in the jurisdictions of Fiji and Solomon Islands, it is specified that, in the absence of local definitions and interpretations, the Penal Code should be interpreted in accordance with “English criminal law.” However, it is important to remember that most jurisdictions have a cut-off date in relation to the common law of England and Wales, that is, the date on which such law ceased to be binding in that jurisdiction. For example, in Schedule 3 to the Constitution of Solomon Islands, it is stated that English case law should cease to be binding on the courts of Solomon Islands with effect from July 7, 1978. From this point onward, the only relevance that decisions of the courts of England and Wales may have is as persuasive authority. In relation to case law more generally, there may be some question as to whether one type of case law is considered more significant than another. The courts of the region have previously been engaged in a consideration of whether the principles laid down in Anglo-Welsh cases should be considered as more important than those in cases from other common law jurisdictions, in particular, Australia and New Zealand. However, this debate has receded more recently as the courts and lawyers in the region have more access to case law from other Pacific island countries, and it is certainly the case in the Supreme Court of Vanuatu that the judges would expect


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lawyers to present decisions from their Melanesian neighbors as persuasive authority rather than cases from a country such as the United Kingdom or Australia.

Customary Law and Practice Of particular significance is the role of customary law and practice in the field of criminal law and procedure. It is not possible to generalize about customary law and practice across the region as there are often quite significant differences between different countries and indeed between different parts of the same country. Within Melanesia a general rule of thumb is that each language group will have its own set of customary laws and practices and, as we have already seen, the number of language groups in this part of the Pacific is extremely high. While it is the case that customary law is enunciated and enforced by chiefs or other community leaders outside the introduced/adopted court system, there are also instances of the introduced/adopted formal system taking account of customary principles in particular areas. All of the countries of Melanesia (with the exception of New Caledonia) make some provision, usually in a constitutional document, for customary law to be recognized as a source of law. For examples, see article 95(3) of the Constitution of Vanuatu and S.75 of the Constitution of Solomon Islands. However, these provisions do not provide any guidance as to how the weight of customary law decisions (where such can be identified) or principles should be compared with the weight of statutory provisions or decisions of the courts. The impact of customary law in relation to issues of criminal law and procedure is possibly more limited than is the case in other areas of law, most notably land law. The impact of customary law varies on location—it is much more significant in rural areas than in urban areas where people have better access to the police and the courts and where there is an increased likelihood of the authority of chiefs or other traditional leaders having been diluted through exposure to different ideas or the pressures of city life. In the villages of rural Melanesia decisions as to wrongdoing and punishment in relation

to all except the most serious (and there may not always be consensus as to what is the “most serious”) offenses will be made by chiefs, village councils, or other bearers of traditional authority. Offenses against custom are not demarcated into “civil” and “criminal” wrongs and may often include transgressions that might appear to outsiders as no more than (perfectly legal) deviations from an accepted social norm (such as wearing the wrong sort of clothes). The processes associated with establishing that a wrongdoing has occurred, how blame is to be apportioned, and what punishment is to apply are very often commenced, conducted, and concluded without any recourse to the police or the formal court system, although it may be the case that there will be some involvement of the quasiformal courts, such as the Island Courts of Vanuatu or the Local Courts in Solomon Islands.

Crime In the countries of Melanesia (with the possible exception of New Caledonia), it is hard to obtain crime statistics that are current and/or accurate for a number of reasons, but predominantly because of a lack of available resources and/or expertise in this area within policing organizations. These problems are exacerbated in relation to statistics compiled by policing posts situated in remote areas that would almost certainly have to be compiled by hand and then somehow transported to the capital or administrative center for collation. Added to this is the problem of the “dark” figure of crime— that is, crime that occurs that is not reported to the police. This phenomenon is one that arises in all parts of the world. A particular characteristic of the “dark” figure of crime that applies in relation to Melanesia (and indeed anywhere where strong “traditional” cultures persist) is that some wrongdoings that would be reported to the police in other parts of the world are not reported in these countries; rather, they are dealt with through traditional forms of dispute resolution as administered by chiefs, village elders, or other community leaders. Recently, bureaus of statistics and national statistics offices have made use of online media to publish


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a range of statistics including those that relate to crime. In this endeavor they have been assisted with a regional project operating under the auspices of the South Pacific Community entitled “Pacific Regional Information SysteM” (PRISM). However, it remains a challenge for these Web sites to be kept current, and there are ongoing problems associated with obtaining reliable raw data from the law enforcement agencies within country. Available data are as follows: • PNG. In 2003, per 1,000 inhabitants, there were 3,037 crimes against the person and 6,061 crimes against property recorded by police (PNG National Statistical Office).

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• Solomon Islands. In 2003, there were a total of 1,051 crimes against the person and 1,395 crimes against property reported to police (Solomon Islands National Statistics Office). • Fiji. In 2007 there were a total of 3,343 offenders recorded for crimes against the person and 5,358 persons recorded for crimes against property. The majority of offenders were male. In that same year there were 58 cases of rape recorded. (Fiji Islands Bureau of Statistics; “Fiji Facts and Figures as at 1 July 2008.”) • Vanuatu. In 2004, there were a total of 287 crimes against the person and 457 crimes against property reported (Vanuatu National Statistics Office).

Police try to stop looters at the Taurama shopping center in Port Moresby, Papua New Guinea, after a demonstration at Murray Army Barracks turned violent, March 19, 1997. (AP Photo/Mike Bowers) © 2011 ABC-Clio. All Rights Reserved.

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There are attempts made by external agencies to assess levels of crime or disorder in the countries of Melanesia, but the figures they produce need to be treated with some caution as they have been compiled at some distance removed from the firsthand data in country. However, it is often the case that these statistics are easier to obtain than statistics in any collated or published form from policing organizations of the countries concerned. An example of this type of “remote” survey is that produced by the Overseas Security Advisory Council (OSAC), which produces information on security issues for the American business market. Its Fiji review of 2007 indicated that crime is rising in that country, with a 3 percent increase in reported offenses in the period covering the last nine months of 2007 as compared with the previous year. Property offenses are the most commonly occurring (58%) with offenses against the person being the second-most common type of offense to be recorded (24%). As with all statistics, a certain amount of unpacking is required. In this instance the OSAC report refers to “Fiji” whereas the majority of this criminal activity is likely to occur in urban areas such as Suva, Nadi, and (to a lesser extent) Lautoka, Lami, and Ba. From the information that is available and bearing in mind all the limitations of those data that have previously been identified, it is evident that the most common type of offense to be reported to the police is one relating to property—predominantly theft. What theft looks like can vary from country to country. It remains the case that in Vanuatu, street crime continues to be rare whereas it is much more established as a criminal activity in Fiji and PNG, particularly in the capitals (Suva and Port Moresby, respectively) and other highly populated urban areas. Until relatively recently, thefts from houses in Vanuatu tended to take the form of items being taken from outside the house (e.g., on the veranda) or break-ins that were committed while the house was unoccupied. However, this trend is changing with an increase in home invasion crimes and an attendant increase in crimes of violence committed against occupants who challenge intruders. In Fiji, PNG, Solomon Islands, and Vanuatu, crimes of domestic violence are very common, although they are

largely underrepresented in the available crime statistics owing to underreporting. In all of these countries, there has been an increase in urban drift since independence with a growth of squatter settlements on the outskirts of the capital cities and other areas of (relatively) large urban population. This trend is often believed to be a significant contributory factor to rising crime levels. It is certainly the case that levels of unemployment tend to be higher in these settlements than elsewhere in the community and these locations are often the site of flashpoints such as intercommunity disputes that may become very violent very quickly. Papua New Guinea has an entrenched severe law and order problem arising out of raskol activity, which occurs in all urban centers but especially in Port Moresby and Lae, which are the most populous. There is a great deal of violent crime in Port Moresby, exacerbated by the ready availability of firearms, many of which have been stolen from police and defense force armories. Port Moresby is one of the most dangerous capital cities in the world. The social, psychological, and economic impacts of this ongoing and seemingly intractable situation are significant on individuals, businesses, communities, and the country as a whole. In addition, law enforcement authorities are often called upon to deal with interethnic disputes that often become violent, especially in the troubled Southern Highlands Province, centered on Mt. Hagen. Elections also tend to provide a flashpoint for violent clashes in PNG. Furthermore, the law, order, and security situation is not helped by frequent turf war–type disputes between the police and the PNG Defence Force. The state of law, order, and community safety was relatively unremarkable in Solomon Islands until 1999, which marked the start of growing ethnic tension between the indigenous people of Guadalcanal (the island on which the capital Honiara is located) and the people of Malaita living there, many of whom were descended from Malaitans who had been brought to Guadalcanal during the colonial period and whose families had integrated and intermarried with those on whose land they resided. The tensions became increasingly violent and, as in PNG, the situation was made worse by the relatively


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widespread availability of firearms (some of which were left over from World War II and others of which had been transported across the notoriously porous border between the north of Solomon Islands and Bougainville, the semiautonomous island province of PNG). In 2003, at the invitation of the Solomon Islands government, Australia put together a regional (military-led) assistance mission entitled “Operation Helpem Fren”—the Regional Assistance Mission to Solomon Islands (RAMSI). The military aspect of RAMSI has been scaled back over time with more use being made of civilian police officers drawn from several countries around the region, including the other Melanesian countries (except New Caledonia). Having reestablished basic security and law and order within Honiara and elsewhere, the support provided by RAMSI is now more of the “institutional strengthening” kind to provide assistance to the machinery of government, including law enforcement agencies, the courts, and correctional services.

Police Policing organizations in the countries of Melanesia are subject to a number of pressures including limited resources (as is the case in relation to all aspects of service delivery by governments including education, health, and infrastructure), cultural expectations and restrictions, and changing patterns of crime at local, national, and international levels.

Policing Challenges The populations of Melanesian countries are growing in comparison with their economies, and there are many well-documented cases of urban drift, which in turn leads to a breakdown in social cohesion, a dilution of traditional authority (such as the power of the chiefs to control the behavior of young people), resulting in increased criminality (predominantly property offenses but including other types of offenses) in urban areas. Policing resources tend to be stretched thinly, thus reducing their ability to deal with this “normal”

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criminality and rendering them almost ineffective in cases of “acute” situations such as riots, interethnic violence, prison breaks, and so forth. For example, in Fiji Islands the police strength in 2005 was enumerated at 4,076 including 1,565 special constables. This means that the number of police officers to serve each 1,000 members of the population is estimated at 4.93. However, this does not reflect the fact that at any one time a number of members of the police force will not be available for operational duties because they are on leave, involved in training, or seconded to an overseas posting such as RAMSI or a UN peacekeeping mission. The countries of Melanesia have geographies that have adverse impacts on the effectiveness of policing organizations. For example, approximately 80 percent of the population of Vanuatu live in rural areas, many of which have minimal infrastructure, very poor communications, little or no access to electricity or telephones, making it extremely difficult for members of these communities to feel adequately provided for by policing organizations. This has a particular impact on women who are the victims of sexual crimes or domestic violence as the chances of them being able to talk to a woman police officer about what has happened to them are seriously reduced if they live in rural or remote areas (this is compounded by the fact that women are generally underrepresented in policing organizations in Melanesian countries, especially as operational officers). It is almost certainly the case that crime of all types, and particularly crimes committed against more vulnerable groups such as women or young people, are dramatically underreported in rural areas. As has already been noted, the countries of Melanesia (with the exception of New Caledonia) have small, developing economies and are financially somewhat fragile. There are limited resources available for all services provided (whether in theory or practice) by government and government agencies, including those responsible for law, order, and security. Additionally, there is ample evidence (both anecdotal and otherwise) of resources being used inefficiently and/or being misappropriated.


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Overseas Assistance to Policing Organizations For many years, law enforcement agencies in most Melanesian countries have benefited from on the ground support provided by advisers from overseas, usually Australia. The Defence Cooperation Programme places Australian Defence Force personnel in advisory positions within a country’s defense force or the paramilitary wing of the police service in countries where no defense force exists (such as Vanuatu). More recently, the growth of the International Deployment Group within the Australian Federal Police (AFP) has seen its personnel being used to fill advisers’ positions within programs established to provide institutional strengthening or capacity development to policing organizations. For example, the Vanuatu Police Force Capacity Building Project in Vanuatu (funded by AusAID, the aid agency for the government of Australia) is delivered in country by a team drawn from the International Deployment Group of the AFP. The AFP has also been instrumental in setting up Transnational Crime Units throughout the Pacific, including within Melanesia (in Vanuatu, for example) to which they provide ongoing support by way of resources, training, and mentoring. These units focus their attention on combating transnational crimes such as trafficking of drugs, people, and firearms as well as terrorism. They tend to be very well resourced as compared with the police forces of the region more generally, and there is some debate as to the level of contribution this type of activity makes to the day-to-day security and safety of people who live in Melanesia.

Punishment All of the countries in Melanesia have life imprisonment available as a penalty in relation to very serious crimes such as murder. However, the reality is that most convicted criminals serve relatively short sentences and it is not uncommon for prisoners to be released before they have served their full sentence. In Vanuatu, it was previously common practice for the president to pardon large numbers of prisoners at Christmas and on the anniversary of

independence, but this has not happened more recently following community concerns about the impact of this practice on (apparently) rising crime rates and community safety. As with other areas we have considered, it is the case in relation to prison populations that reliable and current statistics are difficult to obtain. As of 2007, according to the Fiji Islands Bureau of Statistics, the prison population was 841, of which 87 percent were males. Length of terms being served were as follows: Offenders serving 1–6 months Offenders serving 6–12 months Offenders serving 12–21 months Offenders serving 2–5 years Offenders serving 5 years–life

310 152 165 146 68

Custom and Sentencing In PNG the use of customary compensation in criminal cases has been enshrined in legislation by virtue of the Criminal Law (Compensation) Act 1991. Vanuatu refers to the incorporation of the customary concepts of reconciliation and compensation in the Criminal Procedure Code (Cap. 136), more particularly in Sections 118 and 119.

The Death Penalty The death penalty is not practiced in the countries of Melanesia. It was abolished in Solomon Islands in 1966, in Vanuatu in 1980, and in France (and therefore in New Caledonia) in 1981. In Fiji Islands it was abolished for ordinary crimes in 1979. This means that the penalty still remains available for crimes committed against the state or in times of war. So, for example, George Speight who was the leader of the 2000 coup was sentenced to death, but his sentence was subsequently commuted. Papua New Guinea abolished the death penalty in 1950, but it was reintroduced in 1991 as a response to increasing crime and community concerns about the breakdown in law and order. However, no executions have been carried out since that time and Amnesty International describes the situation in PNG as “abolitionist in practice.” In April 2007,


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the Minister for Justice announced that there would be no return to executions and also stated that he would work toward completely abolishing the death penalty. In the same year, three men who had been under sentence of death since 1997 had their sentences commuted to imprisonment for life following an appeal court finding that the trial judge had erred in his belief that he was required by law to impose the death penalty. Tess Newton Cain

Further Reading Fiji Islands Bureau of Statistics. “Fiji Facts and Figures as at 1 July 2008”: http://www.stats fijigov.fj/FFF08.pdf. Institut de la Statistique et des Etudes Economique. “Key Figures”: http://www.isee.nc/anglais/key figures/keyfigures.html. National Statistical Office of Papua New Guinea. “Population and Social Statistics”: http://www. spc.int/prism/country/pg/stats/Pop_Soc_ percent20Stats/popsoc.htm. Solomon Islands National Statistics Office. “Solomon Islands Projected Population by Province 1999–2014”: http://www.spc.int/prism/country/ sb/stats/Social/Popcen/Projection.htm. Vanuatu National Statistics Office. “Social Statistics”: http://www.spc.int/prism/country/vu/stats/ SOCIAL/soc-index.htm.

Micronesia Legal System: Common/Customary Prison Rate: Medium Death Penalty: No Corporal Punishment: Yes (Kiribati only)

Background Micronesia, which lies in the North and Central Pacific Ocean, is composed of more than 2,100 tropical islands spread across an area of approximately

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7,770,000 square kilometers (3,000,000 square miles) of the Pacific Ocean. Its total dryland area, however, is only about 2,706.5 square kilometers (1,045 square miles). It is one of the three ethnogeographical subregions of Oceana, in addition to Melanesia and Polynesia. Politically, it includes seven independent nations and territories: the Republic of Belau (Palau), the Commonwealth of the Northern Mariana Islands (CNMI), Guam, the Federated States of Micronesia (FSM), the Republic of the Marshall Islands, the Republic of Kiribati, and the Republic of Nauru. Geographically, the CNMI and Guam, which are both U.S. territories with distinctive political relationships to the United States, are part of the Marianas archipelago consisting of 21 islands in the northwestern part of Micronesia. Guam has the largest land area of any of the islands (214 square miles) and it also has the largest population of Micronesia, with about 185,793 people. The CNMI has the fourth-largest population at 69,221. The Republic of the Marshall Islands is an independent nation with a Compact of Free Association with the United States and consists of more than 1,200 islands concentrated in the eastern part of the region. It has a population of about 50,840 people. FSM and Palau, which are also independent nations with a Compact of Free Association with the United States, are part of the Caroline Islands archipelago in the southern part of Micronesia, stretching from the east (south of the Marshall Islands) to the west (south of the Marianas). The entire archipelago contains a total of 957 islands, islets, and reefs. FSM has the second-largest population, at 107,008. Palau has the second-smallest population, next to Nauru, with 19,907 people. These two territories and three “freely associated states” collectively form what has been called “American Micronesia” because of their historical and present ties to the United States as a result of World War II (except for Guam, which was ceded to the United States in 1898 following the Spanish-American War). Most of American Micronesia shares a similar political and legal history dominated by foreign powers—first by the Spanish from the 16th century until the late 19th century,


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followed by the Germans until the start of World War I, and the Japanese until the end of World War II. With the exception of Guam, which was already a U.S. territory, the islands were then politically formed into the Trust Territory of the Pacific Islands (TTPI) in 1947 and placed under an American administration. As the UN’s sole “strategic trust,” it was essentially closed off to any outside influence other than that of the United States. This American influence is reflected in the governmental systems of the political entities that eventually emerged from the TTPI as most of the governments have adopted an American presidential model, with the exception of the Marshall Islands, which adopted a parliamentary model. The republics of Kiribati and Nauru, which occupy the southeast border of Micronesia, are both independent nations that are geographically a part of Micronesia but are not associated with the United States. The Republic of Kiribati consists of 169 islands and three archipelagoes—the Gilbert Islands, including Banaba (Ocean Island), the Line Islands, and the Phoenix Islands. It has the third-largest population, with 92,533 people. In 1888 the Gilbert and Ellice islands were made a protectorate of the United Kingdom and later a crown colony in 1916. The islands remained in British control until their independence in 1977. The Republic of Nauru is an independent nation west of Kiribati that consists of a single island. It is the smallest political unit in Micronesia, and it also has the smallest population at 9,086 people. Prior to its independence in 1967, Nauru was a UN Trust Territory administered by Australia and was additionally influenced by earlier British and German administrations. Both Kiribati and Nauru have adopted a parliamentary form of government. Due to limited resources and technology in most of Micronesia, detailed statistics monitoring crime trends, law enforcement personnel, and correctional facilities are either unavailable or not updated on a regular basis. Moreover, much of the information that is available is not readily accessible on official government Web sites. However, each of the nations and territories has a national statistics office that coordinates with the Secretariat of the Pacific

Community (SPC) to publish available statistical information in an online database called the Pacific Regional Information SysteM (PRISM). Although the reporting system is not uniform across the countries in terms of the types of data collected and the methodologies used, it often provides the most current, albeit basic, statistical information about crime in the member country. Other information regarding the components of each member country’s criminal justice system must be sought elsewhere. A summary of available information for each of the U.S. territories and independent nations of Micronesia follows.

Republic of Belau (Palau) Legal System Palau is an independent republic composed of 16 states. It is characterized by a common law legal system and the sources of law for the nation are the Constitution, the Republic of Palau National Code (PNC), initiatives enacted by the people, custom and common law. Palau currently has a Compact of Free Association with the United States under which the United States maintains a military presence in the territory and has additional operating rights in exchange for U.S. economic aid and defense of the nation. The compact declared the self-governing status of Palau and mandated the renegotiation of certain terms, such as those relating to economic aid. It was finally approved by the Palauan people after eight referenda and an amendment to the Palau Constitution. The compacts entered into force in 1994, making Palau the last district in the Trust Territory of the Pacific Islands to officially gain independence. Under the Palau Constitution, the national government is composed of an executive, legislative, and judicial branch. The executive branch consists of the president, vice president, and the Council of Chiefs. The Council of Chiefs advises the president on issues involving custom, tradition, and the Constitution. The council is composed of a traditional leader from each state. Legislative power is vested in


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the Palau National Congress, also called the Olbiil Era Kelulau (OEK). The OEK is a bicameral legislature with a Senate consisting of 13 members elected nationally and a House of Delegates consisting of a single member per state. The judiciary consists of the Supreme Court, which has a trial and appellate division; the Court of Common Pleas, which usually handles minor civil cases and criminal cases if the maximum fine is US$2,000 or less, or five years’ imprisonment or both; and the Land Court. The Office of the Attorney General is under the purview of the Ministry of Justice and is responsible for prosecuting crimes. The office prosecutes approximately 500 criminal cases per annum. There is also an Office of the Public Defender, which is a part of the Ministry of State.

Policing The Bureau of Public Safety is divided into six divisions—the Patrol Division, Division of Correction and Rehabilitation, Division of Criminal Investigation and Drug Enforcement Section, Division of Fish and Wildlife Protection, Division of Marine Law Enforcement, and the Division of Fire and Rescue. In 2009, there were a total of 158 police officers (141 male, 17 female) and 17 civilian personnel.

Classification of Crimes Title XVII of the Palau National Code (PNC) classifies crimes as felonies or misdemeanors, where felonies are crimes or offenses punishable by imprisonment for more than a year, and misdemeanors are all other crimes.

Crime Statistics In 2008, police handled two cases of murder in the first degree, three cases of involuntary manslaughter, and one rape. There were a total of 10 assault crimes (assault and battery with a dangerous weapon, assault and battery, and assault). The most reported crimes were grand larceny, with 149 cases, and burglary, with 72 cases.

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Rights of the Accused Article IV, Section 7 of the Palau Constitution lists the fundamental rights of the accused, which include, among others, the presumption of innocence until proven guilty, the right to be informed of the charges against oneself, the right to a speedy and public trial, the right to a compulsory process of obtaining favorable witnesses, and the right to have counsel at all times, including the right to have counsel assigned by the government for indigent defendants. Title 18, Chapter 4 of the Palau National Code enumerates the rights of defendants: the right to a copy of the charges before trial, the right to the assistance of counsel, the right to apply for further time to prepare a defense, the right to bring witnesses to trial and to have witnesses summoned by the court, the right to give evidence on one’s behalf if one so chooses, the right to have proceedings interpreted when one is unable to understand them otherwise, and the right to request the appointment of an assessor in trials in the event that one has not been appointed.

Types of Punishment There is no death penalty in Palau. Under Title 17 of the code, types of punishment include fines, orders requiring specified residence, restitution, compensation, forfeiture, closing of business, labor without imprisonment, and probation. Custom is accorded “due recognition” in the imposition or suspension of the execution of sentences and the granting of probation. The punishment for homicide varies according to its classification: (1) murder in the first degree has a penalty of life imprisonment; (2) murder in the second degree has a minimum penalty of 5 years’ imprisonment and a maximum of life imprisonment; (3) voluntary manslaughter has a maximum penalty of 10 years’ imprisonment; and (4) involuntary manslaughter has a maximum of 3 years’ imprisonment or a fine not to exceed US$1,000, or both. The punishment for rape is imprisonment for a maximum of 25 years. There is a limitation of punishment for acts that are


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considered crimes solely based on custom, which is a maximum fine of $100, or six months’ imprisonment, or both.

Prison System Prison administration is the responsibility of the Division of Corrections, which is under the Ministry of Justice. There is one prison facility, which is located in Koror. In 2009 there were a total of 97 prisoners (91 male, 6 female). Of these, 8 were in long-term custody (7 male, 1 female).

Commonwealth of the Northern Mariana Islands (CNMI) Legal System The Commonwealth of the Northern Mariana Islands (CNMI) is a U.S. territory characterized by a common law legal system. The political relationship between the United States and the CNMI is governed by the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (the “Covenant”). The covenant together with the applicable provisions of the U.S. Constitution, treaties, and laws of the United States (as specified in the covenant) are the supreme law of the land. Applicable federal laws and provisions of the U.S. Constitution are enumerated in article V and include the first nine amendments of the U.S. Constitution. These rights include the right to a jury trial, the privilege against self-incrimination, and prohibitions of excessive bail and cruel and unusual punishment. The covenant also granted U.S. citizenship for the people of the CNMI (article III) and vested judicial authority in the courts established by the Constitution and laws of the CNMI (article II). Article IV established the federal district court for the Northern Mariana Islands with jurisdiction over all causes arising under the Constitution, treaties, and laws of the United States, regardless of the amount involved in the dispute. Other sources of law are the CNMI Constitution and some pre-Commonwealth laws (such as Trust Territory and Marianas District laws).

Under the CNMI Constitution, legislative power is vested in a bicameral legislature consisting of a House of Representatives with 14 members popularly elected for two-year terms, and a Senate with 9 members popularly elected for four-year terms. Twelve of the 14 representatives are from the island of Saipan, which has the largest population and is the seat of the Commonwealth’s capital. The number of senators is equally divided among three senatorial districts: Saipan (including the northern islands, which have minor populations), Tinian and Aguiguan, and Rota. The executive branch is headed by a governor who is popularly elected for a term of four years. The judicial branch consists of the Superior Court, which has original jurisdiction over all criminal cases, and the CNMI Supreme Court, which is the highest appellate court in the CNMI and has appellate jurisdiction over Superior Court judgments. Its decisions are reviewable only by the U.S. Supreme Court. In 2006, 274 criminal cases were filed in the Superior Court and 4 in the Supreme Court.

Policing The Department of Public Safety (DPS) is responsible for local law enforcement. DPS is headed by a commissioner and is divided into the Police Division, Fire Division, Criminal Investigations Division, and the Department of Motor Vehicles. There are stations on the islands of Saipan, Tinian, and Rota. The Criminal Investigations Division is charged with the investigation of all crimes within the CNMI’s jurisdiction and applicable federal laws. It is divided into the Juvenile Police Unit, the Drug Enforcement Task Force (DETF), Domestic Violence Intervention Unit, Special Homicide Activities Resolution Project (SHARP), Theft Apprehension Select Coalition (TASC), Human Trafficking Intervention Coalition, and the General Crimes Unit.

Classification of Crimes Title VI of the Commonwealth Code (6 CMC) deals with crimes and criminal procedure in the CNMI.


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Offenses are classified as either felonies, which are punishable by imprisonment for at least one year, or misdemeanors, which are punishable by not more than one year’s imprisonment.

Crime Statistics In 2004, police made arrests for 1 homicide, 1 rape (sexual assault in the first degree), 6 robberies, and 104 thefts. The top four crimes for which police made an arrest were assault crimes (450), disturbing the peace (334), driving under the influence (236), and reckless driving (254).

Rights of the Accused Article I, Section 4 of the Commonwealth Constitution enumerates the fundamental rights of the accused in criminal prosecutions, which includes the right to assistance of counsel, the right to be confronted with adverse witnesses and to have a compulsory process for obtaining favorable witnesses, the right to a speedy and public trial, the right to be protected against giving self-incriminating testimony, and the right to be protected against double jeopardy, excessive fines and bail, and cruel and unusual punishment. Title VI, Section 6105 lists the rights of persons arrested, which include the right to see counsel, family members, or employers at reasonable intervals and for a reasonable time at the place of detention; the right to the services of the public defender, free of charge; the right to be either charged or released within 24 hours. Section 6105 also requires the police to inform those in custody of the right to remain silent and the right to have the police call counsel before questioning.

Types of Punishment Capital punishment is expressly prohibited under article 1, section 4 of the Constitution. Title VI of the Commonwealth Code lists available sentences, which include imprisonment, fines, orders requiring specified residence, restitution, compensation, and probation. The sentence for homicide varies depending on whether the homicide is classified as

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murder (unlawful killing with malice aforethought) or manslaughter (unlawful killing without malice aforethought). Murder is divided into first-degree and second-degree murder, and the sentence for first-degree murder is imprisonment for at least 10 years, up to life imprisonment. The sentence for second-degree murder is imprisonment for at least 5 years, up to life imprisonment. Manslaughter is divided into voluntary and involuntary manslaughter. The sentence for voluntary manslaughter is imprisonment for a maximum of 10 years, and a maximum of 5 years for involuntary manslaughter. Sexual assault is divided into four degrees. The most serious sexual assault offense—sexual assault in the first degree—is punishable by imprisonment for a maximum of 30 years, a $50,000 fine, or both. Local customs may be considered in sentencing as mitigating or aggravating factors.

Prison System Prison administration is conducted by the Division of Corrections (DOC), which falls under the Department of Public Safety (DPS) and is headed by the commissioner. There is only one prison facility, which is located on Saipan. According to the International Center for Prison Studies, the prison population in October 2008 was 131.

Guam (Guahan) Legal System The Territory of Guam (Guam or Guahan) is a U.S. territory characterized by a common law legal system. The ultimate source of U.S. control over Guam comes from article II of the 1898 Treaty of Paris in which Spain ceded Guam to the United States after the Spanish-American War. In 1950, the U.S. Congress passed the Organic Act of Guam granting, among other things, U.S. citizenship to Guamanians and establishing the form and structure of the government. The Organic Act thus essentially functions as Guam’s constitution. Under the act as amended, the executive branch is headed by the governor, who is popularly elected for a term of four years. The legislative branch, called the Legislature


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of Guam, consists of a unicameral legislature with a maximum of 21 legislators, called senators, who are elected for two-year terms. In 1996 the number of senators was reduced to 15. Judicial authority is vested in the federal District Court of Guam and the Guam judiciary. The judicial branch consists of the Supreme Court of Guam, which is the highest court (excluding the District Court), the Superior Court, and lower local courts. In 2005 adult and juvenile drug courts were recognized as courts of record by the judiciary. With regard to criminal matters, the District Court previously exercised jurisdiction over felonies, while jurisdiction over misdemeanor cases were handled by either the Island Court or the Police Court. In 1974 the Judicial Reorganization Act abolished both the Island and Police courts and created the Superior Court to exercise jurisdiction in all cases arising out of the laws of Guam. Between September 30, 2005, to September 30, 2007, the Superior Court handled 3,129 criminal cases.

Policing While the United States is responsible for the military defense of the island, the Guam Police Department is responsible for local law enforcement. There are a total of 19 villages on Guam that are divided into four precincts. The department is headed by the chief of police, followed by the police commander, who oversees the Operations and Investigations bureaus, and the deputy chief of police, who oversees the Support Bureau. In 2007, the Guam Police Department employed 309 full-time sworn officers (6.5% female, 93.5% male) and 66 civilians (72.7% female, 27.3% male). There is an average of 1.8 fulltime employees per 1,000 inhabitants.

Classification of Crimes Guam criminal law is based on the Model Penal Code advocated by the U.S. National Conference of Commissioners on Uniform State Laws. It is particularly influenced by the California Penal Code. The Criminal and Corrections Code falls under Title 9 of the Guam Code (9 GCA). Crimes and offenses

are classified as felonies, misdemeanors, petty misdemeanors, and violations. Felonies are subdivided into first-, second-, and third-degree felonies, while misdemeanors and petty misdemeanors are crimes that are not subdivided into degrees and do not have specified sentences authorized upon conviction. Violations are not considered crimes and are offenses for which the penalty is limited to a fine or forfeiture.

Crime Statistics According to the Federal Bureau of Investigation (FBI) Uniform Crime Report (UCR) for Guam, a total of 1 homicide, 208 forcible rapes, 108 robberies, and 117 aggravated assaults were reported to the police in 2007. The total number of violent crimes had increased slightly from the previous year, from 410 in 2006 to 434 in 2007. Unlike violent crime, the total number of property crimes reported in 2007— burglary, larceny-theft, motor vehicle theft, and arson—reflected a downward trend, from a total of 4,651 in 2005, to 4,177 in 2006, and finally to 4,077 in 2007. The sharpest decrease in property crimes was in the number of burglaries, which fell from 1,292 in 2006 to 1,058 in 2007.

Rights of the Accused Under the Organic Act, the rights of the accused in criminal prosecutions include the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against oneself, to have a compulsory process for obtaining witnesses in one’s favor, and to have the assistance of counsel for one’s defense. The rights of defendants in criminal proceedings are elaborated in Title 8, Chapter 1 of the Guam Criminal Code and also includes the right to appeal and the right for indigent defendants in criminal cases to have counsel appointed at public expense at all stages of the proceedings.

Types of Punishment There is no death penalty on Guam. Title 9, Chapter 80 of the Guam Code specifies five types of


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sentences: (1) imprisonment by a term required by law, (2) imprisonment and an additional parole, (3) a fine or restitution authorized by law, (4) probation, and (5) a combination of a fine, restitution, probation, and/or imprisonment. Unless otherwise specified by law, first-degree felonies are generally punishable by a sentence of imprisonment for at least 5 years, and no more than 20 years. Seconddegree felonies carry sentences of at least 3 years, and no more than 10 years. Third-degree felonies carry sentences that do not exceed 5 years. Prison terms for first-time offenders have a shorter range; for example, first-degree felonies carry sentences of at least 3 years, but no more than 15 years. Extended sentences are allowed and could increase the term for a first-degree felony to life imprisonment, a second-degree felony to between 5 and 20 years, and a third-degree felony to between 3 and 10 years. There are four types of criminal homicide recognized in the Criminal Code, each with a different sentence: aggravated murder, murder, manslaughter, and negligent homicide. Aggravated murder, murder, and manslaughter are all first-degree felonies, while negligent homicide is a third-degree felony. Chapter 16 of the Code provides specific sentences for aggravated murder and murder. For aggravated murder the sentence is life imprisonment without possibility for parole, work release, educational programs outside the prison, or a suspended sentence. The sentence for murder is similar to aggravated murder, except that there is possibility for parole after 15 years. Criminal sexual conduct is covered under Chapter 25 of the Code and is subdivided into four degrees. First-degree criminal sexual conduct is a first-degree felony punishable by a minimum of 15 years to a maximum of life imprisonment without possibility of parole. Second-degree criminal sexual conduct is also a first-degree felony, but without the ability to participate in work release or outside educational programs. Third-degree criminal sexual conduct is punishable as a second-degree felony, and fourth-degree criminal sexual contact is punishable as a third-degree felony, unless the person is a first-time offender, in which case the crime is punishable as a misdemeanor.

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Prison System There are four major prison facilities: the Adult Correctional Facility (ACF), the Hagåtña Detention Facility, the Women’s Facility, and the Community Corrections Center (C3). The ACF houses immigration detainees, minimum, medium, and maximum security inmates. In May 2009, the ACF had a total population of 411. The Hagåtña Detention Facility houses local pretrial detainees and U.S. federal marshal detainees. Its population in May 2009 was 119. The Women’s Facility is the only detention facility for women, and it had a population of 27 women in 2009. Finally, the Community Corrections Center houses inmates who are eligible for work credit, work release, and educational release. Its population was 22 in May 2009.

Federated States of Micronesia (FSM) Legal System The Federated States of Micronesia (FSM) is an independent nation composed of four states: Pohnpei, Yap, Chuuk, and Kosrae. It is characterized by a common law legal system at both the national and state levels. Sources of law are the FSM Constitution, state constitutions, national, state and local legislation, treaties, customary law, Trust Territory laws, and common law. The FSM currently has a Compact of Free Association with the United States under which the United States maintains a military presence in the territory and has additional operating rights in exchange for U.S. economic aid and defense of the nation. The compact was approved by the majority of FSM citizens in a plebiscite held in 1983 and became effective in 1986. The FSM Constitution is the supreme law of the land. It established three branches of government, with the executive branch headed by a president who is elected by the legislature for a term of four years. Legislative powers are vested in the Congress of Micronesia, which is a unicameral legislature composed of 14 senators. Each state has 1 senator elected for a four-year term, and the remaining 10 senators are elected for two-year terms and are apportioned according the population of each state.


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The highest court is the Supreme Court, and there is currently no other national-level court. Because the FSM is a federal system, each state has an independent government and adheres to its own laws in addition to the national Constitution and national laws. All four states have a constitutional government with an executive, legislative, and judicial branch. The state of Yap is the westernmost state of the FSM. It has an executive branch headed by a governor and a unicameral legislature with 10 members. The highest state court is the State Court of Yap. The state of Chuuk has the largest population in the FSM, with about 53,000 people. The executive branch is headed by a governor, and the legislature consists of the Senate with 10 members and the House of Representatives with 28 members. The highest state court is the Chuuk State Supreme Court. The state of Pohnpei has the largest land area and is also the seat of the national capital. The state executive is the governor, and the Pohnpei Legislature consists of 23 senators. The Pohnpei State Court is the highest state court.

Policing At the national level, the attorney general of the FSM is the highest law enforcement official and oversees the Division of Security and Investigation (DSI), which is the national government’s police force.

Classification of Crimes The National Criminal Code is found in Title XI of the FSM Code (11 F.S.M.C.) and is generally based on the Model Penal Code. Prior to 1991, the national government was responsible for prosecuting “major crimes,” which were defined as crimes punishable by imprisonment for at least three years or resulting in the loss of property or services amounting to a minimum of US$1,000. In 1991 the FSM Constitution was amended, transferring jurisdiction over most crimes to the states and giving the national government jurisdiction over “national” crimes as defined by the Congress (article IX, § 2). National crimes are crimes that are “inherently

national in character” as specified in Title IX of the FSM Code, or crimes that are “otherwise against the Federated States of Micronesia.” Crimes are classified as either felonies or misdemeanors, where felonies are crimes that are punishable by imprisonment for more than a year and misdemeanors are defined as all other crimes. The states likewise classify crimes as either felonies or misdemeanors.

Crime Statistics Detailed statistics about crime by type of offense are not available. However, according to the FSM’s 2008 Statistical Yearbook, a total of 877 criminal cases were filed in the courts of each state—102 in Yap, 125 in Chuuk, 450 in Pohnpei, and 200 in Kosrae. With regard to offenses reported to the police, there were 75 felonies reported in Chuuk, 266 in Pohnpei, and 29 in Kosrae.

Rights of the Accused The national Constitution contains a Declaration of Rights similar to the U.S. Bill of Rights, and protects, among other rights, the right to a speedy public trial and the right to the assistance of counsel. Title XII of the FSM Code (12 F.S.M.C.) covers criminal procedure and enumerates the rights of defendants, which include the rights to have a copy of the charge prior to trial, to consult counsel prior to and during the trial, to bring witnesses or have witnesses summoned in defense, and to have proceedings interpreted. With regard to arrested individuals, public officials are required to inform them of their rights, such as the right to remain silent and to be informed of the criminal charges. The rights of the accused in the different states are similar.

Types of Punishment Capital punishment is expressly prohibited under article IV, Section 9 of the Constitution. Under Title XI of the code, national crimes are punishable by imprisonment, fines, restitution, reparation or service to the victim of the crime or the victim’s family, community service, and confinement


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to a particular geographical area. The code also recognizes customary law in matters of crime and criminal responsibility as well as in sentencing. The national crime with the highest penalty is treason, which is punishable by a minimum of two years’ imprisonment and a maximum of life imprisonment. The types of punishment for crimes in each state are similar and include fines, imprisonment, restitution, probation, hard labor without imprisonment, closing of business, and specified residence. Homicide is not uniformly classified across the states and the punishment for the different types of homicide varies somewhat. For example, Kosrae divides homicide into murder, which has two degrees, and involuntary manslaughter. The punishment for first-degree murder is a maximum of 20 years’ imprisonment, a $20,000 fine, or both. In Chuuk, homicide is divided into murder, manslaughter, and criminal homicide. The punishment for murder is a minimum of 5 years’ imprisonment and a maximum of life imprisonment. The minimum punishment for murder in Yap, which also divides homicide into murder and manslaughter, is 5 years, and the maximum is also life imprisonment. The punishment for the highest form of sexual assault is similar across the states. For example, in Chuuk, the punishment is a maximum of 9 years’ imprisonment, a $10,000 fine, or both; whereas in Yap, the punishment is a maximum of 10 years’ imprisonment, a $10,000 fine, or both. States also have a limitation on the punishment of acts that are made criminal solely by custom. For example, in Chuuk and Yap, there is a maximum fine of $100, imprisonment for a maximum of 3 months (Chuuk) or 6 months (Yap), or both.

Prison System Prison administration falls under the Division of Corrections and Rehabilitation, which is headed by the chief. There are four facilities, one located in each of the four states. In 2007, the total number of prisoners was 96, with an average of 89 for every year since 2000. The majority of prisoners (44% or 46%) were detained in Pohnpei.

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Republic of the Marshall Islands Legal System The Republic of the Marshall Islands is an independent nation characterized by a common law legal system. It has a Compact of Free Association with the United States that was approved by the Marshallese people in a plebiscite held in 1983 and that became effective in 1986. Sources of law are the Marshall Islands Constitution, adopted legislation from the Trust Territory Code, and legislation enacted by Parliament, or Nitijela, treaties and compacts, customary law, and common law. Although it was formerly under an American administration as part of the Trust Territory of the Pacific Islands, the Republic of the Marshall Islands ultimately adopted a quasiparliamentary governmental structure as more congruous with the actual political experience of the people. Under article IV of the Marshall Islands Constitution, legislative power is vested in the Nitijela, which is a unicameral parliament with 33 members who are popularly elected for four-year terms. Article V vests the executive power in the cabinet with 10 ministers who are collectively responsible to the Nitijela. The cabinet consists of the president, who is the head of state and a member of the Nitijela, and other members of the Nitijela who are appointed as ministers. The president is elected for a four-year term by a majority of the Nitijela. The Constitution under article III also provides for an advisory body composed of traditional leaders called the Council of Iroij. With respect to the cabinet, the council’s advisory role is not restricted to matters relating to customary law. With respect to the Nitijela, however, the council’s advice is limited to matters affecting land and custom. Neither the cabinet nor the Nitijela is required to follow the council’s advice, although the Nitijela must reconsider any bill returned to it. Article VI of the Constitution vests the judicial power in the Supreme Court, a High Court, a Traditional Rights Court, and such district courts, community courts, and other subordinate courts as are created by law. The Supreme Court is the highest appellate court. The High Court is a court of


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general jurisdiction over matters of law and fact, and it has both original jurisdiction over cases properly filed and appellate jurisdiction over cases filed in lower courts. With regard to criminal matters, the district court has original jurisdiction concurrently with the High Court in criminal cases involving offenses for which the maximum penalty does not exceed US$4,000 or imprisonment for a term of less than three years, or both. The district court also has appellate jurisdiction over decisions made by the community court. There are 24 community courts in local government areas that have concurrent jurisdiction with the High Court and district court in criminal cases where the maximum penalty does not exceed a $400 fine or six months’ imprisonment, or both. Finally, the Constitution provides for the Traditional Rights Court, which has jurisdiction limited to questions related to land matters and matters depending wholly or partly on customary law.

Policing The Marshall Islands has a national police force under the Department of Public Safety, which is part of the Ministry of Justice. There are also local police forces on the different atolls. The RMI Statistical Yearbook for 2004 reported a total of 137 national police officers on three different atolls and a total of 466 local police officers.

Classification of Crimes Under the Criminal Code, which is Title 31 of the Marshall Islands Revised Code (31 MIRC), crimes are classified as felonies or misdemeanors. Felonies are offenses punishable by imprisonment for more than a year. All other crimes are classified as misdemeanors. If a crime is punishable by imprisonment for less than a year, it is considered a petty misdemeanor. All other crimes are classified as misdemeanors.

Crime Statistics In 2004, there were a total of 2,074 offenses reported to the national police. Of these offenses, there was

1 of murder, 3 cases of rape/attempted rape, 100 cases of burglary, and 295 total assault crimes (aggravated assault, assault, assault and battery, assault and battery with a dangerous weapon). The most reported offenses were disturbing the peace (773) and drunken disorderly conduct (408). These numbers only reflect those offenses known to the national police and do not include those criminal cases that were handled by the local government police.

Rights of the Accused Under the Bill of Rights (article II of the Constitution), the rights of the accused in criminal trials include the right to be informed promptly and in detail of the nature of the accusations, the right to a speedy and public trial before an impartial tribunal, the right to have adequate time and facilities for the preparation of a defense, the right to counsel, including the right to have counsel appointed if the interests of justice so require. Section 137 of the Criminal Procedures Act (32 MIRC) lists the rights of defendants in criminal proceedings. These rights are similar to those in other Micronesian states and include the right to have in advance of trial a copy of the charge, the right to consult counsel, the right to present witnesses on one’s behalf and to have them summoned by the court, and the right to have proceedings interpreted if the defendant would not be able to understand them otherwise. The rights of the arrested (32 MIRC § 120) are also the same as for other Micronesian states.

Types of Punishment The death penalty is prohibited as cruel and unusual punishment under article II, Section 7 of the Constitution. Part XXIX of the Criminal Code specifies the types of punishment, which include fines, orders requiring specified residence, restitution, compensation or forfeiture, closing of business, labor with or without imprisonment, and probation. The punishment for homicide varies according to its classification under Part XIV of the Criminal Code.


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The penalty for murder in the first degree is life imprisonment. For murder in the second degree, the penalty is a minimum of 5 years’ imprisonment and a maximum of life imprisonment. For voluntary manslaughter, the penalty is a maximum of 10 years’ imprisonment, and for involuntary manslaughter, the penalty is a maximum fine of $1,000 or 3 years’ imprisonment, or both. Sexual offenses are divided into four degrees, and the highest penalty is for sexual assault in the first degree, which is a maximum of 25 years’ imprisonment. The maximum penalty for a property crime or burglary is 10 years’ imprisonment. As with the other Micronesian states, there is a limitation of punishment for acts that are made crimes solely because they violate native customs—a maximum fine of $100 or 6 months’ imprisonment, or both. There is also a recognition of custom in the imposition or suspension of sentences and the granting of probation.

Prison System Prison administration is the responsibility of the Correction Division under the Department of Public Safety. There is a single prison facility, which is located in Majuro, the capital of the RMI. In 2006, there were 47 prisoners.

Republic of Kiribati Legal System The Republic of Kiribati (formerly the Gilbert Islands) is an independent nation with a parliamentary form of government. It is characterized by a common law legal system. Sources of law include the Constitution of Kiribati, statutes (acts of the Maneaba [legislature], certain UK statutes), common law, and custom. The republic gained its independence from Great Britain in 1979 through the Kiribati Independence Order, which also provided a written constitution. Under the Constitution of Kiribati, executive authority is vested in the cabinet, which consists of the Beretitenti (president), the Kauoman-ni-Beretitenti (vice president), ministers appointed by the Beretitenti from among the Maneaba, and the attorney general. The Beretitenti is

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both the head of state and head of government and is nominated from among the Maneaba and elected by a national vote. Thus, the parliamentary system adopted by Kiribati also incorporates to a certain extent the American model. Legislative authority is vested in the Maneaba ni Maungatabu, which consists of 41 members who serve four-year terms. Thirty-nine members are elected by popular vote, one is nominated by the Rabi Island Council in Fiji to represent Banaba, and one member serves ex officio. The judicial branch consists of magistrates’ courts, a High Court, and the Court of Appeal. Constitutional cases involving Banabans may be appealed directly to the Privy Council in England. With regard to criminal matters, the magistrates’ courts have jurisdiction over cases in which the maximum punishment is a fine of $500 or 5 years’ imprisonment, or both. The High Court has unlimited original jurisdiction in criminal cases and has jurisdiction over certain criminal cases from the magistrates’ courts. The Court of Appeal has appellate jurisdiction over criminal appeals.

Policing The police force is headed by the commissioner of police and prisons, followed by three superintendents who are responsible for crime and security, prisons, and administration. The commissioner reports to the Office of the President. In 2006, there were approximately 300 police officers and 40 correctional officers.

Classification of Crimes Under the Penal Code (Cap. 67), offenses are classified as either felonies or misdemeanors. Felonies are offenses punishable by imprisonment for at least three years, and misdemeanors are all other crimes.

Crime Statistics The most recent crime statistics available are from 2000, which reveal a total of 1,337 crimes reported. Of these crimes, 311 were classified as crimes against the person and 588 as crimes against property.


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Rights of the Accused Section 10 of the Constitution lists the rights of every person charged of a criminal offense: the right to be presumed innocent until one is either proved guilty or has pled guilty; the right to be informed of the charges as soon as reasonably practicable; the right to defend oneself or through counsel at one’s own expense; the right to be given adequate time to prepare a defense; the right to examine adverse witnesses and to call witnesses on one’s behalf; the right to have the assistance of an interpreter free of charge if one cannot understand the language used by the trial court. The Criminal Procedure Code (Cap. 17) further elaborates on the procedural rights of defendants.

Types of Punishment Under the Penal Code, the penalty for murder is life imprisonment (§ 193). The penalty for manslaughter as well as for rape is up to life imprisonment (§§ 192 and 129, respectively). The penalty for burglary is up to 14 years’ imprisonment. Other types of punishments include fines, corporal punishment, community service orders, probation orders, residence orders, and police supervision for a maximum of 5 years.

Prison System Prison administration is the responsibility of the Kiribati Prison Service under the Office of the President. The head of the prison system is the commissioner, who is also the head of the police force. In 2007, there were a total of 88 prisoners in four prison facilities, including one facility for females.

Republic of Nauru Legal System The Republic of Nauru (formerly Pleasant Island) is an independent nation with a parliamentary form of government. It is characterized by a common law legal system, and its sources of law include the Constitution of Nauru, legislation (postindependence acts of the Nauru Parliament, subordinate legislation such as regulations, preindependence colonial

ordinances, and certain statutes in force in England on January 31, 1968, British common law, and custom). Formerly a UN Trust Territory under the administration of Australia, the Republic of Nauru gained its independence on January 31, 1968. The Constitution of Nauru was adopted two days earlier, on January 29. Under the Constitution, executive authority is vested in the cabinet, which is collectively responsible to Parliament. The cabinet consists of five members appointed by the president, who is elected by Parliament for a three-year term. The president is both the head of state and the head of government. The Nauruan Parliament is a unicameral legislature consisting of 18 members (MPs) who are popularly elected for three-year terms. The judicial branch consists of the Supreme Court, the District Court, and Family Court. The Family Court was established by the Family Court Act of 1973 and consists of members appointed by the president. Its jurisdiction is limited to issues provided for in the Maintenance Ordinance (1959– 1967) and the Adoption of Children Ordinance (1965–1967). The District Court was established by the Courts Act of 1972, and it consists of magistrates appointed by the president. It has jurisdiction over all civil cases where the amount in controversy does not exceed $3,000. With regard to the criminal matters, the Courts Act does not specify any substantive criminal jurisdiction for the District Court. The Supreme Court of Nauru has original jurisdiction over the interpretation or effect of constitutional provisions. It also issues advisory opinions to the cabinet on questions involving the Constitution. With regard to criminal matters, the Supreme Court has jurisdiction over appeals from decisions of the District Court. Furthermore, the High Court of Australia has jurisdiction to hear appeals from the Supreme Court for any final first instance judgment and for certain cases with leave of the trial judge or the High Court. There are a number of situations in which appeals to the High Court of Australia are not permitted, such as appeals involving the interpretation or effect of the Nauruan Constitution or appeals from decisions that are final according to statute. Although the High Court may review criminal cases, it rarely does so.


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Policing The Ministry of Justice oversees the Nauru Police Force. As of July 2009, there were a total of 76 Nauru police officers. Other law enforcement officials with specific enforcement duties include 18 immigration officers and 5 customs officers. Because prison administration is also handled by the Nauru Police Department, 18 corrections officers and 10 reserve officers are counted as part of the police force. The government is currently in the process of creating a separate Department of Corrections.

Classification of Crimes The Republic of Nauru has adopted the Queensland (Australia) Criminal Code. Under the code, offenses are classified as either regulatory or criminal. Criminal offenses are further classified as crimes or simple offenses. Crimes consist of every offense defined in the code, every indictable offense, and every offense declared under an act to be a crime.

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dishonest appropriation ranges from 7 to 14 years’ imprisonment.

Prison System Prison administration is the responsibility of the Nauru Police Department headed by the director of police. As of July 2009, there were a total of 24 male prisoners serving terms ranging from three months to life, and 9 prisoners in remand. Estelle Hofschneider

Further Reading Bird, R., A. Matich, and Dianne Thompson. (2008). Law of the Pacific Islands: A Guide to Web Based Resources: http://www.llrx.com/ features/pacific.htm. International Centre for Prison Studies: http:// www.kcl.ac.uk/schools/law/research/icps. Ntumy, M., ed. (1993). South Pacific Islands Legal Systems. Honolulu: University of Hawaii Press.

Rights of the Accused Under the Constitution, the rights of the accused include the presumption of innocence until proved guilty, the right to be informed of the charges against oneself and to be given adequate time and facilities for the preparation of a defense, the right to have an interpreter free of charge if one cannot understand the language used by the court, the right to counsel and to have counsel appointed where “the interests of justice so require,” and the right to examine witnesses against oneself and to be able to call witnesses in one’s favor.

Types of Punishment Under the Queensland Code, there is a mandatory penalty of either life imprisonment or an “indefinite sentence” for murder and a maximum penalty of life imprisonment for manslaughter. The maximum penalty for rape is life imprisonment. The penalties for the different degrees of sexual assault range from a maximum of life imprisonment for the most serious offense to 7 years’ imprisonment. The penalty for property crimes of stealing and

Pacific Islands Legal Information Institute (PacLII): http://www.paclii.org/. Pacific Regional Information SysteM (PRISM): http://www.spc.int/PRISM/index.htm.

New Zealand Legal System: Common Murder: Low Burglary: Medium Corruption: Low Human Trafficking: Low Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background New Zealand is a relatively isolated nation with a population estimated to be 4.25 million persons. The country has long been known for benefits conferred


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by a compassionate welfare system that cares for victims of crime, disease, and disaster. Today, the significant reduction of the island’s demographic homogeneity, particularly by an influx of migrants from the Pacific region, and the continuing migration to the cities from rural areas, combined with economic pressures, has led to a curtailing of some of the more generous subsidies to those in need. Nonetheless, the spirit that has been responsible for the country’s communitarian policies is reflected in significant ways in a criminal justice system that makes particularly strenuous efforts, both in its laws and in its operational programs, to salvage and reintegrate those who have committed criminal offenses. In the 19th century, the indigenous Maori population was overwhelmed by British settlers, who took formal command of the country under terms of the Treaty of Waitangi that was signed on February 6, 1840, a day that now is a national holiday, though the legality of the treaty has been recently questioned. The Treaty of Waitangi meant that the laws in England would now prevail in New Zealand.

capital in Wellington and are subdivided into 12 districts, each led by a district commander with the rank of superintendent. Each district has three operational branches: general duties, criminal investigation, and road policing. Special units handle matters such as intelligence, forensics, diplomatic protection, and maritime enforcement. There are also some 400 community policing stations in the country. At the beginning of 2008, there were 10,300 employees in the police force, of whom 75 percent are sworn enforcement officers, with Maoris making up about 10 percent of that contingent. Some 80 percent of the officers are men. Applicants for police positions must have at least four years of high school education, must pass proficiency tests in mathematics and literacy, and need to undergo fitness tests and a psychological assessment. They cannot have a record of serious law breaking, a category that includes drunken driving.

Police The first police in New Zealand arrived in 1840 with the landing party that established New Zealand as a British colony. Magistrates were authorized two years later to appoint men who were accorded powers existing in the common law of England for investigating crimes and making arrests. At first, the police served partly as law enforcers and partly as a militia. Four years onward, an ordinance called for the establishment of a constabulary force that would contain sufficient numbers of fit and able men to preserve the peace and prevent robberies and other felonies and apprehend offenders. The Police Act of 1886 mandated the formation of the country’s first national police force, and in 1968 a new Police Act eliminated the word “Force” from its name, declaring that from then forward the organization should be known as the “New Zealand Police,” a move reflecting the less confrontational style of enforcement that the authorities favored. The New Zealand Police are commanded by a commissioner with headquarters in the national

New Zealand police constable Mike Smith, foreground, falls to the ground after being shot with a Taser gun by Sergeant Darrin Putt in a demonstration of the device at the Police College in Wellington, New Zealand, August 29, 2006. (AP Photo/NZPA, Ross Setford)


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The training of recruits and advanced courses for sworn officers are conducted at the Royal New Zealand Police College in Papakowhai, a suburb of Puawai City, located 22 miles north of Wellington. Each year, there are usually six new recruit classes, called “wings,” with about 40 to 100 members in a wing. The entry-level course takes five months and successful graduates then serve two years as probationary constables during which time they are given 10 different work assignments and must prepare a paper for a university class.

Strategic Tactics Group The New Zealand police often are extolled for the fact that they do not carry firearms but rather rely on armaments such as batons and pepper spray. Senior police officers routinely carry an assortment of weapons in the locked trunk of their car and police who anticipate violence may have a holstered gun that they will be careful to tuck out of sight under their jacket or sweater. There also is a wellarmed Special Tactics Group (STG) that is trained in the use of weapons in preparation for dealing with emergencies such as terrorist attacks, riots, or domestic disputes that can turn dangerous for enforcement interveners. The work of the STG squad, which is manned by about 50 officers, was expanded considerably with the passage in 2002 of the Terrorist Suppression Act. The major enforcement focus has been on deterring the financing of groups deemed likely to mount terrorist actions, but after Parliament in November 2007 called for the creation of lists of suspected terrorist individuals and organizations, the SGT has played a more forceful role in rounding up persons it believes pose a terrorist threat. A major antiterrorist raid was carried out by the police in the vicinity of the larger New Zealand cities in October 2007 at sites said to be “terrorist training camps” and “anarchist group homes.” The raids were conducted by more than 300 armed police officers and focused on Maoris and on environmental activists. Numerous guns and grenades were seized and one of the alleged leaders of the movement was found with a semiautomatic shotgun and

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several Molotov cocktails. Thereafter, the police infiltrated the camps and did extensive videotaping of what went on.

Monitoring Police Behavior In 1988, Parliament established the Police Complaints Authority (PCA) to handle grievances filed against the police and to investigate controversial police actions. Toward the end of 2007, the entity was renamed the Independent Police Conduct Authority (IPCA) to seek to convey more authoritatively that the agency was not, at least formally, beholden to the police. The IPCA is charged with the investigation of police involvement in situations in which death or serious injury occurred. They also entertain allegations by citizens or other civilians of serious police misconduct and examine situations in which a suspect died while in police custody. The most recent tally shows that about 300 complaints regarding police misconduct had been filed with the authority during the previous year. The authority is appointed by the governor-general and reports to Parliament and to the attorney general. The staff numbered 18 persons in 2008, with investigators largely former police offices, a situation that has given rise to claims that its work tilted in favor of the police rather than complainants. The New Zealand police sought early on to take steps to establish a national collection of DNA profiles on the basis of a 1978 recommendation by the Criminal Law Reform Commission on Bodily Examination and Samples as a Method of Identification. But the idea met with strong resistance and did not come to fruition until the passage of the Criminal Investigations (Blood Samples) Act in 1995. The act established a national DNA data bank with samples required from persons convicted of specified offenses and criminal suspects who voluntarily yielded DNA samples. In 2003, the Criminal Investigations (Bodily Samples) Amendment to the original act added the use of bucal, or mouth, swabs to obtain DNA samples. The collection had built to 64,199 DNA profiles by the end of 2006 with additions averaging about 800 to 1,000 a month. To


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date, more than 50 previously unsolved cases have been cleared on the basis of DNA evidence. Objections to the program remain strong, based on principles of privacy. The Auckland Civil Rights group has maintained that the system represents a slippery slope that will eventuate in a mandatory program that would represent an unacceptable assault on the civil liberties of New Zealanders.

Crime Criminal offenses in New Zealand are divided into six categories. The first includes purely summary offenses that are tried before a judge alone in a district court. These offenses, which are relatively minor, carry a penalty of three months or less. Electable offenses can be tried summarily or on indictment in a district court, whichever the accused chooses. The offenses involved carry a possible penalty of more than three months’ imprisonment. Typical offenses in this category are simple assault and the possession or use of marijuana. Hybrid offenses are tried summarily in the district court following an indictment. The category includes most offenses against the person and against property. Offenses that also are tried in district court following an indictment, but require a jury, include corruption, bestiality, aggravated assault, and arson. Arson cases in New Zealand are disproportionately committed by young persons. Typically, about 65 percent of New Zealand’s arsonists are under 17 years of age with 40 percent being under 14. The majority of young persons and adolescents who set fires are dealt with by the New Zealand Fire Service by means of a youth intervention program. The law against bestiality—sexual activity involving a human and an animal—derives from early religious orthodoxy. In New Zealand the offense can incur a maximum seven-year penalty. In 1989 a bill introduced in Parliament sought to eliminate the behavior from the roster of crimes and redefine it as a mental health problem but failed of passage. Some judges, however, have taken a milder view of bestiality. In Police v. Sherry in 1991, the court observed in a bestiality case that “the community is

now more lenient and understanding of unusual sexual practices that do not harm others.” A fifth category embraces offenses that are to be heard in the High Court following an indictment. The High Court, however, can return these matters to a district court after taking into account the gravity of the offense, the complexity of the case, and the interests of justice. These offenses include rape, grievous bodily harm, and kidnapping. Finally, murder and manslaughter charges must be heard in the High Court before a judge and jury.

Crime Statistics The seven categories of criminal offenses under New Zealand law about which statistics are reported are listed here in descending order in terms of the number of reported violations: (1) dishonesty offenses, (2) drug and antisocial offenses, (3) violent offenses, (4) property damage, (5) property abuse, (6) administrative offenses, and (7) sexual offenses. In the 2007–2008 reporting year, there were 112 homicides, and only for this offense may we reasonably compare it to the totals for earlier years: in 2006–2007, there were 96 homicides and the year before 105. The three categories of assaults—serious (21,096 cases), grievous (5,009), and minor (14,921)—show a combined total of 41,026 reported or discovered incidents. Robberies, involving force or fear, stood at a total of 2,629; kidnapping and abduction at 242.

Dishonesty Offenses Dishonesty offenses accounted for more than half of New Zealand’s crime in the 2007–2008 fiscal year with a rate of 51.97 per 100,000 population. The category includes five subdivisions: (1) theft, which accounts for about half of the dishonesty violations; (2) burglary, which makes up 26 percent of the total; (3) car theft and related offenses (3%); (4) fraud (1%); and receiving stolen goods (less than 1%). A fifth category, concerned with what are called “miscellaneous dishonesty,” has shown insignificant totals over the past decade.


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Sexual Offenses For statistical purposes, with the totals in parentheses, sexual offenses break down into sexual attacks (2,364); sexual affronts, which include indecent performances and “obscene exposure” (596); immoral behavior (353); immoral behavior/miscellaneous (174); and abnormal sex, such as incest and bestiality (35).

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acts recorded as “against justice,” 272 immigration crimes, and 3 instances declared to violate racial laws. The Sentencing Act of 2002 had incorporated hate crimes in its embrace, increasing the sentences possible for crimes directed against persons because of their race, ethnicity, sexuality, or religion. Some have objected that act did not include gender or disabilities as a protected category.

Drug Offenses

Crime Victim Survey

Drug and antisocial crimes constituted 14 percent of the country’s total crime. Acts defined legally as “disorder” were responsible for 42 percent of the offenses in this category, with cannabis use accounting for 26 percent of this amount. Drug usage in New Zealand tends to be viewed from a public health perspective. Cannabis is the most popular drug in New Zealand and domestic cultivation is widespread so that there is no need to smuggle it into the country. LSD (lysergic acid diethylamide), a hallucinogen, is the next most common drug of choice and is mostly imported; New Zealand has one of the world’s highest rates of LSD usage, although a 2005 survey by the Illicit Drug Monitoring System indicated that recourse to LSD has been declining recently. More than 80 percent of those who use LSD are males and their median age is 24. Use of Ecstasy, Fantasy, and other socalled designer drugs is believed to have contributed somewhat to a drop in LSD use. These drugs often are traded in nightclubs and at electronic music performances and are primarily found in urban areas. There is little use of cocaine or heroin in New Zealand, perhaps largely because of the high price that they command. The country has a program of needle exchange for those who inject opiates intravenously that has contributed significantly to a reduction in cases of hepatitis and in AIDS/HIV infections. These drugs commonly pass through New Zealand for transshipment to other markets, most notably Australia.

New Zealand has carried out two crime victim surveys, the first in 1996 and the most recent in 2001. The 2001 national survey was based on a sampling of 5,000 persons who were 15 years or older. Of that total, 38 percent declined to participate in the interviews, a figure that rose to 57 percent among Maoris. Seventy percent of the respondents indicated that they had not been victimized during the previous 12 months, while 12 percent reported that they had been the victim of a crime five or more times in that period. Victims disproportionately were young, Maoris, especially Maori women, students, beneficiaries (welfare recipients), single parents, the unemployed, and persons living with flatmates (roommates). Forty percent of the offenses tabulated by the victim survey had been reported to the police. A majority of the respondents said that they had no fear of venturing forth in their neighborhood after dark, although this was less true for women than men, and even less true of women over 60. Overall, the major crime concern expressed during the interviews was the fear of being injured or killed in a traffic accident by a drunk driver. The lowest levels of concern were about assault by a known person, or being assaulted because of race, or being racially harassed on the street.

Miscellaneous Offenses Other crime totals for 2007–2008 include the 53,794 offenses defined as destruction of property, 11,030

Organized Crime Serious attention was first paid to organized criminal activity in New Zealand in the late 1980s when it became a matter of police concern that groups of Asian immigrants had criminal connections in their home countries. Typical organized crime activities are fraud, illegal drug dealing, and extortion.


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In 1991, the police formed Asian Crime Units to monitor and deal with triad gangs that were involved with drugs, credit card frauds, the forging of passports, extortion, counterfeiting, motor vehicle theft, and the fencing of stolen goods. In addition to the triads, other Asian organized crime groups in New Zealand included Vietnamese migrants who entered as refugees after what they called the American War. Some became involved in gambling, prostitution, and the importation of heroin. There also has been an influx of boryokdua, organized criminals of Japanese origin. The government has tightened immigration restrictions in an attempt to cut off the flow of criminals from overseas sites.

White-Collar Crime New Zealanders take pride in the fact that their country is listed in the Corruption Perception Index as the third-least corrupt nation—after Denmark and Finland—among the 183 countries considered by Transparency International, a nongovernmental agency with a secretariat in Berlin. Corruption is defined as “the abuse of entrenched power for private gain.” In regard to corporate misdeeds, prior to the 1980s less than a handful of serious fraud prosecutions were launched in the country and the penalties were lax. The crash of the stock market in 1987, however, focused public and legislative attention on illegal maneuvers in the business world. The result was the creation in 1990 of the Serious Fraud Office (SFO) to deal with business wrongdoing. The office had a curious beginning when the leading candidate to head it, a New Zealander who was the senior prosecutor for the commercial fraud unit in Hong Kong, was found to have received millions of dollars in bribes from companies to help them avoid prosecution. He ultimately received an eight-year prison term. The Serious Fraud Office had special powers unusual in New Zealand law enforcement. It reported directly to the attorney general, bypassing both the police and the courts. Nor could the attorney general interfere in any decision the office director took in regard to whether or not to prosecute a case. In late

2007, however, the government announced that it would amalgamate the SFO into a new force, the Organized Crime Agency, that would be operated by the police. The move was justified by the claim that the behaviors—white-collar and organized crime—had similar profiles and that the SFO had been notably unsuccessful in obtaining convictions in recent well-publicized cases. Skeptics regarded the move as a concession to corporate New Zealand and a bureaucratic move by the police to expand their reach and power.

Criminal Law Criminal law was first codified by the Criminal Code Act of 1893 and revised in 1908. The main statute concerned with serious crimes is the Crimes Act of 1961. Among other things, this law declared that only criminal statutes enacted in New Zealand could be charged, that as Section 9 of the act stated: “No one shall be convicted of any offense at common law.” New Zealand has no written constitution. It sought to compensate for this absence by passage of the Bill of Rights Act of 1990, which established, among other things, the right to a fair trial, a speedy hearing, security against unreasonable searches and seizures, and the right to legal counsel and freedom from torture or degrading treatment. The Bill of Rights also incorporates the Treaty of Waitangi. The reach of the Bill of Rights as a supreme source of law is a subject of ongoing juridical and political wrangling.

Misuse of Drug Act The Misuse of Drug Act divides illegal drugs into several groups. Class A includes cocaine, heroin, lysergic acid, and, a bit oddly, thalidomide. Drugs listed in Class B are morphine, opium, hashish, methadone, and other manufactured drugs such as amphetamines. Class C includes cannabis fruit, plants, and seed, cocoa leaf, and barbiturates. In 2008, the government added to the Class C list benzpiperzein and phenylpiperazeine, drugs known to their users as “herbal highs” and “dance pills,” that were earning their sellers more than $5 million each year.


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A 2004 report indicated that drugs classified as amphetamine-type stimulants (ATF) were competing with cannabis for market share. Listed as ATS synthetic drugs were methamphetamine, Ecstasy, and crystal methamphetamine (“ice”). One in 10 New Zealanders aged 18–19 had used one of these drugs during the previous year, with the profits from their sale being concentrated in a small number of organized gangs. Twenty-one percent of persons arrested admitted to using an ATS drug during the previous month, and 9 percent just before committing their offense. Contrary to cannabis smokers, two-thirds of whom obtained their drug from a dwelling, about half of the ATS users carried out their business by mobile phone. Polydrug use was found to be common in the ATS study sample. Users were disproportionately male and showed high level of full-time employment, with their ranks including professionals earning mid-level incomes. Ninety-three percent considered methamphetamine more harmful than cannabis, and an overwhelming majority said that it was “very easy” or “easy” to obtain ATS drugs. Penalties for dealing drugs are substantially more serious than those for using. For dealing in Class A drugs, the maximum sentence is life imprisonment; for Class B, 14 years; and for Class C, 10 years. For possession or use of Class A drugs, a person may receive a maximum sentence of six months; for other classes, the maximum is three months’ imprisonment. Beefing up the antidrug laws is the Proceeds of Crime Act of 1991, which allows the seizure of assets when a person has been convicted of an offense punishable by more than 5 years’ imprisonment and when a High Court judge determines that the assets have been accumulated as a result of crime.

Possession of Weapons The Arms Act of 1983, with later amendments, regulates the possession of weapons. Permits are issued by the police after the applicant undergoes a background check and passes a test that deals with responsible firearms use. The law requires that all firearms not in use must be locked in a secure rack or cabinet. Recent figures show that there are about

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250,000 registered gun owners in New Zealand, and estimates are that there are slightly more than 1 million weapons in the country. In 2005, there were 624 episodes of violence in which weapons played a part.

Prostitution/Sex Work Notably absent from the current criminal laws in New Zealand is the interdiction of prostitution or, as it is often called these days, sex work. The Prostitution Reform Act (PRA) of 2003 represented a reversal of the traditional legal position on prostitution both in New Zealand and in the major countries of the world. Before 2003, there was widespread availability of sex partners for pay in New Zealand, including escort services and massage parlors. The PRA was introduced as a private member’s bill, that is, not as a political party motion, and members of Parliament were accorded the privilege of voting their conscience rather than following their party’s dictate. The bill decriminalized all aspects of prostitution, including streetwalking, soliciting, living off the earnings of a prostitute, and the operation of brothels. Today, sex workers freely advertise their wares on billboards, the Internet, late-night television, and in the newspapers. The new legislation mandated that to remain within the law sex workers had to be 18 or older, and it allowed local jurisdictions to impose reasonable restrictions on commercial sex. A study conducted by the Otego University’s Christchurch School of Medicine and Health Sciences concluded that the new approach had not increased the population of prostitutes in the country. In 2006, three years after the new law became effective, doing research in tandem with the New Zealand Prostitutes’ Collective, the Christchurch team counted 100 prostitutes at work in the city. Before the passage of the decriminalization act, 106 prostitutes were believed to have been at work in the city.

Young Offenders The ethos of New Zealand’s criminal justice approach is symbolically characterized by the


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replacement of the term “juvenile delinquent” by “youth offenders.” Under New Zealand law, no person under the age of 10 can be charged with a crime. A youngster under 14 can be held criminally responsible as an adult only if the offense is murder or manslaughter. Otherwise, between the ages of 14 and 17, the accused is dealt with under laws pertaining to youth offenders. New Zealand’s Children and Young Persons and Their Families Act of 1989 stands as a pioneering measure that has been copied in several other countries. The act decrees that persons admitting delinquent behavior or having been found guilty can participate in a conference procedure either before formal charges are filed or before sentencing. For the 14- to 17-year age group, about twothirds of the cases are settled by means of the wide discretion enjoyed by the police. While practices vary considerably among different districts, nationwide about two-thirds of those youngsters dealt with by the police are diverted, a process that typically involves a written, or, less often, a personal apology to the victim, or, in most other instances, community service. The outcomes often include the imposition of curfews and restitution orders and in some instances donations to charity and enrollment in training programs. Restorative justice conferences involve the young person’s family, which can include friends, teachers, and, if it is a courtreferred case, a lawyer. Members of the community also may participate as well as the victims of the behavior and their supporters. The conferences may be held in the offender’s home, or, for Maoris, in a meeting house, but most often they are convened in a room in the offices of the Department of Child, Youth and Family Services. A youth justice coordinator or facilitator, who often is a social worker, chairs the conference. The youth service coordinator is responsible for liaison with the police, arranging the conference, delivering services, and providing resources. The conference’s decision generally is reached after a recess period during which the youth and his or her family decide on their recommendation. The entire group then is expected to reach a consensus. Since the inauguration of the conferencing process in New Zealand, court

referrals and institutional placements have declined sharply. On the other hand, research indicates that two-thirds of the youths who go through a family conference proceeding are recommitted and about 20 percent are imprisoned within five years after the conference experience.

Youth Gangs Two major gangs, both largely made up of Maori members, dominate the scene in New Zealand today, headquartered largely in southeast Auckland. They are the Mongrel Mob and Black Power. Allegiance to one or the other is often decided by birth, and the two groups are in a continual state of feuding warfare. The former got its name from a magistrate who called them a “pack of mongrels.” Between them they are estimated to have about 2,600 members, divided among 145 “chapters” whose core is a “pad” or clubhouse. Time magazine in the summer of 2007 described New Zealand as having a “strong, unique and brutal street-gang culture.” Of late, with the imprisonment of many members, the turf on which gang wars are being fought has been relocated into the prisons. Gang members in New Zealand after initiation are “patched,” a process that is marked by their adoption of prominent facial tattoos. Typical Mongrel Mob garb includes baseball caps, baggy pants, and colored scarves. They may wear German World War II helmets and greet each other with the Nazi salute: Sig Heil! Their vocabulary echoes that of their gang counterparts in south-central Los Angeles.

Youth Court Section 4 of the law establishing the Youth Court indicates its mission: “To promote the well-being of children, young persons, and their families and family groups.” The Youth Court, before pronouncing sentence, must first submit the case for family conferencing, and a large majority of cases are resolved by the conference group. Youth Court procedures follow those of an adult tribunal with some minor modifications. If the alleged offender desires a jury trial, the case will be


New Zealand

transferred to a district court. Similarly, if the judge deems that it serves the interests of justice, the case will be moved to a trial court.

Adult Courts New Zealand has a four-tier court system: district courts, a High Court, a Court of Appeal, and a Supreme Court. In extremely rare cases (only 10 times in 166 years), a case might have been presented on appeal to the Privy Council in London, but this route was eliminated in 2004 when New Zealand constituted its own five-member Supreme Court. Trials are adversarial contests between the prosecutor and the defense. Judges are appointed by the governor-general who in theory is responsible to the Queen of England but in practice answers to the New Zealand prime minister and Parliament. The country has the unusual legal stipulation that members of Parliament may not publicly criticize a judge.

Juries Juries are used in less than 1 percent of the criminal cases heard in New Zealand. They are made up of 12 persons between the ages of 20 and 55 who are selected from the election rolls. Maoris first were allowed to serve on juries in 1962, women in 1976. The Jury Act of 1981 restricted considerably those who automatically were exempt for jury service. Nonetheless, only 26 percent of the persons summoned for jury duty appear, and half of these are dismissed by the registrar before or on the day of the trial. Particularly likely to be dismissed are teachers, the self-employed, and mothers who have children at home.

Victims of Crime Victims have no role in criminal prosecutions except as witnesses, although a victim-impact statement is required before sentencing but cannot include the victim’s view on the proper punishment. Crime victims may themselves mount a prosecution if the government declines to do so. The inclusion of a victim-impact statement in the sentencing phase

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of a criminal trial is controversial in New Zealand. A victim-impact statement usually provides an element of satisfaction and surcease for the victim’s family, but it raises questions about the fairness of introducing such emotionally charged material into court proceedings. Critics maintain that the testimony of the survivor varies according to how articulate and how angry that person might be.

Crime Victim Compensation No review of criminal justice in New Zealand could be complete without reference to the fact that the country led the way in the inauguration of a program of compensation to crime victims, an approach that now is duplicated in all major countries in the world. Legislation creating the Crime Injuries Compensation Tribunal was passed in 1963. The government rejected the rationale that it was responsible for the control of crime and that therefore it should be held responsible for losses incurred by those who suffered from criminal acts. Instead, it equated the program to workmen’s compensation where liability resulted with no fault being laid on the employer. Not long thereafter, in 1974 New Zealand again took the worldwide lead by amalgamating its crime victim compensation program into an integrated approach that included all other losses and injuries suffered by residents from workplace accidents, crimes, sports, and automobile injuries as well as other untoward events that might give rise to a tort action. In 2005, the government added “treatment injuries” to the roster of circumstances that would qualify for compensation. The Accident Compensation Corporation is a state monopoly, no-fault operation funded by taxes on all New Zealand residents. This social welfare approach has drawn sharp criticism from those most disadvantaged by it, in particular, insurance companies and lawyers who specialized in tort cases.

Prisons The New Zealand Department of Corrections administers the country’s prison system. There are


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20 prisons that can accommodate 8,459 persons at any one time. Of the 20 prisons, 17 are for men and 3 for women, who make up 6.2 percent of the prison population. Capacity limits range from 59 inmates at Duniden Prison to 1,034 at Waikeira Prison, a facility that extends over 1,200 hectares (2,964 Acres). As of 2008, New Zealand’s prisons were overcrowded and the government was struggling to accommodate the fourth-highest per-capita prison population in the world—185 inmates per 100,000 population. The only countries with higher incarceration rates are the United States, Mexico, and Poland. The financial cost of keeping so many persons locked up keeps rising. It was NZ$660 million (about US$3,480,770,359) in 2006 and jumped to NZ$778 million (about US$4,095,866,950) the following year. Maoris comprise about half of New Zealand prisoners, although they constitute only 15 percent of the country’s population. Maoris have a deep cultural sense of revulsion and fear in regard to being held in correctional captivity. John Pratt, in his definitive study of the early history of New Zealand’s prisons, tells of a Maori chieftain who was sentenced to two months in prison and said that he would rather be executed than suffer the humiliation and indignity of a prison term. Today, to try to adapt the prisons to their Maori inmates, New Zealand has erected a Maori prayer house within the Spring Hills Correctional Facility and has inaugurated programs based on Maori culture. In 2007, a seven-year program ticketed at a cost of NZ$1.5 million (about US$789,506) was launched to increase prison staffs by adding Maoris, Pacific Islanders, Asians, women, and persons between the ages of 18 and 20. New Zealand’s correctional authorities stress rehabilitation. The Integrated Offender Management regime, introduced in 1985, advocates a “psychotherapeutic” approach focusing on the “rehabilitative needs” of prisoners. It is arguable how successful this treatment emphasis has been, presuming that what is advocated is what is done. Nonetheless, the rhetoric can be impressive. The Tongariro/Rangipo Prison, for example, which first opened in 1926, covers 848.6 hectares of forest, farmlands, river

reserves, and native forest. It houses up to 662 prisoners, who primarily are from Auckland. It also includes a special unit for the custody of illegal immigrants. Work available to inmates includes deer, sheep, and cattle farming. Timber is milled on site, and there is a manufacturing plant that turns the lumber into marketable products for both domestic use and export. The assumption is that persons who are incarcerated possess little work experience and few vocational skills so that plans call for 60 percent of the inmate population to be enrolled in vocational programs. That figure stood at 43 percent in June 2007 and 17 percent the previous year. There are 140 prison-based industries that provide practical work experience. Prisoners who are lowsecurity risks or nearing their release time can be eligible for community-based jobs. The Corrections Act of 2004 dictates that prisoners are entitled to a bed, food and drink, private visitors, legal advisors, physical exercise, and educational programs. They are permitted at least one preapproved private visitor a week for at least 30 minutes. A minimum of three yearly family visiting days are also allowed. With the exception of security surveillance, visits are not recorded by sound or visual equipment without the prior approval of the head of the prison, the prisoner, and his or her visitor. Inmates may send and receive mail, which is censored, and make personal telephone calls once a week of up to five minutes. They also may make calls to an outside agency and a legal advisor. No correctional institutions have been constructed since the 1980s, but in 2005 the first of several new-style facilities was opened under the terms of the Regional Prison Development Project. The buildings are large, secure enclosures, with a single point of entry. Where it is deemed feasible, emphasis is placed on duplicating features of free-world structures. Separate units are set in large, open spaces and clustered around centrally located services such as kitchens, industry areas, and program rooms. Based on their security classification, prisoners are assigned to a zone and can follow a daily routine, such as work, education, training, and medical appointments, within that zone.


Norfolk Island

Private Prisons New Zealand has experimented only once with the growing worldwide use of private prisons. The Auckland Central Remand Prison was one of the country’s two maximum-security institutions. The privately operated facility, located at Mt. Eden and operated by the Australian Correctional Management Company, was said by Greg Newbold, a sociology professor at the University of Canterbury who served a five-year term in the maximumsecurity Paremoreno prison for a drug offense, to be more humane and more orderly than governmentoperated prisons. The facility was notable for its amenities, including a well-equipped gymnasium, snooker tables, and bathrooms attached to each cell. A five-year contract had been negotiated with the private prison company by the conservative National Party government. When the Labour Party assumed the reins of the government in 2000, the contact was not renewed. It was claimed, among other things, that the for-profit correctional organization would seek to increase the number of inmates rather than releasing them as rapidly as possible and advocating alternative methods of rehabilitation. Margaret Wilson, the Acting Commissioner for Corrections, pinpointed the ideological rationale for the government’s action: “Prisons by their very nature involve the use of highly coercive power against individuals. The Government believes that it is inappropriate for private sector organizations to wield such power.” No research was undertaken to determine the performance of the private prison in comparison with an equivalent state-run facility, in part because it is exceedingly difficult to match satisfactorily the populations and sites and also because for many it would be ethically impermissible to randomly assign prisoners to a facility only on the basis of an experimental design. Corina Oliver and Gilbert Geis

Further Reading Dunstan, Stephen, Judy Paulin, and Kelly-Ann Atkinson. (1995). The Composition of New

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Zealand Juries. Wellington: Policy and Research Division, Department of Justice. Hill, Richard S. (1986–2005). The History of Policing in New Zealand. 5 vols. Wellington: V. S. Ward. Newbold, Greg. (2007). The Problem of Prisons: Corrections Reform in New Zealand since 1840. Wellington: Dunmore. Paulin, Judy, Wendy Searle, and Trish Knaggs. (2003). Attitudes to Crime and Punishment in New Zealand Society. Wellington: Ministry of Justice. Pratt, John. (1992). Punishment in a Perfect Society: The New Zealand Prison System. Wellington: Victoria University Press.

Norfolk Island Legal System: Common Murder: Low Prison Rate: Low Death Penalty: No

Background Discovered by Captain James Cook in 1774, Norfolk Island is located 1,676 kilometers (1,041 miles). east of Sydney, Australia. Its capital is Kingston and it covers about 34 square kilometers (13 square miles), which is mostly steep terrain and rocky cliffs, with poor access to the sea. The population is about 2,500. Norfolk Island is of particular interest to criminologists because of its colorful past as a convict settlement. The first settlement occurred in 1788 when the British sent a small convict party to develop the island as a source of flax and wood from the Norfolk pine, both commodities that England needed to bolster its relentless colonization of countries around the world. It would remain a convict settlement, supplying food and other materials to the starving Sydney penal settlement until 1805 when it was abandoned. The flax had proven too difficult to use and the pine unsuitable for ship building. And the island itself was deemed too


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difficult and costly to maintain. It was abandoned completely from 1814 until 1825 when the second convict settlement was established. The second penal colony tells an unhappy story. The remoteness of the island was this time seen as a great advantage, and it was chosen for this very reason as a place where the most terrible of all convicts in Sydney and elsewhere—the worst of the worst—were selected to be sent. The idea was that the experience on the island would be a “hell in paradise,” the worst punishment short of the death penalty. The cat-o-nine-tails was a common punishment for disciplinary infractions. This lead-weighted lash broke the skin after the first few strokes. Twenty lashes were common. If too much flesh was torn off and the convict appeared unconscious, the punishment was stopped and resumed at a later date after the offender had recovered and was well enough to bear remaining lashes. It was thought that harsh, unrelenting punishment was the only way to control such an angry, incorrigible mob of convicts. But it seemed that the more severely the convicts were punished, the worse they became. There were mutinies in 1826, 1834, and 1846—though to little end since there was no way to escape the isolated island. The typical punishment was to be hanged. The dismay of British authorities must have been considerable to allow an individual, Alexander Maconochie who had very different views of how to manage a penal colony, to become commandant of this island of hell. In 1840 Maconochie began one of the most famous experiments in penal reform in the history of penology, based on two radical principles: the aim of punishment should be reform not retribution, and that imprisonment should focus on a series of tasks that, if completed successfully, would lead to release. Thus, incentives, such as moving from one level of incarceration to a less harsh level after fulfilling socially useful tasks (called the “mark system”), were introduced into penological thinking. This penal experiment lasted but a few short years and was greatly criticized from its beginning as too lenient. The climax came when, during a Queen’s birthday celebration, there was a riot when many inmates got drunk and one of the convicts

(a murderer) ran off with Maconochie’s daughter (though where he could run to is a puzzle). Maconochie was replaced in 1844, and things reverted to the standard punishments of the past with convict uprisings and retributive hangings. The penal settlement was abandoned in 1855. Maconochie’s legacy remains, revered by penologists and reformers as the “father of parole.” In 1856, the Queen offered Norfolk Island as a place of refuge for the Pitcairn Islanders (themselves originating as a community from the mutineers of the Bounty) who at the time were starving. They briefly settled in Norfolk Island, but many returned to Pitcairn when they realized that the Queen had not ceded Norfolk Island to them completely and that they must remain under the government and laws of Britain. Today, approximately half of Norfolk Islanders are descendants of the Bounty mutineers.

Government Norfolk Island was transferred to the administrative territory of Australia in 1913, and the Norfolk Island Act of 1979 established Norfolk Island as a self-governing Territory of Australia, with a legislative assembly consisting of nine members elected every three years and an executive council of ministers. Laws must be approved by the administrator. However, as recently as 2006, a group of Norfolk Islanders rejected Australian citizenship, insisting that Australia recognize Norfolk Island as a completely separate and independent entity from Australia. The court system is composed of the Supreme Court and the Court of Petty Sessions. The Supreme Court deals with serious crimes and the Petty Sessions deals with minor crimes punishable by fines and other civil matters. Its decisions may be appealed to the Supreme Court. The three magistrates who sit on the bench are appointed either from the island itself or from the Australian Capital Territory courts. The Norfolk Island Police provides professional and ancillary service by arrangement with the Australian Federal Police. The police force fulfills all the


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regular duties such as investigation, responding to calls for service, traffic coordination, policing of liquor licenses, issuing of gun licenses, dog control, and assistance to national park rangers. However, recent announcements by the Australian government have suggested that it will be “taking back” certain operations from Norfolk Island to cut down on costs. These would include immigration, customs, and quarantine.

Crime Crimes are generally defined by the Australian Commonwealth Criminal Code. There are no official or unofficial crime statistics available. The general impression of travel sites and blogs is that the level of crime is very low. In fact, according to BBC News, there had been no murders on the island since 1856, until New Zealander Glenn McNeill was found guilty of stabbing to death a restaurant worker in March 2002. After a lengthy trial, in 2007 he was sentenced to 24 years in prison, with a minimum of 18 years. Because the island has no prison, McNeill is serving his sentence in New South Wales, Australia. The Australian government provided $70,000 to cover the cost of the trial. Another high-profile killing, technically not a “murder,” was the shooting to death of a member of the Norfolk Legislative Assembly, “Toon” Buffett (a Pitcairn descendant) in 2004, by his son who was found mentally unfit to stand trial. He is currently held in Sydney’s Long Bay Prison Hospital.

Punishment Information on typical punishments in modernday Norfolk Island is sparse. The Kingston police have one modern jail holding cell. A statement of accounts published in the Norfolk Island Government Gazette No. 30 reported that for the fiscal year 2001–2002, AUD29,000 (approximately US$24,000) were collected in court fees and fines and AUD15,000 (approximately US$12,750) in road traffic fines. Graeme R. Newman

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Further Reading Clarke, Marcus. (1970). For the Term of His Natural Life. Adelaide: Rigby, Seal Books Edition. Morris, Norval. (2003). Maconochie’s Gentlemen: The Story of Norfolk Island and the Roots of Modern Prison Reform. Oxford, UK: Oxford University Press. Norfolk Island. Bloodless Genocide: A Political History of the Pitcairn People in Norfolk Island from 1856 to 1996: http://www.pitcairners.org/ bloodless_genocide2.html. Norfolk Island Act 1979: http://www.aph.gov.au/ House/committee/ncet/NorfolkGov/Norfolk Island79.pdf.

Pitcairn Islands Legal System: Common Prison Rate: High Death Penalty: No Corporal Punishment: No

Background The Pitcairn Islands are situated in the South Pacific between New Zealand and Chile and even today remain remote from the rest of the world. In 1790, mutineers from HMAV Bounty and a group of Polynesian men and women occupied Pitcairn. In 1898 the secretary of state directed that the 1893 Pacific Order in Council, which provided a system of government for British settlements in the Pacific, should apply to Pitcairn. The application of the Pacific Order in Council to Pitcairn was revoked by the 1952 Pitcairn Order in Council, which provided that the governing responsibilities of Pitcairn, along with some neighboring uninhabited islands, would fall to the governor of Fiji and that the governor would be endowed with lawmaking power for the “peace, order and good government” of the islands. A clause in the order included that the jurisdiction of the High Commissioner’s Court and the law which it applied should continue to be in force until such time that the governor passed other provisions.


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Judicature Ordinance 1961 replaced the jurisdiction of the High Commissioner with that of the Supreme Court of Fiji. Since Fiji achieved independence in 1970, the Pitcairn Order 1970 replaced the 1952 Pitcairn Order in Council and provided that Her Majesty appoint a governor and allow him similar power to enact laws for “the peace, order and good government of the Islands.” The Judicature Ordinance of 1970 enacted by the sitting governor revoked the 1961 ordinance and gave a newly formed Supreme Court of Pitcairn jurisdiction equivalent to the jurisdiction of the High Court of Justice in England. The governor of Pitcairn, Ducie, and Oeno Islands creates local law in the form of ordinances. The governor, also the British High Commissioner to New Zealand, acts within the power given to him by the Pitcairn Order 1970 (UK) and Orders in Council promulgated by the United Kingdom Executive. Thus, the statutory incorporation of English law into Pitcairn law has resulted in a mixed system combining domestic laws, local circumstances and customs with an adversarial system, English law. There has been an island police officer present on Pitcairn for at least 70 years. Initially police officers were appointed by the island community; they were not trained professionals but local residents. Since 1950 the officer derived his authority from the high commissioner/governor. His role was to enforce all Pitcairn law, including English criminal law. Island police officers received guidelines of their responsibilities from the island magistrates, and at times, from the Suva administration. After 1970, the administration in New Zealand also offered occasional instruction to the officers. In fact, the island police officer had requested assistance from the Suva administration when investigating offenses such as rape and abortion in the 1950s. Crime and policing records after 1961 are not abundant in Pitcairn. No professional English police were present on Pitcairn until 1996, when Constable Gail Cox, a British policewoman, visited Pitcairn and heard complaints of sexual assault. The resulting prosecution, which led to conviction of six male offenders, involved several inquiries conducted on the island by personnel from the Kent County Constabulary appointed by

the governor of Pitcairn as Pitcairn police officers. Today, the duties of Pitcairn police officers are stipulated in Section 79 of the Justice Ordinance. The absence of an educated and effective English police force until 1996 has been invoked by the public defender in the above proceedings as indicating that Pitcairn islanders were not aware that English law could apply on the island and in any case that they could not have meaningful access to English law. Nevertheless, the Pitcairn Supreme Court rejected this argument in view of the evidence concerning the effectiveness of island police officers during the periods that the crimes had been committed.

Crime Classification of Crimes According to the 1952 Interpretation and General Clauses Ordinance, an “offense” is any crime, unlawful act, or contravention or other breach of, or failure to comply with, any provision of any law, for which a penalty is provided. There is no express legal classification of crimes in local Pitcairn law. To the extent that English law applies, such English law classification is transferred into local Pitcairn law. The magistrates’ court hears minor matters and preliminary hearings—including whether a case is substantiated. The Supreme Court hears serious offenses, including treason, piracy, murder, manslaughter, rape, or arson. While the full range of offenses that might be regarded as serious has never been articulated on the island, there has been a long tradition of recognizing rape and other sexual offending, abortion, and murder among them. Sexual crimes have been most challenging for the island, especially in view of the small Pitcairn community. The landmark sexual crime that brought Pitcairn law to world attention was that of the Seven named accused v. the Queen when in 1999 two complaints of sexual assault were made to the UK police officer serving on Pitcairn. All offenses were alleged to have been committed at least 5 years before the investigation and some dating back 40 years. This case opened an international legal discourse about the defendants’ rights


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in criminal proceedings, retrospective justice, and fundamental human rights protection; it revealed the importance of sovereignty, sovereign title, and self-determination and self-government. Six males were found guilty as a result of this famous trial. The age of criminal responsibility is not expressly stipulated in domestic Pitcairn law. Children bear criminal responsibility and can be convicted of an offense. However, imprisonment of children is prohibited. If, at the time of the commission of the offense, the offender was under the age of 17 years, the courts can impose imprisonment only in respect of an offense that is triable by the Supreme Court. English law applies to the extent that Pitcairn law leaves gaps in this respect. In the absence of a local ordinance or order on drug offenses, relevant English legislation applies, including inter alia the Misuse of Drugs Act 1971, the Misuse of Drugs Regulations 1985, and Drug Trafficking Act 1994. Drugs are classified as either A, B, or C depending on the degree of harm they are considered to cause to individuals or society. More severe penalties apply to Class A: among others, heroin, morphine, methadone, cocaine, opium, and hallucinogens, and any Class B drug prepared for injection. The maximum penalties are 7 years and/or unlimited fine for possession; life and/or unlimited fine for production or trafficking with a mandatory 7-year sentence for a third conviction for trafficking. Class B includes cannabis, cannabis resin, codeine, oral amphetamines, and sedatives (barbiturates). The maximum penalties are 5 years and/or unlimited fine for possession; and 14 years and/or unlimited fine for production or trafficking. Class C includes drugs that are considered the least harmful such as tranquilizers, some less potent stimulants, and mild opioid analgesics. The maximum penalties are 2 years and/or unlimited fine for possession; and 5 years and/or unlimited fine for trafficking.

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same criminal jurisdiction as the Supreme Court except for the crimes of treason, piracy, murder, manslaughter, rape, or arson, which lie in the jurisdiction of the Supreme Court. The latter hears also appeals from the magistrates’ court. Established in 2000, the Pitcairn Court of Appeal hears appeals from the Supreme Court and can sit in places other than the Pitcairn Islands—as determined by its president. Additionally, the Pitcairn (Appeals to Privy Council) Order 2000 grants the right of ultimate appeal to the United Kingdom Privy Council. Before these courts were established, the laws in Pitcairn offered no appeal for a Supreme Court ruling. While trials before the Supreme Court are by a sole judge, the magistrates’ court is presided over by the island magistrate, who is appointed by the governor from among the permanent residents of the islands at the time of his or her appointment for not less than five years. While the island magistrate is not required to be professionally qualified in law, the other magistrates of the court are to be qualified in law and to have practiced in any Commonwealth country for more than five years prior to their appointment. They should not necessarily be permanent residents of the islands. The Court of Appeal has a president and two or more judges from the Appeal Court and the chief of justice of the Supreme Court who is a member of the Court of Appeal ex officio. The UK Human Rights Act 1998 gives effect in domestic law to the rights and freedoms guaranteed under the European Convention on Human Rights (ECHR). Nevertheless, the United Kingdom has not included Pitcairn Islands in the list of British Overseas Territories where the ECHR applies. In the R v. Christian and other (No. 2) judgment, the Pitcairn Supreme Court concluded that the accused were entitled to rely on the ECHR in these proceedings; the right to a hearing within a reasonable time was found to apply in Pitcairn as established in ECHR article 6 and further analyzed in the jurisprudence of the European Court of Human Rights.

Finding of Guilt The Pitcairn judicature includes a Magistrates’ Court, a Supreme Court, and the Court of Appeal. The magistrates’ court hears minor cases; it has the

Right to Trial by Jury While the right to trial by jury is a central feature of common law tradition, it has not been introduced


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in domestic Pitcairn law. Judicature (Courts) Ordinance 2000 (Pitcairn Islands) and Justice Ordinance 2001 (Pitcairn Islands) are silent with respect to jury trials, but they do not explicitly exclude them. The Supreme Court of Pitcairn does not sit with a jury but may provide assessors to reside when it considers it “expedient and practicable” to do so. Assessors can be “not less than two nor more than four” and their role is advisory only.

Right to Appeal Persons convicted by the magistrates’ court have the right to appeal to the Supreme Court against conviction or sentence or both, on a question of fact as well as on a question of law. Any person convicted on a trial held by the Supreme Court may appeal to the Court of Appeal.

Legal Aid in Criminal Proceedings The Legal Aid (Criminal Proceedings) Ordinance stipulates that any person committed for trial for an indictable offense shall be entitled to legal aid in the preparation and conduct of his or her defense at the trial. The magistrate or chief justice shall grant to such person a certificate for legal representation, if it appears that the person committed for trial has insufficient means to obtain such representation. The public defender has independent status and advisory function on behalf of defendants in relation to criminal proceedings. The same provisions apply to persons involved in extradition proceedings. Police officers conduct investigations and in the name of Her Majesty the Queen, they conduct prosecutions provided that all prosecutions and applications made on behalf of the council under the provisions of any regulations made under the local government ordinance shall be conducted by a police officer in the name of the council. Local Pitcairn law does not have a separate ordinance concerning criminal proceedings for juveniles. Nonetheless, special provisions regulate punishment of children. English law applies to the extent that local circumstances allow it.

Punishment Types of Punishments Monetary penalties include reparation and fines. Reparation is imposed unless the court is satisfied that such sentence would cause undue hardship for the offender or his or her dependants, or that it is inappropriate in view of any other special circumstances. It can be imposed on its own or cumulatively to any other sentence. A fine is imposed in addition to, or instead of, any other sentence. For those offenders who do not have the financial means to pay the fine, the court may consider not imposing the sentence. Community-based sentences, such as supervision and community work, are imposed only if the court does not consider a fine the appropriate sentence or because the offender does not have the means to pay. For the imposition of imprisonment for any offense, the court must take into consideration the desirability of keeping offenders in the community as far as that is practicable and safe for the community. This is of particular concern in the Pitcairn context; the population of the island is so limited that imprisonment, for example, of male offenders could have an impact on the survival of the community. Preventative detention is to be applied to (a) persons convicted of a qualifying sexual or violent offense, which is any sexual offense, or offense of violence against the person, punishable by seven or more years of imprisonment; (b) persons of 18 years of age or over at the time of committing the offense; and (c) persons who are likely to commit another qualifying sexual or violent offense if they are released at the date that their sentence expires. Home detention can be imposed in case the offender has been sentenced to imprisonment less than two years. Nonassociation orders can be made by a court to offenders convicted of a crime punishable by imprisonment, if the nonassociation order is reasonably necessary to ensure that the offender does not commit further offenses punishable by imprisonment.


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Punishment for Murder Murder convictions carry a sentence of life imprisonment. The only exception depends on the circumstances of the offense and the offender and whether these would constitute the imprisonment for life being manifestly unjust; in that case, the court has to give written reasons for not doing so. Life imprisonment means 10 years’ imprisonment, in case the court does not impose a minimum period of imprisonment of more than 10 years. For aggravated circumstances the court can impose imprisonment of a minimum 17 years. While local Pitcairn law does not explicitly allow or prohibit the death penalty, English law does. Therefore, it is argued that the death penalty is prohibited in Pitcairn Islands through the incorporation of English law into Pitcairn laws as explained earlier.

Prison There is only one prison on Pitcairn located in Adamstown. The six convicted males in the latest sexual offenses case mentioned above are serving their sentences in the Pitcairn prison, which is staffed by seven New Zealand prison officers. Since the population of Pitcairn is only 60 persons, this computes to a very high rate (one-tenth of the population!) compared to other countries. Male and female prisoners are confined separately in any prison or in separate prisons. Female prisoners are supervised only by a female prison officer. Convicted prisoners often must do “useful work” but not for more than the whole of the morning on any weekday, and officials must arrange for prisoners to be able to work outside of their cells when possible and in association with one another. The medical officer may excuse a prisoner from work on medical grounds. Prisoners cannot work for other prisoners or for prison officers. Additionally, prisoners are not allowed to work for the private benefit of any person unless the authority of the governor specifically allows such an individualized occurrence. The governor approves the pay rates that prisoners receive in relation to the tasks they per-

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form. Prisoners can work outside the prison but are at all times under supervision of a prison officer. Education of prisoners is not mandatory, but prisoners are encouraged to benefit by the educational facilities at prison. Programs of daytime and evening educational classes may be arranged, and, subject to the directions of the superintendent, reasonable facilities may be provided for prisoners who wish to do so at their own expense to improve their education by correspondence courses or private study, or to practice handicrafts in their spare time. Special attention is given to the education of illiterate prisoners, and if deemed necessary, they are to be taught to read and write within the hours normally prearranged to work. Every prisoner is allowed to have library books and exchange them at the public library. Except as explicitly provided in the Prisons Regulation found in Prisons Ordinance, prisoners are not permitted to communicate with any person outside the prison without the leave of the superintendent. Only family and friends can visit prisoners. Every letter or communication to and from a prisoner may be examined by the superintendent or a prison officer deputed by him or her, and the superintendent may, at his or her judgment, stop any letter or communication for the reason that its contents are disagreeable or could lead to a violation of prison security. Every visit to a prisoner shall take place within the sight and the hearing of a prison officer unless the superintendent otherwise directs. The superintendent may give instructions, generally or in relation to any visit or class of visit, concerning the days and times when prisoners may be visited. While unconvicted prisoners are allowed to send and receive as many letters and receive as many visits as they wish within the superintendent’s directions, convicted prisoners are entitled to send and receive a letter on admission into prison and thereafter once a week and to receive a visit every Sunday. The superintendent may allow a prisoner an extra letter or visit where necessary for the welfare of the prisoner or his or her family. The superintendent may allow a prisoner entitled to a visit to send and receive a letter instead. The 2003 Juridicature


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Amendment Ordinance allows serving and enforcement in New Zealand of sentences imposed by Pitcairn courts sitting in New Zealand. Danai Azaria

Further Reading Angelo, A. H., and A. Townend. (2003). “Pitcairn: A Contemporary Comment.” New Zealand Journal of Public International Law 1: 229–251. Farran, S. (2007). “The Case of Pitcairn: A Small Island, Many Questions.” Journal of South Pacific Law 11(2): 124–150. Ntumy, Michael A. (1993). South Pacific Islands Legal Systems. Honolulu: University of Hawaii Press. Power, H. (2007, August). “Pitcairn Island: Sexual Offending, Cultural Difference and Ignorance of the Law.” Criminal Law Review, 609–629.

Polynesia COOK ISLANDS Legal System: Common Prison Rate: Medium Death Penalty: No Corporal Punishment: Yes FRENCH POLYNESIA Legal System: Civil Prison Rate: Medium Death Penalty: No NIUE Legal System: Common Death Penalty: No SAMOA Legal System: Civil/Customary Murder: Low Prison Rate: Medium Death Penalty: No Corporal Punishment: Maybe

TOKELAU Legal System: Common Death Penalty: No TUVALU Legal System: Common Murder: Low Death Penalty: No Corporal Punishment: Yes WALLIS AND FUTUNA Legal System: Civil Death Penalty: No

Background Although originally introduced by the French writer Charles de Brosses in 1756 as a reference to all the islands in the Pacific Ocean, the term Polynésie (Polynesia) presently designates one of three subregions of Oceania that generally extends from Hawaii to the north, New Zealand to the southwest, and Easter Island to the southeast. Included within this Polynesian triangle are more than 1,000 islands covering a total of 24,135,000 square kilometers (9,318,576 square miles) of the Central and South Pacific Ocean. This section focuses on seven of the independent and freely associated states and territories in Polynesia: Tuvalu, Tokelau, the Cook Islands, Niue, Samoa, Wallis and Futuna, and French Polynesia. Tuvalu is located north of New Zealand in the western boundary of Polynesia. It consists of nine islands with a total land area of 26 kilometers (10 square miles) and an estimated population of 12,373. East of Tuvalu is Tokelau, which consists of three islands and has the smallest total land area of 12 square kilometers (4.63 square miles). It has approximately 1,416 inhabitants. Wallis and Futuna lie southeast of Tuvalu and consist of two island archipelagoes with a total land area of 142 kilometers (54.83 square miles) and a population of 15,289. West of Tuvalu and south of Tokelau is Samoa, which consists of two main islands with a total land area of 2,831 square kilometers and a population of approximately 219,998 inhabitants. Nuie,


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Armed villagers man a blockade on the outskirts of Valusu Village near the Western Samoa capital of Apia following the arrest of 21 villagers, including four chiefs, five women, and two children on charges of squatting in relation to a land dispute. (Ross Land/Getty Images)

which is a single island with an area of 260 square kilometers (100.39 square miles), lies south of Samoa and has the smallest population at about 1,398 inhabitants. The Cook Islands lie east of Samoa and Niue and consist of 15 islands with a total land area of 236 square kilometers (91.12 square miles). It has a population of approximately 11,870 inhabitants. Finally, French Polynesia forms the eastern border of Polynesia and includes five island archipelagoes with the largest total land area of 4,167 kilometers (1,608.89 square miles). It also has the largest population at approximately 287,032 inhabitants. European contact with the Polynesian islands began as early as the 16th century with Spanish exploration in French Polynesia (which includes Tahiti) and continued throughout the 19th century, primarily through Dutch, British, and French expeditions. In

the late 19th and early 20th centuries, various islands were granted British protectorate status—Rarotonga (the largest of the Cook Islands) in 1888, Tokelau in 1889, Tuvalu in 1892 (as part of the Gilbert and Ellice Islands administration), and Niue in 1900. New Zealand later assumed administrative control of the Cook Islands (1901), Niue (1901, as part of the Cook Islands), and Tokelau (1926). Meanwhile, Wallis was established as a French protectorate in 1887, followed by Futuna in 1888. Different islands in what is now collectively French Polynesia were claimed, colonized, or made protectorates of France in the mid- to late 19th century. Finally, from the mid-19th century until its colonization by Germany in 1900, Samoa engaged in political interactions with Britain and the United States. As a result of colonialism, most of Polynesia still retains either some form of


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political association with their former colonial administrative power or has adopted similar legal and political systems, albeit tailored to incorporate their own unique customary laws and traditions.

Government and Legal System Tuvalu (formerly the Ellice Islands) gained independence from Great Britain in 1978 and is currently a member of the Commonwealth of Nations. It has a common law legal system and its sources of law include the Tuvalu Constitution, acts of the Tuvaluan Parliament, customary law, “applied laws” (certain imperial enactments), and English common law. Under the Constitution, the head of state is the British sovereign, Queen Elizabeth II, who is represented by the governor general of Tuvalu. As representative of the British sovereign, the governor general exercises executive authority along with the cabinet, which consists of the prime minister who is elected by the Tuvaluan Parliament and the other members of the cabinet who are appointed by the governor general upon the recommendation of the prime minister. Legislative authority is vested in the Parliament, or the Fale I Fono, which is a unicameral legislature with 15 members who are popularly elected to serve four-year terms. The judicial branch consists of local island courts, land courts, and magistrates’ courts at the lower level; and a High Court, Court of Appeal, and Sovereign in Council (Privy Council [UK]) at the higher level. With regard to criminal matters, island courts have jurisdiction over offenses for which the maximum penalty is a $100 fine, six months’ imprisonment, or both. Appeals may go to the magistrates’ courts, where there is a distinction between senior magistrates’ courts and regular magistrates’ courts. Senior magistrates’ courts have jurisdiction over offenses for which the maximum penalty is 14 years’ imprisonment, a fine, or both. However, senior magistrates’ courts can only impose a maximum punishment of 5 years’ imprisonment, a fine of $1,000, or both. Regular magistrates’ courts have jurisdiction over offenses for which the maximum penalty is one year’s imprisonment, a $200 fine, or both. Criminal cases may be further appealed to the High Court,

which has unlimited original jurisdiction over criminal matters, and then to the Court of Appeal. The Sovereign in Council, for the most part, only hears cases involving constitutional issues. As of 2007, neither the Court of Appeal nor the Sovereign in Council had ever received a criminal appeal. Tokelau (formerly the Union Islands) is a territory of New Zealand with a common law legal system. The head of state is the British monarch, Queen Elizabeth II, who is represented by the governor general of New Zealand. Executive authority also lies with the Council of Faipule, which consists of three elected elders and functions as a cabinet. The head of government is chosen from the council for a term of one year, followed by a rotation to the other members. The legislative branch consists of a unicameral legislature with 20 members called the General Fono. The judicial branch consists of a village council or taupulega on each island at the local level, with appeals to the New Zealand High Court and Court of Appeal. With regard to criminal matters, village councils have jurisdiction over offenses for which the maximum penalty is one year’s imprisonment. In practice, nearly all matters are settled outside the formal judicial system. The Cook Islands (formerly the Harvey Islands) became a self-governing state in “free association” with New Zealand in 1965. It has a common law legal system, and its sources of law are the Constitution of the Cook Islands, acts of the Legislative Assembly and later the Parliament of the Cook Islands, certain ordinances in effect before 1965, certain acts of the Parliament of New Zealand, as well as certain acts of the British Parliament in force in New Zealand in 1916. As a freely associated state, the Cook Islands are responsible for internal affairs while New Zealand, in consultation with the Cook Islands, is responsible for external affairs and defense. Under the Constitution, the executive branch consists of the British monarch, Queen Elizabeth II, who is head of state and is represented by the Queen’s representative; the prime minister, who is the head of government and is appointed by the Queen’s representative; and the Cabinet of Ministers, which includes the prime minister and other ministers who are appointed by the Queen’s representative on the


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advice of the prime minister. The legislative branch consists of a unicameral Parliament with 25 members who are popularly elected to five-year terms. The House of Arikis, which is composed of chiefs appointed by the Queen’s representative, functions in an advisory capacity to Parliament. It considers issues regarding the welfare and customs of the people, although it has no legislative authority. The judicial branch consists of the High Court (with a distinction between High Court presided by judges and High Court provided by justices of the peace), the Court of Appeal, and the Privy Council. With regard to criminal offenses, the High Court presided by a single justice of the peace has jurisdiction over minor offenses and can impose a maximum penalty of two years’ imprisonment, a $200 fine, or both; if presided by three justices, the maximum penalty that can be imposed is three years’ imprisonment, a $300 fine, or both. If the High Court is presided by a judge, it has unlimited original jurisdiction and may hear appeals from decisions of the justices of the peace. The Court of Appeal decides constitutional issues and hears appeals from High Court decisions wherein the penalty is life imprisonment or imprisonment for a term exceeding six months or a fine of $200 or more, unless the sentence is fixed by law. Niue (formerly Savage Island) became a selfgoverning state in free association with New Zealand in 1974. It has a common law legal system, and its sources of law are the Constitution of Niue, statutes, regulations, English common law, and custom. Under the Constitution, the head of state is Queen Elizabeth II, who is represented by the governor general of New Zealand. The executive branch also includes the premier, who is elected by the Legislative Assembly and is the head of government, and the Cabinet of Ministers, which consists of the premier and three other ministers chosen by the premier from among the members of the Fono Ekepule or Legislative Assembly. The legislative branch consists of the unicameral Fono Ekepule, which has 20 members who are popularly elected to serve three-year terms. The judicial branch consists of a High Court, which is divided into civil, criminal, and land divisions; the Court of Appeal, and the

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Privy Council. With regard to criminal matters, the High Court exercises unlimited original jurisdiction and the Court of Appeal hears appeals from High Court decisions. Samoa (formerly Western Samoa) became an independent state in 1962 following the dissolution of the UN Trusteeship administered by New Zealand. It has a mixed system of common law and customary law, and sources of law include the Constitution, statute, English common law, and customary law. The chief of state is elected by the Fono or Legislative Assembly for a five-year term. With the approval of the Fono, the chief of state appoints the prime minister, who functions as the head of government and is included in the 12-member cabinet. Legislative authority rests with the unicameral Fono, which has 49 members who serve five-year terms. The judiciary consists of the local village fonos, the Land and Titles Court, the District Court, the Supreme Court, and the Court of Appeal. With regard to criminal matters, the village fonos have customary law jurisdiction and can impose punishments that range from fines to labor. District courts have jurisdiction over offenses where the maximum penalty does not exceed five years’ imprisonment, and the Supreme Court has unlimited criminal jurisdiction and can hear appeals from district court decisions. Further appeals may go to the Court of Appeal. Wallis and Futuna formally became an Overseas Territory of France in 1961. It has a civil law legal system, and its sources of law are the French Constitution, international treaties to which France is a signatory, legislation (executive and parliamentary legislation as well as the French Codes), “general principles of law,” and administrative regulations. The head of state is the president of France, who is represented by the high administrator. The head of government is the president of the Territorial Assembly, and the Council of the Territory, which consists of three kings and three appointed members, functions as a cabinet. The legislative branch consists of the unicameral Territorial Assembly or Assemblee Territoriale, which has 20 members who are popularly elected to five-year terms. Wallis and Futuna also have a senator in the French Senate


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and a deputy in the French National Assembly. The judicial branch consists of Courts of First Instance, which deal with minor criminal matters; the Court of Assizes, which deals with more serious criminal offenses; and the Court of Appeal in Noumea, New Caledonia. French Polynesia currently holds the political status of overseas lands of France. Sources of law are similar to those of other French territories such as Wallis and Futuna and New Caledonia. The head of state is the president of France, who is represented by a high commissioner. The head of government is the president of French Polynesia and the president of the Territorial Assembly, who are both elected to five-year terms by members of the Territorial Assembly. The legislative branch consists of the unicameral Territorial Assembly or Assemblee Territoriale, which has 57 members who are popularly elected for five-year terms. The judicial branch consists of the Court of Administrative Law, Courts of First Instance, and the Court of Appeal.

Police None of the Polynesian states and territories covered in this section maintain a regular military force, primarily because most of them have formal agreements with their former colonial administrators that provide for external defense. France is responsible for the defense of Wallis and Futuna and French Polynesia, and New Zealand is responsible for the defense of Tokelau, Niue, and the Cook Islands (in consultation with the government of the Cook Islands and at its request). Regarding internal law enforcement, the Cook Islands has a National Police Department headed by a police commissioner and Niue has a Central Police Department headed by a chief of police. Tokelau has three local Tokelauan police officers stationed on each island—for a total of nine officers—who are responsible to local village authorities. Tuvalu has no regular military but has a national police force that had a total of 73 members in 2005. The Tuvaluan Constitution provides for a chief of police who is appointed by the head of state and whose office is within the Tuvalu Police Force. Finally, Samoa does not have a

regular military force but maintains a national police force headed by a commissioner.

Crime Due to limited resources and technology in Polynesia, detailed statistics about crime, law enforcement personnel, and correctional populations are generally unavailable or not updated on a regular basis. Compounding this issue is the reality that each state population is relatively small and divided among different islands, and each maintains a strong tradition of addressing criminal offenses through traditional means as opposed to resorting to the official government fora. As a result, the relatively few crimes that do occur are handled locally and are not always reported to national agencies. However, each of the states and territories has a national statistics office that coordinates with the Secretariat of the Pacific Community (SPC) to publish available statistical information in an online database called the Pacific Regional Information System (PRISM). Although the reporting system is not uniform with respect to the type of data collected and methodology used, it often provides the most updated statistical information available. Data on other aspects of the criminal justice systems of Polynesia may be obtained by government agencies and international organizations that collect information about world governments, such as the U.S. Department of State or the International Centre for Prison Studies, and from the national governments that administer the particular territories.

Crime Statistics According to the Pacific Regional Information SysteM (PRISM), basic crime statistics are available for Tuvalu, Niue, Samoa, and French Polynesia. The most recent crime statistics from Tuvalu are from 2003, which recorded a total of 1,666 crimes against persons and 591 property crimes. The most recent statistics from Niue and Samoa were from 2002, during which 32 crimes against persons and 5 crimes against property were reported in Niue, and 41 crimes against persons and 23 crimes against


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property were reported in Samoa. Finally, the most recent statistics from French Polynesia came from 2006, which only reported 2,862 crimes against property. Tokelau has not reported any serious crimes other than property crimes such as petty theft, which are all handled locally and informally.

Classification of Crimes The English common law, which influenced the criminal laws of all the former British territories in Polynesia, historically classified crimes as felonies or misdemeanors depending on the seriousness of the offense. This distinction was later removed in the United Kingdom under the Criminal Justice Act of 1967, although the terminology still remains in the Tuvalu Penal Code (Cap. 8), where a felony designates those offenses punishable by three years’ imprisonment or more. In Niue, the distinction was expressly removed in the 1966 Niue Act, which was passed by the New Zealand Parliament before Niue gained self-governing status in 1974, but still remains the general criminal legislation for the island. The criminal laws of the Cook Islands (Crimes Act 1969), Samoa (Crimes Ordinance 1961), and Tokelau (Crimes, Procedure and Evidence Rules 2003) do not make distinctions between felonies and misdemeanors. Both French Polynesia and Wallis and Futuna adhere to the French Penal Code, which classifies offenses as contraventions (minor or petty offenses), délits (similar to misdemeanors), or crimes (serious offenses similar to felonies).

Finding of Guilt Because the formal system of criminal laws and procedure of each state and territory either derive directly from, or are influenced by, the penal and procedural codes of former colonial administrators, the rights of the accused as articulated in their constitutions and/or codes closely resemble those of other Western nations. Foremost among these rights are the right to be informed promptly of charges and to be brought before a fair and impartial hearing or trial, the right to counsel and to have counsel appointed if the cost is prohibitive to a

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defendant, and to be presumed innocent until found guilty. (See, e.g., Constitution of Cook Islands, Part IVA—Fundamental Rights and Freedoms; Constitution of Tuvalu, Part II—Bill of Rights.)

Punishment Punishment for criminal offenses varies among the different Polynesian states and territories depending on the gravity of the offense, as well as how or if it is handled locally and in accordance with custom and tradition. In Tokelau, most crimes are relatively minor offenses that do not require imprisonment, and punishments usually involve some form of public rebuke, labor, or a fine. There has been some controversy over certain traditional punishments such as banishment in Samoa or corporal punishment in Tuvalu, even though their occurrence is extremely rare. The French-affiliated territories follow the French Penal Code as the source of their criminal laws, including the types of punishments meted out for the various types of offenses. Overall, the penalties according to the state/territorial penal codes of the different jurisdictions share similarities and range from fines to community service to imprisonment, with the highest form of punishment being life imprisonment. There is no death penalty, although some places have only recently abolished capital punishment, such as the Cook Islands in 2007. In that case, however, although death was formally listed as a sentence for certain crimes such as treason—an import from old colonial/territorial laws—it was never actually practiced on the islands. Samoa also abolished capital punishment relatively recently in 2004. In most jurisdictions, the punishment of life imprisonment is reserved only for the crime of culpable homicide, usually murder and manslaughter. (See Tuvalu—Penal Code, Cap. 8, §§ 192 and 193; Cook Islands—Crimes Act 1969, § 141(2); Niue Act 1966 [NZ], § 134; Samoa—Crimes Ordinance 1961, §§ 66 and 67.) A notable exception is Tokelau, where the penalty for murder is a minimum of 10 years’ and a maximum of 20 years’ imprisonment. (See Schedule 2, Crimes, Procedure, and Evidence Rules 2003.) In Tuvalu and Samoa, however,


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life imprisonment may also be a punishment for rape (Penal Code, Cap. 8, § 129; and Crimes Ordinance 1961, § 47(2), respectively). In other jurisdictions, such as the Cook Islands and Niue, the maximum penalty for rape is 14 years’ imprisonment (Crimes Act 1969, § 141(2); Niue Act 1966 [NZ], § 162(2), respectively). The typical punishment for a serious property crime such as burglary is a term of imprisonment with a maximum that ranges from 5 to 10 years. (See Niue Act 1966 [NZ], § 204 [5 years]; Cook Islands—Crimes Act 1969, § 262 [10 years].)

Prison System The International Centre for Prison Studies provides data on the penal systems of Tuvalu, the Cook Islands, Samoa, and French Polynesia. Tuvalu has a single prison facility, which in 2007 had a total population of 3 inmates. Prison administration is the responsibility of the Police, Immigration and Prisons Department under the Office of the Prime Minister. The Cook Islands also has a single facility that had a total population of 27 inmates in April 2005. Prison administration is handled by the Cook Islands Prison Service under the Ministry of Justice. Both Samoa and French Polynesia have three facilities, with a total 186 and 404 prisoners in September and January 2007, respectively. In Samoa, prison administration is handled by the Police and Prisons Department under the Ministry of Police, Prisons and Fire Services; and in French Polynesia the penal system is administered under the French Ministry of Justice. Tokelau does not have a prison as most of the crimes committed are not offenses that carry a term of imprisonment and are thus handled apart from the formal justice system. In Niue, people sentenced to a term of imprisonment are generally sent to New Zealand. Estelle Hofschneider

Further Reading Corrin, Jennifer, and Don Paterson. (2007). Introduction to South Pacific Law. New York: Routledge-Cavendish.

International Centre for Prison Studies: http:// www.kcl.ac.uk/schools/law/research/icps. Ntumy, M., ed. (1993). South Pacific Islands Legal Systems. Honolulu: University of Hawaii Press. Pacific Islands Legal Information Institute (PacLII): http://www.paclii.org/. Pacific Regional Information SysteM (PRISM): http://www.spc.int/PRISM/index.htm.

Tonga Legal System: Common Murder: Low Corruption: High Prison Rate: Medium Death Penalty: Maybe Corporal Punishment: Yes

Background Tonga comprises 171 islands, of which 45 are inhabited, and is strategically located in the middle of the Pacific Ocean. Most people, more than 70,000, live on the main island, Tongatapu. In 2005 the United Nations estimated that Tonga had approximately 106,000 people; 40 percent of whom were aged under 15. Approximately 35,000 Tongans dwell in the capital, Nuku’alofa. About 2,500 Tongans emigrate every year. Most seek low-income jobs in New Zealand, Australia, and the United States. A significant number of young men, some with gang connections, have been deported back into Tonga, mainly for drug offenses. The British explorer Captain Cook named Tonga the “Friendly Islands,” but interisland fighting between the chiefs characterized centuries of history. In 1845, Tonga was created a Polynesian kingdom from disparate islands of the South Pacific archipelago. It became an hereditary constitutional monarchy in 1875 and then a British protectorate in 1900. Regaining its independence on June 4, 1970, Tonga remains an absolute monarchy, although there is increasing pressure for constitutional reform


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to curb the power of the wealthy aristocracy and monarchy. Unlike much of Polynesia, Tonga has not adopted a Western form of governance. However, it has a written constitution and the king and Privy Council can make ordinances, but none have been made since independence. Some English statutory law remains in force in Tonga. The remaining body of written law consists of acts and regulations produced by the Legislative Assembly (see below) with the king’s assent. Common law applies as far as local circumstances and legislation allow.

Structure and Role of Courts The court structure of Tonga is based on the standard model of inferior court, superior court, and Court of Appeal. The Privy Council is the body appointed by the king to assist him, rather than a court. The Privy Council has jurisdiction to hear appeals from the Land Court in relation to hereditary estates and titles. The Court of Appeal has all the powers of the Supreme Court and exclusive jurisdiction to determine criminal and civil appeals from the Supreme Court. Any person who has been convicted on trial in the Supreme Court may appeal to the Court of Appeal. It has jurisdiction to hear appeals from the Land Court except in matters relating to the determination of hereditary estates and titles, where appeals lie with the Privy Council. Judges of the Court of Appeal are empowered to give opinions on important or difficult matters when requested to do so by the king, the cabinet, or the Legislative Assembly. The Supreme Court has all the powers of the magistrates’ courts and appellate jurisdiction in relation to decisions of the magistrates’ courts. The Supreme Court is empowered to try all indictable offenses and has criminal jurisdiction in relation to all offenses that carry a maximum penalty of a fine that is more than $500 pa’anga (US$252.25) or a period of imprisonment exceeding two years. Judges in Tonga determine that where there is a lack of definition in legislation, the English common law meaning is applied. Tonga’s Supreme Court has been acknowledged as the top reformer

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in terms of case management. Despite 500 criminal prosecutions stemming from the 2006 November riots (see below), the World Bank cited Tonga’s Supreme Court for best management, cutting the times to enforce contracts from 510 days to 350. A new chief justice, by introducing case management, oversaw the transferring of 90 percent of all cases— criminal, commercial, and land—from paper to computer. Cases are now monitored daily. The magistrates’ court handles matters not covered by the above courts and usually hears matters relating to theft, disputes, and other conflicts. A magistrates’ court, constituted by the chief police magistrate, has jurisdiction throughout Tonga. Other magistrates may exercise jurisdiction within the district to which they are assigned. Every magistrate has the general powers and jurisdiction in civil cases to make orders for maintenance; issue subpoenas for witnesses; enforce payments; exercise powers set down by law; and make temporary orders where prompt action is required. All magistrates have jurisdiction with regard to hearing and determining criminal matters in which the prescribed punishment does not exceed a fine of $1,000 pa’anga (US$504.5) or a period of three years’ imprisonment. In addition, the chief police magistrate has jurisdiction to hear cases in which the fine provided by law is no more than $2,000.

Political and Social Context of Criminal Justice System The king has the power to dictate policy and purpose throughout Tonga. The Constitution provides for an independent judiciary whose ranks historically have been occupied by foreign nationals, but occasionally subject to royal influence. The prodemocracy reformers have achieved greatest impact by strengthening the role of the Tongan judiciary to act as a partial counterbalance to the king’s power. The judiciary has attempted to protect individual rights granted in the Constitution of Tonga. As a result of cases involving freedom of the press, especially its role in the Lali Media decisions, the judiciary has provided some protection for Tongan prodemocracy citizens. It has also condemned censorship of political speech in Tonga.


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In September 2006, King Taufa’ahau Tupou IV, who held power for nearly 40 years, died and was succeeded by his eldest son, King Siaosi Tupou V. The king holds the predominant place in Tongan politics and life and makes hereditary appointments to the token Parliament. The prime minister, deputy prime minister, and the minister of police are appointed for life. The king also appoints the cabinet. The nobility-dominated parliamentary system ensures that voters can only choose a minority of members of the Legislative Assembly. The king selects 12 of the 30 members of the Legislative Assembly, and 33 holders of noble titles select a further 9 members of Parliament, with only 9 members of Parliament being popularly elected. The 9 elected commoners, 7 of whom were elected in 2006, constitute a powerless minority in the Parliament. Universal suffrage applies to those of 21 years and above. The U.S. ambassador to Tonga has indicated that changes toward democracy “should happen at a pace appropriate for the society concerned.” Economic poverty is the major challenge for Tonga. The country remains dependent on external aid and remittances from exiled Tongan communities working abroad (mainly in New Zealand, Australia, and the United States) to offset its trade deficit. More nationals live outside the country than inside. Due to economic stagnation, Tonga requires extensive economic and public sector reform. In September 2005, a massive pay increase (60%–80% per worker) saw the Tongan government teetering on the edge of bankruptcy. Programs are in place to improve fiscal policies, develop a fairer taxation system, promote private sector growth, and create a streamlined public service. Environmentally, deforestation is a growing concern. The previous king’s government made problematic economic decisions that allegedly wasted millions of dollars. In the 1980s, Tongan passports were sold to Asian customers. Diplomatic sources indicated that the Kingdom of Tonga was nearing ruin after disastrous royal decisions, including investing A$35 million (approximately 40% of the government’s revenue) in pyramid investment scam that was orchestrated by the king’s court jester (the notorious Jesse Bogdonoff), who embezzled proceeds from the Tongan government. The court jester was

tried for fraud, negligence, and conspiracy but, due to “retrospective amendments,” the king avoided any such censure. The nation has a somewhat notorious reputation for “get-rich-quick” schemes. The Kingdom of Tonga was close to financial ruin, reportedly in debt to A$43 million. For decades, sections of the population have been agitating for a more democratic constitution. Politically, the progress toward democracy has been slow and hazardous. Prodemocracy newspapers have been targeted by the government eager to silence dissent. In February 2003, the government declared the only independent Tongan-language newspaper, Times of Tonga (printed biweekly in Auckland with a circulation of more than 20,000 in Tonga), a prohibited import and made it a criminal offense to possess any copies of it. Despite years of harassment, the paper continued to report scandals of the royal family and government. Its editor successfully challenged the ban in the Tongan Supreme Court. However, the Privy Council issued another ban that exempted the newspaper from judicial review. On March 10, 2003, a prodemocracy march advocating freedom of speech took place in the main street of Nuku’alofa. The march was reported as peaceful; the police helpful; and hundreds of people clapped the marchers. A second Order in Council placed a second ban on the newspaper, after a Supreme Court ruling that the earlier royal ban was unlawful. The paper reappeared on Tongan streets. In October 2003, an estimated 8,000 people marched through the capital of Nuku’alofa to the Legislative Assembly in protest at the king’s plan to change the Constitution so that he can control newspapers and limit the rights of the courts to review his decisions. The amendment to the Constitution increased the state’s control over the media and limited the rights of the courts to review royal decisions. Some moves toward reform occurred in early 2005 when elected members of Parliament were appointed to the cabinet for the first time. The increasing desire to curb royal powers has already caused considerable civil instability and disobedience in Tonga with the first nationwide strike of public servants in 2005 and the rioting in the capital in November 2006 (see further below). After these prodemocracy riots, the government announced elections for April


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2008, in which a majority of Parliament would be directly elected by a popular vote.

Role of Police The Tonga Police Force is a national agency with jurisdiction throughout the kingdom. There are no separate local or municipal police agencies. Tongan law enforcement is focused on providing essential policing services. Tonga is a heavily policed country. According to the 1998 research questionnaire distributed to chief officers of police, it has 418 officers with a population ratio of approximately 1: 226. The same survey revealed a male-dominated force (82%). The Tonga Police Force is commanded by a commissioner of police. The force is deployed in three territorial districts: Tongatapu, Haapai, and Vava’u

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island groups. Many remote small islands lack any police presence, so law and order is reliant upon the authority of the local chiefs. The regular police also issue fishermen’s licenses, register bicycles, apprehend school truants, and enforce Tongan custom and tradition. Tonga has been without a police commander since December 2006 when the police commander resigned shortly after the November 16 rioting. The Public Service Commission was unable to select a suitable local candidate from the seven applicants. The Tongan government requested that the New Zealand government provide an expatriate commander from within the New Zealand Police. In 2008, a New Zealand police officer has subsequently been appointed as the commissioner of police.

The Tongan police deputy commander, right, is joined by police superintendents from New Zealand, left, and Australia for a patrol of central Nuku’alofa, Tonga, on November 21, 2006. The Tongan government called in international troops to help its police force secure the capital following violent prodemocracy riots. (AP Photo/NZPA, Ross Setford) © 2011 ABC-Clio. All Rights Reserved.

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Physical training for police recruits is estimated to comprise approximately 80 percent of the sixmonth initial training period conducted at the Police Training School in Tonga. Tongan police are relatively inexperienced and undertrained to maintain surveillance and intercept drug trafficking. Allegations of corruption and bribe taking in the police have been reported. Section 7 of Tonga’s Police Act states: “All members of the Force shall with the approval of the Prime Minister carry arms for the performance of their duties.” Under what circumstances the prime minister has granted such approval is unknown. Batons are held in reserve and issued when required. Tonga was one of seven founding members when the South Pacific Chiefs of Police Conference (SPCPC) began in 1970 in Fiji and determined the need for regional cooperation in law enforcement as a priority for its future endeavor. Tonga also belongs to the Pacific Islands Forum, an annual conference of the heads of states of 16 Pacific nations. The forum has been central to the development of a number of initiatives related to police work. Tonga is one of the Pacific regional members of INTERPOL, the global police organization that facilitates cooperation between police forces at the international level. Tonga sent police to the Solomon Islands to assist the implementation of the Townsville Peace Agreement in October 2000. Tonga has contributed and maintained a military presence as part of the Royal Assistance Mission to the Solomon Islands (RAMSI). In February 2007, a seven-member team (three Australian, three New Zealanders, and one Tongan) conducted an assessment of the operation of the Tongan police. Tonga has signed a tripartite Memorandum of Agreement for a Tonga Police Force Development Programme, between Tonga, New Zealand, and Australia, and the program has been implemented. The objective is to improve operational standards of the Tongan police force. The program is funded by AusAID and NZAid and implemented by both the New Zealand Police and the Australian Federal Police. The country’s security agencies are the Tonga Defense Services (TDS) and the police force. The

minister of defense controls the TDS force, which is directly responsible for external security. The police are under the control of the minister of police and prisons. The police are usually responsible for internal security, but under the state of emergency declared during the November 2006 rioting, the TDS shared domestic security duties with the police who were unable to control the large-scale rioting.

Crime According to the United Nations Survey of Crime and Criminal Justice Systems, the total number of reported crimes in 1990 in Tonga was 1,434. Of these, 50.4 percent were theft offenses; 30.2 percent of the remaining reported crimes were assaults. According to INTERPOL data, in Tonga the rate for murder in 1999, the most recent year available, was 1.05 per 100,000 population; this represented a decrease of 49 percent on 1995 figures. For rape, the rate in 1999 was 2.11; this represented an increase of 78.8 percent on 1995 figures. Rates reported by INTERPOL for other crimes in 1999 were robbery 15.8, aggravated assault 108.5, burglary 541.65, and motor vehicle theft 14.8.

Gangs A number of Pacific island cities or towns, including the Tongan capital, experience street gangs, the product of limited infrastructure, stagnant economy, unemployment, and dislocation from rural areas. Officials, such as a former police minister, have blamed Tongans who have been convicted of gangrelated crimes in the United States and who have returned to Tonga and contributed to an upsurge in crime in Tonga in the last few years. Some reports have connected American gang membership with the return of some Tongan youth to Nuku’alofa for the November 2006 riots.

Money Laundering and Drug Trafficking The extent of the transshipment of drugs through Tonga is unknown. Cannabis has been observed growing in Tonga, and the island state is known


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for the illicit commercial cultivation of marijuana. Also, a Tongan syndicate based in Hawaii has been connected to the trafficking of cocaine. Tonga has enacted money-laundering legislation that deals specifically with proceeds from narcotics-related crimes. It is estimated that the bulk of migrant remittances to Tonga flows through illegal, unofficial, and informal channels. In 2005, remittances accounted for 50 percent of Tonga’s Gross Domestic Product, with 75 percent of Tongan households receiving remittances from overseas.

Computer Crime The Computer Act was enacted by the Tonga Legislative Assembly in September 2003. The act defined the following activities as crimes and offenders are subject to fines and/or imprisonment: obtaining illegal access to a computer; interfering with another’s computer system; unlawfully intercepting computer data; and trafficking in illegal computer devices. Substantial procedural powers were granted to law enforcement authorities by the act.

Corruption In July 2007, Parliament enacted legislation establishing a commissioner to investigate official corruption. Government tenders appear to unfairly benefit members of the royal family. A recent case of alleged fraud against a government minister was squashed by the prime minister. In 2008, the minister for tourism was accused of inappropriately using funds donated by the ambassador of China. The funds were deposited in the minister’s personal account as part of his department’s efforts to gain quicker access to the funds for government programs. The auditor general recommended that the minister be asked to resign “because he has broken the law.” However, the prime minister rejected this recommendation on the grounds the minister’s violation of the law was minor and did not constitute fraud, akin to driving with broken headlights or illegal parking. The prime minister refused to ask the tourism minister

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to resign but imposed a penalty of work without pay for three months.

Terrorism Tonga, keen to pursue global moneymaking enterprises destined for the Middle East, was criticized by the United States for offering “flags of convenience” through an open shipping register. The CIA has claimed that al Qaeda has used as many as 62 Tongan-registered “flag-ships” to carry arms for terrorist purposes. In 2002, three foreign-owned Tongan “ships of shame” were caught ferrying terrorists, weapons, and explosives for al Qaeda, according to an Australian Institute of Criminology report. Tongan policy changed, and the 185 Tongan-registered ships were given 12 months’ notice of termination. More conscious of the potential threat or consequences of inadvertently aiding possible terrorist groups, Tonga has eliminated its flag of convenience program, which was a major revenue generator for the impoverished country.

Riot and Sedition As a result of the protest march in June 2006 about press freedoms, 32 protesters were charged, and most of the defendants were found guilty of obstructing police and were fined. On November 16, 2006, a peaceful protest in support of political reform descended into a riot that left the capital city badly damaged and burned, which destroyed about 80 percent of the capital’s central business district. Looting and fires caused a huge amount of damage to businesses in the city. New Zealand and Tongan police arrested about 900 people for crimes connected to the “16/11” rioting and more than 500 were charged with offenses relating to the riot. The charges included murder, arson, sedition, and theft. Five members of Parliament were charged with sedition related to public speeches they made at political rallies in November 2006. Another Tongan was sentenced to seven years in prison for his part in the riot. One man received an 11-year jail sentence for setting fire to a supermarket during the rioting.


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In late November 2006, the Australian Federal Police deployed more than 60 members to Tonga in response to government calls for assistance. They investigated seven deaths and 87 separate crime scenes.

Murder The first conviction for murder since 1981 occurred in October 2005 when a 26-year-old man was found guilty by a jury of seven for the murder of another male who had been repeatedly hit with an iron bar. In 1981 four men were sentenced to death and hung at the village of Vaini. Since 1981 there have been numerous jury trials in Tonga on the charge of murder, but no jury was prepared to pass a guilty verdict for murder, opting instead for the lesser charge of manslaughter.

Domestic Violence Domestic violence against women is seldom reported, yet believed to be common. Women’s groups claim that domestic violence is common, although it is seldom publicized. Domestic violence is prosecuted under laws against physical violence, but prosecutions are very rare. When abuse is reported to police, victims are often encouraged to return to their homes. In June 2005, Tonga’s finance minister announced that the number of crimes being reported had increased significantly in recent years, especially domestic violence. Rape is punishable by up to 15 years’ imprisonment. The law does not recognize spousal rape. There are no reliable statistics about the incidence of rape.

Illegal Firearms Tonga has 500 licensed guns, mainly for the legitimate use of farmers. The penalty for anyone found in possession of an illegal firearm is a maximum of five years’ imprisonment. There has been an increase in shooting incidents. An incident of an armed robbery at a gas station in March 2006 was believed to be the first, and two people were shot dead in January 2008 in the capital.

Finding of Guilt The Constitution provides for the right of a fair trial, and an independent judiciary enforces this. The judiciary usually provides citizens with a fair and efficient legal process. Historically, the highestranking judges have been foreign nationals. Judges hold office “during good behaviour” and otherwise cannot be dismissed during their term of office. The Constitution prohibits arbitrary arrest and detention. However, human rights lawyers claimed that the arrests of the suspected November 16, 2006, rioters were illegal. The law provides for the right to judicial determination of the legality of arrest. Under normal circumstances, police have the power to arrest detainees without a warrant, but detainees must be brought before a local magistrate within 24 hours. There are no statutory limits to the time that a suspect may be held prior to being charged. However, there is no evidence of preventative detention or other lengthy pretrial detention. In most cases, magistrates set bail. The law permits unlimited access by counsel, church and family members to detained persons. A court may not summon anyone without providing a written indictment stating the charges. Trials are public, and defendants have the option to request a seven-member jury. Defendants are presumed innocent, may question witnesses against them, and have access to government-held evidence. Lawyers have free access to defendants. Public defenders are not provided, but local lawyers occasionally take pro bono cases. Defendants have the right of appeal. The king has the power to grant amnesty. Recently, the new rules of procedure for the Supreme Court provided for court referral to mediation in civil cases for the first time. Partly as a response to the November 16, 2006, rioting, a youth diversionary pilot program was instigated in 2007. The scheme avoids long delays and cumbersome court procedures for young people involved in minor offenses, mostly theft or other property matters. The police prosecutor can refer young people aged 17 years and under who are not currently involved in serious offending for


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youth diversion. The young person must show remorse and admit his or her responsibility for harm caused. The youth must agree to complete community work. The alleged success of the program to date suggests that it will be further expanded for other offenders.

Punishment

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arrests, detentions, and other encounters with the Tonga Defense Services and police after the rioting in Nuku’alofa in November 2006. A report of the Community Para-Legal Taskforce, an NGO, illustrated cases of physical abuse of some detainees while in custody. Both the police and the TDS conducted internal inquiries, but the findings were not made public.

Types of Punishment The typical punishment for murder is imprisonment for life or any less period. The typical punishment for rape is imprisonment for any term not exceeding 15 years. However, in exceptional circumstances, the penalty can be life in prison. The typical punishment for theft, if the value of the stolen item does not exceed $500 pa’anga (US$252.25), is imprisonment for any period not exceeding 2 years. If the value of the thing stolen does exceed $500, punishment is imprisonment for any period not exceeding 7 years. In Tonga, the crimes of robbery and burglary are equal in meaning and punishment; the culprit for such crimes shall be liable for imprisonment for any period not exceeding 10 years. By comparison, a couple who obtained a $3000-pa’anga (about US$1,512) loan from the Westpac bank of Tonga by false pretenses and abetment received a suspended sentence and 80 hours of voluntary work. The typical punishment for the most serious drug offense depends on the amount involved. For instance, possession of Indian hemp can result in a 7-years’ sentence. In November 2003, the government enacted harsh penalties for drug offenders. A fine not exceeding $1 million pa’anga (about US$454,445) or 30 years’ imprisonment or both can be imposed on any person convicted of importing or exporting illicit drugs. Capital punishment is legal, but Tonga has not conducted an execution since 1982. Provisions exist for the head of state to commute the death sentence. Tongan legal legislation refers to the availability of whipping as a punishment either in relation to certain offenders or to certain offenses such as rape. Torture is prohibited by law. There were reports of gratuitous violence used during some routine

Prison As of June 2002, Tonga had six prisons holding some 113 prisoners. (i.e., 106 prisoners per 100,000 capita of population). Only 1.8 percent of prisoners were female. The total prison capacity of Tonga is 139 (81.3% of prison capacity was filled in 2002). The prison population has remained steady since 1992, around the 100 mark, although the rate dropped in 2006 to 89. The main penal institution is at Hu’atolitoli, near Nuku’lofa. Prisoners are often required to undertake public works or work on government copra plantations. There are three classes of prisoners: debtors, prisoners awaiting trial or under remand, and prisoners sentenced to penal servitude or imprisonment. Those prisoners awaiting trial or under examination are allowed to receive visits from family and friends. All visiting is under the direction of the minister or head of department. Prison conditions generally meet international standards, although they are basic and in line with local living standards. There are separate facilities for pretrial detainees and convicted prisoners, men and women, and adults and juveniles. The Tonga Red Cross in December 2006 visited three prisons to ascertain whether prisoners are appropriately looked after by the police. The society observed that the quality of water needed improvement and that prison sanitation was very poor and unhealthy. The Red Cross did not find any underage inmates and did not see any signs of abuse and torture. The tiny island of Ata (30 acres) forms the smallest prison with about half a dozen residents. It was intended to be Tonga’s only youth jail. By the end of 2002, about 50 convicted youth under 16 had spent their sentence on Ata. Inmates inhabit a two-room


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hut, and they receive home breaks once a month. The main communication is a basic radio telephone and a battery-powered radio. David Baker

Further Reading Australian Government AusAID: Tonga: http://www.ausaid.gov.au/country/country. cfm?CountryId=19 Care, Jennifer, Tess Newton, and Don Paterson. (1999). Introduction to South Pacific Law. London: Cavendish Publishing.

Maloney, John, and Jason Struble. (2007). “A New Day in Tonga: The Judiciary, the Reformers and the Future.” Journal of South Pacific Law 11: 151–168. Newton, Tess. (2000). “Policing in the South Pacific Region.” Occasional Paper No. 1. Suva: School of Law, University of the South Pacific. Pacific Islands Legal Information Institute: http:// www.paclii.org. Pacific Islands Report with Archives: http://www. pidp.ewc.hawaii.edu/pireport. Tongan Government: http://www.pmo.gov.to.


General Bibliography

Books, Periodicals, and Articles Aas, K. (2007). Globalization and Crime. Los Angeles, CA: Sage. Adeyemi, A. (1990). “Crime and Development in Africa: Case Study of Nigeria.” In Essays on Crime and Development, edited by U. Zvekic, pp. 135–193. Rome: United Nations Interregional Crime and Justice Institute. ADT. (2006). Anti-Social Behaviour across Europe: http://www.jdi.ucl.ac.uk/ downloads/publications/journal_articles/cc4416AD_ANTI_SOCIAL_Report_ UK_fv.pdf Aebi, M. F. (2010). “Methodological Issues in the Comparison of Police Recorded Crime Rates.” In International Handbook of Criminology, edited by S. Shoham, P. Knepper, and M. Kett, pp. 209–226. London: Routledge. Aebi, M. F., K. Aromaa, B. Aubusson de Cavarlay, G. Barclay, B. Gruszczynska, H. von Hofer, V. Hysi, J.-M. Jehle, M. Killias, P. Smit, and C. Tavares. (2006). European Sourcebook of Crime and Criminal Justice Statistics—2006. 3rd ed. Den Haag: Boom Juridische Uitgevers. Aebi, M. F., and N. Delgrande. (2009). Council of Europe Annual Penal Statistics SPACE I: Survey 2007. Strasbourg: Council of Europe. Aebi, M. F., and A. Linde. (2009). Review of the Current Situation in Respect of the Collection of Survey Data on Victimization. Lausanne: Université de Lausanne. Alvazzi del Frate, A. (2004). “The International Crime Business Survey: Findings from Nine Central-Eastern European Cities.” European Journal on Criminal Policy and Research 10(2–3): 137–161. Archer, D., and R. Gartner. (1984). Violence and Crime in Cross-National Perspective. New Haven, CT: Yale University Press. Aromaa, K., and M. Heiskanen, eds. (2008). Crime and Criminal Justice Systems in Europe and North America 1995–2004. Publication 55. Helsinki, Finland: European Institute for Crime Prevention and Control, Affiliated with the United Nations (HEUNI). Barak, G., ed. (2000). Crime and Crime Control: A Global View. Westport, CT: Greenwood Press. Bayley, D. H. (2006). Changing the Guard: Developing Democratic Police Abroad. New York: Oxford University Press. 359 © 2011 ABC-Clio. All Rights Reserved.

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Beirne, P., and D. Nelken. (1997). Issues in Comparative Criminology. Sudbury, MA: Dartmouth Publishing. Bennett, R. R. (1997a). “Excessive Force: A Comparative Study of Police in the Caribbean.” Justice Quarterly 14: 651–686. Bennett, R. R. (1997b). “The Determinants of Job Satisfaction among Police Constables: A Comparative Study in Three Developing Nations.” Justice Quarterly 14: 295–323. Bennett, R. R. (2004). “Comparative Criminology and Criminal Justice Research: The State of Our Knowledge.” Justice Quarterly 21: 1–21. Botchkovar, E. V., C. R. Tittle, and O. Antonaccio. (2009). “General Strain Theory: Additional Evidence Using Cross-Cultural Data.” Criminology 47(1): 131–165. Caldwell. J., ed. (1994). Networking and AIDS in Sub-Saharan Africa: Behavioral Research and the Social Context, pp. 101–116. Canberra: Australian National Universities. Care, Jennifer, Tess Newton, and Don Paterson. (1999). Introduction to South Pacific Law. London: Cavendish. Chevigny, P. (1995). Edge of the Knife: Police Violence in the Americas. New York: Free Press. Dalgleish, D. (2005). “Pre-Colonial Criminal Justice in West Africa: Eurocentric Thought versus Africentric Evidence.” African Journal of Criminology and Justice Studies 1(1): 155–169. Delgrande, N., and M. F. Aebi. (2009). “European Prisons: Stability or Change?” Criminology in Europe: Newsletter of the European Society of Criminology 8(3): 1, 17–19. European Journal of Criminology. Various issues providing country profiles. European Journal on Criminal Policy and Research, in particular those on crime trends in Western and Eastern European Countries (Vol. 10[2–3], 2004) and prosecution and diversion within criminal justice systems in Europe (Vol. 14[2–3], 2008). Fairchild, Erika, and Harry Dammer. (2001). Comparative Criminal Justice Systems. 2nd ed. Belmont, CA: Wadsworth. Fiala, R., and G. LaFree. (1988). “Cross-National Determinants of Child Homicide.” American Sociological Review 53: 432–445. Findlay, Mark. (2000). Criminal Laws of the South Pacific. Suva: University of the South Pacific. Friedrichs, D. (2007). “Transnational Crime and Global Criminology: Definitional, Typological, and Contextual Conundrums.” Social Justice 34(2): 4–18. Howard, G. J., G. Newman, and W. A. Pridemore. (2000). “Theory, Method, and Data in Comparative Criminology” (excerpted from Measurement and Analysis of Crime and Justice. Criminal Justice 2000) 4: 139–211.



International Journal of Comparative and Applied Criminal Justice. Published and copyrighted by the School of Criminal Justice, Michigan State University. ISSN 0192–4036. Johnson, H., N. Ollus, and S. Nevala. (2007). Violence against Women: An International Perspective. New York: Springer. Joireman, Sandra F. (2004). “Colonization and the Rule of Law: Comparing the Effectiveness of Common Law and Civil Law Countries.” Constitutional Political Economy 15: 315–338. Junger-Tas, J., I. Haen Marshall, and D. Ribeaud. (2003). Delinquency in an International Perspective: The International Self-Report Delinquency Study. The Hague, The Netherlands: Kugler Publications. Karstedt, S. (2001). “Comparing Cultures, Comparing Crime: Challenges, Prospects and Problems for a Global Criminology.” Crime, Law, and Social Change 36(3): 285–308. Karstedt, S., and G. LaFree. (2006). “Democracy, Crime, and Justice.” Annals of the American Academy of Political and Social Science 605: 6–23. Kury, H., ed. (2001). International Comparison of Crime and Victimization: The ICVS. Ontario, Canada: de Sitter Publications. Kyle, D., and R. Koslowski. (2001). Global Human Smuggling: Comparative Perspectives. Baltimore, MD: Johns Hopkins University Press. Larsen, N., and R. Smandych, eds. Global Criminology and Criminal Justice: Current Issues and Perspectives. Peterborough, Ontario: Broadview Press. Lee, M. R., and T. Earnest. (2003). “Perceived Community Cohesion and Perceived Risk of Victimization: A Cross-National Study.” Justice Quarterly 20: 131–157. Lo, Stefan H. C., Ian Dobinson, and Wing Hong Chui. “Sentencing for Drug Offences in Hong Kong: An Overview.” Hong Kong Law Journal 34 (2005): 13–46. Mawby, R., ed. (1996). Policing across the World, pp. 3–12. London: Routledge. Messner, S. F., and Richard R. Rosenfeld. (2007). Crime and the American Dream. 4th ed. Belmont, CA: Thomson Wadsworth. Nalla, M. K. (2009) “Democratic Policing: A Comparison of Police Officers’ Perceptions of Their Role and Functions in Transitional Societies.” Journal of Criminal Justice and Security 11(4): 520–535. Nalla, M. K., and J. Johnson. (2009). “Are Police and Security Personnel Warming up to Each Other? A Comparison of Officer’s Attitudes in Developed, Emerging, and Transitional Economies.” Policing: An International Journal of Police Strategies and Management 32(3): 508–525. National Institute of Justice, Office of Justice Programs, U.S. Department of Justice: http://www.ncjrs.gov/criminal_justice2000/vol4_2000.html. Neapolitan, J. L. (1997). Cross-National Crime: A Research Review and Sourcebook. Westport, CT: Greenwood Press.


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Newburn, T., and R. Sparks. (2004). Criminal Justice and Political Cultures: National and International Dimensions of Crime Control. Devon, UK: Willan. Newman, Graeme R. (1999). Global Report on Crime and Justice. New York: United Nations Office of Drug Control and Crime Prevention. Newman, Graeme R. (2008). Comparative Deviance: Perception and Law in Six Cultures. Reprinted with new introduction. Piscataway, NJ: Transaction Press. Owomero, B. (1987). “Crime Rates and Development in Africa: Empirical Analysis of Data from Nigeria, Kenya, and Tanzania.” Indian Journal of Criminology 15: 107–120. Pridemore, W. A. (2008). “A Methodological Addition to the Cross-National Empirical Literature on Social Structure and Homicide: A First Test of the Poverty-Homicide Thesis.” Criminology 46: 133–154. Rafter, N. H., and F. Heidensohn. (1995). International Feminist Perspective in Criminology. Buckingham, UK: Open University Press. Reichel, P. L. (2004). Comparative Criminal Justice Systems: A Topical Approach. Upper Saddle River, NJ: Prentice Hall. Reichel, Philip L. (2008). Comparative Criminal Justice Systems. Upper Saddle River, NJ: Prentice Hall. Robert, P., ed. (2009a). Comparing Crime Data in Europe: Official Crime Statistics and Survey Based Data. Brussels: VUBPRESS Brussels University Press. Robert, P., ed. (2009b). Evaluating Safety and Crime Prevention Policies in Europe. Brussels: VUBPRESS Brussels University Press. Savage, J., R. R. Bennett, and M. Danner. (2008). “Economic Assistance and Crime: A Cross-National Investigation.” European Journal of Criminology 5: 217–238. Schwabach, Aaron. (2003. Rev. 2006). Non-Western Philosophies of Law. In Encyclopedia of Life Support Systems (EOLSS), edited by Aaron Schwabach and Arthur John Cockfield, topic 6.31.1. Developed under the Auspices of UNESCO. Oxford: Eolss: http://www.eolss.net. Sheptycki, J., and A. Wardak, eds. (2005). Transnational and Comparative Criminology. London: Glasshouse. Stamatel, Janet P. (2006). “Incorporating Socio-Historical Context and Temporal Variation into Quantitative Cross-National Criminology.” International Journal of Comparative and Applied Criminal Justice 30(2): 177–208. Stamatel, Janet P. (2009a). “Correlates of National-Level Homicide Variation in Post-Communist East-Central Europe.” Social Forces 87(3), 1423–1448. Stamatel, Janet P. (2009b). “Contributions of Cross-National Research at the Beginning of the 21st Century.” In Handbook on Criminology and Deviance, edited by Marvin Krohn, Alan Lizotte, and Gina Penly-Hall, 3–18. New York: Springer Science + Business Media.



Stamatel, Janet P. (guest editor). (2009, December). “New Methodological Directions for International and Comparative Criminology.” International Journal of Comparative and Applied Criminal Justice 33 (2): 167. Sung, Hung-En. (2004a). “Democracy and Organized Crime: Evidence from Fifty-Nine Countries.” Security Journal 17(4): 21–34. Sung, Hung-En. (2004b). “State Failure, Economic Failure, and Predatory Organized Crime.” Journal of Research in Crime and Delinquency 41(2): 111–129. Sung, Hung-En. (2006a). “Democracy and Criminal Justice in Comparative Perspective: From Crime Control to Due Process.” The Annals of the American Academy of Political and Social Science 605(1): 311–337. Sung, Hung-En. (2006b). “Structural Determinants of Police Effectiveness in Market Democracies.” Police Quarterly 9(1): 3–19. Sung, Hung-En, and Jack Reed. (2006). “Migration and Crime in Europe.” In Crime and Immigration, edited by Joshua Freilich Graeme R. Newman, 95–120. Hampshire, UK: Ashgate. Terrill, Richard J. (2009). World Criminal Justice System: A Survey. 7th ed. Southington, CT: Anderson. Uildriks, N. (2009). Policing Insecurity: Police Reform, Security and Human Rights in Latin America. Lanham, MD: Lexington Books. United Nations Office on Drugs and Crime. (2005). Crime and Development in Africa. Vienna, Austria: United Nations: http://www.unodc.org/pdf/African_ report.pdf. United Nations Office on Drugs and Crime. (2008). Crime and Its Impact on the Balkans and Affected Countries. Vienna, Austria: United Nations: http://www. unodc.org/documents/data-and-analysis/Balkan_study.pdf. United Nations Office on Drugs and Crime and the Latin America and the Caribbean Region of the World Bank. (2007). Crime, Violence, and Development: Trends, Costs, and Policy Options in the Caribbean. Vienna, Austria: United Nations: http://www.unodc.org/pdf/research/Cr_and_Vio_Car_E.pdf. Van Dijk, Jan. (2008). The World of Crime: Breaking the Silence of Security, Justice, and Development across the World. Thousand Oaks, CA: Sage. Van Dijk, J., J. Kesteren, and P. Smit. (2007). Criminal Victimisation in International Perspective: Key Findings from the 2004–2005 ICVS and EU ICS. WODC: http://www.nicis.nl/kenniscentrum/binaries/nicis/bulk/onderzoek/2008/2/3/ icvs2004_05report.pdf. Weitekamp, E. G. M., and H. Kerner. (1994). Cross-National Longitudinal Research on Human Development and Criminal Behavior. Dordrecht, Netherlands: Kluwer Academic. Zauberman, R., ed. (2009a). Self-Reported Crime and Deviance Studies in Europe. Brussels: VUBPRESS Brussels University Press. Zauberman, R., ed. (2009b). Victimization and Insecurity in Europe. Brussels: VUBPRESS Brussels University Press.


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Zimring, Franklin E., and David T. Johnson. (2008). “Law, Society, and Capital Punishment in Asia.” Punishment and Society 10(2): 103–115.

Web Sites BBC News Country Profiles: http://news.bbc.co.uk/2/hi/country_profiles/default. stm. This site is very good for background information on history, geography, and politics. It’s also good for links to internal national sites and news media sites. Cecil Greek’s Criminal Justice Resources on International Criminal Justice: http:// www.criminology.fsu.edu/p/cjl-world.php. There is a good variety of sources here, from common to the unusual, such as, for example, South Africa’s Crime Mysteries. CIA World Factbook: https://www.cia.gov/library/publications/the-world-fact book/index.html. The information in this book tends to be regurgitated in many Web sites, but it contains useful background information and is updated annually. Sometimes there are crime data, but usually descriptive, without statistics. Council of Europe Annual Penal Statistics: www.coe.int/prison. Detailed data on prisons in Europe since 1983 can be found here. The Council of Europe, European Commission for the Efficiency of Justice. (2008): Evaluation of European Judicial Systems: http://www.coe.int/t/dghl/ cooperation/cepej/evaluation/default_en.asp. Country Report of the Justice Studies Center of the Americas: http://www.ce jamericas.org. This research and advocacy group publishes online countryspecific analysis of legal systems and their operations in Latin America. The Economist: http://www.economist.com/countries/index.cfm. This Web site offers much economic, historical, and political information on many countries and often useful information in its city guides. European Society of Criminology: http://www.esc-eurocrim.org. This site provides a lot of relevant information on crime and punishment in Europe, including the programs of the annual conferences. European Sourcebook of Crime and Criminal Justice Statistics: www.european sourcebook.org. This site provides databases on police, prosecution, conviction, and correctional statistics since 1990 as well as some data on victimization. International Centre for Prison Studies: http://www.kcl.ac.uk/depsta/rel/icps/ home.html. This is a good source for international prison statistics. International Court of Justice: http://www.icj-cij.org/. Library of Congress Area Studies: http://www.loc.gov/rr/. Nationmaster: http://www.nationmaster.com/index.php. This interesting interactive site allows comparative statistics of countries on a wide range of topics, including criminal justice. However, the crime statistics tend to be outdated.



The New York Times Countries and Territories: http://topics.nytimes.com/topics/ news/international/countriesandterritories/index.html. These pages contain both general background information and links to recent media stories. United Nations Interregional Crime and Justice Research Institute (UNICRI): http://www.unicri.it/wwd/analysis/icvs/data.php. A wide variety of information, particularly data for many countries participating in the International Crime Victim Survey (ICVS), is available. United Nations Office on Drugs and Crime: http://www.unodc.org/. This site contains a wealth of information on crime, with extensive databases of crime statistics from the UN Surveys of Crime and Criminal Justice Systems. U.S. Library of Congress Country Studies: http://lcweb2.loc.gov/frd/cs/. These are much more detailed than the usual country profiles, such as the CIA Factbook. U.S. National Institute of Justice International Center: http://www.ojp.usdoj.gov/ nij/international/. This site offers a variety of reports, articles, and descriptions of transnational and international crime and justice. Wikipedia: http://wikipedia.org/. There is much information on countries, including interesting descriptions of crime and criminal justice issues. One has to be careful of the sources, but often there are links that lead to useful and reasonable resources. This is particularly good for tracking down internal national news media Web sites (i.e., local newspapers and TV stations) that almost always have news on local crimes. World Criminal Justice Library Network: http://andromeda.rutgers.edu/~wcjlen/ WCJ/mainpages/statres.htm. This site contains excellent statistical data from 80 countries. Internal national publications are usually the source. World Factbook of Criminal Justice Systems. U.S. NIJ. Bureau of Justice Statistics: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1435.


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About the Editors and Contributors

General Editor Graeme R. Newman is a distinguished teaching professor at the School of Criminal Justice, University at Albany and the associate director of the Center for ProblemOriented Policing. He has advised the United Nations on crime and justice issues over many years and in 1990 established the United Nations Crime and Justice Information Network.

Volume 3 Editor Doris C. Chu is an associate professor in the Department of Criminology, Sociology, and Geography at Arkansas State University. She received her PhD in criminal justice from the State University of New York at Albany in 2003. Her research interests include religiosity and desistance, policing, and comparative criminal justice. Her recent articles have appeared in Crime and Delinquency, International Journal of Offender Therapy and Comparative Criminology, Families in Society, International Criminal Justice Review, Policing: An International Journal of Police Strategies and Management, and Criminal Justice and Behavior.

Volume 3 Contributors Ahmad Ghazali bin Abu Hassan is an associate professor at the Department of Strategic Studies, Faculty of Defence Studies and Management, National Defence University of Malaysia. He teaches public international law and international humanitarian law. Danai Azaria is a PhD candidate at University College London (UCL). She holds an LLM in public international law from UCL (2006) and a LLM in international studies from the National and Kapodistrian University of Athens, Greece (2005). Yoko Baba received her PhD from the University of Oklahoma in 1987. Currently, she is a professor and chair of the sociology department at San José State University. David Baker is the head of criminal justice at Monash University Gippsland, Australia. He is author of Batons and Blockades: Policing Industrial Disputes in 367 © 2011 ABC-Clio. All Rights Reserved.

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Australasia and has published in a variety of interdisciplinary journals. He is an associate investigator for the Australian Research Council’s Centre of Excellence for Policing and Security. Thierry Bouhours, PhD, is a research officer at the Centre of Excellence in Policing and Security, RegNet, Research School of Pacific and Asian Studies, Australian National University, Canberra, Australia. Roderic Broadhurst is a professor, Australian Research Council, Centre for Excellence in Policing and Security, RegNet, Research School of Pacific and Asian Studies, Australian National University, Canberra, Australia. Hoan N. Bui is an associate professor in the Department of Sociology, University of Tennessee, Knoxville. Her research has been published in major criminal justice journals, and she is the author of In the Adopted Land: Abused Immigrant Women and the Criminal Justice System, published in 2004 by Greenwood Press. Tess Newton Cain, LLB, PhD, is a former lecturer in law at the University of the South Pacific (1997–2001). Rolando V. del Carmen is Distinguished Professor of Criminal Justice (Law) and Regents Professor in the College of Criminal Justice, Sam Houston State University. He finished his BA and LLB degrees in the Philippines. He has an MCL from Southern Methodist University, an LLM from the University of CaliforniaBerkeley, and a JSD from the University of Illinois. Charles K. M. Chang is a professor in the School of Police Policy, Central Police University, Taiwan. Professor Chang was the second president of the Asian Association of Police Studies (AAPS). His recent publications appeared in the Journal of Asian Association of Police Studies, Journal of Policing (Taiwan), Third Sector Review (Taiwan), Journal of Central Police University (Taiwan), and Police Science Bio-Monthly. Sutham Cheurprakobkit is a professor in the Department of Sociology and Criminal Justice, Kennesaw State University. His research interests include community policing, comparative criminal justice, and computer crime. Doris C. Chu is an associate professor in the Department of Criminology, Sociology, and Geography at Arkansas State University. Her recent publications appeared in Criminal Justice and Behavior, International Journal of Offender Therapy and Comparative Criminology, International Criminal Justice Review, and Policing: An International Journal of Police Strategies and Management. Wing Hong Chui, PhD, is an associate professor in the Department of Social Work and Social Administration at the University of Hong Kong. His areas of interest include probation studies, youth justice, comparative criminal justice, and social work with offenders. He is the coeditor of five books, including Understanding Criminal Justice in Hong Kong. Graham Farrell is a professor of criminology at Loughborough University. He has published widely in the fields of domestic and transnational criminology. © 2011 ABC-Clio. All Rights Reserved.


Narayanan Ganapathy is an assistant professor in the Department of Sociology, National University of Singapore. Gilbert Geis is a professor emeritus, Department of Criminology, Law and Society, University of California, Irvine. He is former president of the American Society of Criminology and recipient of its Edwin H. Sutherland Award for outstanding research. His most recent books are Criminal Justice and Moral Issues (with Robert F. Meier) and White-Collar and Corporate Crime. Heike Gramckow is senior legal counsel to the World Bank, Legal and Justice Sector Reform Group, Washington, D.C. Hennessey Hayes is a senior lecturer in the School of Criminology and Criminal Justice at Griffith University. He is engaged in a program of research on restorative justice and reoffending. Estelle Hofschneider has a master’s degree in criminal justice from the State University of New York (SUNY) College at Buffalo. She is currently pursuing a JD at the University at Buffalo Law School (SUNY). Her research interests include criminal law, immigration law, and international human rights law. Kristen Lee Hourigan is a graduate student at the State University of New York at Albany. Syed Ejaz Hussain is Deputy Inspector General of Pakistan Police and currently a PhD candidate at the University of Pennsylvania. Hee-Jong Joo is an associate professor in the College of Criminal Justice at Sam Houston State University. Suman Kakar, PhD, is an associate professor in the School of Criminal Justice at Florida International University, Miami. Her research interests include child abuse, delinquency, juvenile delinquency, comparative criminal justice, law enforcement, and domestic violence. Mohammed Bin Kashem is an associate professor of Sociology and dean (incharge) of Curriculum Development and Evaluation Center at the National University, Gazipur, Bangladesh. He received his master’s in criminal justice from the University of Baltimore, Maryland, in 1996. Chenda Keo is a PhD student at the Research School of Pacific and Asian Studies, Australian National University, Canberra, Australia. George Kikuchi received his PhD in Sociology from Purdue University in 2008. He currently works as a postdoctoral researcher at the National Research Institute of Police Science in Japan. Helmut Kury is a professor of psychology, PhD in psychology, at the University of Freiburg. He has been a member of the research group at the Max Planck Institute for foreign and international penal law in Freiburg, Germany, and from 1980 to 1987, he was the founding director of the Research Institute of Lower Saxony in Germany. © 2011 ABC-Clio. All Rights Reserved.

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Samson Chi-fai Kwan is an associate professor in the Department of Social Work, Macao Polytechnic Institute. His main research areas are social deviance, suicidology, and gender studies. Chia-Wen Lee is an associate professor in the Department of Law, National Cheng-Kung University. She recently published Punishment in the Neo-Liberal Order. Her other publications appear in various law reviews published by universities, EurAmerica, and Taiwan Law Review. Unisa Lerdtomornsakul is an assistant professor in the Department of Sociology and Anthropology, Chulalongkorn University, Thailand. Her main research areas include crime prevention and criminological theory. Anna Margaryan is an associate professor of criminal law and criminology at Yerevan State University, Armenia. She has done research on the crime trends in Armenia, offense patterns, and juvenile criminality. Andrew Marriott is a legal adviser to the Judicial System Monitoring Programme in Dili, Timor-Leste, and a doctoral candidate at Deakin University, Australia. His research draws on experience in Sierra Leone and Cambodia to examine the role of the legal profession in postconflict justice sector reform. Muhammad Mustofa is a professor in the Department of Criminology at the University of Indonesia. His recent international publication appears in the Journal of Labour and Development Management, the University of Tasmania, Australia. Graeme R. Newman is Distinguished Teaching Professor at the School of Criminal Justice, State University of New York at Albany. He has published widely on comparative criminal justice and punishment. His most recent book, with Pietro Marongiu, is Beccaria, On Crimes and Punishment (2009). Claire Angelique Nolasco is a doctoral student in the College of Criminal Justice, Sam Houston State University. She obtained her bachelor’s degree in political science and her JD from the University of the Philippines and her LLM in international economic and business law from Kyushu University, Japan. She is a practicing lawyer in the state of California and the Philippines and has served as chief legal officer for Senator Francis N. Pangilinan in the Philippine Senate. Corina Oliver graduated cum laude from Arizona State University Barrett Honores College with a BA in journalism and mass communications. She currently directs a New Zealand marketing campaign for American Express International in the Auckland office. Jennifer Lynn Owens is a PhD student at the School of Criminal Justice, State University of New York at Albany. Her research interests include capital punishment, comparative criminal justice, psychology and the law, sexual assault, and domestic violence. Edisher Phutkaradze, JD, is a professor of law and has been director of the Chair for Penal Law and Criminology at the University in Tbilissi since 2001. In 2002, © 2011 ABC-Clio. All Rights Reserved.


he became a member of the research group of the Institute for State and Law in Tbilissi. He also held positions in the courts of Georgia from 1992 to 1995, and was investigator for crime affairs from 1995 to 2002. Tim Prenzler is a professor of criminology and criminal justice at Griffith University and is a member of the Australian Research Council Centre of Excellence in Policing and Security. Prapon Sahapattana is an associate professor at the Police Management Department, Royal Thai Police Cadet Academy, Thailand. His research interests include GIS applications for criminal justice, crime mapping, police technology, and computer crime. Paul Schupp is an associate professor in the Department of Criminal Justice at Niagara University. His primary scholarly interests are the sociology of punishment and the development of imprisonment patterns. Erkan Sezgin holds a doctoral degree from Kent State University, Department of Political Science. He is a member of Turkish National Police. Moris Shalikashvili holds a JD (LLM) from the University in Hamburg, Germany. He works in Tbilissi as an adviser to the public defender (Ombudsman) and at the Ivane Javachishvili State University in Tbilissi where he teaches criminology, juvenile law, and prison law. Pamela Shultz is a graduate student at Arkansas State University. She received a Master’s degree in Criminal Justice in 2009 and a Master’s degree in Sociology in 2010. She is currently working towards a Specialist degree. Julie Ahmad Siddique is a doctoral student at the City University of New York Graduate Center, John Jay College of Criminal Justice. Her research interests include comparative criminal justice, long-term trends in crime and victimization, sexual violence, and empirical testing of criminological theories. Anil Singh Sona is a master’s student in the Department of Sociology, National University of Singapore. Janet P. Stamatel is an assistant professor at the School of Criminal Justice, State University of New York at Albany. Her main research area is cross-national criminology. Elizabeth Stanley is a senior lecturer in criminology at Victoria University of Wellington, New Zealand. She has undertaken studies on rights and detention in New Zealand and the United Kingdom, and her work in South Africa, Chile, and Timor-Leste has focused on truth commissions and court processes. Stephanie L. Stashenko is a graduate student at the State University of New York at Albany. Jeremy Tasch is an assistant professor of Eurasian and global studies in the Department of Geography and Environmental Planning, Towson University. © 2011 ABC-Clio. All Rights Reserved.

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Yik Koon Teh is a professor in criminology and sociology in the Department of Strategic Studies, Faculty of Defence Studies and Management, National Defence University of Malaysia. She obtained her PhD from the London School of Economics and Political Science and was a Fulbright Scholar at the University of California, Los Angeles, in 2002. Sener Uludag holds a doctoral degree from Kent State University, Department of Political Science. He is a member of Turkish National Police Academy. He currently works as the director of Crime Prevention Research Center at Turkish National Police Academy. Jayampathy Wickramaratne, PhD, is an attorney-at-law from Sri Lanka. In 2001, he was appointed president’s counsel. He has extensive experience in Lao PDR, having been a consultant for the UNDP, UNODC, and Sida on legal reform, human rights, international law, and human trafficking. James Windle is a PhD student at Loughborough University, Leicestershire, United Kingdom. Minwoo Yun, PhD, is an assistant professor, Department of Social Science, Wheeling Jesuit University. He has published on terrorism, hostage taking, and Russian organized crime. Lening Zhang, PhD, is a professor of sociology at Saint Francis University. Dr. Zhang has published more than 50 articles and co-edited a book on China’s crime and criminal justice (2001).


Index

Boldface numbers refer to volume numbers. A key appears on all verso pages. ABA-CEELI study on Azerbaijan (2005), 3:23 Abolition of Death Penalty for MurderCaribbean Territories Act (1991), 2:326 Act for Establishment of and Procedure for Juvenile and Family Court (1991, Thailand), 3:246 Act on Extradition and Mutual Assistance (Austria), 4:27 Act to Repeal Some Criminal Cases and Remitting Punishment (Nepal), 3:177 Ad Hoc Human Rights Court, 3:256 Afghanistan, 3:1 – 12 crime in, 3:7 – 9 finding of guilt, formal system, 3:4 – 6 finding of guilt, informal system, 3:6 Islamic law, 3:1, 6 – 8, 11 juvenile justice system, 3:11 legal system in, 3:2 – 4 police in, 3:3 – 4 prison system, 3:12 punishment for crime, 3:9 – 10 Afghanistan Independent Human Rights Commission, 3:4 African Commission on Human and People’s Rights, 1:16 African Court on Human and People’s Rights, 1:52 African Report on Child Well Being (2008), 1:182 African Union Mission in Sudan (AMIS), 1:365 – 366 Afrobarometer survey, 1:13 AIDS. See HIV/AIDS Ain O Salish Kendro NGO (ASK), 3:31 Åland Islands, 4:1 – 4 crime in, 4:1 – 2 finding of guilt in, 4:2 – 3 legal system, 4:1 police in, 4:1 prison/punishment for crimes in, 4:3–4

Albania, 4:4 – 12 crime in, 4:6 – 7 finding in guilt in, 4:7 – 9 juvenile justice system, 4:9 legal system, 4:4 – 6 policing practices, 4:6 prison system, 4:10 – 12 punishment for crimes, 4:9 – 10 rights of the accused, 4:7 – 8 Algeria, 1:247 – 254 crime in, 1:248 – 251 finding of guilt in, 1:251 – 252 legal system in, 1:251 – 252 prison system, 1:253 punishment for crimes, 1:252 – 253 Alternative Dispute Resolution (ADR, Bangladesh), 3:33 Alternative Sentencing Law (2006, Cayman Islands), 2:86 – 87 American Convention on Human Rights to Abolish the Death Penalty, 2:16, 115 American Declaration of the Rights and Duties of Man, 2:55 AMIS. See African Union Mission in Sudan Amnesty International (AI) Angola data, 1:5 – 6 Argentina data, 2:18 The Bahamas data, 2:27, 28 – 29 Bhutan data, 3:46 Central African Republic data, 1:37 China data, 3:70 Ethiopia data, 1:79 Jordan threats to human rights, 1:298 Kyrgyzstan data, 3:118 Lebanon data, 1:325 Libya data, 1:332 Panama data, 2:268 Republic of Congo data, 1:59 Saudi Arabia data, 1:355, 359, 360 Sudanese data, 1:367 Syria data, 1:370 Tunisia data, 1:376

Uganda data, 1:231 Yemen data, 1:386 Analytic Report on Crime (South Korea), 3:212 Andorra, 4:12 – 17 crime in, 4:13 – 15 finding of guilt in, 4:15 juvenile justice system, 4:14 legal system, 4:12 – 13 policing practices, 4:13 prison system, 4:16 – 17 punishment for crimes, 4:16 Angola (Republica de Angola), 1:1 – 7 crime in, 1:4 – 5 finding of guilt, 1:4 – 5 judicial system of, 1:1 – 2 police in, 1:2 – 3, 2 (photo) prison system, 1:6 punishment for crimes, 1:5 – 6 Anguilla, 2:1 – 5 crime in, 2:2 – 3 finding of guilt in, 2:3 – 4 juvenile justice system, 2:3 legal system, 2:1 – 2 police in, 2:2 prison system, 2:5 punishment for crimes, 2:4 – 5 rights of the accused, 2:3 Annual Report of Judicial Statistics (ISTAT, Italy), 4:176 Anti-Corruption Act (Chad, 2000), 1:44 Anti-Corruption Commission (Bangladesh), 3:25 Anti-Drug Authority (Israel), 1:289 Anti-Terrorism Act (1993, Bangladesh), 3:25, 35 Anti-Terrorism Act (1997, Pakistan), 3:188 Anti-Terrorism Court (ATC, Pakistan), 3:191 Antigua and Barbuda, 2:5 – 9 crime in, 2:6 – 8 finding of guilt in, 2:8 legal system, 2:5 – 6

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Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe prison system, 2:9 punishment for crimes, 2:8 – 9 rights of the accused, 2:8 Antiquity and Art Treasure Act (India, 1972), 3:88 Argentina, 2:9 – 18 crime in, 2:12 – 13 extradition law, 2:18 finding of guilt in, 2:13 – 16 juvenile justice system, 2:16 legal system, 2:11 – 12 prison system, 2:17 – 18 punishment for crimes, 2:16 – 18 rights of the accused, 2:14 Armed Congolese Forces (FAC), 1:56 Armed robbery in Burkina Faso, 1:19, 20 in Central African Republic, 1:38, 39 in Chad, 1:46 in the DRC, 1:54 in Iran, 1:269 – 270 in Kenya, 1:106, 111 in Lesotho, 1:112 in Liberia, 1:120 in Malawi, 1:131 in Nigeria, 1:164, 166 in Republic of Congo, 1:59 in Réunion, 1:168 in Saudi Arabia, 1:360 in Sierra Leone, 1:194 in Sudan, 1:363 in Tanzania, 1:22 in Zanzibar, 1:222 Armenia, 3:13 – 20 crime, 3:15 – 17 finding of guilt in, 3:17 – 18 legal system, 3:13 – 15 police in, 3:14 – 15 prison system, 3:18 – 20 punishment for crimes, 3:18 Arms Act (India, 1959), 3:88 Aruba, 2:18 – 22 crime in, 2:19 – 20 extradition law, 2:18 finding of guilt in, 2:20 – 21 juvenile justice system, 2:21 legal system in, 2:20 – 21 police in, 2:19 prison /punishment for crimes, 2:21 – 22 rights of the accused, 2:20 Asian Association of Police Studies (2007), 3:33

Asset Forfeiture Unit (South Africa), 1:207 Assist the Prisoner Fund (Armenia), 3:19 Association of Emancipation, Solidarity, and Equality of Women (NGO), 4:214 Australia, 3:299 – 305 crime in, 3:299 – 303 finding of guilt in, 3:303 legal system in, 3:303 punishment for crimes in, 3:303 – 305 Austria, 4:17 – 27 crime in, 4:18 – 20 finding of guilt in, 4:20 – 24 juvenile justice system, 4:24 legal system, 4:17 – 18 policing practices, 4:18 prison system, 4:26 – 27 punishment for crimes, 4:24 – 26 rights of the accused, 4:20 – 22 Automobile theft in The Bahamas, 2:25 in Bosnia and Herzegovina, 4:52 in the DRC, 1:54 in Lesotho, 1:114 in Libya, 1:331 in Luxembourg, 4:210 in Mali, 1:134 in Mauritius, 1:143 in Monaco, 4:237 in Norway, 4:251 in Réunion, 1:169 in Seychelles, 1:190 in Turks and Caicos Islands, 2:325–326 Azerbaijan, 3:20 – 24 crime in, 3:21 – 22 finding of guilt in, 3:22 – 23 legal system, 3:20 – 21 police in, 3:22 prison system, 3:23 – 24 The Bahamas, 2:22 – 31 crime in, 2:25 – 27 extradition law, 2:26 finding of guilt in, 2:27 – 28 legal system, 2:22 – 23 police in, 2:23 – 25 prison/punishment for crimes, 2:28–31 Bahrain, 1:255 – 259 crime in, 1:256 – 257 legal system, 1:257 – 258 police in, 1:255 – 256 prisons /punishment for crimes, 1:258 – 259 Bangladesh, 3:24 – 37 crime in, 3:28 – 30 finding of guilt in, 3:30 – 34


juvenile justice system, 3:34 legal system, 3:25 – 26 police in, 3:27 – 28 prison system, 3:36 punishment for crime, 3:34 – 36 rights of the accused, 3:30 Bangladesh Legal Aid Services Trust NGO (BLAST), 3:31 Bangladesh National Women Lawyer’s Association NGO (BNWLA), 3:31 Barbados, 2:31 – 40 crime in, 2:32 – 34 finding of guilt in, 2:35 – 36 legal system, 2:32 plea bargaining in, 2:35 police in, 2:32 prison system, 2:37 – 40 punishment for crimes, 2:36 – 40 rights of the accused, 2:35 Basutholand. See Lesotho Beijing Rules. See UN Standard for Minimum Rules for the Administration of Juvenile Justice Belarus, 4:28 – 39 crime in, 4:29 – 31 finding of guilt in, 4:31 – 33 juvenile justice system, 4:32 – 33 legal system, 4:28 – 29 prison system in, 4:37 – 39 punishment for crimes in, 4:33 – 37 rights of the accused in, 4:31 – 32 Belgium, 4:39 – 48 crime in, 4:40 finding of guilt in, 4:40 – 43 juvenile justice system, 4:43 legal system, 4:39 – 40 police in, 4:39 prison system, 4:45 – 47 punishment for crimes, 4:43 – 45 Belize, 2:40 – 47 crime in, 2:43 – 45 finding of guilt in, 2:45 juvenile justice system, 2:43 legal system, 2:42 – 43 prison /punishment for crimes, 2:46 – 47 rights of the accused, 2:45 Benin, 1:7 – 10 crime in, 1:10 Justice Ministry Building, 1:8 (photo) legal system of, 1:7 – 10 prison system, 1:10 punishment for crimes, 1:10 Bermuda, 2:47 – 53 crime in, 2:48 – 49 finding of guilt in, 2:49 – 51 legal system in, 2:50 plea bargaining in, 2:50 – 51

Index

police in, 2:47 – 48 prison system, 2:52 – 53 punishment for crimes, 2:51 – 53 rights of the accused, 2:49 Bhutan, 3:37 – 47 crime in, 3:41 – 44 juvenile justice system, 3:44 legal system, 3:38, 39 – 40 police in, 3:40 – 41 prison system, 3:45 – 46 punishment for crime, 3:44 – 45 refugee crisis in, 3:46 – 47 Bolivia, 2:53 – 62 crime in, 2:56 – 58 extradition law, 2:61 – 62 finding of guilt in, 2:58 – 59 juvenile justice system, 2:59 legal system, 2:55 – 56 punishment for crimes, 2:59 – 61 rights of the accused, 2:58 Border crimes in Finland, 4:104, 105 in Kenya, 1:108 in Malawi, 1:129 in Swaziland, 1:215 in Zambia, 1:239 – 240 Bosnia and Herzegovina, 4:48 – 57 crime in, 4:49 – 52 finding of guilt in, 4:52 – 55 judges in, 4:54 – 55 juvenile justice system, 4:54 policing practices, 4:49 prison system in, 4:56 – 57 punishment for crimes in, 4:55 – 57 rights of the accused in, 4:53 Botswana, 1:10 – 17 crime in, 1:12 – 13 finding of guilt in, 1:13 – 15 juvenile justice system, 1:14, 15 prison system, 1:16 – 17 punishment for crimes, 1:15 – 17 Brazil, 2:62 – 69 crime in, 2:64 – 67 extradition law, 2:69 finding of guilt in, 2:67 legal system, 2:63 – 64 plea bargaining in, 2:67 prisons/punishment for crimes, 2:68–69 rights of the accused, 2:67 British Mandate Criminal Code Ordinance (Israel), 1:294 British Virgin Islands (BVI), 2:69 – 73 crime in, 2:71 finding of guilt in, 2:71 – 72 legal system, 2:70 police in, 2:70 – 71 prison system, 2:73 punishment for crimes, 2:72 – 73

Brunei Darussalam, 3:47 – 52 crime in, 3:48 – 49 finding of guilt in, 3:49 – 50 juvenile justice system, 3:50 – 51 police in, 3:48 prison system, 3:52 punishment for crime, 3:51 – 52 Bulgaria, 4:57 – 65 corruption in, 4:61 crime in, 4:60 – 61 finding of guilt in, 4:61 – 63 juvenile justice system, 4:62 – 63 legal system in, 4:57 – 59 police in, 4:59 – 60 prison system in, 4:63 – 65 punishment for crimes, 4:63 – 64 Bureau of Indian Affairs (BIA), 2:240 Bureau on Human Rights and Rule of Law (NGO), 3:236 Burkina Faso, 1:17 – 22 crime in, 1:19 – 20 finding of guilt in, 1:20 legal system, 1:18 police in, 1:18 – 19 prison system, 1:21 – 22 punishment for crimes, 1:21 – 22 Burundi, 1:22 – 27 crime in, 1:22 – 26 crimes against humanity, 1:25 – 26 homicide in, 1:22 – 23 legal system, 1:26 – 27 police in, 1:26 rape in, 1:24 – 25 torture in, 1:23 – 24 war crimes, 1:25 – 26 Cambodia, 3:52 – 63 crime in, 3:56 – 58 finding of guilt, 3:58 – 61 juvenile justice system, 3:60 legal system, 3:54 police in, 3:54 – 55 prison system, 3:61 – 63 punishment for crime, 3:61 rights of the accused, 3:58 Cambodia Criminal Justice Assistance Project (CCJAP), 3:55 – 56, 59 – 61, 63 Cambodian League for the Promotion and Defense of Human Rights (LICADHO), 3:55, 59 Camden Assets Recovery Inter-Agency Network (CARIN), 2:325 Cameroon, 1:27 – 30 crime in, 1:30 legal system, 1:28 – 30 prison system, 1:30 punishment for crimes, 1:30


|

I-3

Canada, 2:73 – 81 crime in, 2:76 – 77 finding of guilt in, 2:77 – 78 legal system, 2:75 – 76 plea bargaining in, 2:78 police in, 2:76 prison system, 2:79 – 81 punishment for crimes, 2:78 – 81 Cannabis Control Act (South Korea), 3:212 Cannabis Control Law (Japan), 3:101 Cape Verde, 1:31 – 35 crime in, 1:32 – 33 finding of guilt in, 1:33 – 34 prison system, 1:34 punishment for crimes, 1:34 rights of the accused, 1:34 Capital punishment. See Death penalty CAR. See Central African Republic CARE (Campaign for Awareness, Resilience, and Education against Substance Abuse), 1:190 Caribbean Community and Common Market (CARICOM), 2:5, 230–232, 295 Caribbean Court of Justice, 2:231 Caribbean Development Bank, 2:3 Caribbean Financial Action Task Force, 2:85 Caribbean Peace Force (CPF), 2:164 Caribbean Territories (Criminal Law) Order (2000), 2:86, 326 Catholic Prisoners Chaplain (NGO), 1:127 – 128 Cattle rustling in Gambia, 1:83 in Kenya, 1:108 in Tanzania, 1:222 Cayman Islands, 2:81 – 88 crime in, 2:83 – 85 finding of guilt in, 2:85 – 86 legal system in, 2:86 plea bargaining in, 2:86 police in, 2:82 – 83 prison system in, 2:87 – 88 punishment for crimes, 2:86 – 88 rights of the accused, 2:85 Central African Republic (CAR), 1:35 – 42 crime in, 1:36 – 38 finding of guilt in, 1:38 – 39 juvenile justice system, 1:37 prison system, 1:41 – 42 punishment for crimes, 1:39 – 42 Central Asia-Caucasus Institute, 3:271 Central Committee for Drug Abuse Control (CCDAC, Myanmar), 3:169

I-4

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe Centre for International Crime Prevention, 3:176 Centre for Strategic International Studies, 3:9 Chad, 1:42 – 50 background information, 1:42 – 44 crime in, 1:44 – 46 finding of guilt in, 1:46 – 48 Islamic sharia law in, 1:47 juvenile justice system, 1:48 prison system, 1:49 – 50 punishment for crimes, 1:48 – 50 rights of the accused, 1:46 Child and Young Persons Act (Singapore), 3:204 Child Care and Protection Act (Jamaica), 2:212 Child Marriage Restraint Act (India), 3:88 Child prostitution in Chad, 1:45 in Honduras, 2:202 in Suriname, 2:311 in Togo, 1:228 in Uruguay, 2:351 in Zambia, 1:239 Childhood and Adolescent Codes (Costa Rica), 2:111 Children, crimes against abduction, 1:86 forced military service, 1:45, 201 prostitution, 1:45, 228, 239, 2:202, 311, 351 sexual abuse, 1:185, 214 in Seychelles, 1:190 trafficking of, 1:45, 68, 77, 129, 228 Children Act (1974, Bangladesh), 3:34 Children and Adolescents’ Code (1996, Honduras), 2:200 Children’s Act of Nepal, 3:177 Chile, 2:88 – 98 crime in, 2:92 – 95 finding of guilt in, 2:95 – 96 juvenile justice system, 2:91 – 92 juvenile system in, 2:91 – 92 legal system, 2:89 – 91 police in, 2:91 prison system /punishment for crimes, 2:96 – 97 rights of the accused, 2:95

China (People’s Republic of China), 3:64 – 71 crime in, 3:65 – 66 finding of guilt in, 3:66 – 68 juvenile justice system, 3:69 legal system, 3:68 punishment for crimes, 3:69 – 71 rights of the accused, 3:68 – 69 Chisomo Children’s Club (Malawi, NGO), 1:129 CIA World Factbook, 1:147, 4:208 Civil Courts Act (1887, Bangladesh), 3:26 Civil Law Enactment (Malaysia, 1937), 3:142 CIVPOL (civilian police) in Sudan, 1:365 – 366 Coalition against Trafficking in Women Factbook on Global Sexual Exploitation (1999), 3:46 Coalition of Concerned Civic Organizations (Swaziland), 1:217 Coalition Provisional Authority (CPA, Iraq), 1:272 – 275, 278 – 279 Coca and Controlled Substances Act (Bolivia), 2:56 Code for Children and Adolescents (Peru), 2:278 Code for the Execution of Criminal Penalties (Kazakhstan), 3:115 Code of Criminal Procedure (Austria), 4:21 Code of Criminal Procedure (Bangladesh), 3:26 Code of Criminal Procedure (Bolivia), 2:55 Colombia, 2:98 – 109 crime in, 2:99 – 102 finding of guilt in, 2:102 – 107 legal system, 2:98 – 99 plea bargaining in, 2:103, 104 – 105 prison system, 2:108 – 109 punishment for crimes, 2:107 – 109 rights of the accused, 2:102 Commission for Promotion of Virtue and Prevention of Vice (Saudi Arabia), 1:351 Commission for Reception, Truth and Reconciliation (CAVR), 3:251, 256 Commission of Truth and Friendship (CTF), 3:257 Commission of Truth and Reconciliation (CVR), 1:26 Committee of Torture Victims in Syrian Prisons, 1:369 Common Law Act (Anguilla), 2:2


Commonwealth of the Northern Mariana Islands (CNMI) crime in, 3:318 – 319 legal system, 3:318 police in, 3:318 prison system in, 3:319 punishment for crimes, 3:319 rights of the accused in, 3:319 Community Reconciliation Process (Timor-Leste), 3:257 – 258 Community Service Orders Act (Montserrat), 2:235 – 236 Comoros, 1:50 – 52 background information, 1:50 – 51 crime in, 1:51 – 52 finding of guilt in, 1:52 Islamic sharia law in, 1:51 punishment for crimes, 1:52 Comprehensive Drug Abuse Prevention and Control Act (U.S.), 2:330 Comprehensive Security Agreement among the States of the Gulf Cooperation Council, 1:337 Computer Crime and Safety Survey (Australia), 3:302 Computer Crime and Security Survey (Australia), 3:302 – 303 Congo, Democratic Republic of the (DRC, Congo-Kinshasa), 1:53 – 56 background information, 1:53 – 54 crime in, 1:53 – 55 legal system, 1:53, 54 (photo) police and punishment, 1:55 – 56 Congo, Republic of (Congo-Brazzaville), 1:56 – 62 background information, 1:56 – 58 crime in, 1:58 – 59 finding of guilt in, 1:59 – 61 prison system, 1:61 – 62 punishment for crimes, 1:61 – 62 Constitutional Amendments (U.S.), 2:332 – 333, 344 Contraventions under the Dangerous Drugs Act (CDDA), 1:143 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992), 1:23, 182 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1992), 1:37, 3:189 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1:371, 3:43, 190

Index

Convention on the Prevention and Punishment of the Crime of Genocide, 2:55 Convention on the Rights of the Child (CRC) Andorra data, 4:14 Argentina data, 2:16 Bhutan data, 3:45 Haiti data, 2:197 Mauritius data, 1:144 Pakistan data, 3:189, 190 Saudi Arabia data, 1:360 Sweden data, 4:340 Timor-Leste data, 3:261 Togo data, 1:229 Vietnam data, 3:295 Zambia data, 1:240 Cook Islands. See Polynesia Correctional Services Acts (South Africa), 1:210 Corruption in Afghanistan, 3:8 – 9 in Angola, 1:2, 3 in Armenia, 3:16 in Bangladesh, 3:25 in Benin, 1:7, 9 in Botswana, 1:11 in Bulgaria, 4:61 in Burkina Faso, 1:19, 20 in Cape Verde, 1:32, 34 in Central African Republic, 1:36, 41 in Chad, 1:48 in Comoros, 1:50 – 51 in DRC, 1:54 – 55 in Equatorial Guinea, 1:68 – 69 in Ethiopia, 1:76 in Ghana, 1:89 in Greece, 4:141 in Grenada, 2:168 in Guatemala, 2:181 in Guinea, 1:94 in Guinea-Bissau, 1:99 – 100 in Indonesia, 3:94 in Kenya, 1:106, 108, 110 in Kyrgyzstan, 3:118, 121 in Lebanon, 1:318 in Lesotho, 1:112 in Liberia, 1:120 in Madagascar, 1:124, 126 in Malawi, 1:129 – 130 in Moldova, 4:228 – 229 in Mongolia, 3:162 in Republic of Congo, 1:58 – 59, 60 in Singapore, 3:203 in Tajikistan, 3:235 in Tonga, 3:355

in Tunisia, 1:376 in Turkmenistan, 3:271 in Ukraine, 4:354 Corruption Perceptions Index (CPI), 1:58 – 59 Armenia data, 3:16 Lebanon data, 1:318 Madagascar data, 1:126 New Zealand data, 3:333 Turkmenistan data, 3:271 Corruption Report (UN, 2001), 1:318 Costa Rica, 2:109 – 117 crime in, 2:111 – 112 extradition law, 2:117 finding of guilt in, 2:112 – 115 juvenile justice system, 2:115 legal system, 2:110 – 111 prison system, 2:116 – 117 punishment for crimes, 2:115 – 117 rights of the accused, 2:113 Côte d’Ivoire. See Ivory Coast Council of Europe Penal Statistics, 4:16 – 17 Council of European Convention on the Transfer of Sentenced Persons, 4:27 Counter-Narcotics Law (2005, Afghanistan), 3:7 Country Reports on Human Rights Practices (U.S.) Antigua and Barbuda data, 2:9 Equatorial Guinea data, 1:67 – 69 Guinea data, 1:92 Kuwait data, 1:305, 306, 307, 1:307, 312 Lebanon data, 1:312 Republic of Congo data, 1:59 Saudi Arabia data, 1:360 Court Decision Enforcement Department (CDED, Mongolia), 3:164 Courts /court system. See Legal system Crime and Safety Report (2006), 4:209 Crime Investigation Department (CID), Nepal, 3:175 – 176 Crime Prevention Foundation of Zambia, 1:242 Crime Prevention Law (CPL, 1954, Jordan), 1:298 Crimes against humanity in Albania, 4:5 in Andorra, 4:16 in Angola, 1:1 in Argentina, 2:11 in Armenia, 3:18 in Bulgaria, 4:59 in Burundi, 1:25 – 26 in Chad, 1:45


|

I-5

in Colombia, 2:104, 2:105 in Iraq, 1:278 in Israel, 1:294 in Lebanon, 1:317 in Liechtenstein, 4:192 in Macao, 3:133 in Myanmar, 3:169 in Peru, 2:278 in Portugal, 4:266 – 267 in Rwanda, 1:174, 175 in Sudan, 1:366 – 367 in Timor-Leste, 3:256 in Uganda, 1:231 – 232 Criminal Act of 1991 (Sudan), 1:361 Criminal Code (Libya), 1:330 Criminal Code Act of 1907 (Bermuda), 2:48 Criminal Code Ordinance (Israel), 1:294 Criminal Investigation Division (CID, Yemen), 1:385 Criminal Justice Reform Act (Jamaica), 2:213 Criminal Law Amendment Act (Bangladesh), 3:26 Criminal Procedure Code (Armenia), 3:17 Criminal Procedure Code (Montserrat), 2:234 Criminal Procedure Law (CPL, China), 3:66 – 68 Criminal Protection Code (CDC, Argentina), 2:14 Criminal Sanctions Agency (Åland Islands), 4:2 Croatia, 4:66 – 70 crime in, 4:67 – 68 finding of guilt in, 4:68 legal system, 4:66 police in, 4:66 prison system in, 4:70 punishment for crimes, 4:69 – 70 Cuba, 2:117 – 126 crime in, 2:120 – 122 finding of guilt in, 2:122 – 124 legal system, 2:122, 124 police in, 2:120 prison system /punishment for crimes, 2:125 – 126 rights of the accused, 2:123 Customary courts (kgotla) in Botswana, 1:14 CVR (Commission of Truth and Reconciliation), 1:26 Cybercrime in Bangladesh, 3:30 in Malta, 4:218

I-6

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe Cyprus, 4:70 – 75 crime in, 4:72 – 73 finding of guilt in, 4:73 – 74 legal system in, 4:71 police in, 4:72 prison /punishment for crimes, 4:74 – 75 Czech Republic, 4:75 – 85 crime in, 4:77 – 79 finding of guilt in, 4:79 – 81 juvenile justice system, 4:81 legal system, 4:76 police in, 4:77 prison system in, 4:83 – 85 punishment for crimes, 4:81 – 83 Dangerous Drugs Act (Jamaica), 2:207, 208 Dangerous Drugs Ordinance (Israel), 1:288 Death penalty, in Africa in Botswana, 1:16 in Burkina Faso, 1:21 in Central African Republic, 1:40 in Djibouti, 1:66 in Lesotho, 1:116 in Malawi, 1:132 in Nigeria, 1:166 in Republic of Congo, 1:61 in Tanzania, 1:224 Death penalty, in the Americas in The Bahamas, 2:28 in Belize, 2:47 in Bolivia, 2:60 in Chile, 2:97 in Dominican Republic, 2:140 in Grenada, 2:169 in Guatemala, 2:186 – 187 in Guyana, 2:193 – 194 in Honduras, 2:204 in Jamaica, 2:213 – 214 in La Guadeloupe, 2:175 in Mexico, 2:227 – 228 in Navajo Nation, 2:246 in Saint Kitts and Nevis data, 2:296 in Venezuela, 2:363 Death penalty, in Asia in Bangladesh, 3:35 in China, 3:69 – 70 in Malaysia, 3:149 in Maldives, 3:157 – 158 in Nepal, 3:177

in Pakistan, 3:192 in the Philippines, 3:199 – 200 in Singapore, 3:207 in Taiwan, 3:231 in Thailand, 3:248 in Uzbekistan, 3:284 in Vietnam, 3:297 Death penalty, in Europe in Austria, 4:24 in Belarus, 4:36 – 37 in Russia, 4:288 Death penalty, in the Middle East in Iran, 1:268 – 269 in Iraq, 1:281 in Kuwait, 1:310 in Palestinian Territories, 1:346 in Saudi Arabia, 1:359 – 360 Death penalty, in Northern Africa in Algeria, 1:248 – 249 in Egypt, 1:262 in Ethiopia, 1:76 in Libya, 1:331 in Morocco, 1:334 – 335 Death penalty, in the Pacific in Melanesia, 3:314 – 315 Declaration of Rights of Man (1789), 1:101 Democracy, Human Rights, and Labor Bureau (U.S.), 1:144 Democratic Forces for the Liberation of Rwanda (FDLR), 1:54 Denmark, 4:85 – 93 crime in, 4:86 finding of guilt in, 4:87 – 88 juvenile justice system, 4:88 – 90 prison system, 4:90 – 93 punishment for crimes, 4:88 – 90 Djibouti, 1:62 – 66 crime in, 1:64 finding of guilt in, 1:64 – 65 Islamic sharia law in, 1:63 legal system, 1:63 – 64 police in, 1:63 punishment for crimes, 1:65 – 66 rights of the accused, 1:65 Doctors Without Borders (NGO), 1:24 Domestic violence in Antigua and Barbuda, 2:7 in Botswana, 1:13 in Burundi, 1:24 in Cameroon, 1:30 in Cape Verde, 1:34 in Congo, Republic of, 1:59 in Djibouti, 1:64 in Equatorial Guinea, 1:68 in Eritrea, 1:71 in Finland, 4:105


in Gambia, 1:85 in Ghana, 1:88 – 89 in Guinea, 1:92, 96 in Jordan, 1:299 in Kuwait, 1:307 in Kyrgyzstan, 3:121 – 122 in Lesotho, 1:115 in Liberia, 1:118 in Macedonia, 4:214 in Madagascar, 1:124 in Mali, 1:134 in Namibia, 1:153 in Navajo Nation, 2:242 in Nicaragua, 2:259 in Saint Kitts and Nevis, 2:294 in Sao Tome and Principe, 1:181 in Somalia, 1:200 – 201 in South Africa, 1:206 in Tajikistan, 3:234 in Tonga, 3:356 See also International Violence Against Women Survey Domestic Violence Act (1999, Antigua and Barbuda), 2:7 Domestic Violence and Victim Support Unit (DOVVSU, Ghana), 1:88 Dominica, 2:126 – 131 crime in, 2:127 – 128 finding of guilt in, 2:128 – 129 plea bargaining in, 2:129 prison system /punishment for crimes, 2:128 – 131 Dominican Republic, 2:131 – 142 crime in, 2:133 – 135 extradition law, 2:137 finding of guilt in, 2:135 – 139 legal system, 2:137 – 138 prison system in, 2:140 – 141 punishment for crimes, 2:139 – 141 rights of the accused, 2:138 Dowry Prohibition Act (India, 1961), 3:88 DRC. See Congo, Democratic Republic of Drug and Crime Office (UN), 1:98 Drug crimes, in Africa in Botswana, 1:16 in Burkina Faso, 1:19 in Cape Verde, 1:33 in Chad, 1:45 in Djibouti, 1:64, 65 in Gambia, 1:83 in Ghana, 1:87 in Guinea, 1:93 in Guinea-Bissau, 1:98 – 99 in Mauritius, 1:143 in Mozambique, 1:150 – 151 in Niger, 1:159

Index

in Réunion, 1:168 – 169 in Saint Helena, 1:178 in Seychelles, 1:190 in Sierra Leone, 1:195 in South Africa, 1:206 in Tanzania, 1:221 – 222 Drug crimes, in the Americas in Anguilla, 2:2 – 3 in Antigua and Barbuda, 2:7 in Aruba, 2:19 in The Bahamas, 2:26 in Barbados, 2:33 in Belize, 2:44 in Bermuda, 2:48 in Bolivia, 2:56 – 57 in Brazil, 2:65 – 66 in British Virgin Islands, 2:71 in Cayman Islands, 2:83 – 84 in Chile, 2:93 – 94 in Colombia, 2:101 in Costa Rica, 2:111 in Dominican Republic, 2:134 – 135 in Ecuador, 2:145 – 146 in El Salvador, 2:153 in Greenland, 2:160 in Grenada, 2:165 – 166 in Guatemala, 2:180 in Guyana, 2:190 in Haiti, 2:195 – 196 in Honduras, 2:201 – 202 in Jamaica, 2:207 – 208 in La Guadeloupe, 2:172, 175 in Martinique, 2:217 – 218 in Mexico, 2:224 – 225 in Netherlands Antilles, 2:249 in Panama, 2:266 – 267 in Peru, 2:278 – 279 in Puerto Rico, 2:285 – 286 in Saint Kitts and Nevis, 2:292 – 293 in Saint Lucia, 2:298 in Saint Vincent and the Grenadines, 2:301 – 302 in Suriname, 2:310 – 311 in Trinidad and Tobago, 2:316 – 317 in Turks and Caicos Islands, 2:324 – 325 in the United States, 2:330, 331 – 332 in Uruguay, 2:350 – 351 Drug crimes, in Asia in Afghanistan, 3:7 – 8, 10 in Armenia, 3:15 – 16 in Azerbaijan, 3:22 in Brunei Darussalam, 3:48 – 49 in Cambodia, 3:61 in China, 3:66 in Hong Kong, 3:79, 82 in Indonesia, 3:94 in Japan, 3:101

in Kazakhstan, 3:112 in Laos, 3:127 in Maldives, 3:154 in Mongolia, 3:160 – 161 in Nepal, 3:176 – 177 in North Korea, 3:181 in Singapore, 3:205 in Sri Lanka, 3:220 in Taiwan, 3:225 – 226 in Tajikistan, 3:235 in Thailand, 3:242 – 243 in Turkey, 3:263 – 264 in Turkmenistan, 3:270 – 271 in Uzbekistan, 3:281 – 282 Drug crimes, in Europe in the Åland Islands, 4:2 in Albania, 4:6 – 7 in Andorra, 4:14 in Austria, 4:19 in Belarus, 4:30 – 31 in Belgium, 4:40 in Bosnia and Herzegovina, 4:51 – 52 in Bulgaria, 4:60 – 61 in Croatia, 4:68 in Cyprus, 4:72 – 73 in Estonia, 4:96 – 97 in Faroe Islands, 4:101 in Finland, 4:106, 107 in France, 4:114, 115 in Germany, 4:124 – 125 in Gibraltar, 4:134 in Greece, 4:140 – 141 in Guernsey, 4:146 in Hungary, 4:151 – 152 in Iceland, 4:158 in Italy, 4:176 in Latvia, 4:187 in Liechtenstein, 4:195 in Lithuania, 4:200 – 201 in Luxembourg, 4:210 in Macedonia, 4:214 in Malta, 4:220 in Moldova, 4:229 in The Netherlands, 4:244 in Norway, 4:251 in Poland, 4:259 in Portugal, 4:268 in Romania, 4:278 in Russia, 4:285 in Serbia, 4:299 in Spain, 4:325 in Sweden, 4:334 in Switzerland, 4:344, 345 – 346 in Ukraine, 4:355 in United Kingdom /England, 4:364 in United Kingdom /Wales, 4:392 in Vatican City and the Holy See, 4:402


|

I-7

Drug crimes, in the Middle East in Israel, 1:289 – 290 in Jordan, 1:299 in Kuwait, 1:307 – 308 in Lebanon, 1:319 in Palestinian Territories, 1:343 – 344 in United Arab Emirates, 1:380 Drug crimes, in Northern Africa in Algeria, 1:250 – 251 in Egypt, 1:262 in Ethiopia, 1:77 in Morocco, 1:334 in Tunisia, 1:375 Drug crimes, in the Pacific in Australia, 3:301 – 302 in New Zealand, 3:331, 332 – 333 in the Pitcairn Islands, 3:341 East Timor Women’s Communication Forum, 3:255 Eastern Caribbean Supreme Court (ECSC) in Anguilla, 2:2 in British Virgin Islands, 2:72 in Grenada, 2:163 – 164 in Montserrat, 2:234 in Saint Vincent and the Grenadines, 2:303 – 304 Economic and Financial Crimes Commission (EFCC, Nigeria), 1:164 Economic Security Court (ESC, Syria), 1:370 Ecuador, 2:142 – 150 crime in, 2:143 – 146 finding of guilt in, 2:146 – 147 juvenile justice system, 2:147 legal system, 2:142 – 143 prison system in, 2:149 – 150 punishment for crimes, 2:147 – 150 rights of the accused, 2:146 Egypt, 1:259 – 266 crime in, 1:261 – 262 finding of guilt, 1:262 – 265 legal system in, 1:260 plea bargaining in, 1:265 police in, 1:260 – 261 prisons /punishment for crimes, 1:265 – 266 El Salvador, 2:150 – 156 crime in, 2:151 – 154 finding of guilt in, 2:154 – 156 juvenile justice in, 2:155 – 156 legal system in, 2:150 – 151 punishment for crimes, 2:156 Elephant tusk crimes (Kenya), 1:107 England. See United Kingdom / England

I-8

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe Equatorial Guinea, 1:66 – 70 crime in, 1:67 – 68 finding of guilt in, 1:68 – 69 police in, 1:67 punishment for crimes, 1:69 Eritrea, 1:70 – 74 crime in, 1:71 finding of guilt in, 1:71 – 73 Islamic sharia law in, 1:71 juvenile justice system, 1:74 legal system, 1:71 – 72 police in, 1:70 – 71 punishment for crimes, 1:73 – 74 Estonia, 4:93 – 100 crime in, 4:95 – 97 finding of guilt in, 4:97 – 98 legal system in, 4:94 police in, 4:94 – 95 prison system in, 4:99 – 100 punishment for crimes, 4:98 – 99 Ethiopia, 1:74 – 79 crime in, 1:76 – 78 finding of guilt in, 1:78 legal system, 1:75, 76 police in, 1:76 punishment for crimes, 1:78 – 79 rights of the accused, 1:75 Ethiopian People’s Revolutionary Democratic Front (EPRDF), 1:76 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 2:254, 4:121, 169, 181, 194, 215 European Committee on Crime Problems, 4:292 European Convention on Human Rights (ECHR) Albania data, 4:7 – 8 Austria data, 4:20 Azerbaijan data, 3:20 Belgium data, 4:41 Bosnia and Herzegovina data, 4:52 Cyprus data, 4:74 Norway data, 4:252 Pitcairn Islands data, 3:341 Turks and Caicos Islands data, 2:327 United Kingdom /England data, 4:365 European Convention on the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights, 3:20, 4:21

European Human Rights Conventions (Nos. 6, 13), 4:26 European Institute for Crime Prevention and Control, 4:346 European Neighbourhood Policy program, 1:322 European Sourcebook of Criminal Justice, 4:208 – 209 European Torture Commission of the Council of Europe, 2:326 – 327 European Union Force (EUFOR), 1:45 Evidence Act (1872, Bangladesh), 3:26 Excise Act (India, 1944), 3:88 Explosives and Explosive Substances Act (India, 1884, 1908), 3:88 Extradition law in Argentina, 2:18 in Aruba, 2:18 in The Bahamas, 2:26 in Bolivia, 2:61 – 62 in Brazil, 2:69 in Costa Rica, 2:117 in Dominican Republic, 2:137 in Finland, 4:113 in Granada, 2:166 in Guyana, 2:187, 194 in Israel, 1:297 in Jordan, 1:297 in La Guadeloupe, 2:176 in Malawi, 1:129 in Martinique, 2:221 in Mexico, 2:229 in Moldova, 4:234 – 235 in Norway, 4:255 in Oman, 1:339 in Portugal, 4:273 in Puerto Rico, 2:289 – 290 in Singapore, 3:209 in Sudan, 1:367 in Suriname, 2:313 in Tanzania, 1:231 in United Kingdom /England, 4:370 in the United States, 2:338 – 339 in Uzbekistan, 3:286 Falkland Islands, 2:157 – 159 crime in, 2:158 – 159 finding of guilt in, 2:159 legal system, 2:157 – 158 police /prison system in, 2:158 punishment for crimes, 2:159 Faroe Islands, 4:100 – 103 crime in, 4:101 – 102 finding of guilt in, 4:102 legal system in, 4:101 prison system in, 4:103 punishment for crimes, 4:102 – 103


Federal Bureau of Investigation (FBI) Algeria data, 1:247 Micronesia data, 3:320 Navajo Nation data, 2:241 Puerto Rico data, 2:284 Sao Tome and Principe crime data, 1:181 United States Virgin Islands data, 2:342 U.S. data, 2:330 – 332 Federal Juvenile Delinquency Act (FJDA), 2:244 – 245, 247 Federated States of Micronesia (FSM) crime in, 3:322 legal system, 3:321 – 322 police in, 3:322 prison system, 3:322 – 323 punishment for crimes, 3:322 – 323 rights of the accused in, 3:322 Female genital mutilation (FGM) in Burkina Faso, 1:19 in Djibouti, 1:64 in Guinea, 1:92 in Niger, 1:158, 159 in Oman, 1:337 in Senegal, 1:185, 186 in Somalia, 1:201 Fiji Islands. See Melanesia Financial Action Task Force (FATF) on Money Laundering (Caribbean), 2:302 Finland, 4:103 – 114 crime in, 4:105 – 107 finding of guilt in, 4:108 – 111 juvenile justice system, 4:110 – 111 legal system in, 4:103 – 1104 police in, 4:104 – 105 prison system in, 4:112 – 113 punishment for crimes in, 4:111 – 112 rights of the accused, 4:108 Firearms trafficking in Malawi, 1:129 in Mozambique, 1:150 – 151 in Saint Helena, 1:178 in Somalia, 1:201 in Tanzania, 1:222 Forest Act (India, 1927), 3:88 Former Yugoslav Republic of Macedonia (FYRM). See Macedonia, Former Yugoslav Republic of (FYRM) Foundation for Human Rights Initiative (FHRI, NGO), 1:231 France, 4:114 – 123 crime in, 4:114 – 116 finding of guilt in, 4:116 – 119 juvenile justice system in, 4:118 – 119

Index

legal system in, 4:114 prison system in, 4:121 – 122 punishment for crimes, 4:119 – 121 rights of the accused in, 4:116 French Penal Law and Penal Procedure, 1:58, 60 French Polynesia. See Polynesia Frontier Crime Regulations (Pakistan), 3:188 Full Stop Law (Argentina), 2:11 Gabon, 1:79 – 81 crime in, 1:79 – 80 finding of guilt in, 1:80 – 81 legal system, 1:79 – 80 punishment for crimes, 1:81 Gambia, 1:81 – 86 crime in, 1:83 finding of guilt in, 1:83 – 85 Islamic sharia law in, 1:81 legal system, 1:81 – 82 police in, 1:82 – 83 prison system, 1:85 – 86 punishment for crimes, 1:85 – 86 Gambling Act (India, 1867), 3:88 General Intelligence Directorate (GID), 1:370 General People’s Congress (Libya), 1:328, 331 Genocide in Andorra, 4:16 in Armenia, 3:18 in Austria, 4:18 in Belarus, 4:29, 36 in Bolivia, 2:55 in Bosnia and Herzegovina, 4:51 in Burundi, 1:25 in Cambodia, 3:53 in Chad, 1:48 in Colombia, 2:105 – 106 in Czech Republic, 4:82 in Darfur, Sudan, 1:365, 366, 367 in Ethiopia, 1:78 in Iraq, 1:278 in Israel, 1:294 in Kazakhstan, 3:111 in Lebanon, 1:317 in Liechtenstein, 4:192 in Lithuania, 4:199 in Macao, 3:133 in Moldova, 4:227 in Montserrat, 2:235 in Portugal, 4:266 in Romania, 4:277 in Rwanda, 1:174 – 176 in Sao Tome and Principe, 1:182 in Timor-Leste, 3:256 in Turkey, 3:263

in Turkmenistan, 3:273 in Uzbekistan, 3:284 Georgia, 3:71 – 76 crime in, 3:72 – 73 finding of guilt in, 3:74 juvenile justice system, 3:73 police in, 3:72 prison system, 3:75 – 76 punishment for crimes, 3:74 – 75 Germany, 4:123 – 132 crime in, 4:124 – 125 finding of guilt in, 4:125 – 129 juvenile justice system, 4:130 – 131 legal system in, 4:127 – 128 police in, 4:124 prison system in, 4:131 – 132 punishment for crimes in, 4:129 – 130 rights of the accused in, 4:128 Ghana, 1:86 – 91 crime in, 1:86 – 87 finding of guilt in, 1:88 legal system, 1:88 police in, 1:88 – 89 prison system, 1:89 – 91 Gibraltar, 4:132 – 137 crime in, 4:134 finding of guilt in, 4:134 – 135 legal system in, 4:132 – 133 police in, 4:133 prison system, 4:136 – 137 punishment for crimes, 4:135 – 136 Global Competitiveness Survey (World Economic Forum), 1:338 Global Corruption Barometer, 2:181, 184 Global Initiative to End All Corporal Punishment of Children, 2:274 Global Peace Index (2008) Equatorial Guinea data, 1:68 Eritrea data, 1:71 Global Software Piracy Study, 4:188 Global Terrorism Database, 3:188 – 189 Gold Coast Militia and Police (GCMP), 1:89 Greece, 4:137 – 145 crime in, 4:139 – 141 finding of guilt in, 4:141 – 143 legal system in, 4:138 – 139 police in, 4:139 prison system in, 4:144 – 145 punishment for crimes, 4:143 – 144 rights of the accused in, 4:141 – 142 Greek Police Group against Human Trafficking, 4:140 Greenland, 2:159 – 162 crime in, 2:160 finding of guilt in, 2:160 – 161 legal system, 2:160


|

I-9

prison system /punishment for crimes, 2:161 – 162 Grenada, 2:162 – 169 crime in, 2:165 – 166 extradition law, 2:166 finding of guilt in, 2:167 – 168 legal system, 2:163 – 164 police in, 2:164 – 165 prison system /punishment for crimes, 2:168 – 169 rights of the accused, 2:167 Group of States against Corruption (GRECO, Council of Europe), 4:239 Group to Enjoin Good and Forbid Evil (Sudan), 1:363 La Guadeloupe, 2:169 – 176 crime in, 2:171 – 173 extradition law, 2:176 finding of guilt in, 2:173 – 174 juvenile justice system, 2:174 legal system, 2:169 – 170, 174 plea bargaining in, 2:173 police in, 2:171 punishment for crimes, 2:174 – 176 Guam crime in, 3:320 legal system, 3:319 – 320 police in, 3:320 prison system, 3:321 punishment for crimes, 3:320 – 321 rights of the accused in, 3:320 Guatemala, 2:176 – 187 crime in, 2:177 – 181 finding of guilt in, 2:181 – 185 juvenile justice system, 2:187 legal system, 2:182 – 184 plea bargaining in, 2:183 police in, 2:181 punishment for crimes, 2:185 – 187 Guernsey, 4:145 – 148 crime in, 4:146 – 147 finding of guilt in, 4:147 legal system, 4:145 – 146 police in, 4:146 punishment for crimes in, 4:147 – 148 Guilt, finding of, in Africa in Angola, 1:4 – 5 in Botswana, 1:13 – 15 in Burkina Faso, 1:20 in Central African Republic, 1:38 – 39 in Chad, 1:46 – 48 in Comoros, 1:52 in Djibouti, 1:64 – 65 in Equatorial Guinea, 1:68 – 69 in Eritrea, 1:71 – 73 in Ethiopia, 1:78 in Gabon, 1:80 – 81

I-10

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe in Gambia, 1:83 – 85 in Ghana, 1:88 in Guinea, 1:94 – 96 in Guinea-Bissau, 1:100 Guilt, finding of, in the Americas in Anguilla, 2:3 – 4 in Antigua and Barbuda, 2:8 in Argentina, 2:13 – 16 in Aruba, 2:20 – 21 in The Bahamas, 2:27 – 28 in Barbados, 2:35 – 36 in Belize, 2:45 in Bermuda, 2:49 – 51 in Brazil, 2:67 in British Virgin Islands, 2:71 – 72 in Canada, 2:77 – 78 in Cayman Islands, 2:85 – 86 in Chile, 2:95 – 96 in Colombia, 2:102 – 107 in Costa Rica, 2:112 – 115 in Dominica, 2:128 – 129 in Dominican Republic, 2:135 – 139 in Ecuador, 2:146 – 147 in El Salvador, 2:154 – 156 in Falkland Islands, 2:159 in Greenland, 2:160 – 161 in Grenada, 2:167 – 168 in Guyana, 2:192 – 193 in Honduras, 2:202 – 203 in Jamaica, 2:208 – 212 in Martinique, 2:218 – 219 in Mexico, 2:226 – 227 in Montserrat, 2:232 – 233 in Navajo Nation, 2:242 – 244 in Netherlands Antilles, 2:250 – 253 in Nicaragua, 2:259 – 262 in Puerto Rico, 2:286 – 287 in Saint Lucia, 2:298 – 299 in Saint Vincent and the Grenadines, 2:302 – 305 in Suriname, 2:311 – 312 in Trinidad and Tobago, 2:318 – 319 in Turks and Caicos Islands, 2:326 in the United States, 2:332 – 335 in United States Virgin Islands, 2:343 – 344 in Uruguay, 2:351 – 352 in Venezuela, 2:357 – 360 Guilt, finding of, in Asia Afghanistan, formal system, 3:4 – 6 Afghanistan, informal system, 3:6 Armenia, 3:17 – 18 Azerbaijan, 3:22 – 23

Bangladesh, 3:30 – 34 Brunei Darussalam, 3:49 – 50 Cambodia, 3:58 – 61 China, 3:66 – 68 Georgia, 3:74 Hong Kong, 3:80 – 82 India, 3:89 – 90 Indonesia, 3:95 – 96 Japan, 3:102 – 106 Kazakhstan, 3:112 – 115 Laos, 3:127 – 130 Macao, 3:136 – 138 Malaysia, 3:146 Maldives, 3:155 – 156 in North Korea, 3:184 – 185 in Pakistan, 3:190 – 191 in Singapore, 3:205 – 207 in South Korea, 3:213 – 215 in Sri Lanka, 3:220 – 221 in Taiwan, 3:226 – 230 in Tajikistan, 3:235 – 237 in Turkey, 3:264 – 266 in Turkmenistan, 3:272 – 273 in Uzbekistan, 3:276 – 280 in Vietnam, 3:291 – 295 Guilt, finding of, in Europe in the Åland Islands, 4:2 – 3 in Albania, 4:7 – 9 in Austria, 4:20 – 24 in Belgium, 4:40 – 43 in Bosnia and Herzegovina, 4:52 – 55 in Bulgaria, 4:61 – 63 in Cyprus, 4:73 – 74 in Czech Republic, 4:79 – 81 in Denmark, 4:87 – 88 in Estonia, 4:97 – 98 in Faroe Islands, 4:102 in Finland, 4:108 – 111 in France, 4:116 – 119 in Germany, 4:125 – 129 in Gibraltar, 4:134 – 135 in Greece, 4:141 – 143 in Guernsey, 4:147 in Hungary, 4:153 – 154 in Iceland, 4:158 – 159 in Ireland, 4:165 – 167 in Isle of Man, 4:171 in Italy, 4:177 – 179 in Jersey, 4:184 – 185 in Latvia, 4:188 – 189 in Lithuania, 4:202 – 205 in Luxembourg, 4:210 in Macedonia, 4:215 – 216 in Malta, 4:221 – 223 in Moldova, 4:230 – 232 in Monaco, 4:237 in The Netherlands, 4:245 – 246 in Norway, 4:252 – 253


in Poland, 4:260 – 262 in Portugal, 4:269 – 271 in Romania, 4:279 – 280 in Russia, 4:286 – 288 in San Marino, 4:293 – 295 in Serbia, 4:299 – 302 in Slovak Republic, 4:311 – 312 in Slovenia, 4:317 – 319 in Spain, 4:327 – 328 in Svalbard and Jan Mayen Islands, 4:330 – 331 in Sweden, 4:334 – 337 in Switzerland, 4:347 – 349 in Ukraine, 4:355 – 357 in United Kingdom /England, 4:364 – 366 in Vatican City and the Holy See, 4:400 – 401 Guilt, finding of, in the Middle East in Iraq, 1:277 – 280 in Israel, 1:290 – 294 in Ivory Coast (Côte d’Ivoire), 1:101 – 104 in Jamaica, 2:208 – 212 in Jordan, 1:299 – 301 in Lebanon, 1:320 – 322 in Lesotho, 1:114 – 115 in Libya, 1:327 – 330 in Madagascar, 1:125 – 126 in Malawi, 1:130 – 131 in Martinique, 2:218 – 219 in Mauritania, 1:138 – 139 in Mauritius, 1:144 in Mexico, 2:226 – 227 in Montserrat, 2:232 – 233 in Mozambique, 1:151 – 152 in Namibia, 1:154 in Navajo Nation, 2:242 – 244 in Netherlands Antilles, 2:250 – 253 in Nicaragua, 2:259 – 262 in Niger, 1:160 – 161 in Oman, 1:338 – 339 in Puerto Rico, 2:286 – 287 in Puntland, 1:203 in Qatar, 1:348 in Republic of Congo, 1:59 – 61 in Réunion, 1:169 – 171 in Rwanda, 1:175 – 176 in Saint Lucia, 2:298 – 299 in Saint Vincent and the Grenadines, 2:302 – 305 in Sao Tome and Principe, 1:181 – 182 in Saudi Arabia, 1:355 – 359 in Senegal, 1:187 – 188 in Seychelles, 1:191 – 192 in Sierra Leone, 1:195 – 196 in Somalia, 1:202 – 203

Index

in Somaliland, 1:203 in South Africa, 1:208 – 210 in Suriname, 2:311 – 312 in Swaziland, 1:215 – 217 in Syria, 1:371 – 373 in Tanzania, 1:222 – 224 in Togo, 1:228 – 229 in Trinidad and Tobago, 2:318 – 319 in Tunisia, 1:376 in Turks and Caicos Islands, 2:326 in Uganda, 1:232 – 233 in United Arab Emirates, 1:380 – 382 in the United States, 2:332 – 335 in United States Virgin Islands, 2:343 – 344 in Uruguay, 2:351 – 352 in Venezuela, 2:357 – 360 in Zambia, 1:240 in Zimbabwe, 1:244 – 245 Guilt, finding of, in Northern Africa in Algeria, 1:251 – 252 in Egypt, 1:262 – 265 in Ethiopia, 1:78 Guilt, finding of, in the Pacific in Australia, 3:303 in the Pitcairn Islands, 3:341 – 342 in Polynesia, 3:349 in Tonga, 3:356 – 357 Guinea, 1:91 – 97 crime in, 1:92 – 94 finding of guilt in, 1:94 – 96 legal system, 1:94 – 95 police in, 1:91 – 92 prisons /punishment for crimes, 1:96 – 97 Guinea-Bissau, 1:97 – 100 crime in, 1:98 – 99 finding of guilt in, 1:100 police in, 1:99 Gulf Cooperation Council (GCC), 1:339 Gun Court Act (Jamaica), 2:207 Guyana, 2:187 – 194 crime in, 2:189 – 191 extradition law, 2:187, 194 finding of guilt in, 2:192 – 193 juvenile justice system, 2:192 – 193 legal system in, 2:192 plea bargaining in, 2:192 prisons in, 2:194 punishment for crimes, 2:193 – 194 rights of the accused in, 2:191 – 192 Haiti, 2:194 – 198 crime in, 2:195 – 196 finding of guilt in, 2:196 – 197 juvenile justice system, 2:197 police in, 2:195

prison system /punishment for crimes, 2:197 – 198 rights of the accused, 2:196 – 197 Health and Human Rights Prison Project (HHRPP), 2:197 High Intensity Drug Traffic Area (HIDTA) program (USVI), 2:342, 343 HIV/AIDS in Antigua and Barbuda, 2:9 in The Bahamas, 2:30 in Barbados, 2:38 in Belarus, 4:29 in Botswana, 1:16 – 17 in Burundi, 1:24 – 25 in Canada, 2:80 in Central African Republic, 1:41 – 42 in Ghana, 1:90 in Guyana, 2:194 in Ireland, 4:163 in Kenya, 1:111 in Lesotho, 1:116 in Malawi, 1:129, 132 in Niger, 1:162 in Portugal, 4:268 in Republic of Congo, 1:62 in Rwanda, 1:177 in Saint Vincent and the Grenadines, 2:306 – 307 in Swaziland, 1:217 in Zambia, 1:241 in Zimbabwe, 1:242 Homicide/murder, in Africa in Angola, 1:4 in Benin, 1:9 in Botswana, 1:12, 13, 15 in Burkina Faso, 1:19 in Burundi, 1:22 – 23 in Chad, 1:44, 46 in Djibouti, 1:65 in DRC, 1:54 in Gambia, 1:83 in Ghana, 1:86 in Lesotho, 1:112 – 113, 114 in Liberia, 1:118 in Madagascar, 1:124 in Mali, 1:134 in Nigeria, 1:164 in Republic of Congo, 1:58 in Sao Tome and Principe, 1:181 in Sierra Leone, 1:194 in South Africa, 1:206 Homicide/murder, in the Americas in Guatemala, 2:177 in Honduras, 2:201 in Jamaica, 2:208 in La Guadeloupe, 2:172, 174 – 175 in Navajo Nation, 2:242


|

I-11

in Peru, 2:277 in Puerto Rico, 2:286 in Saint Kitts and Nevis, 2:291 in Saint Lucia, 2:298 in Trinidad and Tobago, 2:316 in the United States, 2:329 in United States Virgin Islands, 2:342 in Uruguay, 2:350 Homicide/murder, in Asia in Afghanistan, 3:7 in Armenia, 3:16 in Azerbaijan, 3:22 in Bhutan, 3:41 in Cambodia, 3:61 in Hong Kong, 3:79 in Indonesia, 3:94 in Japan, 3:100 in Macao, 3:133 in Mongolia, 3:161 in North Korea, 3:181 in the Philippines, 3:195 in Singapore, 3:207 in South Korea, 3:212 in Sri Lanka, 3:220 in Taiwan, 3:226 in Thailand, 3:243 in Uzbekistan, 3:281 Homicide/murder, in Europe in the Åland Islands, 4:2 in Andorra, 4:13 in Austria, 4:20 in Belgium, 4:40 in Bosnia and Herzegovina, 4:52 in Bulgaria, 4:60 in Cyprus, 4:72 in Estonia, 4:96 in Faroe Islands, 4:102 in Finland, 4:106 in France, 4:114, 115 in Greece, 4:140 in Hungary, 4:151 in Ireland, 4:163 in Italy, 4:176 – 177 in Latvia, 4:187 in Lithuania, 4:201 in Luxembourg, 4:210 in Macedonia, 4:214 in Malta, 4:220 in Monaco, 4:237 in The Netherlands, 4:244 in Norway, 4:251 in Romania, 4:278 in San Marino, 4:292 in Shetland, 4:306 in Spain, 4:325 in United Kingdom /England, 4:364 in United Kingdom /Wales, 4:391

I-12

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe Homicide /murder, in the Middle East in Israel, 1:286, 289 in Jordan, 1:299 in Palestinian Territories, 1:345 in Saudi Arabia, 1:359 – 360 in Yemen, 1:384 Homicide /murder, in the Pacific in Tonga, 3:356 Honduras, 2:198 – 205 crime in, 2:200 – 202 finding of guilt in, 2:202 – 203 juvenile justice system, 2:200 legal system, 2:199 – 200 punishment for crimes, 2:203 – 204 rights of the accused, 2:203 Hong Kong, 3:76 – 85 crime in, 3:78 – 80 finding of guilt in, 3:80 – 82 legal system, 3:77 – 78, 81 – 82 police in, 3:80 – 81 prison system, 3:83 – 84 punishment for crimes, 3:82 – 83 Honor crimes (against women) in Iraq, 1:276 in Jordan, 1:299, 300, 302 in Kuwait, 1:306, 311 in Palestinian territories, 1:343 Hudad punishment, in Comoros, 1:52 Human Rights Basic Law (Taiwan), 3:231 Human Rights Commission (Lebanese Parliament), 1:325 Human Rights Organization of Bhutan (HUROB), 3:46 Human Rights Practice Report (2007), 1:96 Human Rights Watch report (U.S.), 1:25 for Afghanistan, 3:9 for Bangladesh, 3:28 for Bhutan, 3:46 for Cape Verde, 1:32 – 33 for Central African Republic (2007), 1:41 for Comoros, 1:51 for Ethiopia, 1:79 for Guinea, 1:96 – 97 for Kyrgyzstan, 3:118 for Libya, 1:328, 332 for Macedonia, 4:214 for Myanmar, 3:168 for Niger, 1:162 for Palestinian Territories, 1:342

for Panama, 2:268 for Paraguay, 2:273, 275 for Rwanda, 1:177 for Saudi Arabia, 1:355 for Syria, 1:370 for Tunisia, 1:376 for Uganda, 1:231 for Uzbekistan, 3:274 for Vietnam, 3:296 Human Security Law (Philippines), 3:195 Human trafficking, in Africa in Angola, 1:4 in Benin, 1:9 in Botswana, 1:10, 13 in Chad, 1:45 in Equatorial Guinea, 1:68 in Ghana, 1:86 in Guinea, 1:92 – 93, 96 in Guinea-Bissau, 1:98 in Madagascar, 1:124 in Malawi, 1:129 in Mozambique, 1:150 – 151 in Namibia, 1:153 in Niger, 1:159 in Swaziland, 1:214 – 215 in Tanzania, 1:221 in Togo, 1:228 in Zambia, 1:240 Human trafficking, in the Americas in Aruba, 2:19 in The Bahamas, 2:26 in Belize, 2:44 – 45 in Chile, 2:94 – 95 in Colombia, 2:105 in El Salvador, 2:153 – 154 in Guyana, 2:190 in Honduras, 2:202 in Panama, 2:267 in Suriname, 2:311 in Uruguay, 2:351 Human trafficking, in Asia in Afghanistan, 3:9 in Azerbaijan, 3:22 in Bangladesh, 3:28, 29 – 30 in Bhutan, 3:41 in Kazakhstan, 3:112 in Kyrgyzstan, 3:121 in Laos, 3:127 in Maldives, 3:154 in the Philippines, 3:195 in Uzbekistan, 3:282 Human trafficking, in Europe in Belarus, 4:29 – 30 in Croatia, 4:67 – 68 in Greece, 4:140 in Latvia, 4:187 in Romania, 4:278


in San Marino, 4:292 in Serbia, 4:298 – 299 in Ukraine, 4:355 Human trafficking, in the Middle East in Israel, 1:287 in Kuwait, 1:306 – 307 in Saudi Arabia, 1:354 in United Arab Emirates, 1:380 Human trafficking, in Northern Africa in Algeria, 1:250 in Ethiopia, 1:77 in Libya, 1:330 in Somalia, 1:201 – 202 Hungary, 4:148 – 156 crime in, 4:151 – 153 finding of guilt in, 4:153 – 154 juvenile justice system in, 4:154 legal system in, 4:148 – 150 police in, 4:150 – 151 prison system, 4:155 – 156 rights of the accused in, 4:153 – 154 Iceland, 4:156 – 160 crime in, 4:158 finding of guilt in, 4:158 – 159 legal system in, 4:157 police in, 4:157 prison system, 4:159 – 160 punishment for crimes, 4:159 rights of the accused, 4:158 Immoral Traffic (Prevention) Act (India, 1956), 3:88 Improvised explosive devices (IEDs) in Djibouti, 1:63 in Somaliland, 1:199 Incest in Algeria, 1:253 in the Bahamas, 2:25, 27, 29 in Bhutan, 3:41 in Burundi, 1:24 in Dominica, 2:127 in Dominican Republic, 2:134, 135 in Gambia, 1:85 in Grenada, 2:166 in Guyana, 2:189, 193, 2:193 in Israel, 1:296 – 297 in Moldova, 4:227 in Namibia, 1:153 in New Zealand, 3:331 in Palestinian Territories, 1:343 in Puerto Rico, 2:289 in Saint Kitts and Nevis, 2:291, 294 in Serbia, 4:303 in Sierra Leone, 1:194 in Swaziland, 1:214 in Tanzania, 1:221 in Trinidad and Tobago, 2:316, 317

Index

in United Kingdom /Scotland, 4:383 in Vietnam, 3:289 Indecent Representation of Women Act (India, 1986), 3:88 Independent Human Rights Commission (Afghanistan), 3:4 India, 3:86 – 92 crime in, 3:87 – 889 finding of guilt in, 3:89 – 90 juvenile justice in, 3:88 legal system, 3:86 – 87 prison system, 3:90 – 91 punishment for crimes, 3:90 rights of the accused, 3:89 – 90 Indonesia, 3:92 – 98 crime in, 3:93 – 95 finding of guilt in, 3:95 – 96 juvenile justice in, 3:94 legal system, 3:92 – 93 police in, 3:93 prison system, 3:97 – 98 punishment for crimes, 3:96 – 97 Infanticide in Anguilla, 2:4 in Benin, 1:9 in Burundi, 1:23 in Congo-Brazzaville, 1:58 in Croatia, 4:69 in Dominica, 2:127 in Dominican Republic, 2:134 in Finland, 4:106 in Ghana, 1:86 in Guatemala, 2:177 in Guyana, 2:189 in Indonesia, 3:96 in Ireland, 4:163 in Lebanon, 1:323 in Nicaragua, 2:257 in the Philippines, 3:195 in Republic of Congo, 1:58 in Seychelles, 1:190 Inmate Drug Rehabilitation and Counseling Program (Barbados), 2:39–40 Integrated Regional Information Networks (UN), 1:61 – 62 Inter-American Convention on Serving Criminal Sentences Abroad (1993), 2:365 – 366 Inter-American Court of Human Rights (IACRH), 2:187 Inter-American Development Bank survey, 2:268 Inter-American Drug Abuse Control Commission, 2:202 Interim Criminal Code for Courts (2004, Afghanistan), 3:4 Internal Security Act (ISA, Singapore), 3:204

Internal Security Act of 2002 (Swaziland), 1:217 International Bar Association (IBA) on Angolan justice system, 1:5 on ICC efforts in Sudan, 1:367 International Centre for Prison Studies (ICPS) Afghanistan data, 3:12 Algeria data, 1:254 Anguilla data, 2:5 Burkina Faso data, 1:21 Central African Republic data, 1:41 Chad data, 1:49 Haiti data, 2:198 Kazakhstan data, 3:115, 117 Madagascar data, 1:127 Morocco data, 1:335 Netherlands Antilles data, 2:254 Niger data, 1:161 – 162 Paraguay data, 2:274 Republic of Congo data, 1:61 Russia data, 4:289 Saint Kitts and Nevis data, 2:296 Slovak Republic data, 4:313 Tunisia data, 1:376 Vietnam data, 3:296 International Commission on Combating Trafficking in Persons, 3:235 International Committee for Human Rights (Taiwan), 3:231 International Committee of the Red Cross (ICRC) Bhutan data, 3:46 Kyrgyzstan data, 3:124 Macedonia data, 4:253 Malta data, 4:217 Mexico data, 2:229 Mongolia data, 3:164 Syria data, 1:373 Tajikistan data, 3:238 Timor-Leste data, 3:260 Turkmenistan data, 3:274 Uzbekistan data, 3:274 International Convention on Children’s Rights (1990, Venezuela), 2:360 International Convention on the Elimination of All Forms of Racial Discrimination, 2:55 International Convention on the Prevention and Punishment for the Crime of Genocide, 1:182 International Court of Justice (ICJ), 1:53, 3:173 International Covenant on Civil and Political Rights, 2:16 International Covenant on Civil and Political Rights (Hong Kong), 3:78


|

I-13

International Crime Victim Survey (ICVS) Australia data, 3:302 Malawi data, 1:129 – 130 Paraguay data, 2:271 – 272 Poland data, 4:260 Sweden data, 4:334 Switzerland data, 4:346 International Criminal Court (ICC) Bolivia investigations, 2:55 Burundi investigations, 1:25 Chile investigations, 2:89 Honduras investigations, 2:199 Iceland investigations, 4:157 Lebanon investigations, 1:322 Liechtenstein investigations, 4:192 Sudan investigations, 1:366 – 377 Ugandan investigations, 1:231 Yemen investigations, 1:386 International Criminal Tribunal for Rwanda (ICTR), 1:176 – 177 International Criminal Tribunal for the former Yugoslavia (ICTY), 1:174, 4:50 – 51 International Federation for Human Rights (FIDH), 1:16 International Narcotics Control Strategy Report (U.S. State Department, 2008), 2:301 – 302 International Organization for Migration (IOM), 1:214, 3:235 International Religious Freedom Report (Bureau of Democracy), 3:272 International Rescue Committee (IRC), 1:59 International Review of Victimology, 1:384 – 385 International Self-Reported Delinquency Survey (Switzerland), 4:345 – 346 International Violence Against Women Survey (IVAWS), 4:346 INTERPOL (International Criminal Police Organization) crime data for Algeria, 1:251 for Armenia, 3:14 – 15 for Bahrain, 1:257 for Benin, 1:10 for Bhutan, 3:43 for Botswana, 1:12 for Burkina Faso, 1:19 for Cameroon, 1:30 for Central African Republic, 1:37 for Chad, 1:46 for Comoros, 1:52 for Ethiopia, 1:77 for Gabon, 1:80

I-14

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe for Georgia, 3:72 for Ghana, 1:89 for Iceland, 4:157 for Kuwait, 1:308 for La Guadeloupe, 2:172 for Macao, 3:135 for Maldives, 3:154 for Mali, 1:134 for Mauritania, 1:138 for Monaco, 4:235, 237 for Namibia, 1:154 for Niger, 1:159 for Oman, 1:337 for Russia, 4:284 for Saudi Arabia, 1:355 for Tanzania, 1:222 Tonga data, 3:354 for Turkmenistan, 3:270 for Turks and Caicos Islands, 2:325 for Yemen, 1:385 Iran, 1:266 – 272 crime /punishment for crimes, 1:267 – 271 juvenile justice system, 1:271 legal system, 1:267 – 268 prison system, 1:271 Iraq, 1:272 – 283 crime in, 1:275 – 277 Criminal Proceedings (1971), 1:278 – 279 finding of guilt in, 1:277 – 280 invasion by coalition forces, 1:272 – 273 juvenile justice system, 1:280 Penal Code (1961), 1:280 – 281 Penal Code (1969), 1:275 police in, 1:273 – 274 prison system, 1:282 – 283 punishment for crimes, 1:280 – 283 Iraq Index of the Brookings Institution, 1:273 Ireland, 4:160 – 170 crime in, 4:162 – 164 finding of guilt in, 4:165 – 167 juvenile justice system, 4:167 legal system in, 4:161 – 162 police in, 4:164 – 165 prison system, 4:169 – 170 punishment for crimes, 4:167 – 169 Islamic sharia law in Afghanistan, 3:1, 6 – 8, 11 in Bahrain, 1:257 in Brunei Darussalam, 3:51 – 52

in Chad, 1:47 in Comoros, 1:51 in Djibouti, 1:63, 64 in Egypt, 1:259, 261 in Eritrea, 1:71 in Ethiopia, 1:75 – 76 in Gambia, 1:81 – 82, 84 in Iran, 1:267 – 268 in Jordan, 1:298, 301 in Libya, 1:326, 331 in Malaysia, 3:142, 148 – 149 in Maldives, 3:154, 156 – 157 in Mauritania, 1:136 – 137, 1:136 – 139 in Mayotte, 1:148 – 149 in Nigeria, 1:163, 165 in Oman, 1:337, 338 in Pakistan, 3:187 – 188 in Palestinian Territories, 1:345 in Qatar, 1:347 in Saudi Arabia, 1:349 – 350, 352, 359 in Somalia, 1:199 – 200, 202 – 204 in Sudan, 1:362 in Syria, 1:369, 371 in Tunisia, 1:375 See also Muslim Personal Law (Shariat) Application Act; Quisas punishment; Ta’azir punishment Isle of Man, 4:170 – 172 crime in, 4:171 finding of guilt in, 4:171 police in, 4:170 – 171 punishment for crimes, 4:172 Israel, 1:283 – 297 crime in, 1:285 – 290 finding of guilt in, 1:290 – 294 juvenile justice system, 1:293 legal system, 1:284, 291 – 293 plea bargaining in, 1:292 police in, 1:284 – 285 prison system, 1:295 – 297 punishment for crimes, 1:294 – 297 Italian National Institute for Statistics (ISTAT), 4:176 – 177 Italy, 4:172 – 183 crime in, 4:174 – 177 finding of guilt in, 4:177 – 179 juvenile justice system, 4:179 – 180 legal system, 4:173 – 174 police in, 4:174 prison system in, 4:182 – 183 punishment for crimes, 4:180 – 181 rights of the accused, 4:177 Ivory Coast (Côte d’Ivoire), 1:100 – 105 crime in, 1:101 finding of guilt in, 1:101 – 104 legal system, 1:102 – 104, 102 (photo) prison system, 1:105 punishment for crimes, 1:104 – 105


Jamaica, 2:205 – 215 crime in, 2:207 – 208 finding of guilt in, 2:208 – 212 juvenile justice system, 2:211, 214 legal system, 2:206 police in, 2:207 prison in, 2:214 – 215 punishment for crimes, 2:212 – 214 rights of the accused, 2:208 Jan Mayen Islands. See Svalbard and Jan Mayen Islands Japan, 3:98 – 110 crime in, 3:99 – 102 finding of guilt in, 3:102 – 106 juvenile justice system, 3:105 – 106, 3:109 legal system, 3:99 police in, 3:102 prison system, 3:108 – 109 punishment for crimes, 3:106 – 108 rights of the accused, 3:102 – 103 Jersey, 4:183 – 185 crime in, 4:184 finding of guilt in, 4:184 – 185 police in, 4:183 – 184 punishment for crimes, 4:185 Jordan, 1:297 – 303 crime in, 1:299 extradition law, 1:297 finding of guilt in, 1:299 – 301 legal system in, 1:298 – 299 police in, 1:298 – 299 prisons /punishment for crimes, 1:301 – 303 Judiciary system. See Legal system Juvenile justice system, in Africa in Botswana, 1:14, 15 in Central African Republic, 1:37 in Chad, 1:48 in Eritrea, 1:74 in Lesotho, 1:115 in Liberia, 1:121 in Madagascar, 1:126 in Malawi, 1:132, 133 in Réunion, 1:168, 170 in Sao Tome and Principe, 1:182 in Seychelles, 1:192 in Tanzania, 1:224 in Uganda, 1:233 in Zambia, 1:241 Juvenile justice system, in the Americas in Anguilla, 2:3 in Argentina, 2:16 in Aruba, 2:21 in Belize, 2:43 in Bolivia, 2:59 in Chile, 2:91 – 92 in Costa Rica, 2:115

Index

in Dominican Republic, 2:138 in Ecuador, 2:147 in El Salvador, 2:155 – 156 in Guatemala, 2:187 in Guyana, 2:192 – 193 in Honduras, 2:200 in Jamaica, 2:211, 214 in Mexico, 2:223 – 224, 229 in Montserrat, 2:234 in Navajo Nation, 2:244 – 245 in Netherlands Antilles, 2:253 – 254 in Nicaragua, 2:263 in Peru, 2:278 in Puerto Rico, 2:287 in Saint Kitts and Nevis, 2:293 – 294 in Suriname, 2:312 in Trinidad and Tobago, 2:319 in the United States, 2:335 – 337 in United States Virgin Islands, 2:345 in Uruguay, 2:352 in Venezuela, 2:360 – 361 Juvenile justice system, in Asia in Afghanistan, 3:11 in Bangladesh, 3:34 in Bhutan, 3:44 in Brunei Darussalam, 3:50 – 51 in Cambodia, 3:60 in China, 3:69 in Georgia, 3:73 in India, 3:88 in Indonesia, 3:94 in Japan, 3:105 – 106, 3:109 in Kazakhstan, 3:111, 116 in Macao, 3:140 – 141 in Malaysia, 3:144 in Maldives, 3:154 in Mongolia, 3:160 in Nepal, 3:177 in Pakistan, 3:190 in the Philippines, 3:199 in Singapore, 3:207 in South Korea, 3:217 in Sri Lanka, 3:221 in Taiwan, 3:227 in Thailand, 3:241 in Turkey, 3:266 in Uzbekistan, 3:279, 284 – 285 in Vietnam, 3:295 Juvenile justice system, in Europe in Albania, 4:9 in Austria, 4:18 – 19, 24 in Belarus, 4:32 – 33 in Belgium, 4:43 in Bosnia and Herzegovina, 4:51, 54 in Bulgaria, 4:62 – 63 in Czech Republic, 4:81 in Denmark, 4:88 – 90 in Finland, 4:110 – 111

|

I-15

in France, 4:118 – 119 in Germany, 4:130 – 131 in Hungary, 4:154 in Ireland, 4:167 in Italy, 4:179 – 180 in Latvia, 4:191 in Liechtenstein, 4:195 in Lithuania, 4:203 – 204 in Moldova, 4:227 – 228 in Norway, 4:253 – 254 in Poland, 4:259 in Portugal, 4:267 – 268 in Romania, 4:277 in Russia, 4:288 in Serbia, 4:302 – 303 in Slovak Republic, 4:312 in Slovenia, 4:319 in Spain, 4:325 – 326 in Sweden, 4:337 – 338 in Switzerland, 4:345 – 346, 349 – 350 in Ukraine, 4:356 – 357 in United Kingdom /Northern Ireland, 4:375 – 376 in United Kingdom /Scotland, 4:385 in United Kingdom /Wales, 4:396 Juvenile justice system, in the Middle East in Iran, 1:271 in Iraq, 1:280 in Israel, 1:293 in Palestinian Territories, 1:343 in Saudi Arabia, 1:358 – 359 Juvenile justice system, in the Pacific in New Zealand, 3:333 – 335 Juvenile Offenders Act (JOA, Mauritius), 1:144 Juvenile Penal Justice Law (1996, Costa Rica), 2:110, 111, 115

in Armenia, 3:15 in Burkina Faso, 1:19 – 20 in Central African Republic, 1:38 in Chad, 1:45, 46 in DRC, 1:54 in Ghana, 1:86 in Grenada, 2:168 in India, 3:89 in Iraq, 1:276 in Ireland, 4:163 in Kazakhstan, 3:111 in Macao, 3:133 in Mexico, 2:224 in Moldova, 4:227 in the Philippines, 3:195 in Republic of Congo, 1:58 in San Marino, 4:292 in Somalia, 1:200 in Trinidad and Tobago, 2:316 in Vatican City and the Holy See, 4:401 in Yemen, 1:385 in Zimbabwe, 1:243 Korea Correctional Services (KCS), 3:216 – 217 Kuwait, 1:303 – 312 crime in, 1:306 – 309 finding of guilt in, 1:309 – 310 legal system, 1:304 police in, 1:304 – 306 prison system, 1:311 – 312 punishment for crimes, 1:310 – 312 Kyrgyzstan, 3:118 – 125 crime in, 3:121 – 122 finding of guilt in, 3:122 – 123 legal system, 3:118 – 119 police in, 3:119 – 121 punishment for crimes, 3:123 – 124

Kazakhstan, 3:110 – 117 crime in, 3:111 – 112 finding of guilt in, 3:112 – 115 juvenile justice system, 3:111, 116 police in, 3:110 – 111 prison system, 3:117 punishment for crime, 3:115 – 117 rights of the accused, 3:112 – 113 Kenya, 1:106 – 111 crime in, 1:106 – 108, 107 (photo) legal system, 1:109 – 110 police in, 1:108 – 109 punishment for crimes, 1:110 – 111 Kgotla (customary court) in Botswana, 1:14 Kidnapping in Afghanistan, 3:9 in Andorra, 4:14 in Angola, 1:4

Laos (Lao People’s Democratic Republic), 3:125 – 132 crime in, 3:126 – 127 finding of guilt in, 3:127 – 130 legal system, 3:125 – 126 prison system, 3:131 – 132 punishment in, 3:130 – 131 rights of the accused, 3:127 – 128 Latvia, 4:185 – 191 crime in, 4:187 – 188 finding of guilt in, 4:188 – 189 human rights in, 4:187 juvenile justice system, 4:191 legal system in, 4:185 – 186 police in, 4:186 – 187 prison system in, 4:190 punishment for crimes, 4:189 – 190 Law against Domestic and Family Violence (Bolivia), 2:59


I-16

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe Law Enforcement Planning Commission (LEPC, USVI), 2:342 Law for Transferring Prisoners to Their Countries of Origin (1996, Israel), 1:297 Law of Due Obedience (Argentina), 2:11 Law of International Cooperation in Criminal Matters, 2:18 Law of Rehabilitation of Offenders (Honduras), 2:203 Law of the Child and Family (1998), 2:259 Law of the Public Defender (1995, Israel), 1:290 – 291 Law of the Struggle against Crime Organizations (2003, Israel), 1:288 Law on Advocacy (2002, Mongolia), 3:162 Law on Advocates (1999, 2004, Azerbaijan), 3:21 Law on Aggression against Women (1996, Nicaragua), 2:259 Law on the Fight against Corruption and Protectionism (1996, Moldova), 4:228 – 229 Law on Judges and Prosecutors (Turkey), 3:266 Law on Legal Assistance (Albania), 4:8 Law on Money Laundering from Illicit Drug Trafficking and other Crimes and Punishable Offenses, 2:195 – 196 Law on Organization and Jurisdiction of Courts (2005, Afghanistan), 3:4 – 5, 6 Law on Social-Legal Protection from Domestic Violence (2003, Kyrgyzstan), 3:121 Law to Prevent and Punish Domestic Violence (Nicaragua), 2:259 Laws on the Fight against Human Trafficking, 3:235 League of Women Lawyers (NGO), 3:236 Lebanon, 1:312 – 326 crime in, 1:317 – 320 finding of guilt in, 1:320 – 322 legal system in, 1:315 – 317 police in, 1:314 – 315 prison system, 1:324 – 326 punishment for crimes, 1:322 – 326

Legal Resources Foundation (NGO), 1:244 Legal system, in Africa in Angola, 1:1 – 2, 4 in Benin, 1:7 – 10 in Burkina Faso, 1:19 in Burundi, 1:26 – 27 in Cameroon, 1:28, 30 in Cape Verde, 1:34 in Central African Republic, 1:38 – 39 in Chad, 1:47 in Comoros, 1:52 in Djibouti, 1:63 – 64 in DRC, 1:53, 54 (photo) in Equatorial Guinea, 1:67, 68 – 69 in Eritrea, 1:71 – 72 in Gabon, 1:79 – 80 in Gambia, 1:81 – 82 in Ghana, 1:88 in Guinea, 1:94 – 95 in Ivory Coast (Côte d’Ivoire), 1:102 – 104 in Kenya, 1:109 – 110 in Lesotho, 1:112, 113 in Liberia, 1:120 – 121 in Madagascar, 1:125 – 126 in Malawi, 1:130 – 131 in Mali, 1:134 in Mauritania, 1:136 – 137 in Mauritius, 1:140 – 141 in Mayotte, 1:146 – 147 in Mozambique, 1:151 – 152 in Namibia, 1:153 in Niger, 1:156 – 157, 160 in Nigeria, 1:162 – 163, 164 – 166 in Republic of Congo, 1:57 in Réunion, 1:167, 170 in Rwanda, 1:175, 176 in Saint Helena, 1:179 in Sao Tome and Principe, 1:180 in Senegal, 1:183 in Seychelles, 1:191 in Sierra Leone, 1:195 – 196 in South Africa, 1:208 – 209 in Swaziland, 1:211 – 213 in Tanzania, 1:222 – 224 in Togo, 1:226 – 227 in Tunisia, 1:374 – 375 in Uganda, 1:230, 235 in Yemen, 1:385 – 386 in Zambia, 1:235, 1:237, 240 in Zimbabwe, 1:242 – 243 See also Islamic sharia law Legal system, in the Americas in Anguilla, 2:1 – 2 in Antigua and Barbuda, 2:5 – 6 in Argentina, 2:11 – 12 in Aruba, 2:20 – 21


in The Bahamas, 2:22 – 23 in Barbados, 2:32 in Bermuda, 2:50 in Brazil, 2:63 – 64 in British Virgin Islands, 2:70 in Canada, 2:75 – 76 in Cayman Islands, 2:86 in Chile, 2:89 – 91 in Colombia, 2:98 – 99 in Costa Rica, 2:110 – 111 in Dominican Republic, 2:137 – 138 in Ecuador, 2:142 – 143 in El Salvador, 2:150 – 151 in Falkland Islands, 2:157 – 158 in Greenland, 2:160 in Grenada, 2:163 – 164 in Guyana, 2:192 in Honduras, 2:199 – 200 in Jamaica, 2:206 in Martinique, 2:216, 219 in Mexico, 2:222 – 223 in Montserrat, 2:233 – 234 in Navajo Nation, 2:238–240, 244–245 in Nicaragua, 2:256 – 257 in Puerto Rico, 2:283 – 285 in Trinidad and Tobago, 2:314 – 316 in Turks and Caicos Islands, 2:323–324 in the United States, 2:327 – 328, 334 – 335 in United States Virgin Islands, 2:339 – 341 in Uruguay, 2:348 – 349 in Venezuela, 2:354 – 355 Legal system, in Asia in Afghanistan, 3:2 – 4 in Armenia, 3:13 – 15 in Azerbaijan, 3:20 – 21 in Bangladesh, 3:25 – 26 in Bhutan, 3:39 – 40 in Cambodia, 3:54 in China, 3:68 in Hong Kong, 3:77 – 78, 81 – 82 in India, 3:86 – 87 in Indonesia, 3:92 – 93 in Japan, 3:99 in Laos, 3:125 – 126 in Macao, 3:133 in Malaysia, 3:141 – 142 in Maldives, 3:152 – 153 in Nepal, 3:171 – 174 in North Korea, 3:182 – 184 in Pakistan, 3:187 – 188 in Singapore, 3:202 – 203 in South Korea, 3:209 – 210 in Sri Lanka, 3:218 in Taiwan, 3:222 – 223 in Tajikistan, 3:233 – 234 in Turkey, 3:262

Index

in Turkmenistan, 3:269 in Vietnam, 3:286 – 287 Legal system, in Europe in the Åland Islands, 4:1 in Albania, 4:4 – 6 in Austria, 4:17 – 18 in Belgium, 4:39 – 40 in Bulgaria, 4:58 – 59 in Cyprus, 4:71 in Czech Republic, 4:76 in Estonia, 4:94 in Faroe Islands, 4:101 in Finland, 4:103 – 1104 in France, 4:114 in Germany, 4:127 – 128 in Gibraltar, 4:132 – 133 in Greece, 4:138 – 139 in Guernsey, 4:145 – 146 in Hungary, 4:148 – 150 in Iceland, 4:157 in Ireland, 4:161 – 162 in Italy, 4:173 – 174 in Latvia, 4:185 – 186 in Lithuania, 4:197 – 198 in Luxembourg, 4:208 in Macedonia, 4:212 – 213 in Malta, 4:218 in Moldova, 4:226 in The Netherlands, 4:241 in Norway, 4:249 – 250 in Poland, 4:257 – 258 in Portugal, 4:265 – 266 in Romania, 4:274 – 275 in Russia, 4:284 – 285 in San Marino, 4:293 – 294 in Shetland, 4:305 in Slovak Republic, 4:308 – 309 in Spain, 4:323 in Svalbard and Jan Mayen Islands, 4:329 – 330 in Switzerland, 4:343 – 344 in Ukraine, 4:352 – 353 in United Kingdom /England, 4:361 – 362 in United Kingdom /Northern Ireland, 4:371 – 372 in United Kingdom /Scotland, 4:383 in United Kingdom /Wales, 4:389 – 391 in Vatican City and the Holy See, 4:399 – 400 Legal system, in the Middle East in Bahrain, 1:257 – 258 in Iraq, 1:273, 278 – 279 in Israel, 1:284 in Jordan, 1:298 – 299 in Kuwait, 1:304, 305 in Lebanon, 1:315 – 317

in Oman, 1:337, 338 – 339 in Palestinian Territories, 1:341 – 342, 344 – 345 in Qatar, 1:347 – 348 in Saudi Arabia, 1:359 in Sudan, 1:361 – 364 in Syria, 1:370 in United Arab Emirates, 1:378 – 381 in Yemen, 1:385 – 386 Legal system, in Northern Africa in Algeria, 1:249, 251 – 252 in Egypt, 1:260, 263 in Ethiopia, 1:75, 76 in Libya, 1:326 – 330, 331 in Morocco, 1:334 Legal system, in the Pacific in Australia, 3:303 in Commonwealth of the Northern Mariana Islands, 3:318 in Federated States of Micronesia, 3:321 – 322 in Guam, 3:319 – 320 in Melanesia, 3:308 – 310 in New Zealand, 3:334 – 335 in Norfolk Island, 3:338 – 339 in the Pitcairn Islands, 3:339 – 340 in Polynesia, 3:346 – 348 in Republic of Belau (Palau), 3:316 – 317 in Republic of Kiribati, 3:325 in Republic of the Marshall Islands, 3:323 – 324 in Republic of Nauru, 3:326 in Tonga, 3:351 – 353 Lesotho, 1:111 – 117 crime in, 1:112 – 114 finding of guilt in, 1:114 – 115 juvenile justice system, 1:115 legal system, 1:112, 113 prison system, 116 – 117 punishment for crimes, 115 – 117 Liberia, 1:118 – 122 crime in, 1:118 juvenile justice system, 1:121 legal system, 1:120 – 121 police in, 1:118 – 120 punishment for crimes, 1:121 Libya, 1:326 – 333 crime in, 1:330 – 331 finding of guilt in, 1:327 – 330 legal system, 1:326 – 330, 331 police in, 1:327 prison system, 1:332 punishment for crimes, 1:331 – 332 Liechtenstein, 4:191 – 197 crime in, 4:195 juvenile justice system, 4:195 legal system, 4:191 – 193


|

I-17

police in, 4:193 – 194 prison system, 4:194 – 195 punishment for crimes, 4:195 – 196 Life Free of Violence Campaign (Saint Kitts and Nevis), 2:294 Lithuania, 4:197 – 207 crime in, 4:199 – 202 finding of guilt in, 4:202 – 205 juvenile justice system, 4:203 – 204 legal system, 4:197 – 198 police in, 4:198 – 199 prison system, 4:206 – 207 punishment for crimes, 4:205 – 206 rights of the accused, 4:203 – 204 Luxembourg, 4:207 – 211 crime in, 4:208 – 210 finding of guilt in, 4:210 legal system, 4:208 police in, 4:208 prison system, 4:211 punishment for crimes, 4:210 Macao, 3:132 – 141 crime in, 3:133 – 134 finding of guilt in, 3:136 – 138 juvenile justice system, 3:140 – 141 legal system, 3:133 police in, 3:134 – 136 prison system, 3:139 – 140 punishment for crimes, 3:138 – 139 Macedonia, Former Yugoslav Republic of (FYRM), 4:211 – 217 crime in, 4:214 finding of guilt in, 4:215 – 216 legal system, 4:212 – 213 police in, 4:213 punishment for crimes, 4:217 Macedonian Helsinki Committee for Human Rights (MHC), 4:216 Madagascar, 1:122 – 128 crime in, 1:124 – 125 finding of guilt in, 1:125 – 126 juvenile justice system, 1:126 legal system, 1:125 – 126 police in, 1:122 – 124 prison system, 1:127 – 128 punishment for crimes, 1:126 – 128 Malawi, 1:128 – 133 corruption in, 1:129 crime in, 1:128 – 130 extradition law, 1:129 finding of guilt in, 1:130 – 131 ICVS data, 1:129 – 130 juvenile justice system, 1:132, 133 legal system, 1:130 – 131 police in, 1:130 punishment for crimes, 1:131 – 132

I-18

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe Malaysia, 3:141 – 151 crime in, 3:146 – 147 finding of guilt in, 3:146 juvenile justice system, 3:144 legal system, 3:141 – 142 police in, 3:142 prison system, 3:150 – 151 punishment for crimes, 3:147 – 148, 3:147 – 149 Maldives, 3:151 – 158 crime in, 3:153 – 155 finding of guilt in, 3:155 – 156 juvenile justice system, 3:154 legal system, 3:152 – 153, 155 prison system, 3:157 – 158 punishment for crimes, 3:156 – 157 Mali, 1:133 – 136 crime/police in, 1:133 – 134 legal system, 1:134 punishment for crimes, 1:134 – 135 Malta, 4:217 – 225 crime in, 4:218 – 221 finding of guilt in, 4:221 – 223 legal system, 4:218 police in, 4:218 prison system, 4:225 punishment for crimes, 4:223 – 225 Martinique, 2:216 – 221 crime in, 2:217 – 218 extradition law, 2:221 finding of guilt in, 2:218 – 219 legal system, 2:216, 219 plea bargaining in, 2:218 police in, 2:216 – 217 prison in, 2:220 – 221 punishment for crimes, 2:219 – 221 Mauritania, 1:136 – 140 crime in, 1:138 finding of guilt in, 1:138 – 139 Islamic sharia law in, 1:136 – 137 plea bargaining in, 1:137 police in, 1:137 (photo) prison system, 1:139 – 140 punishment for crimes, 1:139 – 140 Mauritius, 1:140 – 146 crime in, 1:142 – 144 finding of guilt in, 1:144 legal system of, 1:140 – 141 police in, 1:141 – 142 prison system, 1:145 – 146 punishment for crimes, 1:144 – 146

Mayotte, 1:146 – 149 crime in, 1:147 – 148 legal system, 1:146 – 147 plea bargaining in, 1:148 police in, 1:146 – 147, 148 (photo) punishment for crimes, 1:148 – 149 Melanesia, 3:305 – 315 crime in, 3:310 – 313 legal systems in, 3:308 – 310 police in, 3:313 – 314 punishment for crimes, 3:314 – 315 Mexico, 2:221 – 230 crime in, 2:224 – 226 extradition law, 2:229 finding of guilt in, 2:226 – 227 juvenile justice system, 2:223 – 224, 229 legal system, 2:222 – 223 plea bargaining in, 2:227 police in, 2:223 – 224 prison in, 2:228 – 229 punishment for crimes, 2:227 – 229 Micronesia, 3:315–327 crime in, 3:317, 319, 320, 322, 324, 325, 327 legal system, 3:316 – 317, 318, 319 – 320, 321 – 322, 323 – 324, 325, 326 police in, 3:317, 318, 320, 322, 324, 325, 327 punishment in, 3:317 – 318, 319, 320 – 321, 322 – 323, 324 – 325, 326, 327 rights of the accused, 3:317, 319, 320, 322, 324, 326, 327 See also Commonwealth of the Northern Mariana Islands; Federated States of Micronesia; Republic of Belau; Republic of Kiribati; Republic of Nauru; Republic of the Marshall Islands MINURCAT ( United Nations Mission in the Central African Republic and Chad European Union Force), 1:45 Misuse of Drugs Act (Bermuda), 2:48 Misuse of Drugs Act (Brunei Darussalam), 3:49 Misuse of Drugs Act (Singapore), 3:203, 205 Misuse of Drugs Law (Cayman Islands), 2:83 Model Criminal Law of the Soviet Union and Soviet Republics, 4:29 Moldova, 4:226 – 235 crime in, 4:226 – 230 finding of guilt in, 4:230 – 232


juvenile justice system, 4:231 – 232 legal system, 4:226 prison system, 4:233 – 235 punishment for crimes, 4:232 – 233 rights of the accused, 4:230 Monaco, 4:235 – 238 crime in, 4:236 – 237 finding of guilt in, 4:237 police in, 4:235 – 236 punishment/prison system in, 4:237 Money laundering in Anguilla, 2:2 – 3 in Antigua and Barbuda, 2:7 in The Bahamas, 2:26 in Bahrain, 1:256, 258 in Botswana, 1:12, 16 in Bulgaria, 4:61 in Colombia, 2:105 in Comoros, 1:51 in Ethiopia, 1:78 in Ghana, 1:89 in Haiti, 2:195 – 196 in Israel, 1:288 in Laos, 3:126 in Lebanon, 1:318 in Malta, 4:218 – 220 in Mauritania, 1:138 in Monaco, 4:236 in Mozambique, 1:150 – 151 in Nigeria, 1:164 in Oman, 1:337 in Republic of Congo, 1:55 in Saint Vincent and the Grenadines, 2:301 – 302 in San Marino, 4:292 – 293 in Saudi Arabia, 1:351 in Seychelles, 1:190 in South Africa, 1:207 in Turks and Caicos Islands, 2:324 – 325 in United Arab Emirates, 1:380, 382 Mongolia, 3:158 – 166 crime in, 3:159 – 161 finding of guilt in, 3:161 – 163 juvenile justice system, 3:160 legal system, 3:158 – 159 police in, 3:159 prison system, 3:164 – 165 punishment for crimes, 3:163 Montenegro, 4:238 – 240 crime in, 4:239 human rights in, 4:239 police in, 4:238 punishment for crimes, 4:239 – 240 Montserrat, 2:230 – 238 crime in, 2:232 finding of guilt in, 2:232 – 233

Index

juvenile justice system, 2:234 legal system, 2:233 – 234 prison system, 2:237 – 238 punishment for crimes, 2:235 – 237 rights of the individual, 2:234 – 235 MONUC UN peacekeeping force, 1:55 Morocco, 1:333 – 336 legal system in, 1:334 police in, 1:333 – 334 punishment for crimes, 1:334 – 335 Mortality Database reports, 3:271 Mozambique, 1:149 – 152 crime in, 1:150 – 151 finding of guilt in, 1:151 – 152 punishment for crimes, 1:152 rights of the accused, 1:151 Multi-Donor Trust Fund (MDTF, Sudan), 1:368 Municipal police services (MSPs), in South Africa, 1:206 – 207 Murder. See Homicide/murder Muslim Brotherhood (Sudan), 1:363 Muslim Personal Law (Shariat) Application Act (1937), 3:26 Mutual Legal Assistance Treaty (1986), 2:84, 2:166 Myanmar (Burma), 3:166 – 171 crime in, 3:168 – 169 finding of guilt in, 3:169 – 170 police in, 3:168 punishment for crimes, 3:170 – 171 Namibia, 1:152 – 156 crime in, 1:153 finding of guilt in, 1:154 police in, 1:153 – 154 prisons /punishment for crimes, 1:154 Narcotic Act (1957, South Korea), 3:212 Narcotic Act (1979, Thailand), 3:242–243 Narcotic Drugs and Psychotropic Substance Act (1998, Lebanon), 1:319 Narcotic Drugs and Psychotropic Substances Act (1985, India), 3:88 Narcotics Agreement (1984, Cayman Islands, U.S.), 2:84 Narcotics Control Law (Japan), 3:101 Narcotics Law (2005, Afghanistan), 3:5, 10 National Agency for the Prohibition of Trafficking in Persons (NAPTIP, Nigeria), 1:163 National Angolan People’s Police, 1:2 – 3 National Anti-Drug System (Brazil), 2:66 National Assembly of People’s Power (Cuba), 2:119

National Commission for Citizen Security (CONASEG, Paraguay), 2:273 National Commission for Human Rights (Greece), 4:140 National Commission for Women and Children (NCWC, Bhutan), 3:41 National Commission on the Disappearance of Persons, 2:11 National Council on Drugs (NCD, Lebanon), 1:319 National Crime Victimization Surveys (Switzerland), 4:346 National Drug Law Enforcement Agency (NDLEA, Nigeria), 1:163 National Drug Strategy Household Survey (Australia), 3:302 National Drug Threat Assessment (U.S.), 2:180 National Forum against the Sexual and Commercial Exploitation of Children and Adolescents (1999, Nicaragua), 2:259 National Forum on Human Rights report (2009), 1:386 National Headquarters of Prison Service (NHPC, Hungary), 4:155 National Human Rights Commission (CNDH), 2:229, 3:25 National Human Rights Office (Latvia), 4:187 National Incident-Based Reporting System (NIBRS), 2:286 National Institute for Criminalistics and Criminology, 4:43 National Islamic Front (NIF, Sudan), 1:364 National Mechanism to Prevent Torture (Mexico), 2:229 National Offender Management Service (NOMS, England), 4:368 – 369 National Plan of Action for Gender (NPAG, Bhutan), 3:43 National Police Code (1970, Colombia), 2:100 National Survey on Corruption in Greece (2008), 4:141 National Union for the Total Independence of Angola (UNITA), 1:1 National Youth Tobacco Survey (2002), 2:293 NationMaster report Guinea data, 1:94 Yemen data, 1:386 Navajo Nation, 2:238 – 247 crime in, 2:241 – 242 finding of guilt in, 2:242 – 244 juvenile justice system, 2:244 – 245


|

I-19

legal system, 2:238 – 240, 244 – 245 police in, 2:240 – 241 prison system, 2:246 – 247 punishment for crimes, 2:245 – 246 rights of the accused, 2:242 – 243 Nepal, 3:171 – 178 crime in, 3:176 – 177 juvenile justice system, 3:177 legal system, 3:171 – 174 police in, 3:174 – 176 prison system, 3:177 punishment for crimes, 3:177 The Netherlands, 4:240 – 249 crime in, 4:243 – 245 finding of guilt in, 4:245 – 246 legal system, 4:241 police in, 4:241 – 243 prison system, 4:248 – 249 punishment for crimes, 4:247 – 248 rights of the accused in, 4:246 – 247 Netherlands Antilles, 2:247 – 255 crime in, 2:248 – 250 finding of guilt in, 2:250 – 253 juvenile justice system, 2:253 – 254 police in, 2:248 prison system, 2:254 rights of the accused, 2:250 New Caledonia. See Melanesia New Zealand, 3:327 – 337 crime in, 3:330 – 335 juvenile justice system, 3:333 – 335 legal system in, 3:334 – 335 police in, 3:328 – 330 prison system, 3:335 – 337 NGOs (nongovernmental organizations) in Angola, 1:4 in Bangladesh, 3:31 in Belize, 2:45 in Bolivia, 2:56 in Chad, 1:446 in Cuba, 2:121 in France, 4:121 in Honduras, 2:202 in Kyrgyzstan, 3:121 in Lebanon, 1:319 in Macedonia, 4:214, 215 in Madagascar, 1:127 in Malawi, 1:129 in Maldives, 3:154 in Mauritania, 1:139 – 140, 143 in Montserrat, 2:236 in North Korea, 3:180 in Saint Vincent and the Grenadines, 2:301 in Senegal, 1:188 in Tajikistan, 3:236 in Uzbekistan, 3:285

I-20

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe in Zambia, 1:239 in Zimbabwe, 1:245 – 246 Nicaragua, 2:255 – 263 crime in, 2:257 – 259 finding of guilt in, 2:259 – 262 juvenile justice system, 2:263 legal system, 2:256 – 257 punishment for crimes, 2:262 – 263 Niger, 1:156 – 162 crime in, 1:157 – 160 female genital mutilation in, 1:158, 159 finding of guilt in, 1:160 – 161 ICPS report, 1:161 – 162 legal system, 1:156 – 157, 160 prisons /punishment for crimes, 1:161 – 162 Nigeria, 1:162 – 167 crime in, 1:164 Islamic sharia law in, 1:163 legal system in, 1:162 – 163, 164 – 166 police in, 1:163 – 164 prison system, 1:167 punishment for crimes, 1:166 – 167 Niue. See Polynesia Nora Foundation (NGO), 1:139 – 140 Norfolk Island, 3:337 – 339 crime in, 3:339 legal system, 3:338 – 339 punishment for crimes, 3:339 North Korea (Democratic People’s Republic of Korea), 3:178 – 187 crime in, 3:179 – 184 finding of guilt in, 3:184 – 185 legal system in, 3:182 – 184 police in, 3:182 – 184 prison system, 3:186 – 187 punishment for crimes, 3:185 – 186 Northern Ireland. See United Kingdom /Northern Ireland Norway, 4:249 – 256 crime in, 4:251 – 252 finding of guilt in, 4:252 – 253 juvenile justice system, 4:253 – 254 legal system, 4:249 – 250 police in, 4:250 prison /punishment for crimes, 4:254 – 255 prison system, 4:250 – 251 rights of the accused, 4:253 Oman, 1:336 – 339 crime/punishment for crimes, 1:337 – 338

extradition law, 1:339 finding of guilt in, 1:338 – 339 legal system in, 1:337, 338 – 339 prison system, 1:339 Organization for Security and Cooperation in Europe (OSCE) Azerbaijan data, 3:20, 22 Belarus data, 4:37 Iceland data, 4:157 Montenegro data, 4:238 San Marino data, 4:293 Organization of Eastern Caribbean States (OECS), 2:5 – 6, 164, 290 Overseas Advisory Security Council (OSAC), 1:174, 243, 3:271 Overseas Territories Regional Criminal Intelligence System (OTRCIS), 2:3, 85 Pakistan, 3:187 – 192 crime in, 3:188 – 190 finding of guilt in, 3:190 – 191 juvenile justice system, 3:190 legal system in, 3:187 – 188 police in, 3:190 punishment for crimes, 3:191 – 192 Pakistan Anti-Terrorism (Amendment) Ordinance, 3:191 Palestine Liberation Organization (PLO), 1:313, 340 Palestinian Territories, 1:340 – 346 crime in, 1:343 – 344 juvenile justice system, 1:343 legal system, 1:341 – 342, 344 – 345 police in, 1:342 – 343 prisons /punishment for crimes, 1:345 – 346 Pan American Health Organization (PAHO), 2:271 – 272 Panama, 2:263 – 269 crime in, 2:266 – 267 finding of guilt in, 2:267 – 268 juvenile justice system, 2:268 legal system, 2:265 – 266 prison system, 2:269 punishment for crimes, 268 – 269 rights of the accused, 2:268 Papua New Guinea. See Melanesia Paraguay, 2:270 – 276 crime in, 2:271 – 272 finding of guilt in, 2:272 – 273 legal system, 2:270 – 271 National Police, 2:273 – 274 plea bargaining in, 2:272 prison system, 2:274 – 276 punishment for crimes, 2:274 – 276 Parliamentary Commission for Human Rights (Lebanon), 1:321


Peacemaker Court /Program (Navajo Nation), 2:243 Penal Code Act (PCA, Uganda), 1:230 – 231 Penal Reform International, 3:115 People’s Court (Libya), 1:329 People’s Court Organization Law (China), 3:70 People’s Democratic Movement (PU-DEMO, Swaziland), 1:215 People’s Republic of China. See China (People’s Republic of China) People’s Revolutionary Tribunal (Tribunal Popular Révolucionario, Angola), 1:1 People’s Security Force (Libya), 1:327 People’s Vigilance Brigades (Brigadas Populares de Vigilância, Angola), 1:2 Personal Status Code (Syria), 1:371 Peru, 2:276 – 282 crime in, 2:277 – 279 finding of guilt in, 2:279 – 281 juvenile justice system, 2:278 legal system, 2:276 – 277 prison system, 2:282 punishment for crimes, 2:282 rights of the accused, 2:279 Philippines, 3:192 – 202 crime in, 3:195 – 196 finding of guilt in, 3:196 – 198 juvenile justice system, 3:199 legal system, 3:193 – 194, 198 – 199 police in, 3:194 – 195 prison system, 3:200 – 202 punishment for crimes, 3:199 – 200 rights of the accused, 3:198 Pickpocketing in Comoros, 1:52 in Gambia, 1:83 in Ghana, 1:86 in Guinea, 1:93 in Guinea-Bissau, 1:98 in Libya, 1:330 – 331 in Madagascar, 1:124 in Mali, 1:134 in Mauritania, 1:138 in Namibia, 1:153 in Rwanda, 1:174 in Senegal, 1:185 in Tanzania, 1:224 in Togo, 1:227 Piracy in Angola, 1:4 in Botswana, 1:16 in Colombia, 2:105

Index

in Ghana, 1:89 in Macao, 3:133 in Nigeria, 1:164 in Somalia, 1:202 in Tanzania, 1:221 in Yemen, 1:386 Pitcairn Islands, 3:339 – 344 crime in, 3:340 – 341 finding of guilt in, 3:341 – 342 legal system, 3:339 – 340 prison system, 3:343 – 344 punishment for crimes, 3:342 – 343 rights of the accused, 3:341 – 342 Poland, 4:256 – 265 crime in, 4:259 – 260 finding of guilt in, 4:260 – 262 juvenile justice system, 4:259 legal system, 4:257 – 258 police in, 4:258 – 259 punishment for crimes, 4:262 – 265 rights of the accused, 4:261 Police Act (1979, Sudan), 1:364 Police Corps Act (2000), 1:385 Police Security Directorate (PSD, Syria), 1:370 Policing practices, in Africa in Angola, 1:2 – 3 of Benin, 1:7 of Burkina Faso, 1:18 – 19 of Burundi, 1:26 of Cameroon, 1:29 – 30 of Cape Verde, 1:31 – 32 in Djibouti, 1:63 in DRC, 1:55 – 56 in Equatorial Guinea, 1:67 in Eritrea, 1:70 – 71 in Gabon, 1:79 in Gambia, 1:82 – 83 in Ghana, 1:88 – 89 in Grenada, 2:164 – 165 in Guinea, 1:91 – 92 in Guinea-Bissau, 1:99 in Kenya, 1:108 – 109 in Liberia, 1:118 – 120 in Madagascar, 1:122 – 124 in Malawi, 1:130 in Mali, 1:133 – 134 in Mauritius, 1:141 – 142 in Mayotte, 1:146 – 147 in Namibia, 1:153 – 154 in Nigeria, 1:163 – 164 in Republic of Congo, 1:57 (photo) in Réunion, 1:168 in Rwanda, 1:174 in Sao Tome and Principe, 1:181 in Senegal, 1:184 (photo), 186 – 187 in Seychelles, 1:189 – 190, 1:192 – 193 in Sierra Leone, 1:193 – 194

in South Africa, 1:206 – 207 in Swaziland, 1:213 – 214 in Tanzania, 1:218 – 219 in Zambia, 1:237 – 238 Policing practices, in the Americas in Anguilla, 2:2 in Aruba, 2:19 in The Bahamas, 2:23 – 25 in Barbados, 2:32 in Bermuda, 2:47 – 48 in British Virgin Islands, 2:70 – 71 in Canada, 2:76 in Cayman Islands, 2:82 – 83 in Chile, 2:91 in Falkland Islands, 2:158 in Jamaica, 2:207 in Martinique, 2:216 – 217 in Mexico, 2:223 – 224 in Navajo Nation, 2:240 – 241 in Netherlands Antilles, 2:248 in Saint Lucia, 2:297 – 298 in Trinidad and Tobago, 2:316 in Uganda, 1:230 – 231 in United States Virgin Islands, 2:342 Policing practices, in Asia Afghanistan, 3:3 – 4 Armenia, 3:14 – 15 Azerbaijan, 3:22 Bangladesh, 3:27 – 28 in Bhutan, 3:40 – 41 in Brunei Darussalam, 3:48 Cambodia, 3:54 – 55 Georgia, 3:72 Hong Kong, 3:80 – 81 Indonesia, 3:93 Japan, 3:102 Kazakhstan, 3:110 – 111 Macao, 3:134 – 136 Malaysia, 3:142 in Nepal, 3:174 – 176 in North Korea, 3:182 – 184 in Pakistan, 3:190 in the Philippines, 3:194 – 195 in Singapore, 3:203 – 204 in South Korea, 3:210 in Sri Lanka, 3:219 in Taiwan, 3:223 – 224 in Tajikistan, 3:234 in Turkey, 3:262 – 263 in Turkmenistan, 3:269 – 270 in Uzbekistan, 3:275 – 276 in Vietnam, 3:287 Policing practices, in Europe in the Åland Islands, 4:1 in Albania, 4:6 in Austria, 4:18 in Belgium, 4:39


|

I-21

in Bosnia and Herzegovina, 4:49 in Bulgaria, 4:59 – 60 in Cyprus, 4:72 in Czech Republic, 4:77 in Estonia, 4:94 – 95 in Finland, 4:104 – 105 in Germany, 4:124 in Gibraltar, 4:133 in Greece, 4:139 in Guernsey, 4:146 in Hungary, 4:150 – 151 in Iceland, 4:157 in Ireland, 4:164 – 165 in Isle of Man, 4:170 – 171 in Italy, 4:174 in Jersey, 4:183 – 184 in Latvia, 4:186 – 187 in Lithuania, 4:198 – 199 in Luxembourg, 4:208 in Macedonia, 4:213 in Malta, 4:218 in Monaco, 4:235 – 236 in The Netherlands, 4:241 – 243 in Norway, 4:250 in Poland, 4:258 – 259 in Romania, 4:275 – 277 in Russia, 4:284 in San Marino, 4:291 – 292 in Serbia, 4:297 in Shetland, 4:305 – 306 in Slovak Republic, 4:309 – 310 in Slovenia, 4:315 – 316 in Sweden, 4:332 in United Kingdom / England, 4:362 in United Kingdom / Northern Ireland, 4:373 – 374 in United Kingdom /Scotland, 4:381 – 382 in United Kingdom / Wales, 4:391 Policing practices, in the Middle East in Bahrain, 1:255 – 256 in Iraq, 1:273 – 274 in Israel, 1:284 – 285 in Jordan, 1:298 – 299 in Lebanon, 1:314 – 315 in Palestinian Territories, 1:342 – 343 in Qatar, 1:348 in Saudi Arabia, 1:351 – 352 in Sudan, 1:364 – 366 in United Arab Emirates, 1:382 in Yemen, 1:385 Policing practices, in Northern Africa in Egypt, 1:260 – 261 in Ethiopia, 1:76 in Libya, 1:327 in Morocco, 1:333 – 334 in Sudan, 1:364 – 366 in Tunisia, 1:375

I-22

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe Policing practices, in the Pacific in Commonwealth of the Northern Mariana Islands, 3:318 in Federated States of Micronesia, 3:322 in Guam, 3:320 in Melanesia, 3:313 – 314 in New Zealand, 3:328 – 330 in Polynesia, 3:348 in Republic of Belau (Palau), 3:317 in Republic of Kiribati, 3:325 in Republic of Nauru, 3:327 in Republic of the Marshall Islands, 3:324 in Tonga, 3:353 – 354 Polynesia, 3:344 – 350 crime in, 3:348 – 349 finding of guilt in, 3:349 legal system, 3:346 – 348 police in, 3:348 prison system, 3:350 punishment for crimes, 3:349 – 350 Portugal, 4:265 – 274 crime in, 4:266 – 269 finding of guilt in, 4:269 – 271 juvenile justice system, 4:267 – 268 legal system, 4:265 – 266 prison system, 4:272 – 273 punishment for crimes, 4:271 – 272 rights of the accused, 4:270 Prevention of Corruption Act (Singapore), 3:203 Prevention of Crime Act (Malaysia, 1959), 3:148 Prevention of Money Laundering Act (1994, Malta), 4:219 The PRIME System: Measuring the Success of Post-Coflict Police Reform, 3:254 Prison system, in Africa in Angola, 1:6 in Benin, 1:10 in Botswana, 1:16 – 17 in Burkina Faso, 1:21 – 22 in Cameroon, 1:30 in Cape Verde, 1:34 in Central African Republic, 1:41 – 42 in Chad, 1:49 – 50 in DRC, 1:56 in Gambia, 1:85 – 86 in Ghana, 1:89 – 90 in Guinea, 1:96 – 97 in Guyana, 2:194

in Ivory Coast (Côte d’Ivoire), 1:105 in Lesotho, 116 – 117 in Madagascar, 1:127 – 128 in Mauritania, 1:139 – 140 in Mauritius, 1:145 – 146 in Namibia, 1:154 in Niger, 1:161 – 162 in Nigeria, 1:167 in Republic of Congo, 1:61 – 62 in Rwanda, 1:177 in Sierra Leone, 1:197 – 198 in Sudan, 1:367 – 368 in Togo, 1:229 in Zambia, 1:241 – 242 in Zimbabwe, 1:245 – 246, 246 (photo) Prison system, in the Americas in Anguilla, 2:5 in Antigua and Barbuda, 2:9 in Argentina, 2:17 – 18 in Aruba, 2:21 – 22 in The Bahamas, 2:28 – 31 in Barbados, 2:37 – 40 in Belize, 2:46 – 47 in Bermuda, 2:52 – 53 in Bolivia, 2:60 – 61 in Brazil, 2:68 – 69 in British Virgin Islands, 2:73 in Canada, 2:79 – 81 in Cayman Islands, 2:87 – 88 in Chile, 2:96 – 97 in Colombia, 2:108 – 109 in Costa Rica, 2:116 – 117 in Dominica, 2:128 – 131 in Dominican Republic, 2:140 – 141 in Ecuador, 2:149 – 150 in Falkland Islands, 2:158 in Greenland, 2:161 – 162 in Grenada, 2:168 – 169 in Jamaica, 2:214 – 215 in Martinique, 2:220 – 221 in Mexico, 2:228 – 229 in Montserrat, 2:237 – 238 in Navajo Nation, 2:246 – 247 in Netherlands Antilles, 2:254 in Puerto Rico, 2:288 – 290 in Saint Vincent and the Grenadines, 2:306 – 307 in Suriname, 2:313 in Trinidad and Tobago, 2:320 – 321 in Turks and Caicos Islands, 2:327 – 328 in Uganda, 1:235 – 236 in the United States, 2:327 – 328 in United States Virgin Islands, 2:345 – 346 in Uruguay, 2:352 – 353 in Venezuela, 2:363 – 366


Prison system, in Asia in Afghanistan, 3:12 in Armenia, 3:18 – 20 in Azerbaijan, 3:23 – 24 in Bangladesh, 3:36 in Bhutan, 3:45 – 46 in Brunei Darussalam, 3:52 in Cambodia, 3:61 – 63 in China, 3:75 – 76 in Hong Kong, 3:83 – 84 in India, 3:90 – 91 in Indonesia, 3:97 – 98 in Japan, 3:108 – 109 in Kazakhstan, 3:117 in Laos, 3:131 – 132 in Macao, 3:139 – 140 in Malaysia, 3:150 – 151 in Maldives, 3:157 – 158 in Nepal, 3:177 in North Korea, 3:186 – 187 in the Philippines, 3:200 – 202 in Singapore, 3:208 – 209 in South Korea, 3:216 – 217 in Sri Lanka, 3:221 – 222 in Taiwan, 3:231 – 232 in Tajikistan, 3:238 in Turkey, 3:267 – 268 in Turkmenistan, 3:273 – 275 in Uzbekistan, 3:285 – 286 in Vietnam, 3:296 – 297 Prison system, in Europe in the Åland Islands, 4:3 – 4 in Albania, 4:10 – 12 in Austria, 4:26 – 27 in Belgium, 4:45 – 47 in Bosnia and Herzegovina, 4:56 – 57 in Bulgaria, 4:64 – 65 in Cyprus, 4:74 – 75 in Czech Republic, 4:83 – 85 in Denmark, 4:90 – 93 in Estonia, 4:99 – 100 in Faroe Islands, 4:103 in Finland, 4:112 – 113 in France, 4:121 – 122 in Germany, 4:131 – 132 in Gibraltar, 4:136 – 137 in Greece, 4:144 – 145 in Hungary, 4:155 – 156 in Iceland, 4:159 – 160 in Ireland, 4:169 – 170 in Italy, 4:182 – 183 in Latvia, 4:190 in Lithuania, 4:206 – 207 in Luxembourg, 4:211 in Malta, 4:225 in Moldova, 4:233 – 235 in The Netherlands, 4:248 – 249 in Norway, 4:250 – 251, 254 – 255

Index

in Portugal, 4:272 – 273 in Romania, 4:280 – 281 in Russia, 4:289 – 290 in San Marino, 4:295 – 296 in Serbia, 4:304 in Shetland, 4:308 in Slovak Republic, 4:313 – 314 in Slovenia, 4:319 – 323 in Svalbard and Jan Mayen Islands, 4:331 in Sweden, 4:339 – 342 in Ukraine, 4:358 – 360 in United Kingdom / England, 4:369 – 370 in United Kingdom / Northern Ireland, 4:379 in United Kingdom /Scotland, 4:387 – 388 in United Kingdom / Wales, 4:395 – 397 in Vatican City and the Holy See, 4:402 – 403 Prison system, in the Middle East in Bahrain, 1:258 – 259 in Iraq, 1:282 – 283 in Israel, 1:295 – 297 in Jordan, 1:301 – 303 in Lebanon, 1:324 – 326 in Oman, 1:339 in Palestinian Territories, 1:345 – 346 in Saudi Arabia, 1:360 in United Arab Emirates, 1:383 Prison system, in Northern Africa in Algeria, 1:253 in Egypt, 1:265 – 266 in Libya, 1:332 in Tunisia, 1:376 Prison system, in the Pacific in Commonwealth of the Northern Mariana Islands, 3:319 in Federated States of Micronesia, 3:323 in the Pitcairn Islands, 3:343 – 344 in Polynesia, 3:350 in Republic of Belau (Palau), 3:318 in Republic of Kiribati, 3:326 in Republic of the Marshall Islands, 3:325 in Tonga, 3:357 – 358 Prison Watch Public Association, 4:190 Prisons Act of 1964 (Swaziland), 1:217 Proceeds of Crime and Money Laundering Act (2001), 2:302 Proceeds of Criminal Conduct Law (1996, Cayman Islands), 2:85 Professional Secrecy Act (1994, Malta), 4:219

Prohibition of Child Marriage Act (India, 2006), 3:88 Prohibition of Money Laundering Law (2000, Israel), 1:288 Prostitution in Angola, 1:3, 4 in Central African Republic, 1:37 in Chad, 1:43, 45 – 46, 48 – 49 in Djibouti Chad, 1:64 in Eritrea, 1:71 in Ethiopia, 1:78 in Guinea, 1:92 in Guinea-Bissau, 1:98 in Kenya, 1:108 in Kuwait, 1:308 in Lebanon, 1:318 in Madagascar, 1:124, 127 in Malawi, 1:129 in Namibia, 1:153 in Oman, 1:337 in Sao Tome and Principe, 1:181 in Senegal, 1:185, 186 in Seychelles, 1:190 in Somalia, 1:202 in Swaziland, 1:214 in Togo, 1:228 in Zambia, 1:239 Protection of Human Rights in Criminal Procedure and in the Organization of the Judicial System (Saudi Arabia), 1:355 Protocol on the Rights of Women in Africa, 1:52 Psychotropic Medicine Control Act (1976, South Korea), 3:212 Puerto Rico, 2:283 – 290 crime in, 2:285 – 286 extradition law, 2:289 – 290 finding of guilt in, 2:286 – 287 juvenile justice system, 2:287 legal system, 2:283 – 285 plea bargaining in, 2:287 prison system, 2:288 – 290 punishment for crimes, 2:287 – 288 Punishment for crimes, in Africa in Angola, 1:5 – 6 in Benin, 1:10 in Burkina Faso, 1:21 – 22 in Cameroon, 1:30 in Central African Republic, 1:35 – 36, 39 – 42 in Chad, 1:48 – 50 in Comoros, 1:52 in Djibouti, 1:65 – 66 in Equatorial Guinea, 1:69 in Eritrea, 1:73 – 74 in Gabon, 1:81 in Gambia, 1:85 – 86


|

I-23

in Guinea, 1:96 – 97 in Guinea-Bissau, 1:100 in Ivory Coast (Côte d’Ivoire), 1:104 – 105 in Kenya, 1:110 – 111 in Lesotho, 115 – 117 in Liberia, 1:121 – 122 in Madagascar, 1:126 – 128 in Malawi, 1:131 – 132 in Mali, 1:134 – 135 in Mauritania, 1:139 – 140 in Mauritius, 1:144 – 146 in Mayotte, 1:148 – 149 in Mozambique, 1:152 in Namibia, 1:154 in Niger, 1:161 – 162 in Nigeria, 1:166 – 167 in Republic of Congo, 1:61 – 62 in Réunion, 1:171 – 172 in Rwanda, 1:176 – 177 in Sao Tome and Principe, 1:182 in Senegal, 1:188 – 189 in Seychelles, 1:192 – 193 in Sierra Leone, 1:196 – 198 in South Africa, 1:210 – 211 in Swaziland, 1:217 in Tanzania, 1:224 – 226 in Togo, 1:229 in Uganda, 1:233 – 235 in Zambia, 1:240 – 242 in Zimbabwe, 1:245 – 246 Punishment for crimes, in the Americas in Anguilla, 2:4 – 5 in Antigua and Barbuda, 2:8 – 9 in Argentina, 2:16 – 18 in Aruba, 2:21 – 22 in The Bahamas, 2:28 – 31 in Bahrain, 1:258 – 259 in Barbados, 2:36 – 40 in Belize, 2:46 – 47 in Bermuda, 2:51 – 53 in Brazil, 2:68 – 69 in British Virgin Islands, 2:72 – 73 in Canada, 2:78 – 81 in Cayman Islands, 2:86 – 88 in Chile, 2:96 – 97 in Colombia, 2:107 – 109 in Costa Rica, 2:115 – 117 in Dominica, 2:128 – 131 in Dominican Republic, 2:139 – 141 in Ecuador, 2:147 – 150 in El Salvador, 2:156 in Falkland Islands, 2:159 in Greenland, 2:161 – 162 in Grenada, 2:168 – 169 in Guyana, 2:193 – 194 in Honduras, 2:203 – 204 in Jamaica, 2:212 – 214

I-24

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe in Martinique, 2:219 – 221 in Mexico, 2:227 – 229 in Montserrat, 2:235 – 237 in Navajo Nation, 2:245 – 246 in Nicaragua, 2:262 – 263 in Puerto Rico, 2:287 – 288 in Saint Lucia, 2:299 – 300 in Saint Vincent and the Grenadines, 2:305 – 306 in Suriname, 2:312 – 313 in Trinidad and Tobago, 2:319 – 321 in Turks and Caicos Islands, 2:326–328 in the United States, 2:335 – 339 in United States Virgin Islands, 2:344 – 345 in Uruguay, 2:352 – 353 in Venezuela, 2:361 – 363 Punishment for crimes, in Asia Afghanistan, 3:9 – 10 Armenia, 3:18 Bangladesh, 3:34 – 36 Bhutan, 3:44 – 45 Brunei Darussalam, 3:51 – 52 Cambodia, 3:61 China, 3:69 – 71 Georgia, 3:74 – 75 Hong Kong, 3:82 – 83 India, 3:90 Indonesia, 3:96 – 97 Japan, 3:106 – 108 Kazakhstan, 3:115 – 117 Laos, 3:130 – 131 Macao, 3:138 – 139 Malaysia, 3:147 – 148 in Maldives, 3:156 – 157 in Nepal, 3:177 in North Korea, 3:185 – 186 in Pakistan, 3:191 – 192 in the Philippines, 3:199 – 200 in Singapore, 3:207 – 209 in South Korea, 3:215 – 216 in Sri Lanka, 3:221 in Taiwan, 3:230 – 231 in Tajikistan, 3:237 – 238 in Turkey, 3:266 – 267 in Turkmenistan, 3:273 – 275 in Uzbekistan, 3:282 – 285 in Vietnam, 3:295 – 296 Punishment for crimes, in Europe in the Åland Islands, 4:3 – 4 in Albania, 4:9 – 10 in Austria, 4:24 – 26 in Belgium, 4:43 – 45

in Bosnia and Herzegovina, 4:55 – 57 in Bulgaria, 4:63 – 64 in Czech Republic, 4:81 – 83 in Denmark, 4:88 – 90 in Estonia, 4:98 – 99 in Faroe Islands, 4:102 – 103 in Finland, 4:111 – 112 in France, 4:119 – 121 in Germany, 4:129 – 130 in Gibraltar, 4:135 – 136 in Greece, 4:143 – 144 in Guernsey, 4:147 – 148 in Iceland, 4:159 in Ireland, 4:167 – 169 in Isle of Man, 4:172 in Italy, 4:180 – 181 in Jersey, 4:185 in Latvia, 4:189 – 190 in Lithuania, 4:205 – 206 in Luxembourg, 4:210 in Macedonia, 4:217 in Malta, 4:223 – 225 in Moldova, 4:232 – 233 in Monaco, 4:237 in The Netherlands, 4:247 – 248 in Norway, 4:254 – 255 in Poland, 4:262 – 265 in Portugal, 4:271 – 272 in Romania, 4:280 in Russia, 4:288 – 289 in San Marino, 4:295 in Serbia, 4:303 – 304 in Shetland, 4:307 – 308 in Slovak Republic, 4:313 in Slovenia, 4:319 – 323 in Spain, 4:328 in Svalbard and Jan Mayen Islands, 4:331 in Sweden, 4:338 – 339 in Switzerland, 4:350 – 351 in Ukraine, 4:357 – 358 in United Kingdom / England, 4:366 – 369 in United Kingdom / Northern Ireland, 4:377 – 379 in United Kingdom / Scotland, 4:385 – 387 in United Kingdom / Wales, 4:394 – 395 in Vatican City and the Holy See, 4:402 – 403 Punishment for crimes, in the Middle East in Iraq, 1:280 – 283 in Israel, 1:294 – 297 in Jordan, 1:301 – 303 in Lebanon, 1:322 – 326 in Oman, 1:337 – 338


in Palestinian Territories, 1:345 – 346 in Qatar, 1:349 in Saudi Arabia, 1:359 – 360 in Syria, 1:373 – 374 in United Arab Emirates, 1:383 in Yemen, 1:386 Punishment for crimes, in Northern Africa in Algeria, 1:252 – 253 in Egypt, 1:265 – 266 in Ethiopia, 1:78 – 79 in Libya, 1:331 – 332 in Morocco, 1:334 – 335 Punishment for crimes, in the Pacific in Australia, 3:303 – 305 in Commonwealth of the Northern Mariana Islands, 3:319 in Federated States of Micronesia, 3:322 – 323 in Guam, 3:320 – 321 in Melanesia, 3:314 – 315 in Norfolk Island, 3:339 in the Pitcairn Islands, 3:342 – 343 in Polynesia, 3:349 – 350 in Republic of Belau (Palau), 3:317 – 318 in Republic of Kiribati, 3:326 in Republic of Nauru, 3:327 in Republic of the Marshall Islands, 3:324 – 325 in Tonga, 3:357 Puntland finding of guilt in, 1:203 prison system/punishment for crimes, 1:205 Purge Law (Libya), 1:328 Qatar, 1:346 – 349 crime in, 1:348 – 349 finding of guilt in, 1:348 legal system, 1:347 – 348 police in, 1:348 punishment for crimes, 1:349 Quisas punishment in Comoros, 1:52 in Iran, 1:269 in Oman, 1:337 Radio Free Europe, Kyrgyzstan report (2009), 3:121 Rape, in Africa in Angola, 1:4 in Benin, 1:9 in Botswana, 1:12, 13, 15 in Burundi, 1:24 in Chad, 1:44, 45, 49 in Djibouti, 1:65 in DRC, 1:54

Index

in Equatorial Guinea, 1:68 – 69 in Gambia, 1:83 in Ghana, 1:86 in Guinea, 1:92 in Guinea-Bissau, 1:98 in Liberia, 1:118, 119 (photo) in Madagascar, 1:124 in Mali, 1:134 in Martinique, 2:218 in Mauritius, 1:143 in Namibia, 1:153 in Nigeria, 1:164 in Republic of Congo, 1:58 in Réunion, 1:169 in Sao Tome and Principe, 1:181 in Senegal, 1:185 in Somalia, 1:201 in South Africa, 1:206 in Swaziland, 1:214 in Tanzania, 1:220 – 221 Rape, in the Americas in Argentina, 2:17 in The Bahamas, 2:25 in Barbados, 2:33, 34 in Bolivia, 2:59 in British Virgin Islands, 2:71 in Colombia, 2:105 in Costa Rica, 2:111 in Grenada, 2:168 in Guatemala, 2:177, 178 in Guyana, 2:193 in Honduras, 2:200 in Jamaica, 2:208 in La Guadeloupe, 2:175 in Mexico, 2:224 in Navajo Nation, 2:242 in Nicaragua, 2:258 in Peru, 2:278 in Saint Kitts and Nevis, 2:291 in Saint Lucia, 2:298 in Saint Vincent and the Grenadines, 2:301 in Trinidad and Tobago, 2:316 in Uganda, 1:231 in the United States, 2:329, 330 – 331 in United States Virgin Islands, 2:342 Rape, in Asia in Afghanistan, 3:7 in Armenia, 3:16 in Bhutan, 3:41 in Cambodia, 3:61 in India, 3:87, 89 Indonesia, 3:94 Japan, 3:100 Kazakhstan, 3:111 in Mongolia, 3:161 in North Korea, 3:180 – 181 in the Philippines, 3:195

in Singapore, 3:207 in South Korea, 3:212 in Sri Lanka, 3:220 in Taiwan, 3:226 in Thailand, 3:243 in Turkey, 3:263 in Uzbekistan, 3:281 Rape, in Europe in Austria, 4:25 in Belarus, 4:37 in Belgium, 4:40 in Bosnia and Herzegovina, 4:52 in Bulgaria, 4:60 in Croatia, 4:68 in Czech Republic, 4:78 in Estonia, 4:96 in Finland, 4:107 in France, 4:114, 115 in Germany, 4:124 in Gibraltar, 4:134 in Greece, 4:140 in Hungary, 4:152 in Latvia, 4:187 in Liechtenstein, 4:195 in Luxembourg, 4:210 in Macedonia, 4:214 in Moldova, 4:227 in Monaco, 4:237 in The Netherlands, 4:244 in Norway, 4:251 in Romania, 4:278 in Russia, 4:286 in Shetland, 4:306 in United Kingdom / England, 4:364 in United Kingdom / Wales, 4:391 in Vatican City and the Holy See, 4:401 Rape, in the Middle East in Iran, 1:268 – 269 in Israel, 1:289 in Oman, 1:337 in Palestinian Territories, 1:343 Rape, in Northern Africa in Egypt, 1:262 in Suriname, 2:310 in Tunisia, 1:375 Registration of Foreigners Act (India, 1930), 3:88 Regulation of Toxic Drugs (Andorra), 4:14 RENEW (Respect, Educate, Nurture and Empower Women) organization (Bhutan), 3:43 – 44 Report of the National Committee on Crime and Violence (2002, Jamaica), 2:208 Report on Judicial Systems in the Americas (2002 – 2003, JSCA), 2:167, 192


|

I-25

Republic of Belau (Palau) crime in, 3:317 legal system, 3:316 – 317 police in, 3:317 prison system, 3:318 punishment for crimes, 3:317 – 318 rights of the accused, 3:317 Republic of Kiribati crime in, 3:325 legal system, 3:325 police in, 3:325 prison system, 3:326 punishment for crimes, 3:326 rights of the accused, 3:326 Republic of the Marshall Islands crime in, 3:324 legal system, 3:323 – 324 police in, 3:324 prison system, 3:325 punishment for crimes, 3:324 – 325 rights of the accused in, 3:324 Republic of Nauru crime in, 3:327 legal system, 3:326 police in, 3:327 punishment for crimes, 3:327 rights of the accused, 3:327 Restricted Residence Act (Malaysia, 1933), 3:148 Réunion, 1:167 – 173 crime in, 1:168 – 169 finding of guilt in, 1:169 – 171 juvenile justice system, 1:168, 170 legal system, 1:167, 170 police in, 1:168 punishment for crimes, 1:171 – 172 rights of the accused, 1:169 Rights of the accused, in Africa in Cape Verde, 1:34 in Chad, 1:46 in Djibouti, 1:65 in Mozambique, 1:151 in Réunion, 1:169 in Seychelles, 1:191 in Uganda, 1:232 – 233 Rights of the accused, in the Americas in Anguilla, 2:3 in Antigua and Barbuda, 2:8 in Argentina, 2:14 in Aruba, 2:20 in Barbados, 2:35 in Belize, 2:45 in Bermuda, 2:49 in Bolivia, 2:58 in Brazil, 2:67 in Cayman Islands, 2:85 in Chile, 2:95 in Colombia, 2:102

I-26

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe in Costa Rica, 2:113 in Cuba, 2:123 in Dominican Republic, 2:138 in Ecuador, 2:146 in Grenada, 2:167 in Guyana, 2:191 – 192 in Haiti, 2:196 – 197 in Honduras, 2:203 in Jamaica, 2:208 in Mexico, 2:226 – 227 in Montserrat, 2:234 – 235 in Navajo Nation, 2:242 – 243 in Netherlands Antilles, 2:250 in Panama, 2:268 in Peru, 2:279 in Saint Kitts and Nevis, 2:295 – 296 in Trinidad and Tobago, 2:318 in the United States, 2:332 – 333 in Uruguay, 2:352 in Venezuela, 2:357 Rights of the accused, in Asia in Bangladesh, 3:30 in Cambodia, 3:58 in China, 3:68 – 69 in India, 3:89 – 90 in Japan, 3:102 – 103 in Kazakhstan, 3:112 – 113 in Laos, 3:127 – 128 in the Philippines, 3:198 in Taiwan, 3:227 – 228 in Turkey, 3:265 in Turkmenistan, 3:272 – 273 in Uzbekistan, 3:279 Rights of the accused, in Europe in Albania, 4:7 – 8 in Austria, 4:20 – 22 in Belarus, 4:31 – 32 in Bosnia and Herzegovina, 4:53 in Finland, 4:108 in France, 4:116 in Germany, 4:128 in Greece, 4:141 – 142 in Hungary, 4:153 – 154 in Iceland, 4:158 in Italy, 4:177 in Lithuania, 4:203 – 204 in Moldova, 4:230 in The Netherlands, 4:246 – 247 in Poland, 4:261 in Portugal, 4:270 in Slovak Republic, 4:312 in Slovenia, 4:317 – 318

in Svalbard and Jan Mayen Islands, 4:331 in Sweden, 4:340 in United Kingdom /Scotland, 4:384 Rights of the accused, in the Middle East in Saudi Arabia, 1:355 Rights of the accused, in Northern Africa in Ethiopia, 1:75 Rights of the accused, in the Pacific in Commonwealth of the Northern Mariana Islands, 3:319 in Federated States of Micronesia, 3:322 in Guam, 3:320 in the Pitcairn Islands, 3:341 – 342 in Republic of Belau (Palau), 3:317 in Republic of Kiribati, 3:326 in Republic of the Marshall Islands, 3:324 in Republic of Nauru, 3:327 Romania, 4:274 – 281 crime in, 4:277 – 279 finding of guilt in, 4:279 – 280 juvenile justice system, 4:277 legal system, 4:274 – 275 police in, 4:275 – 277 prison system, 4:280 – 281 punishment for crimes, 4:280 Royal Cayman Islands Police Service (RCIPS), 2:82 – 83 RSPS Annual Report (2007), 1:214 Russia, 4:281 – 291 crime in, 4:285 – 286 finding of guilt in, 4:286 – 288 juvenile justice system, 4:288 legal system, 4:284 – 285 police in, 4:284 prison system, 4:289 – 290 punishment for crimes, 4:288 – 289 Rwanda, 1:173 – 177 crime in, 1:174 finding of guilt in, 1:175 – 176 legal system in, 1:176 plea bargaining in, 1:176 police in, 1:174, 175 (photo) prison system, 1:177 punishment for crimes, 1:176 – 177 Safer Africa (NGO), 1:143 Saint Helena, 1:177 – 180 crime in, 1:178 – 179 finding of guilt in, 1:179 legal system in, 1:178 plea bargaining in, 1:177 punishment for crimes, 1:179


Saint Kitts and Nevis, 2:290 – 297 crime in, 2:291 – 295 finding of guilt, 2:295 – 296 juvenile justice system, 2:293 – 294 prison system, 2:296 punishment for crime, 2:296 rights of the accused, 2:295 – 296 Saint Lucia, 2:297 – 300 crime in, 2:298 finding of guilt in, 2:298 – 299 police in, 2:297 – 298 punishment for crimes, 2:299 – 300 Saint Vincent and the Grenadines, 2:300 – 307 crime in, 2:301 – 302 finding of guilt in, 2:302 – 305 prison system, 2:306 – 307 punishment for crimes, 2:305 – 306 Samoa. See Polynesia San Marino, 4:291 – 296 crime in, 4:292 – 293 finding of guilt in, 4:293 – 295 legal system, 4:293 – 294 police in, 4:291 – 292 prison system, 4:295 – 296 punishment for crimes, 4:295 Sao Tome and Principe, 1:180 – 182 crime/police in, 1:181 finding of guilt in, 1:181 – 182 juvenile justice system, 1:182 legal system in, 1:180 punishment for crimes, 1:182 Saudi Arabia, 1:349 – 361 crime in, 1:352 – 355 finding of guilt in, 1:355 – 359 juvenile justice system, 1:358 – 359 plea bargaining in, 1:357 police in, 1:351 – 352 prison system, 1:360 punishment for crimes, 1:359 – 360 rights of the accused, 1:355 Save the Children (NGO), 1:144 Scotland. See United Kingdom/Scotland Scouts Association of Malawi (NGO), 1:129 Second Optional Protocol to the International Covenant on Civil and Political Rights, 2:16 Senegal, 1:183 – 189 crime in, 1:184 – 186 finding of guilt in, 1:187 – 188 legal system in, 1:183 – 184 police in, 1:184 (photo), 186 – 187 punishment for crimes, 1:188 – 189 Serbia, 4:296 – 304 crime in, 4:298 – 299 finding of guilt in, 4:299 – 302

Index

juvenile justice system, 4:302 – 303 legal system, 4:297 police in, 4:297 prison system, 4:304 punishment for crimes, 4:303 – 304 Serious Organized Crime Agency (SOCA, United Kingdom), 4:362, 374, 391 Seventh United Nations Survey on Crime Trends and the Operations of Criminal Justice Systems, 3:78 Sexual Offenses Act (SOA, Zimbabwe), 1:244 Sexual Offenses and Community Affairs Unit (South Africa), 1:207 Seychelles, 1:189 – 193 crime in, 1:190 finding of guilt in, 1:191 – 192 juvenile justice system, 1:192 legal system in, 1:191 plea bargaining in, 1:191 – 192 police in, 1:189 – 190 punishment /prison system, 1:192 – 193 rights of the accused, 1:191 Sharia Court Evidence (Federal Territories) Act (Malaysia, 1997), 3:149 Sharia Criminal Offences (Federal Territories) Act (Malaysia, 1997), 3:149 Sharia Criminal Procedure (Federal Territories) Act (Malaysia, 1997), 3:149 Sharia law. See Islamic sharia law Shetland, 4:304 – 308 crime in, 4:306 – 307 legal system in, 4:305 police in, 4:305 – 306 prison in, 4:308 punishment for crimes, 4:307 – 308 Shimron Committee (1978, Israel), 1:288 Sierra Leone, 1:193 – 198 crime in, 1:194 finding of guilt in, 1:195 – 196 legal system in, 1:195 – 196 police in, 1:193 – 194 prison system, 1:197 – 198 punishment for crimes, 1:196 – 198 Silk Road Studies Program, 3:271 Singapore, 3:202 – 209 crime in, 3:204 – 205 finding of guilt in, 3:205 – 207 juvenile justice system, 3:207 legal system, 3:202 – 203 police in, 3:203 – 204 prison system, 3:208 – 209 punishment for crimes, 3:207 – 209

Single Convention on Narcotic Drugs (1961, Lesotho), 1:113 Single Convention on Narcotic Drugs in Lesotho, 1:113 in the Philippines, 3:196 Single Convention on Psychotropic Substances, 3:196 Slavery International (NGO), 1:158 (photo) Slovak Republic, 4:308 – 314 crime in, 4:310 – 311 finding of guilt in, 4:311 – 312 juvenile justice system, 4:312 legal system in, 4:308 – 309 police in, 4:309 – 310 prison system, 4:313 – 314 punishment for crimes, 4:313 rights of the accused, 4:312 Slovenia, 4:314 – 323 crime in, 4:316 – 317 finding of guilt in, 4:317 – 319 juvenile justice system, 4:319 police in, 4:315 – 316 prison system in, 4:319 – 323 punishment for crimes, 4:319 – 323 rights of the accused, 4:317 – 318 Solomon Islands. See Melanesia Somalia, 1:198 – 205 crime in, 1:200 – 202 finding of guilt in, 1:202 – 203 Islamic Sharia law, 1:204 penal code of, 1:204 prison system, 1:204 punishment for crimes, 1:203 – 204 Somaliland finding of guilt in, 1:203 prison system /punishment for crimes, 1:204 – 205 South Africa, 1:205 – 211 crime in, 1:206 finding of guilt in, 1:208 – 210 legal system in, 1:208 – 209 police in, 1:206 – 207, 207 (photo) punishment for crimes, 1:210 – 211 South Asia Human Rights Documentation Center (SAHRDC), 3:46 South Korea (Republic of Korea), 3:209 – 217 crime in, 3:212 – 213 Criminal Code Offense (CCO) in, 3:212, 313 finding of guilt in, 3:213 – 215 juvenile justice system, 3:217 legal system, 3:209 – 210 police in, 3:210 prison system in, 3:216 – 217 punishment for crimes, 3:215 – 216


|

I-27

violations of special laws (VSL), 3:213 Spain, 4:323 – 329 crime in, 4:324 – 326 finding of guilt in, 4:327 – 328 juvenile justice system, 4:325 – 326 legal system, 4:323 punishment for crimes in, 4:328 Special Crime Prevention Operations Law (2006, Timor-Leste), 3:255 Sri Lanka, 3:218 – 222 crime in, 3:219 – 220 finding of guilt in, 3:220 – 221 juvenile justice system, 3:221 legal system, 3:218 police in, 3:219 prison system, 3:221 – 222 punishment for crimes, 3:221 St. Vincent and the Grenadines Human Rights Association (SVGHRA), 2:301 – 302 Standard for Minimum Rules for the Treatment of Prisoners (UN), 96 State Department (U.S.) Afghanistan data, 3:9 Angola prison data, 1:6 The Bahamas data, 2:27 Bangladesh data, 3:29 – 30 Bhutan data, 3:42 Botswana prison data, 1:17 CAR prison data, 1:41 Chad data, 1:46 Human Rights report (2007), 1:41 Iraq data, 1:276 Jordan terrorist threat data, 1:299 Kenya data, 1:108 Libya data, 1:328, 329 Macedonia data, 4:216 Mongolia data, 3:162 Montenegro data, 4:238 Myanmar data, 3:169 Paraguay data, 2:273 – 274 Republic of Congo data, 1:60 Rwanda data, 1:173 Rwanda prison data, 1:177 San Marino data, 4:292 Swaziland prison data, 1:217 Tracking of Persons Report, 1:250 Trafficking in Persons Report 2008, 2:267 Uzbekistan data, 3:274 See also Country Reports on Human Rights Practices Statute for Narcotics Hazard Control (SNHC), 3:225 – 226 Statute of Children and Adolescents (Brazil), 2:65

I-28

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe Stimulants Control Law (Japan), 3:101, 107 Stockholm Declaration and Agenda for Action against Commercial Sexual Exploitation of Children, 3:189 Strasbourg Convention on the Transfer of Sentenced Persons (1983), 2:366 Street Children’s Ministry (Malawi, NGO), 1:129 Sudan, 1:361 – 368 crime in, 1:366 – 367 extradition law, 1:367 legal system, 1:361 – 364 police in, 1:364 – 366 prison system, 1:367 – 368 punishment for crimes, 1:362 Suppression of Terrorism Act, 2008 (Swaziland), 1:217 Suriname, 2:307 – 313 crime in, 2:310 – 311 extradition law, 2:313 finding of guilt in, 2:311 – 312 juvenile justice system, 2:312 prison system, 2:313 punishment for crimes, 2:312 – 313 Svalbard and Jan Mayen Islands, 4:329 – 332 crime in, 4:329 – 330 finding of guilt in, 4:330 – 331 legal system in, 4:329 – 330 prison /punishment for crimes, 4:331 rights of the accused, 4:331 Swaziland, 1:211 – 218 crime in, 1:214 – 215 finding of guilt in, 1:215 – 217 legal system, 1:211 – 213 police in, 1:213 – 214 punishment for crimes, 1:217 Sweden, 4:332 – 342 crime in, 4:332 – 334 finding of guilt in, 4:334 – 337 juvenile justice system, 4:337 – 338 police in, 4:332 prison in, 4:339 – 342 punishment for crimes, 4:338 – 339 rights of the accused, 4:340 Switzerland, 4:342 – 352 crime in, 4:344 – 347 finding of guilt in, 4:347 – 349 juvenile justice system, 4:345 – 346, 349 – 350 legal system, 4:343 – 344 punishment for crimes, 4:350 – 351

Syria, 1:368 – 374 crime in, 1:370 – 371 finding of guilt in, 1:371 – 373 legal system in, 1:370 punishment for crimes, 1:373 – 374 Ta’azir punishment in Comoros, 1:52 in Iran, 1:270 in Oman, 1:337 in Saudi Arabia, 1:352 Tackling Violent Crime Act (2008, Canada), 2:81 Taiwan (Republic of China), 3:222 – 232 crime in, 3:224 – 226 finding of guilt in, 3:226 – 230 juvenile justice system, 3:227 legal system in, 3:222 – 223 police system in, 3:223 – 224 prison system, 3:231 – 232 punishment for crimes, 3:230 – 231 rights of the accused, 3:227 – 228 Tajikistan, 3:232 – 239 crime in, 3:234 – 235 finding of guilt in, 3:235 – 237 legal system, 3:233 – 234 police system in, 3:234 prison system, 3:238 punishment for crimes, 3:237 – 238 Tanzania, 1:218 – 226 crime in, 1:219 – 222 extradition law, 1:231 finding of guilt in, 1:222 – 224 juvenile justice system, 1:224 legal system in, 1:222 – 224 police in, 1:218 – 219 punishment for crimes, 1:224 – 226 Terrorism in Algeria, 1:250 – 251, 253 in Angola, 1:4 in Djibouti, 1:64 in Ecuador, 2:144 in Egypt, 1:262 in Ethiopia, 1:77 – 78 in Grenada, 2:168 in Iraq, 1:274, 278, 281 in Israel, 1:285, 287 in Jordan, 1:299, 301 in Kazakhstan, 3:111 in Kenya, 1:106, 107 in Kuwait, 1:305 in Lebanon, 1:324 in Mayotte, 1:147 in Moldova, 4:227 in Niger, 1:159 in Nigeria, 1:164 in Oman, 1:338 in Pakistan, 3:188 – 189


in the Philippines, 3:195 in Réunion, 1:168 in Russia, 4:285 in Saudi Arabia, 1:350 – 351, 353 – 354, 1:353 – 354, 360 in Somalia, 1:199, 201 in Spain, 4:325 in Swaziland, 1:215, 218 in Syria, 1:371 in Tajikistan, 3:235 in Tanzania, 1:221 in Tunisia, 1:375 in Turkey, 3:263 in Uganda, 1:231, 1:233 – 234 in United Arab Emirates, 1:380, 382 in United Kingdom / England, 4:363 in United Kingdom / Northern Ireland, 4:373 in Vatican City and the Holy See, 4:401 in Yemen, 1:384 Terrorist and Disruptive Activities Act (India, 1987), 3:88 Thailand, 3:239 – 251 crime in, 3:240 – 243 finding of guilt in, 3:243 – 247 juvenile justice system, 3:241, 3:246 – 247 legal system in, 3:239, 245 police system in, 3:240 prison system, 3:248 – 250 punishment for crimes, 3:247 – 248 Timor-Leste, 3:251 – 262 courts /commissions for serious crimes, 3:255 – 257 crime in, 3:254 – 255 domestic courts, 3:257 – 259 juvenile justice system, 3:261 legal system in, 3:253 – 254 punishment for crimes /prisons, 3:259 – 261 Togo, 1:226 – 230 crime in, 1:227 – 228 finding of guilt in, 1:228 – 229 legal system in, 1:226 – 227 prisons /punishment for crimes, 1:229 Tokelau. See Polynesia Tonga, 3:350 – 358 crime in, 3:354 – 356 finding of guilt in, 3:356 – 357 legal system, 3:351 – 353 police in, 3:353 – 354 prison system, 3:357 – 358 punishment for crimes, 3:357 Trafficking in Persons Prohibition Act (2003), 2:45 Trafficking in Persons Report (U.S. Department of State), 1:68, 221, 250, 307, 2:267, 3:112

Index

Trafficking Victims Protection Act (U.S.), 1:214, 354 Transcendental Meditation (TM) program, 1:188 TransMONEE database (UNICEF), 3:271 Transnational Federal Charter (Somalia), 1:203 Transnational Federal Government (TFG, Somalia), 1:199 – 200 Transparency International, Global Corruption Barometer, 2:181 Treason and State Offences Act (Sierra Leone, 1963), 1:194 Tribunal of Penal Annulment (Costa Rica), 2:111, 115 Trinidad and Tobago, 2:313 – 322 crime in, 2:316 – 317 finding of guilt in, 2:318 – 319 juvenile justice system, 2:319 legal system, 2:314 – 316 plea bargaining in, 2:319 police in, 2:316 prison system, 2:320 – 321 punishment for crimes, 2:319 – 321 rights of the accused, 2:318 Truth and Accountability Commission (TAC, Bangladesh), 3:34 Tunisia, 1:374 – 377 crime in, 1:375 – 376 finding of guilt in, 1:376 legal system, 1:374 – 375 police in, 1:375 prison system, 1:376 Turkey, 3:262 – 268 crime in, 3:263 – 264 finding of guilt in, 3:264 – 266 juvenile justice system, 3:266 legal system, 3:262 police practices, 3:262 – 263 prison system, 3:267 – 268 punishment for crimes, 3:266 – 267 rights of the accused, 3:265 Turkmenistan, 3:268 – 275 crime in, 3:270 – 272 finding of guilt in, 3:272 – 273 legal system, 3:269 police practices, 3:269 – 270 punishment for crime/prison in, 3:273 – 275 rights of the accused, 3:272 – 273 Turks and Caicos Islands (TCI), 2:322 – 328 crime in, 2:324 – 326 finding of guilt in, 2:326 legal system, 2:323 – 324 prison system, 2:327 – 328 punishment for crime, 2:326 – 328

Tuvalu. See Polynesia Uganda, 1:230 – 236 crime in, 1:231 – 232 finding of guilt in, 1:232 – 233 juvenile justice system, 1:233 legal system in, 1:230 police in, 1:230 – 231 prison system, 1:235 – 236 punishment for crimes, 1:233 – 235 rights of the accused, 1:232 – 233 UK Human Rights Act (1998), 3:341 Ukraine, 4:352 – 360 crime in, 4:353 – 355 finding of guilt in, 4:355 – 357 juvenile justice system, 4:356 – 357 legal system, 4:352 – 353 prison system, 4:358 – 360 punishment for crimes, 4:357 – 358 UN (United Nations) Angola’s commitment to, 1:3 Botswana incarceration rates, 1:16 on crime against women, 1:59 crime survey, 1:181 CVR creation participation, 1:26 forces sent to Somalia, 1:199 Integrated Regional Information Networks, 1:61 – 62 Lebanon Security Council resolutions, 1:313, 3322 MONUC peacekeeping force, 1:55 UN Center for International Crime Prevention (CICP), 2:66 UN Commission of Experts (CoE), 3:257 UN Commission on Human Rights, 1:132 UN Commission on International Trade Law (1985), 3:197 UN Committee against Torture (CAT), 1:332, 3:280 UN Committee on the Elimination of Racial Discrimination, 3:118 UN Committee on the Rights of the Child, 2:59, 3:272 UN Congress on the Prevention of Crime and the Treatment of Offenders (1980), 3:250 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), 1:113, 2:57, 4:19 UN Convention against Psychotropic Substances (1971) Belize data, 2:44 Bolivia data, 2:56 Chile data, 2:94 El Salvador data, 2:153


|

I-29

Honduras data, 2:202 Lesotho data, 1:113 Philippines data, 3:196 San Vicente and the Grenadines data, 2:302 Venezuela data, 2:356 UN Convention against Transnational Organized Crime, 4:79, 196 UN Convention on Organized Crime, 1:239 UN Convention on Psychotropic Substances (1971), 2:56, 94, 153, 202, 302 UN Convention on the Rights of the Child (CRC), 1:360, 3:190 UN Convention on Transnational Organized Crime, 2:166 UN Corruption Report (2001), 1:318 UN Côte d’Ivoire (UNICO) report, 1:101 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 2:103 UN Department of Safety and Security (UNDSS), 3:8 UN Development Program (UNDP) Azerbaijan data, 3:25 Bangladesh data, 3:25 Bhutan data, 3:41 Brunei Darussalam data, 3:52 Cambodia data, 3:52 Guatemala data, 184, 2:179, 181 Laos data, 3:126 Melanesia data, 3:308 Mongolia data, 3:163 Philippines data, 3:198 South Africa data, 1:205 Timor-Leste data, 3:260 UN Drug and Crime Office, 1:98 UN Drug Convention (1988), 2:94, 202, 267, 302 UN General Assembly Special Session on HIV/AIDS (UNGASS) report, 1:306 – 307 UN High Commissioner for Human Rights, 3:260 UN High Commissioner for Refugees (UNHCR), 1:38, 2:30, 98, 3:46 UN Human Development organization, 2:9 UN Human Rights Commission (UNHRC), 1:299 UN Initial Report of States Parties due in 1997, 1:311 UN Integrated Mission in Timor-Leste, 3:254, 258 UN Integrated Regional Information Networks (UNIRIN), 1:33

I-30

|

Index

1: Africa and the Middle East 2: The Americas 3: Asia and Pacific 4: Europe UN Interim Force in Lebanon (UNIFL), 1:313 UN International Crime Victim Survey (UNICVS), 3:56, 57 – 58 UN International Drug Control Programme (UNDCP), 1:319, 3:154 UN International Police (UNPOL), 1:118 – 119 UN Labor Organization, 1:250 UN Land and Property Unit, 3:261 UN Mission in Liberia (UNMIL), 1:118 UN Mission in the Central African Republic and Chad European Union Force (UN MINURCAT), 1:45 UN Office of Humanitarian Affairs, 3:285 UN Office on Drugs and Crime (UNODC) Afghanistan data, 3:8, 10 Bhutan data, 3:42 Botswana data, 1:13 Brazil data, 2:67 Brunei Darussalam data, 3:49 Cape Verde data, 1:32, 33 Colombia data, 2:102 Ethiopia data, 1:78 Guatemala data, 2:180 – 181 Haiti data, 2:196 Kazakhstan data, 3:112 Kenya data, 1:108 Macedonia data, 4:214 Mexico Data, 2:224 Myanmar data, 3:169 Nepal data, 3:176 Panama data, 2:267 South Africa data, 1:206 Suriname data, 2:313 Tunisia data, 1:375 Turkmenistan data, 3:270 Uruguay data, 2:350 – 351 UN Police Vulnerable Persons Unit, 3:260 UN Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, 1:332 UN Report on International Human Rights, 2:249 UN Single Convention on Narcotic Drugs (1961, 1972 amendment), 2:56, 94, 302 UN Special Panels for Serious Crimes, 3:256

UN Special Rapporteur for Violence Against Women, 1:276, 3:4, 238 UN Standard for Minimum Rules for the Administration of Juvenile Justice, 1:241, 2:229 UN Standard for Minimum Rules for the Treatment of Prisoners, 2:18, 115 UN Survey of Crime Trends and Operations of Criminal Justice Systems, 1:214, 370 – 371 Hong Kong data, 3:78 Latvia data, 4:188 Macedonia data, 4:213, 214 Nepal data, 3:176 Saudi Arabia data, 1:360 Turkmenistan data, 3:271, 273 UN Tenth Survey of Crime Trends and Operation of Criminal Justice Systems, 1:299 UN Trafficking in Persons Protocol, 1:371 UN Transitional Administration (UNTAET), 3:253, 259 UN Transitional Authority in Cambodia (UNTAC), 3:53, 56 UN World Crime Survey, 1:355, 2:158 Undang-undang Melaka laws (Malaysia), 3:141 UNICEF DRC children data, 1:55 Malawi juvenile data, 1:132 – 133 police training in Sudan, 1:366 Saint Vincent and the Grenadines data, 1:305 Swaziland data, 1:214 TransMONEE database, 3:271 Turkmenistan data, 3:271 – 272 Uniform Crime Reports (UCR) Canada data, 2:76 – 77 Navajo Nation data, 2:241 United States of America data, 2:330 – 332 United States Virgin Islands data, 2:342 Uruguay data, 2:350 United Arab Emirates (UAE), 1:377 – 384 crime in, 1:378 – 380 finding of guilt in, 1:380 – 382 legal system in, 1:378 – 381 police in, 1:382 prison /punishment for crimes, 1:383 United Kingdom/England, 4:360 – 371 crimes in, 4:362 – 364 finding of guilt in, 4:364 – 366 legal system, 4:361 – 362 police in, 4:362


prison system, 4:369 – 370 punishment for crimes, 4:366 – 369 United Kingdom/Northern Ireland, 4:371 – 379 crime in, 4:374 – 377 juvenile justice system, 4:375 – 376 legal system, 4:371 – 372 police in, 4:373 – 374 prison system, 4:379 punishment for crimes, 4:377 – 379 terrorism in, 4:373 United Kingdom/Scotland, 4:380 – 389 crime in, 4:380 – 381 finding of guilt in, 4:383 – 385 juvenile justice system, 4:385 legal system, 4:383 police in, 4:381 – 382 prison system, 4:387 – 388 punishment for crimes, 4:385 – 387 rights of the accused, 4:384 United Kingdom / Wales, 4:389 – 397 crime in, 4:391 – 394 juvenile justice system, 4:396 legal system, 4:389 – 391 police in, 4:391 prison system, 4:395 – 397 punishment for crimes, 4:394 – 395 United States of America, 2:328 – 339 CARE campaign, 1:190 Constitutional Amendments, 2:332 – 333, 344 crimes in, 2:328 – 331 Democracy, Human Rights, and Labor Bureau, 1:144 extradition law, 2:338 – 339 finding of guilt in, 2:332 – 335 juvenile justice system, 2:335 – 337 legal system, 2:327 – 328, 334 – 335 Narcotics Agreement (1984), 2:84 plea bargaining in, 2:334 prison system, 2:327 – 328 punishment for crime, 2:335 – 339 rights of the accused, 2:332 – 333 Trafficking Victims Protection Act, 1:214 withdrawal from Somalia, 1:199 United States Virgin Islands (USVI), 2:339 – 347 crime in, 2:342 – 343 finding of guilt in, 2:343 – 344 juvenile justice system, 2:345 legal system, 2:339 – 340, 2:339 – 341 police in, 2:342 prison system, 2:345 – 346 punishment for crime, 2:344 – 345 Universal Declaration of Human Rights (1948), 1:101, 3:4, 189

Index

Universal Declaration of Rights of Man, 2:55 Universal Jurisdiction Courts of First Instance (Armenia), 3:17 – 18 Uruguay, 2:347 – 353 crime in, 2:349 – 351 finding of guilt in, 2:351 – 352 juvenile justice system, 2:352 legal system, 2:348 – 349 prison system, 2:352 – 353 punishment for crime, 2:352 – 353 rights of the accused, 2:352 U.S. Agency for International Development (USAID) Belize data, 1:42 Guatemala data, 2:181, 184 Mexico data, 1:226 Paraguay data, 1:271 Uruguay data, 1:348 Zambia data, 1:239 Uzbekistan, 3:275 – 286 crime in, 3:280 – 282 finding of guilt in, 3:276 – 280 juvenile justice system, 3:279, 284–285 policing practices, 3:275 – 276 prison system, 3:285 – 286 punishment for crimes, 3:282 – 285 rights of the accused, 3:279 – 280 Vanuatu. See Melanesia Vatican City and the Holy See, 4:397 – 403 crime in, 4:401 – 402 finding of guilt in, 4:400 – 401 legal system, 4:399 – 400 punishment for crimes /prison in, 4:402 – 403 Venezuela, 2:353 – 366 crime in, 2:355 – 357 finding of guilt in, 2:357 – 360 juvenile justice system, 2:360 – 361 legal system, 2:354 – 355 prison system, 2:363 – 366 punishment for crimes, 2:361 – 363 rights of the accused, 2:357 Victims and Witnesses Protection Program (El Salvador), 2:155

Vietnam, 3:286 – 298 crime in, 3:289 – 291 finding of guilt in, 3:291 – 295 juvenile justice system, 3:295 legal system, 3:286 – 287 policing practices, 3:287 prison system, 3:296 – 297 punishment for crimes, 3:295 – 296 Violations of Arms Act (1965, Pakistan), 3:188 Violence against women in The Bahamas, 2:26 in Afghanistan, 3:9 in Antigua and Barbuda, 2:7 in Bolivia, 2:59 in Botswana, 1:13 in Burkina Faso, 1:19 – 20 in Comoros, 1:51 in Equatorial Guinea, 1:68 in Guinea, 1:92 in Kenya, 1:106 in the Palestinian Territories, 1:343 in Somalia, 1:200 – 201 See also Domestic violence; Rape Violence Against Women Surveys (Finland), 4:105 Wales. See United Kingdom/Wales Wallis and Futuna. See Polynesia West Pakistan Family Ordinance (1964), 3:190 White Paper on Crime (South Korea), 3:212 Wildlife crimes in Kenya, 1:107, 107 (photo) in Zambia, 1:239 Witness-Protection Program (South Africa), 1:207 Women and Children Repression Prevention Act (Bangladesh), 3:30 Women’s Empowerment Conference (Saint Kitts and Nevis), 2:294 Women’s Justice Unit of the Judicial System Monitoring Programme (Timor-Leste), 3:255 Women’s Network of Timor Lorosa’e, 3:255


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I-31

World Drug Report (UN Office on Drugs and Crime), 2:67, 267, 350, 3:49, 4:214 World Health Organization (WHO) Egypt homicide data, 1:262 Gabon data, 1:80 Haiti data, 2:196 HIV/AIDS report (2002), 1:45 homicide report (2004), 1:19 Iraq Family Health Survey, 1:276 Kenya homicide data, 1:106 Kyrgyzstan data, 3:119 – 120 Latvia data, 4:188 Turkmenistan data, 3:271 World Organization against Torture, 1:45, 3:275 The World Prison Population List Jordan data, 1:301 Myanmar data, 3:170 – 171 Qatar data, 1:349 Syria data, 1:373 United Arab Emirate data, 1:383 Yemen, 1:384 – 387 crime in, 1:384 – 385 legal system in, 1:385 – 386 police in, 1:385 punishment for crimes, 1:386 Youth Justice Law (2005, Cayman Islands), 2:83, 86 Zambia, 1:236 – 242 crime in, 1:238 – 240 finding of guilt in, 1:240 juvenile justice system, 1:241 legal system, 1:237 police in, 1:237 – 238 prison system, 1:241 – 242 punishment for crimes, 1:240 – 242 Zimbabwe, 1:242 – 246 crime in, 1:243 – 244 finding of guilt in, 1:244 – 245 legal system in, 1:242 – 243 prisons/punishment for crimes, 1:245 – 246, 246

Crime and Punishment around the World, Volume 3: Asia and Pacific

Crime and Punishment around the World, Volume 2: The Americas

Crime and Punishment around the World, Volume 4: Europe

Crime and Punishment around the World, Volume 1: Africa and the Middle East