Crime and Punishment around the World, Volume 4: Europe

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Volume 4 EUROPE

Crime and Punishment around the World

© 2011 ABC-Clio. All Rights Reserved.

Crime and Punishment around the World EUROPE

Volume 4

MARCELO F. AEBI AND VÉRONIQUE JAQUIER, VOLUME EDITORS GRAEME R. NEWMAN, GENERAL EDITOR


Copyright 2010 by Marcelo F. Aebi and Véronique Jaquier, Volume Editors 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

Czech Republic, 75

General Introduction by Graeme R. Newman, xiii

Denmark, 85

Maps, xxiv

Estonia, 93

Map 1. Murder around the World, xxiv

Faroe Islands, 100

Map 2. Imprisonment around the World, xxv

Finland, 103

Map 3. Death Penalty around the World, xxvi

France, 114

Map 4. Corporal Punishment around the World, xxvii

Germany, 123

Volume 4 Introduction by Marcelo F. Aebi and Véronique Jaquier, xxix Maps, xxxiii Country Key to Europe Maps, xxxiii

Gibraltar, 132 Greece, 137 Guernsey, 145 Hungary, 148 Iceland, 156

Map 5. Murder in Europe, xxxiv Map 6. Imprisonment in Europe, xxxv Map 7. Death Penalty in Europe, xxxvi

Ireland, 160 Isle of Man, 170 Italy, 172

VOLUME 4

Jersey, 183

Europe, 1

Latvia, 185

Åland Islands, 1

Liechtenstein, 191

Albania, 4

Lithuania, 197

Andorra, 12

Luxembourg, 207

Austria, 17

Macedonia, Former Yugoslav Republic of, 211

Belarus, 28

Malta, 217

Belgium, 39

Moldova, 226

Bosnia and Herzegovina, 48

Monaco, 235

Bulgaria, 57

Montenegro, 238

Croatia, 66

The Netherlands, 240

Cyprus, 70

Norway, 249 ix © 2011 ABC-Clio. All Rights Reserved.

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Contents

Poland, 256

Switzerland, 342

Portugal, 265

Ukraine, 352

Romania, 274

United Kingdom/England, 360

Russia, 281

United Kingdom/Northern Ireland, 371

San Marino, 291

United Kingdom/Scotland, 380

Serbia, 296

United Kingdom/Wales, 389

Shetland, 304

Vatican City and the Holy See, 397

Slovak Republic, 308 Slovenia, 314

General Bibliography, 405

Spain, 323

About the Editors and Contributors, 413

Svalbard and Jan Mayen Islands, 329

Categorical Index, 421

Sweden, 332

Index, I-1


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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Imprisonment around the World

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

Corporal Punishment around the World

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Introduction

Volume 4 of Crime and Punishment around the World includes entries on 56 European countries and legal entities. It contains all Member States of the Council of Europe, with the exceptions of Armenia, Georgia, and Azerbaijan—which, for technical reasons, were included in Volume 3: Asia and Pacific—and Iceland. It also includes essays on territories such as Gibraltar; the Åland, Faroe, Guernsey, Man, Svalbard and Jan Mayen Islands; as well as the Vatican; and four entries for the United Kingdom (England, Northern Ireland, Scotland, and Wales). Going through these essays, the reader will probably be surprised by the huge diversity of the European criminal justice systems. A traditional distinction, whose origins can be traced back to Roman times, can be made between countries that apply the common law system (the United Kingdom and Ireland) and countries that apply the civil law system (the rest of Europe), which was inspired by Roman law. However, this apparent uniformity in continental Europe hides differences that in many cases are due to historical reasons. In this context, the collapse of the Soviet Union has played a major role on crime and justice in contemporary Europe. It had an influence on crime opportunities and crime rates, on the evolution of prison population rates, and on the criminal justice system in general because, since the 1990s, most Central and Eastern European countries have adopted new criminal codes. In the following paragraphs, we will comment on the European situation according to the main snapshot indicators described by Graeme Newman in the General Introduction to Crime and Punishment around the World. We will also include a series of suggested readings on crime and justice in Europe and Web sites where data on these issues can be downloaded. Additional general works on world crime and punishment can be found in the General Bibliography.

Europe and the Death Penalty One of the distinctive factors of Europe is that all countries have abolished corporal punishment and that all the Member States of the Council of Europe have abolished the death penalty or introduced a moratorium on its application. The Council of Europe is an international organization founded in 1949 by 10 countries and that, in 2010, has 47 member countries. Thus, it includes all European countries with the exception of Belarus. Its main mission is to protect human rights, pluralist democracy, and the rule of law. xxix © 2011 ABC-Clio. All Rights Reserved.

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The Council of Europe’s Parliamentary Assembly has played a major role in the abolition of the death penalty, particularly through the adoption of Protocol No. 6 to the European Convention on Human Rights (ECHR), which entered into force on March 1, 1985, and provides for the abolition of the death penalty in peacetime. Article 1 of that protocol states that “The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.” In 1985, the Council of Europe counted 21 Member States and, since then, it has been an obligation for all countries seeking membership of the council to comply with Protocol 6. As a consequence, with the exception of Belarus, there have been no executions in Europe since 1997. Moreover, on July 1, 2003, Protocol No. 13 to the ECHR entered into force. This protocol abolishes the death penalty under all circumstances, which implies that such penalty shall be applied even for acts committed in time of war or imminent threat of war. Only Azerbaijan and Russia have not signed the protocol, while Armenia, Latvia, and Poland have signed it but not yet ratified it. However, with the exception of Russia, which introduced a moratorium on the death penalty, and Latvia, which abolished the death penalty for ordinary crimes but kept it for crimes committed in wartime, all the Council of Europe Member States have abolished the death penalty.

Homicide in Europe In the 2000s, Europe had a median of less than 2 completed intentional homicides per 100,000 inhabitants. When attempts are included, the median is still lower than 4 homicides per 100,000 inhabitants, according to the 2006 European Sourcebook of Crime and Criminal Justice Statistics. This means that, in a comparative perspective, European homicide rates are quite low. The information presented in the map on page xxxiv may be misleading because the rates have been calculated on the basis of both completed and attempted homicide, and the way in which the latter is registered varies widely across Europe. For example, in the Netherlands and Scotland, less than 20 percent of the total homicides are completed homicides, while in other countries they represent more than 80 percent of them. Thus, international comparisons of homicide rates should only be conducted using the rates for completed homicide, excluding attempts. When such comparisons are made, it can be seen that the rates in Central and Eastern Europe are slightly higher than in Western Europe.

Corruption in Europe According to the 2009 Corruption Perceptions Index, 12 out of the 20 countries with the lowest levels of perceived corruption are Western European countries. This cluster includes the five Scandinavian countries, Switzerland, the Netherlands, Luxembourg, Germany, Ireland, Austria, and the United Kingdom. The only countries with a high level of perceived corruption are Russia (146 out of 180 countries) and Belarus (139). In the rest of the continent the rates are predominantly low, or medium. © 2011 ABC-Clio. All Rights Reserved.

Introduction

European Prison Population Rates In a comparative perspective, Europe is a continent with a low prison population rate. As shown in the map on page xxxv, the highest prison population rates can be found in Eastern Europe, in particular, in the former Soviet republics. However, a more detailed analysis of prison populations in Europe, based on the Council of Europe Annual Penal Statistics (SPACE), shows that between 2000 and 2007 the rates of these countries have been decreasing, while during the same period, prison population rates have slightly increased in Western Europe. The same analysis shows that the number of foreign detainees is very low in Central and Eastern European countries, while they are overrepresented in Western Europe, especially in countries exposed to important flows of illegal immigrants as well as in entry and transit countries for drug trafficking. The situation is aggravated by the fact that many foreigners cannot benefit from alternatives to pretrial and imprisonment because they are not legally established in the country where they are imprisoned.

Learn More Both for authors who believe that criminology was born with the publication of On Crimes and Punishments, by Cesare Beccaria, in 1764, and for those who believe that the scientific era of criminology starts with the Italian Positivist School by the end of the 19th century, Europe, and in particular Italy, is the birthplace of criminology. Nowadays, the main forum for European criminologists is the European Society of Criminology (http://www.esc-eurocrim.org), and a lot of relevant information on crime and punishment in Europe, including the programs of the annual conferences, is available on its Web site. Readers interested in obtaining data on crime in Europe can download the databases of the different editions of the European Sourcebook of Crime and Criminal Justice Statistics (www.europeansourcebook.org), which includes police, prosecution, conviction, and correctional statistics since 1990 as well as some data on victimization. Detailed data on prisons in Europe since 1983 can be found in the Council of Europe Annual Penal Statistics (www.coe.int/prison). Victimization data for many European countries are available through the databases of the International Crime Victim Survey (ICVS), which can be downloaded directly from the UNICRI Web site (http://www.unicri.it/wwd/analysis/ icvs/data.php). Many European countries have also participated in the first and second wave of the International Self-Reported Delinquency Study (ISRD), but the databases are not available yet. In recent years, a lot of publications have analyzed different aspects of crime and punishment in Europe. Of particular interest are the country reports included in different issues of the European Journal of Criminology as well as some special issues of the European Journal on Criminal Policy and Research, specifically the ones 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). The European Commission for the Efficiency of Justice, © 2011 ABC-Clio. All Rights Reserved.

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which belongs to the Council of Europe, has conducted and published in 2008 an Evaluation of European Judicial Systems (http://www.coe.int/t/dghl/cooperation/ cepej/evaluation/default_en.asp). Some other useful sources of information are listed below. 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 A. Linde. (2009). Review of the Current Situation in Respect of the Collection of Survey Data on Victimization. Lausanne: Université de Lausanne. Aebi, M. F., and N. Delgrande. (2009). Council of Europe Annual Penal Statistics SPACE I: Survey 2007. Strasbourg: Council of Europe. 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. 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. 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. —Marcelo F. Aebi and Véronique Jaquier University of Lausanne

Acknowledgements The editors of this volume would like to thank Miriam Pina, currently at the University of Porto, who collaborated with us during the first steps of this project.


Country Key to Europe Maps Åland Islands

AX

Latvia

LV

Albania

AL

Liechtenstein

LI

Andorra

AD

Lithuania

LT

Austria

AT

Luxembourg

LU

Belarus

BY

Macedonia, Former Yugoslav Republic of (FYRM)

MK

Belgium

BE

Malta

MT

Bosnia and Herzegovina

BA

Moldova

MD

Bulgaria

BG

Monaco

MC

Croatia

HR

Montenegro

ME

Cyprus

CY

Netherlands

NL

Czech Republic

CZ

Norway

NO

Denmark

DK

Poland

PL

Estonia

EE

Portugal

PT

Faroe Islands

FO

Romania

RO

Finland

FI

Russia

RU

France

FR

San Marino

SM

Germany

DE

Serbia

RS

Gibraltar

GI

Slovak Republic

SK

Greece

GR

Slovenia

SI

Guernsey

GG

Spain

ES

Hungary

HU

Svalbard and Jan Mayen Islands

SJ

Iceland

IS

Sweden

SE

Ireland

IE

Switzerland

CH

Man, Isle of

IM

Ukraine

UA

Italy

IT

United Kingdom

GB

Jersey

JE

Vatican City

VA

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Imprisonment in Europe

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Death Penalty in Europe

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Europe Åland Islands

work in connection with criminal cases. Because the landscape is so varied, the police force is split in three groups, one located in Mariehamn, one located in the archipelago, and one located in the countryside.

Legal System: Civil Death Penalty: No Corporal Punishment: No

Background

Crime

The Åland Islands became a self-governing part of Finland in 1922 after World War I. The islands have a home rule system, which means that they themselves pass legislation in a number of areas, whereas other fields are regulated by Finnish law. As a selfgoverning part of Finland, Åland has been authorized to consider certain types of international treaties by itself. Åland has, for instance, decided not to be a part of the European Union even if Finland joined it in 1994. If you are born on the Åland Islands, you automatically have two citizenships, Finnish and the so-called homeland-right of the Åland Islands, åländsk hembygdsrätt. Without homeland-right, you are not able to buy land or residence on the islands. A person who has lived on the islands for five years can apply for citizenship, but it is quite difficult to receive. Young men with homeland-right are excused from joining the Finnish Army, which otherwise is mandatory for all men when reaching the age of 18. Åland has its own police department, which is under the Ministry of Domestic Affairs, like all the other police districts in Finland. Its jurisdiction is the whole of Åland Islands, and it deals with keeping order, doing investigations, and other police

Classification of Crimes Finnish law applies to crimes committed in Finland, to Finnish ships or aircrafts, to foreign ships on Finnish territorial waters, and foreign aircrafts in Finnish air territory. The Finnish Penal Code also applies to crimes committed against Finnish citizens by Finnish citizens in Finland or abroad whenever international commitments apply. People visiting the Åland Island are subject to the jurisdiction of the island, where the regulations differ from those of Finland. For instance, Åland has different punishments for traffic offenses. Most of the separate regulations for punishment are focused on crimes against the environment, road and sea traffic offenses as well as crimes against personal integrity. A person may be found guilty of an offense only on the basis of an act that has been specifically criminalized in law at the time of its commission. The punishment and other sanction under criminal law must be based on law. Furthermore, the act has to be intentional to be punishable. Intent is based on the offender’s idea whether or not the crime will be successful or at least most likely successful. If the consequence is the result of recklessness, the responsibility will be reduced considering the circumstances. An accident is not punishable. An attempt, 1


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however, is punishable but not as harsh as a completed offense and the sentence also depends on the type of crime and circumstances. According to the Finnish Penal Code, the offender has to have reached the age of 15 at the time of the act to be criminally responsible. The offender is not criminally responsible, if he or she at the time of the act, due to mental illness, severe mental deficiency, a serious mental disturbance, or a serious disturbance of consciousness, is not able to understand the factual nature or unlawfulness of his or her act. Intoxication or other temporary mental disturbance induced by the offender is not taken into account in the assessment of criminal responsibility unless there are particularly weighty reasons for this. The court can waive the punishment due to the mental condition of the person accused of an offense, and the court shall then, unless this is obviously unnecessary, submit for clarification the question of the offender’s needs. Violent crimes between spouses have become more common. Crimes including alcohol and drugs as well as snuff are also more common. Snuff is illegal in Finland, but legal in Sweden and was legal to buy tax free on cruise ships going from Finland to Sweden when mooring in Mariehamn, but the Finnish government prohibited this two years ago. Smuggling snuff has been a big problem since. Nowadays one can possess snuff if it is bought outside Finland, but only for one’s own use. Other drugs like cocaine, opium, khat (cathinone), cannabis, and psilocybe mushrooms (widely known as “magic mushrooms”) are strictly forbidden to use, sell, grow, or transport.

Crime Statistics Most crimes are committed by offenders between 21 and 39 years old. According to statistics from the Criminal Sanctions Agency covering early 2003 until the end of 2007, homicide and other crimes of violence were the most common committed by those convicted. Women are approximately 6.9 percent of all prisoners. Homicide and other violent crimes, represent 39 percent of all crimes. Theft, drunk driving, and drug offenses about 14 percent

each. Burglary presented about 5 percent of all crimes. According to statistics from the Finnish Police Department, around 600 traffic offenses are reported every year on Åland Island. An average of 80 percent of all the cases are solved according to the Finnish Police Department. Statistics of all crimes committed on the Åland Islands show that most of the crimes are committed during the summer months, June, July, and August. Over 60 percent of about 600 criminal cases, in the district court on Åland during 2008, were related to alcohol. The rest were mostly drug-related offenses, drug offenses, and minor thefts to get money for drugs. The offender was intoxicated in almost every case concerning assault and battery, both when within the family or other cases.

Finding of Guilt Finland has a number of different methods dealing with criminal offenses. The most common way is going to trial. Minor cases in the district court, where the highest sentence is a maximum of one year in prison, are resolved by one judge and three members of the community. If the vote is a draw the judge’s opinion matters. Major offenses are handled by three judges. If the case is clear and both parties agree, the case can be settled by written consent. Another method to ease the burden on the courts is settlement or reconciliation between victim and offender. It is a voluntary process often used before going to court in minor criminal cases. It has been an effective way to make the court process faster and reduce costs. This process, however, has not been a part of the court system on Åland. In 2005 some members of the Åland Parliament proposed making dispute settlement a part of the system. The proposal was dismissed. A person suspected of an offense has the right to take care of the defense on his or her own in criminal investigations and in a trial. On the request of the suspect, a defense counsel must be appointed. Depending on the offender’s income, the state has a duty to provide the offender with legal assistance. To assist someone at a trial, one has to have a master’s in law. The language of the trial is Finnish or


Åland Islands

Swedish depending on the offender’s mother tongue and if necessary the state has to provide an interpreter. Everyone also has the right to a speedy trial. The time between prosecution and trial must be within 2 weeks. If the charges are against a juvenile, the trial should preferably happen within 30 days. A person suspected of an offense can be taken into custody by the police for no more than 72 hours. If no charges are brought before that, the police have to free the suspect. The public prosecutor must bring a charge always when there is a prima facia case against the suspect. But in case of a prosecution, the suspect can be held as long as the trial is not settled. Juveniles are treated a little differently. Young offenders under the age of 18 can be sentenced to a juvenile sentence of a minimum of four months and maximum of one year. The punishment consists of supervised discussions, assignments, and programs that support and develop the social ability and capacity in society. Assistance at the workplace can also be a part of the punishment. Those juveniles who are sentenced to prison usually serve their time in special juvenile facilities. Cases from Turku Court of Appeal and the Supreme Court that concern Åland are mostly offenses against the road traffic regulations, offenses against building regulations, or cases concerning homelandright, though there are some exceptions. In one case from Turku Court of Appeal an offender had been driving a motorcycle that was not registered as it should be according to the law. The offender had been driving without a helmet with 1.18 percentage of alcohol in his blood. The highest amount allowed is 0.5. The Åland district court classed this as drunk driving and the other offenses as traffic misdemeanors and sentenced the man to a €1,050 (US$1,320) fine. The case was taken to the Turku Court of Appeal where it surprisingly was dismissed. After hearing a couple of witnesses and a statement from the offender, the court found that the offender had bought his motorcycle from a bicycle salesman, and that it had very low power and almost could be considered a bicycle. The court found further that the offender could not be held responsible since it was not obvious that the vehicle was a motorcycle that

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one has a duty to register. Furthermore, Finnish law allows people to ride bicycles while drunk as long as nobody else’s life is at risk.

Punishment Types of Punishment The Åland Islands has for the most part the same kind of punishments as Finland. The general penalties are imprisonment, probation, community service, fines, and summary penal fees. The special penalties for public officials are dismissal and warning. The most common punishment in Finland is still fines. Almost all minor offenses are punished with day-fines. The system is progressive, meaning that the amount of one day-fine depends on the offender’s daily income. One can be sentenced to pay a fine of 120 times the day-fine, based on the amount counted from the offender’s income. Fines can also be converted to a prison sentence if necessary. Another type of fine is the summary penal fee, which is a fixed fine often given for minor offenses against road traffic or sea traffic regulations. A sentence of imprisonment may be passed either for a fixed period or for life. A sentence of imprisonment for a fixed period may be at least 14 days and at most 12 years or, when sentencing to a joint punishment, at most 15 years. For a killing to be considered as a murder and given a life sentence, the killing has to be very harsh, otherwise it is seen as manslaughter, for which the sentence is usually 8 to 12 years. Other prison sentences, for example, serious theft, burglary, or robbery can vary, depending if it is first time, or repeat offenders, from 2 to 4 or 6 years of prison. The Finnish Penal Code has a long chapter on drug offenses, which are considered as very serious offenses. For trying to produce or for producing, or for growing or dealing the sentences are up to 4 years of prison. If the crime is considered serious, the sentence can be as much as more than 10 years.

Prison Finland has 41 prisons all over the country. The Åland Islands, though, has no prison. If an offender


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is sentenced to time in prison by the district court of Åland, he or she will spend time in the prison in Turku. Appeals go to the Turku Court of Appeal, mostly because the working language is Swedish, even though the district court on Åland Island comes under the administration of the Department of Justice in Helsinki. According to statistics from December 31, 2007, Finland held around 3,540 prisoners at that time, and 77 percent of them were doing their time in a closed facility, while 23 percent were placed in an open facility. People working in the prisons are almost as many; according to the same source there were around 2,818 officers and employees. Anna Gustafson Further Reading Åland Parliament: http://www.government.ax. Finnish Judicial System: http://www.oikeus.fi. Finnish Penal Law and the Code of Judicial Procedure: http://www.finlex.fi. Finnish Police Department: http://www.poliisi.fi.

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

Background Albania, with Tirana as its capital, is situated in southeastern Europe, to the west of the Balkan Peninsula. Until 1912, Albania was under Ottoman rule. Albania proclaimed its independence on November 28, 1912, and fought against fascism in World War II. Up to 1992, it was under the dictatorship of the proletariat and was one of the most

isolated countries in Eastern and Central Europe. With the fall of the Soviet system Albania took the path of pluralist democracy and a market economy. From 1990 to 1997, Albania went through several mass exoduses of Albanians chiefly toward Italy, Greece, and neighboring countries and several other countries of Europe. More than 1,200,000 Albanians live in Italy, Greece, and other countries of Europe, the United States, and Canada. In 2007, Albania’s population was 3,601,000 inhabitants.

Legal System Until the proclamation of independence, Ottoman laws were enforced in certain areas of Albania and the common law in others (not written, but later collected and codified). After the proclamation of independence, the first Albanian government, known by the name of Vlora, prepared several important laws concerning judicial organization, the establishment of a jury and the procedures for its selection. During the period of the republic (1925–1928), there were also religious courts and juries. In the period of the monarchy (1928–1939), the judicial system was organized in the form of courts of peace, which deliberated on contraventions and small cases, first instance courts, courts of appeal, and the Supreme Court. The prosecution was under the authority of the chief prosecutor and under the management of the ministry of justice. Judges and prosecutors were selected by a commission and appointed by a royal decree. During the fascist occupation of Albania (1939– 1944), the existing judicial structures were left untouched. Meanwhile, partisan courts were established adjudicating crime and culpability in the context of the National Liberation War. Major reforms occurred in which regional courts, neighborhood courts, rural, and urban courts were reorganized in 1968 and 1973. The Constitution of 1976, known otherwise as the Constitution of the People’s Socialist Republic of Albania, was introduced to overtly defend a state based on the dictatorship of the proletariat. Having emerged from the totalitarian communist system in 1992, Albania today is a country with


Albania

a new democracy. The Main Constitutional Provisions on Human Rights and Freedom were approved in 1993, and after 1995, all fundamental laws were approved such as the Criminal Code, the Civil Code, the Labor Code, the Family Code, the Criminal Procedure Code, and the Civil Procedure Code. The Constitution of the Republic of Albania approved on November 28, 1998, regulates the judiciary in Albania.

Courts The judicial power in Albania is exercised by the first instance courts, courts of appeal, and the Supreme Court. Judicial district courts and the Court for Serious Crimes are first instance courts. Judicial district courts are organized and operate according to the judicial districts throughout the territory of Albania. The first instance courts handle preliminary investigations and juridical relations with foreign authorities. One judge adjudicates criminal offenses that are punishable by a fine or a prison term of no longer than 7 years, while a panel composed of three judges adjudicates the rest of the criminal offenses. During the period of 2002–2007, there was an increase in the number of cases reviewed by the first instance courts. Criminal cases occupied 14–19 percent of the total of court-tried cases. The rest were civil, family, and trading cases. There was an increase of the volume of criminal cases from year to year, due to the rise in crime rates but also to changes in criminal procedures after 2001. Courts of appeal and the Court of Appeal for Serious Crimes are second instance courts. Courts of appeal, composed of a panel of three judges, examine in second instance cases tried by the judicial district courts. Complaints against decisions of the first instance courts are also tried by these courts. During the period of 2005–2007, the number of appeals decreased from 2,608 in 2006 to 1,805 in 2007. The right to appeal rests with the prosecutor and the defendant. The defendants make the majority of complaints. The Supreme Court has original jurisdiction in hearing by the General Prosecution Office on

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important cases involving members of the government, of Parliament, of the Supreme Court, deputy ministries, the general prosecutor, and his or her assistants (being judges or prosecutors), and it also has review jurisdiction. The Supreme Court is composed of a panel of five judges. During the period of 2005–2007, there was a decline in the number of appeals. The majority of appeals have been submitted by the defendants, though in 2007, the number of appeals registered was 54, with 31 of them exercised by the prosecutor. In 2003, the Court for Serious Crimes and the Court of Appeal for Serious Crimes were established to examine high-risk crimes, defined in the law as crimes against humanity (murders, trafficking of human beings, trafficking of narcotics, trafficking of children, terrorism-related criminal offenses, etc.), and crimes committed by armed gangs and criminal organizations. These courts adjudicate also cases of such crimes committed by juveniles. Both courts are organized and function in one or more judicial districts. Currently, there is a Court of First Instance for Serious Crimes in Tirana, and a second one attached to the Court of Appeal in Tirana. The First Instance Court for Serious Crimes adjudicates by the means of a five-judge panel. During 2007, this court tried 124 cases and it had completed 62 of them. In addition, there are currently 21 district courts. In 2007, there were 270 judges. There are also 6 courts of appeal and one Supreme Court. Military criminal courts continued to operate until 2007 when they were abolished. Criminal cases according to the military criminal code are currently tried by the criminal courts. The president of Albania, based on the proposal made by the High Council of Justice, appoints judges at first instance courts and courts of appeal, while the Assembly of Albania elects Supreme Court judges based on the proposal of the president. There is a Constitutional Court, which is not part of the judiciary system but guarantees adherence to the Constitution and provides final interpretations of it. This court consists of nine members appointed by the president with the consent of Parliament. The right to put the Constitutional Court in motion


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rests with the president, the prime minister, no less than one-fifth of Parliament members, individuals, political parties, and other organizations. In 1999, the institution of the ombudsman was established as an independent constitutional institution protecting the rights, freedom, and legitimate interests of individuals from illegal and inappropriate actions or nonactions of the public administration.

Police The Albanian police were founded in 1913. Initially part of the military, in 1999, the police became part of the public administration. The police are organized at a central and local level. The general directorate makes up the central level of the police, while regional police directorates, regional border and migration police directorates as well as their subordinate structures make up its local level. Regional police directorates, regional border and migration police directorates, police commissariats, border and migration police commissariats, police stations, and border and migration police stations are also part of the police. In every region, there is a regional police directorate supporting and supervising police operational activities undertaken by the police commissariats and stations found within the region it manages. Every regional police directorate is composed of police commissariats carrying out operational tasks and duties in compliance with the functions of the police. Police stations are established and operate upon the order of the general director of state police and upon the proposal of the regional police director in certain geographical areas, within the territory of a commissariat. The number of police officers has declined from 12,394 in 2003 to 9,700 in 2007. Specialized departments deal with crime prevention and fight organized crime, financial crime, illegal trafficking, money laundering resulting from illegal activities, domestic violence, and juvenile crime. An Office of National Coordination was established at the Ministry of Interior to fight trafficking of human beings. The Training and Police Schooling Department, Support Services Department, and the

Professional Standards’ Department provide continuous development and training of police officers in the state police.

Crime The current Criminal Code is based on the constitutional principles of the rule of law, equality before the law, justice in the assignment of culpability and punishment as well as humanism (article 1/c). The Criminal Code of 1995 lists criminal offenses against life (the person) after those against humanity, followed by criminal offenses against health, sexual crimes, criminal offenses against personal freedom, one’s morality and dignity, and so forth. Currently, there exists a Criminal Civil Code, a Criminal Military Code, and Criminal Procedure Code. After 2001, many new crimes have been legislated, such as illegal trafficking, corruption in the private and public sector, economic crime, and terrorism. According to the Criminal Code of 1995, the age of criminal responsibility is 14 years old for crimes and 16 years old for criminal contraventions. The maximum juvenile age extends to 18 years old. In 2007, 198 minors were convicted of crimes and 13 for contraventions. The number of adult cases tried at courts in 2007 was 6,268 and the total number convicted was 5,678. In that same year 325 women were convicted of crimes and 130 convicted of contraventions. Crimes of high social risks are murders, trafficking of human beings and of juveniles, crimes related to narcotics, money laundering, and so forth. Trafficking in human beings, women, and children has been a serious problem since the 1990s. The majority of victims come from the rural areas and from small and poor towns. In recent years, a decline in such crime has been observed. In 2007 there were 10 convictions for trafficking of women for prostitution and 2 for trafficking of minors, compared to 26 and 8, respectively, in 2003. The most common crimes are offenses against property and economic crime, cultivation and trafficking of narcotics, and transporting of drugs such as heroin. Convictions in 2007 were as follows:


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An Albanian police officer stands by new motorcycles, patrol cars, and four-wheel-drive vehicles, provided by the European Union to beef up the country’s border security and aid its fight against gangs trafficking in humans, arms, and drugs, Tirana, February 27, 2006. (AP Photo/Hektor Pustina)

Trafficking of cars Trafficking of firearms and ammunition Money laundering Trafficking of drugs

17 9 5 69

The Criminal Code has been amended several times regarding criminal offenses related to narcotics. The law punishes the sale, offer for sale, delivery or receipt in any form, distribution, trading, transport, sending, delivery and possession, except for personal use and in small doses, of narcotic and psychotropic substances as well as seeds of narcotic plants, in contravention to the law or in excess of its content. Trafficking of narcotics may receive harsh sentences with 10–15 years in prison and serious cases of from 10–20 years. Encouraging others to use narcotic or psychotropic substances or using or injecting others

without their knowledge or consent is punishable by a prison sentence from 5 to 10 years. Despite efforts made to fight criminal offenses motivated by vendetta and blood feuds, in some areas of the country murders are still committed out of vendetta and blood feud, although their number has been decreasing.

Finding of Guilt Rights of the Accused The criminal procedure system is mainly accusatorial, but there are also elements of the inquisitorial system. The Criminal Code of 1995, designed according to the principles of the European Convention of Human Rights, provides for the right to freedom and security of person, the right to be


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informed in a language one understands of the reasons for the arrest and any charge against the person, the right to stand trial within 48 hours of the arrest, the right to appeal a decision of the judge determining the security measure, the right to compensation in case of wrongful arrest or detention, the right to a fair and public trial, the right to a trial within a reasonable time, the right of juvenile defendants to legal assistance, presumption of innocence until proved guilty, the right to a review of the decision of the court, and the right not to be tried twice for the same offense. Justice is administered by the courts through normal and special trials: direct and expedited trials. A direct trial can take place if a person is caught in the act of commission and the public prosecutor submits within 48 hours to the court a request for arrest and trial. An expedited trial can be requested by the defendant or his or her representative and is to be decided by the court. In practice, expedited trials are the more common. The defendant has the right to defend himself or herself or through an attorney. If the person does not have the required means, he or she is provided free legal representation. The defendant is entitled to choose no more than two legal representatives. In the case of a defendant with no representation or left without an attorney, the proceeding body provides him or her with another attorney if he or she requests one. The courthouse or the prosecution cannot continue proceedings in absence of the attorney. Legal and consultation services are also offered by several nonprofit organizations to the poor, children, victims of domestic violence and trafficking, victims of public administration violation of human rights. In December 2008, the Law on Legal Assistance was passed, enabling for the destitute free legal representation in criminal, civil, and administrative proceedings as well as juveniles in need of compulsory representation.

Investigation Criminal investigations take place in two stages: preliminary investigations and court reviews. The prosecutor pursues criminal prosecution, conducts the investigation, checks on preliminary

investigations, brings charges before the court, and takes measures for the execution of decisions in compliance with the rules determined in the Code of Criminal Procedure. Some cases may avoid the standard judicial procedure when the damaged accuser agrees to mediation or dispute resolution. These are mainly criminal contraventions and criminal offenses committed due to imprudence. Mediation is an out-of-court activity carried out by a third person. If a person under investigation is suffering from an ailment, the investigation is interrupted and the person under investigation is sent for compulsory medical assessment. In the case of a mental illness requiring continuous treatment, the court has the right to declare the person irresponsible and exempt him or her from punishment, imposing instead medical measures. The prosecution has the right to decide not to initiate prosecution or dismiss the criminal case under certain conditions, such as the person is deceased, not responsible, or has not reached the age of criminal responsibility, there is no indictment by the damaged party or when the latter withdraws the indictment, if the law does not determine the fact as a criminal offense or when it becomes clear that the fact does not exist, if the criminal offense has been terminated, if amnesty has been granted, and in all of the other cases prescribed by the law. The prosecutor can decide to dismiss charges or the case at any stage of the proceedings according to various conditions specified by law. In 2008, the prosecution decided not to initiate the prosecution of 446 persons, it terminated 4,325 criminal cases, and it suspended 4,647 cases due to the unknown identity of the perpetrator. A person cannot be investigated while under a coercive measure such as prison or house arrest. Coercive measures are determined by a court order, after its evaluation in a court hearing. When the person to be arrested is mentally ill the court may order his or her temporary hospitalization in a psychiatric institution. During the preliminary investigations, the prosecutor asks the court to decide on the hospitalization of the defendant in a psychiatric institution and when delays present risks, it orders the temporary hospitalization until the court reaches a decision.


Albania

Duration of detention varies depending on whether the proceedings involve a contravention or a crime, according to the range of punishment provided for crimes. As a rule, detention cannot be longer than 3 months, when it is applied for a criminal contravention, 6 months for crimes punishable by a prison sentence of up to 10 years, and 12 months for crimes punishable by a minimum of 10 years of prison or life sentence. Likewise, detention loses affect when particular time limits have expired without a decision: 2 months when it is proceeded for a criminal offense, 9 months when it is proceeded for crimes punishable by a prison sentence of up to 10 years, and 12 months when it is proceeded for crimes punishable by a prison sentence of no less than 10 years or life sentence. The total duration of detention is generally 2 years for crimes punishable by prison sentence of less than 10 years and 3 years for crimes punishable by a prison sentence of at least 10 years or life sentence. Court proceedings end in one of these ways: guilt, acquittal, termination, the case is returned to the prosecutor of the case to complete the investigation, or a decision on incompetence. In 2007, out of 6,896 cases heard, 5,221 cases ended with a decision of “found guilty,” 1,280 cases were terminated, 233 were acquitted, and the remainder were undecided. Out of these cases, 4,368 involved crimes and the rest criminal offenses (2,528). In 2007, according to the civil and criminal codes 5,678 persons were punished, 211 of whom were juvenile and 455 female offenders. The majority of criminal cases (tried according to the criminal and civil code) ended with an acquittal decision.

Juveniles In 2006, the president of Albania decreed the establishment of the juvenile divisions in some of the biggest courthouses in the country. Likewise, juvenile departments have also been established in some prosecution offices in the country. There is no special law in Albania regulating juvenile justice, but there exist certain provisions in the material law and the criminal procedure law as well as other laws regulating the treatment of detainees and prisoners.

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The Code of Criminal Procedures contains several rules regarding the prosecution of juveniles. Juvenile offenders are tried by the relevant departments established in specific judicial district courts. Juvenile defendants are provided legal and psychological assistance at any stage of the proceedings. This assistance is provided in the presence of the parent or other persons whose presence is requested by the juvenile and approved by the proceeding authority. All acts and actions are taken in the presence of the attorney, but in the absence of other persons, when such a thing is in the interest of the juvenile or when delays might seriously impair proceedings. The proceeding authority collects information on the personal, familial, and social life conditions of the defendant juvenile. The intention is to evaluate the responsibility and its extent, the importance of the fact, and to impose suitable criminal measures. The court must take into consideration the requirement concerning noninterruption of the educational programs. A juvenile cannot be arrested when accused of a criminal offense; the prosecutor may order that he or she remain under surveillance inside his or her dwelling or in another place under surveillance. The parent or guardian must be notified. The Criminal Procedure Code does not draw any distinction between juvenile and adults regarding detention duration. Court hearings are public. According to the Criminal Procedure Code, juveniles under 16 and those who are drunk, intoxicated, or mentally disabled shall not be allowed in the hearing. However, the trial or certain actions can be held behind closed doors, when it is judged necessary during the questioning of juvenile witnesses. It can be conducted by the chairperson who can be assisted by a family member or a specialist in the field of child education.

Punishment Types of Punishment Albanian criminal legislation has provided for principal and supplementary punishment. The main


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punishments for crimes are life sentence in prison, imprisonment, and fine. The death penalty was proclaimed unconstitutional in 1999. After the changes in the Criminal Code of 2001, the two main punishments for crimes such as smuggling, forgery, trafficking, or money laundering are a prison sentence and a fine. Prison sentences are given for crimes and offenses. The minimum of a prison sentence is 5 days, and the maximum varies according to the offense, although for crimes it is 25 years, and for offenses, up to 2 years. A fine is given for crimes and offenses according to the seriousness of the crimes and offenses. The prison sentence is applied in most of the cases by the Albanian courts for crimes, while fines are typical penalties for contraventions. In 2007, 1,847 out of 5,678 convicts were punished with a fine. Life prison sentences are given by the court for the commission of a serious crime. During 2007, this punishment was imposed in five cases. The Criminal Code also allows for several supplementary punishments: revocation of the right to exercise public functions; confiscation of items used to commit the criminal offense and the products of the criminal offense; restriction to using vehicles; revocation of awards and titles of honor; revocation of the right to exercise a profession or trade, exercise management duties; prohibition to stay in one or several administrative units; expulsion from the territory and obligation to make public the court decision; and compulsory medical treatment. The Criminal Code additionally provides for other alternatives to prison sentences, such as fragmentation of the prison sentence, suspension of the execution of a sentence, suspension of the execution of a prison sentence and performing compulsory public work, and release on parole. Currently the suspension of the execution of a prison sentence for a period of no more than five years is the most common measure applied by the courts. The rest of the measures have found little or no application due to the absence of adequate supervision. In March 2009, the Regulation on the Probation Services was approved and several changes were made in the Criminal Code and in the execution of

criminal sentencing, allowing for wider application of the probation services. Criminal offenses such as murders and armed robberies are punished by long prison sentences, even life in prison. Punishments for theft vary according to the risk level of the offense and the circumstances under which it was committed, recidivism, or collaboration.

Juveniles Educational placement of a juvenile in an educational institution may be required, but there is currently no such institution for children. In 2009, a special penitentiary institution for juveniles sentenced to prison began to operate. Juvenile prison sentences do not exceed half of the term of punishment provided for by the relevant provision. The Criminal Code provides for the exclusion of juveniles from punishment and the reduction of sentences. Out of 211 juvenile offenders punished in 2007, only in 26 cases did the court punish with a fine. The following punishments of offenders were handed down by the civil courts in 2007: Fine Imprisonment up to 2 years 2–5 years 5–10 years 10–25 years Life imprisonment

1,847 2,980 430 246 170 5

Prison Prisons and detention facilities are administered by the General Directorate of Prisons, which operates under the authority of the Ministry of Justice. Albanian prisons are classified according to the security level: high-security prisons, medium-security prisons, and low-security prisons. There are special institutions for sick and disabled people, one in the town of Kruja and another new institution in the town of Durres. There are also specific sections in prisons or hospitals outside for prisoners with special needs. Those offenders under investigation


Albania

pending a final court decision are placed in detention institutions. Perpetrators of organized crime and other convicts, who at the time of commission of the criminal offense or while serving their term, have been characterized by a behavior and attitude that makes their stay in other prison categories impossible serve their sentences in high-security prisons. Prisoners sentenced for criminal contraventions, criminal offenses committed out of negligence, or other criminal offenses punishable by a prison sentence of no more than five years are placed in low-security prisons. The law provides for the possibility of transferring to this type of prison prisoners convicted for criminal offenses different from those cited earlier, but when the following requirements are met: the prisoner must have less than two years of prison term left to serve and must have followed the internal prison regulations. The rest of the prisoners serve their prison sentence in medium-security prisons. Juvenile offenders serve their prison sentences in special facilities separate from the adults; women and men serve their prison sentences in separate institutions. If placing juveniles and women in separate institutions is impossible, the law requires for them to be placed in separate sections of other institutions. Mothers with children under the age of three are allowed to keep their children with them. Today, there is only one female prisoner section in the low-security prison of Tirana and a female as well as a juvenile detention section in one of the detention facilities in Tirana. Life sentence prisoners serve their term in special institutions established for this specific purpose. They are mainly placed in the prison of Burrel, Peqin, and Tepelenë. A prisoner can be transferred from one prison to another for security reasons or to be closer to one’s family. Currently, penitentiary institutions in Albania are located in Burrel, Tepelenë, Tirana, Lushnjë, Rrogozhinë, Peqin, Lezhë, Korçë, Fushë-Krujë, and Kavajë. Several prisons also have detention sections. In some cities there are also detention institutions. The Albanian prison system includes a prison hospital center and a training center for prison

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police based in Tirana. In recent years, Albanian prisons have faced overcrowding problems. In 2008, two new penitentiary institutions were established: one in Fushë-Krujë and another one in Korçë. The application of alternative sentences is expected to alleviate overcrowding in prisons. The 2007 prison population was 2,735 representing a substantial increase over the 2003 number of 1,677. The proportion of inmates is roughly 90 percent male and 10 percent female. There were only 8 minors in prison in 2007. A prisoner enjoys certain rights. The prisoner informs his or her family about the arrival at the institution or about his or her transfer. Family members are immediately notified in case of illness or death of the prisoner. The prisoner has the right to be informed on the death of a relative. Prisoners are entitled to four family visits a month. One of them is an extended visit (for married prisoners). Prisoners are allowed to meet and exchange correspondence with other persons. The right to preserve family contacts is recognized to all prisoners, even to those placed in high-security prisons. Prisoners are allowed to read magazines, newspapers, books, and make use of any type of means of information (radio, television, etc.) available at the institution. Foreign prisoners are entitled to contact diplomatic or consular representatives of their country and have communication facilitated. Prisoners may benefit from special furloughs in case of serious illness of a family member; in the case of birth of the child of a prisoner, or the birth of a child to the children of the prisoner, his or her brothers and sisters; or furlough as a reward for good behavior and when the prisoner does not present any social risk. Prisoners have the right to use the common library and social areas, practice their religion, meet with representatives of their religious community, and so forth. According to the law, all prisoners are entitled to labor, according to their physical and psychological capabilities, guidelines and real possibilities of the prisoners, requirements and discipline regulations of the penitentiary institution. Several categories of prisoners are not required to work during their prison term, such as prisoners


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who have met the requirements to benefit retirement, first and second group disabled people, pregnant women for the time period provided by the law, and those who do not have the necessary physical or health condition to complete the job offered. The stipend of a prisoner can be lower than the minimum wage determined upon the decision of the Council of Ministers. Until now, labor opportunities for prisoners have been very few and stipends have been extremely minimal ($1 per month). Starting from March 2009, a new Regulation of Prisons and Prisoner Labor has been approved that provides for special arrangements. Local organizations monitoring human rights employ various forms of control to guarantee the protection of prisoner and detainee rights. Prisoners are entitled to address requests and complaints to the director of the institution, inspectors, the director general of prisons, the minister of justice, independent monitoring organizations and institutions, national or international, such as the ombudsman institution and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The ombudsman plays a special role in monitoring penitentiary institutions. The ombudsman has the right to visit without prior authorization and at any time all penitentiary institutions where final court decisions are executed. The National Office for the Prevention of Torture and Cruel, Inhumane, or Degrading Treatment or Punishment, established in March 2008, supervises the fulfillment and the respect of the rights of persons deprived of their liberty. The majority of prisoners have little or no education. The law requires that the administration create the necessary conditions for prisoners to complete their 9-year education and the necessary conditions, where possible, to attend high school or university. All persons under the age of 25 years old must undergo cultural and professional development programs. In fact, such programs find little application in the Albanian prisons due to the insufficient space and lack of the necessary funds. Human rights or religious organizations and associations, domestic

and foreign, have undertaken several initiatives through which prisoners are offered various vocational courses. Vasilika Hysi Further Reading Courts and Statistics: http://www.justice.gov.al. Ministry of Interior: http://www.moi.gov.al. Organization for Security and Co-operation in Europe: http://www.osce.org/albania/13143.html. It provides analysis of the criminal justice system and criminal appeal proceedings in Albania.

Andorra Legal System: Customary/Civil Murder: Medium Prison Rate: Low Death Penalty: No Corporal Punishment: No

Background The Principality of Andorra is located on the Mediterranean side of the eastern Pyrenees. It has an area of 468 square kilometers (approximately 17 square miles), and its territory is divided into seven parishes. On March 14, 1993, the first Constitution of Andorra was approved by referendum. According to its article 1, Andorra is proclaimed an independent democratic and social state based on the rule of law, with sovereignty vested in the people. Its political regime is a parliamentary coprincipality. As a result of its historical heritage, the head of state is dual, the co-princes being the bishop of Urgell and the president of France. According to the Constitution, the co-princes are the symbol and guarantee of the permanence and continuity of Andorra, as well as of its independence and its equality with regard to its traditional, balanced relations with neighboring states. The co-princes have


Andorra

limited and symbolic power, and their acts must be endorsed by the head of the government or by the Syndic General and in principle they do not have any political responsibility. The Criminal Code in force in Andorra was issued under Law 9, 2005, which reforms the extinct Criminal Code of 1990. It was the consequence of a long process that originated in the need to harmonize criminal legislation with the Constitution of 1993 and with the principles of legality and subsidiarity of criminal law. The Criminal Code begins with an enunciation of principles, among which are the following: penal guarantee, criminal guarantee, jurisdictional guarantee, prohibition of analogy, the principle of guilt, no double jeopardy, together with the judicial principle of the proportionality of sentences. On the other hand, the existing Criminal Procedure Code of Andorra was issued in 1989 and amended on December 10, 1998, by virtue of the Llei qualificada de modificació del Codi de procediment penal. It was subsequently reformed in 2005 and 2008 under the Llei 16 y qualificada de modificació del Codi de procediment penal. These changes were consolidated by decree-in-session on December 17, 2008.

Police For centuries there was no need to create a professional police force, as the people’s militia was charged with maintaining order. In 1932, the veguers—delegates of the protecting countries— created the Service of Order, with a chief and six agents, to maintain order in the country when there was an increase in the floating population owing to works of the electricity company and the building of highways. The police followed the orders of the veguers and the mayors until the entry into force of the Constitution of 1933. With Law 8/2004, of May 27, known as the Police Corps Act, the police was recognized as an organic part of the public administration, reporting to the government through the Ministry of Justice. Nevertheless, in judicial matters, according to article 94 of the Constitu-

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tion, the judges and the Public Prosecutor’s Office direct the actions of the police. The Police Corps is organized into the Directorate of Police and the following three broad areas: 1. The Area of Criminal Police has jurisdiction in judicial police matters: narcotics, crimes against persons, crimes against property, organized crime, technological crime, etc. 2. The Area of Public Security and Proximity guarantees the safety of citizens and immediate attention in all most evident aspects closest to citizens: deactivation of explosives, transport and control of explosives, interventions in the transfer of high-risk prisoners, maintaining order, protection of dignitaries, etc. 3. The Technical Area gives technical and operational support to the other two areas and to the Directorate: arms inspection, immigration, investigation into traffic accidents, etc.

Crime Classification of Crimes The Criminal Code defines criminal offenses as “purposeful or reckless actions or omissions punished by law,” which can be classified into major crimes, minor crimes, and misdemeanors. This classification is made on the basis of the severity of the conduct. Such conducts are also classified as reckless, in which case they must be expressly established, and as purposeful, which the Court of Andorra defines as those in which the subject is “aware of infringing social values in relation to a material or at least a legal result.” The Criminal Code establishes an extensive number of crimes, including, in particular, the following: • Crimes against human life—homicide, murder, induction to or cooperation with suicide, consent to homicide—and crimes against prenatal human life—nonconsensual abortion, consensual abortion.


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• Crimes against freedom—illegal arrest, slavery, kidnapping, coercion, threats—and crimes against sexual freedom—sexual assault, sexual abuse, favoring prostitution, procuring, child pornography, exhibitionism, and distribution of pornography to minors. • Crimes against honor—slander, insult, libel, and perjury. • Crimes against property—larceny, theft, extortion, fraud, computer fraud, defrauding of communications systems and flows, misappropriation of funds, privileged appropriation, disloyal administration, receiving stolen property, punishable bankruptcy. • Crimes against the socioeconomic order— crimes against intellectual property, crimes against rights patents and utility models, crimes against trademark rights, defrauding the Caja Andorrana de Seguridad Social, contraband, illegal financial activity, usury and tax fraud. In relation to the control of these forms of criminality, special laws have been passed such as the international criminal law to combat money laundering or proceeds of international crime in 2000. • Crimes against security in legal traffic—counterfeiting, forgery of documents, suppression of documents, creation or alteration of computer data, use of false or adulterated computer data, usurping identity or infiltration. • Crimes against public health that are classified in two groups: crimes against the health of consumers, and crimes relating to the illegal trafficking of toxic drugs. Under the Regulation of Toxic Drugs (art. 281 to 288), a toxic drug means any substance for consumption that produces an alteration in the state of consciousness and is damaging to the health of persons, if included in international agreements on this matter and is not considered legal by Andorran legislation, or, if not included, is in its nature and its effects similar to those included and its trafficking is unauthorized. As a basic legal definition of drug-related crime, the conduct of one who “produces, makes,

transports, imports, exports, sells or provides” toxic drugs is punished. In the case of cannabis or similar drugs, the sentence and fine will be less than those for conduct that involves drugs of greater toxicity. The above-mentioned types of conduct will carry a higher prison sentence and fine whenever certain circumstances concur, such as a large amount of drugs; providing minors or handicapped persons with drugs; provision of drugs at schools, recreation centers, welfare centers, or prisons, or to persons in treatment for detoxification or rehabilitation. However, as addressed by Andorran criminal legislation, under article 284 of the Criminal Code, the consumption, introduction, or possession of toxic drugs for personal use is punished with a sentence of up to one year’s imprisonment—less than the basic crime definition—and if the court so considers it, a fine of up to €1,200 (US$1,500). This situation is considered aggravated in cases where drugs are taken in public.

Juveniles Regarding the age of criminal responsibility, the Criminal Code points out that for a minor who has not reached 18 years of age and has committed a criminal offense, a special law is applicable. Pursuant to the guidelines established by the Convention on the Rights of the Child of 1989, the Llei qualificada de la jurisdicció de menors was enacted on April 22, 1999. This provided for procedures and measures applicable to minors between the ages of 12 and 18 (in certain cases it can be applied to minors under 21) who commit offenses established by the Criminal Code. This implies that the offending minor between 12 and 18 years of age is subject to special procedures and measures, and therefore minors under 12 are understood to have no criminal responsibility.

Crime Statistics In the report by Andorra’s Public Prosecutor’s Office reviewing the judicial year 2008–2009, some data should be highlighted. For example, some crimes, when compared with the year before, have given rise


Andorra

to the initiation of the following large number of judicial proceedings: • Crimes against public health, 1,359 criminal proceedings having been initiated, and increased by 10.85 percent. • Regarding crimes of theft, larceny, extortion, and receiving, a total of 1,192 cases have been tried, the majority involving larceny, with 1,162 cases. This represents an increase of 6.54 percent over the previous year. • In the area of economic crimes, 94 cases were heard, up from 54.10 percent. Most of these were linked with counterfeiting. More generally, crimes against human life and moral and physical integrity, as well as crimes against honor, privacy, and the inviolability of the home remained nearly unchanged. Compared to the year before, there has been a decrease in the following: • Crimes against road safety, with 295 cases, a decrease of 31.87 percent. • Crimes against sexual freedom, with 22 cases, have decreased by 47.62 percent. • Crimes against collective security, with 21 proceedings, are down by 41.67 percent.

Finding of Guilt Articles 9 and 10 of the Constitution of Andorra establish principles of guarantee for persons who are being investigated as suspects of a crime. These basic pillars have been developed by the law now in force: Llei qualificada de modificació del codi de procediment penal. This law is based on the Principle of Legality, according to which no one can be convicted of a crime unless in accordance with the provisions of the Criminal Code currently in force or with special laws and by virtue of a decision based on law and issued by a competent court. These established guarantees also cover the statements to the police that anyone who is considered a suspect in a crime may be required to give. To this effect, suspects giving a statement to the police must

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be informed of the acts with which they are charged and the reasons for their possible detention, as well their rights. Those include the right not to testify against oneself and not to confess guilt, the right to a lawyer and to ask for him or her to be present after being detained for 24 hours to assist with the statement and to be present at any verification of identity that the suspect may be subject to as from that moment. If the suspect cannot afford a lawyer, one will be appointed by the court; this will be free of charge only for those persons who can prove their insolvency. Suspects must also be informed of their right to a free interpreter if they are foreigners who do not understand or speak the national language or one of the languages of the neighboring states. If it is decided that the suspect is to be detained, he or she shall be taken into custody for legal causes and not detained for more than 48 hours before being referred to a court authority. The authority for administering justice in criminal matters pertains to the Tribunal Superior de Justicia d’Andorra, the Tribunal de Corts, the presidente, the Tribunal de Batlles, and the batlles or judges. The public prosecutor is responsible for the initiation of criminal proceedings and for the protection and implementation of the legal system. Prosecution of a crime begins with the filing of an accusation or suit, is initiated ex officio by the public prosecutor. On this basis, criminal proceedings are opened, comprising the following three stages: 1. A preparatory stage, in which the judicial police inform the public prosecutor of the initiation of an investigation by means of L’atestat. This first stage may conclude with the withdrawal of the accusation, the refusal to admit a lawsuit, the temporary stay of proceedings, or the order of initiation of a preliminary investigation. 2. Stage of collecting evidence and specifying charges. This is about investigating the punishable action and its perpetrators, accomplices, or accessories and the establishment of responsibility for the offense. This stage concludes by giving 15 days to the public prosecutor, the civil claimant, the private complainant,


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the counsel for the defense, and the counsel for any responsible third parties so that they may petition the court for examination of evidence, dismissal of the action, or any other appropriate ruling. 3. If the court orders the trial to commence, the trial stage begins. The parties have 15 days to submit briefs that should contain the facts deemed to be proved, statements of legal standing, the names of those purported to be responsible, the acquittal or sentence sought, any civil liabilities or claims, and the evidence requested. Once the evidence has been examined, the final submissions of the prosecution and the defense are presented, and the ruling is pronounced.

Punishment Types of Punishment Taking into account the severity of the crime, the sentence will vary according to the legal definition of crime. The death penalty and any cruel, inhumane, or degrading punishment are prohibited by the Constitution. In the case of major crimes, the prison sentence can be as high as 25 years, with the exception of the provisions for accumulation of sentences and of sentences envisaged for the crime of genocide and crimes against humanity. Also provided are fines; disqualification from the exercise of public rights, from holding office, from family and professional rights; and prohibition of entering into contract with public administrations. These crimes include homicide, with a 10- to 16-year prison sentence; murder, with a 14- to 25-year prison sentence; robbery—with violence or intimidation of persons—with a 2- to 6-year prison sentence. In the case of illegal drug trafficking involving large amounts or selling to minors, the prison sentence can range from 3 to 6 years. For minor crimes, there are prison sentences of up to 2 years; weekend imprisonment; home detention; fines; community work; disqualification or suspension of the exercise of public rights, a public

career, family or professional rights; revocation of driving license, of a license to carry arms, to hunt, or fish; and prohibition of entering into contract with the public administration. Among these crimes are larceny, that is, the taking of a movable object of another without the owner’s consent but without violence or intimidation, which entails a prison sentence of up to 2 years; and the illegal trafficking of toxic drugs when the consumption, introduction, or possession of the toxic drug is for personal consumption, in which case the prison sentence can be up to 1 year. For misdemeanors the following sentences are established: confinement on holidays of up to 8 weekends or an equivalent amount of time; home detention up to 1 month; partial daily confinement for up to 2 months; fines; community work; revocation of driving license, of a license to carry arms, to hunt, or fish; and prohibition of entering into contract with public administration, suspension from practicing one’s profession, and public or private admonishment. Examples of misdemeanors are minor injuries caused by imprudence, which carry a fine of up to €3,000, and coercion or minor ill-treatment, which carries a sentence of confinement or a fine of up to €3,000. Also established are security measures of confinement to a psychiatric institution, a detoxification, special education, or rehabilitation facility; outpatient treatment; following a special program; expulsion; prohibition of going to certain places or having contact with certain persons, of driving, of possessing or using arms, of drinking alcohol, of going out at certain hours; family custody; and disqualification from practicing one’s profession or career.

Prison In the Council of Europe Annual Penal Statistics, consulted on December 12, 2007, the most recent data for the Principality of Andorra in relation to the prison population corresponds to September 2006. At that time the total prison population (including pretrial detainees) numbered 30 people, for a prison population rate of 40.4 per 100,000


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inhabitants. The percentage of female prisoners and foreign prisoners (including pretrial detainees in both cases) was 3.3 percent in the first case and an excessive 83.3 percent in the case of foreigners. There is only one prison, the Centre Penitenciari de la Comella (built in 2004), which has capacity for 124 prisoners, and to which were transferred those prisoners formerly held in the Casa de la Vall. According to Bisbat D’Urgell (www.bisbaturgell.org) for November 2009, there was a total of 62 inmates in the Centre Penitenciari de la Comella. Lina Mariola Díaz Cortés and Carlos Guillermo Castro Cuenca Further Reading Council of Europe Annual Penal Statistics: http:// www.coe.int/t/e/legal_affairs/legal_co-operation/ prisons_and_alternatives/Statistics_SPACE_I/ List_Space_I.asp. Jiménez Naudí, Jesús (2005). Legislació penal del Principat d’Andorra [Penal Legislation of the Principality of Andorra]. Andorra La Vell: Prensa Andorrana. Memorias de la Fiscalía de Andorra (2008–2009): http://www.justicia.ad/web/php/memoria.php. Police of Andorra: http://www.policia.ad/cat/ organi.html.

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

Background The Republic of Austria—situated in Central Europe—is a relatively small country with a surface

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area of about 83,860 square kilometers (approximately 30,189 square miles). It shares borders with the EU member states Germany, the Czech Republic, Slovakia, Hungary, Slovenia, Italy, and with the non-EU countries Switzerland and Liechtenstein. Austria’s total population is approximately 8,348,200, of whom about 10 percent are foreign citizens. The country’s official language is German; Hungarian, Slovene, and Croatian are spoken by relatively small minorities. Austria’s political system is that of a parliamentary representative democracy; it is a federal republic consisting of nine states (Bundesländer), Vienna, the capital, being one of them.

History of the Legal System Austria has basically a civil law system. Criminal law currently in force dates back to legislation from the times of the monarchy, which ended in 1918. This applies in particular to the Code of Criminal Procedure, large portions of which have been in force since 1873. This procedural legislation was devised by the Liberal government of the time in contrast to the inquisitorial trial system and was subsequently modified and added to over the years. After the Kaiser formally abdicated in 1918, Austria became a democratic republic. This was enshrined in the federal Constitution, which was presented two years later and which in principle is still in force today. In 1938 Austria became part of the Deutsches Reich and was subject to Hitler’s regime until 1945, the end of World War II. During this time the Criminal Code remained in force in theory; in practice it was almost smothered by a very large number of new ordinances and administrative orders so that the legal situation became totally opaque. Austria was relaunched as an independent state after the Nazi era, and both the Code of Criminal Procedure and the Criminal Code were repromulgated in 1945. The country was, however, divided into four zones of occupation where Allied forces were stationed. The State Treaty of 1955, which was followed by the evacuation of the occupation forces, made Austria a fully sovereign state again. The country declared itself permanently neutral and


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enshrined neutrality in its Constitution. The same year saw Austria’s accession to the United Nations. The criminal laws, the Criminal Code, and the Code of Criminal Procedure were amended on an ongoing basis. A new Criminal Code, which is still in force today, entered into force in 1974; the Code of Criminal Procedure was merely repromulgated in 1975. Owing to Austria’s accession to the European Union in 1995, a distinctive influence of European legislation on Austrian substantive law and increasingly also on procedural law has been in evidence.

Police The police force is organized on a federal level in a sense that there are no autonomous entities. In the past Austria knew two different uniformed corps, the gendarmerie and the police. Now there is just one corps, called Bundespolizei. The political responsibility for police work in Austria belongs to the Home Office (Federal Ministry of the Interior). Subordinated to the Home Office, nine state directorates for public security are responsible for security administration in general. There are 14 federal police directorates and 9 state police headquarters, divided into 83 district police headquarters and 27 city police headquarters. Under these headquarters there are about 1,000 police stations in Austria competent for all matters of security, including fighting and preventing crime. Traffic matters are dealt with by 9 state traffic departments, 35 highway patrol stations, and 15 traffic police stations. Criminal investigation is the focus of the Federal Criminal Investigation Service and nine state criminal investigation services. Also, there are a number of specialized units such as agencies for state protection and counterterrorism, SWAT units, alpine duties, narcotics units, or immigration authorities. All in all, the number of police in Austria in 2008 stood at more than 27,000 officers, thereof 10 percent female.

Crime Classification of Crimes Austrian law distinguishes between felonies (serious) and misdemeanors (less serious). According

to article 17 of the Austrian Criminal Code, felonies are premeditated acts that carry a life sentence or a custodial sentence of more than three years. For example, genocide, homicide (any premeditated killing according to the Austrian Criminal Code), manslaughter (a premeditated killing that happens upon sudden heat of a kind that is generally considered understandable, such as despair), assisting suicide, causing bodily harm with fatal consequences, rape, sexual abuse of minors, kidnapping with extortion, robbery, aggravated theft, aggravated fraud (if the value of stolen and/or fraudulently obtained objects exceeds €50,000 [US$62,840]), membership in a terrorist organization, treason, violation of state secrets, civil disorder, arson, counterfeiting of money, or abuse of authority are classified as felonies on the basis of the long sentences they carry. Misdemeanors are all other culpable acts (in particular, acts of negligence). These include all homicide by negligence, bodily injury caused by negligence as well as aggravated battery and such criminal offenses as deprivation of freedom, coercion, damage to property, theft, fraud, handling stolen goods, bigamy, perjury, and falsification of documents. In many offenses against life and limb, against property, or in sexual offenses, the basic facts of the case may result in the offense being classified as a misdemeanor, which may be changed to a felony on the basis of additional aggravating circumstances. Battery, for instance, is a misdemeanor, whereas battery with serious lasting consequences (aggravated battery) is a felony.

AGE OF CRIMINAL RESPONSIBILITY In Austria the age of criminal responsibility is 14. Juveniles between the ages of 14 and 17 are subject to the Juvenile Court Act. This act takes into account the special, development-related characteristics of juvenile delinquency by focusing on the transitional period between the ages of criminal minority of children and the full criminal majority of adults. From age 18 the criminal procedure regulations for adults apply in principle (but some provisions of the Juvenile Court Act also apply to so-called young adults aged 18 to 20).


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At the moment, the political discussion in Austria concerning crime focuses on juvenile crime, mostly juvenile aggression, and burglary committed by foreign offenders. Apart from the fact that youth crime is primarily recorded as property crime (more than 50%)—mostly theft—in the last five years the number of juvenile suspects registered because of robbery reveals a sharp increase of more than 75 percent. Partly, this development is due to the popularity of mobile phones among juveniles resulting in a large number of juveniles committing robbery of these high-valued status symbols. The number of juvenile offenders registered because of (aggravated) assault increased from 2002 to 2007 by 42 percent. The scientific discussion mainly circulates around the question whether this increase represents a real growth in aggressive behavior of juveniles or is a result of a greater willingness to report these crimes to the police. Another challenge is the rising number of (domestic) burglaries in recent years. On the one hand, the percentage of solved cases concerning burglary diminished from 14 percent in 2002 to 10 percent in 2007. On the other hand, the percentage of foreign offenders increased in this period by more than 60 percent. As a result, in 2007 nearly half of all offenders registered because of burglary were foreigners. One part of an explanation is the fall of the socalled iron curtain and the opening of borders in the course of the enlargement of the European Union.

DRUG OFFENSES In Austria, drug offenses are dealt with by a separate law, the Addictives Act. The latest amendment entered into force at the beginning of 2008 and was a reaction to the EU Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. The substances covered by the Austrian Drug Law are not comprehensively and explicitly listed in the act; instead of such a list there are references to international agreements, in particular to the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, and to domestic statutory orders. In practice, marijuana, hashish, coca

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leaves, opium, and psilocybin mushrooms are relevant in criminal law contexts. Anyone is liable to prosecution who purchases, possesses, produces, transports, imports, exports, offers to others, passes on to or procures for others psychotropic substances, or cultivates, for example, cannabis plants, with a view to producing a psychotropic substance. These acts are punishable in principle with detention of up to a year or with fines of up to 360 daily rates of fines. The threat of punishment increases as follow: • To up to 3 years’ imprisonment, e.g., if an adult enables a minor to use an illicit substance. • To up to 5 years’ imprisonment, depending on the amount of controlled substances involved; the greater the amount, the higher the threat of punishment. • To up to 15 years’ imprisonment, e.g., in the case of drug trafficking by a criminal organization. • To up to 20 years’ imprisonment or a life sentence for those who play a leading role in drug trafficking (“drug lords”). Lighter sentences are available to those who possess drugs exclusively for their own consumption or in cases of drug-related crime. In fact, convictions in Austria in 2007 resulted in nearly 70 percent imprisonment and in 30 percent fines. In minor cases the majority of imprisonment cases were suspended, whereas in aggravated cases (e.g., drug trafficking of a great amount), the average imprisonment is 1 to 3 years going up to more than 5 years in exceptional cases. The rationale underlying the Addictives Act may be summed up as follows: priority is accorded to treatment over punishment. Ambulatory measures take precedence as far as possible and punishment is kept in reserve as a means of last resort.

Crime Statistics The number of offenses recorded by the police is published roughly every month on the home page of the Home Office (http://www.bmi.gv.at). In a much more detailed way data are published annually in


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the so-called crime report (Kriminalitätsbericht). Information about persons who have been convicted can be found in the judicial conviction statistics (Gerichtliche Kriminalstatistik) published annually. The most important results concerning convictions and sentences are also published on the home page of Statistics Austria (http://www.statistik. at/web_en). Unfortunately, Austria doesn’t carry out nationwide crime victimization surveys at regular intervals. Therefore, the explanatory power of statistics is limited. In the last 15 years the number of offenses recorded by police increased from about 500,000 to 650,000 and dropped to 600,000 in the last 3 years. In 2007 the number of offenses equaled 594,240, thereof 22 percent felonies. Consequently, the crime rate climbed from 6,000 offenses per 100,000 persons of the population in the 1990s to nearly 8,000 in 2003 and 2004. After a decrease the latest crime rate for 2007 was 7,175. Finally, while Vienna holds only 20 percent of the population, 36 percent of all offenses are recorded in this urban area. An overall view of the number of suspects and the number of convicted persons per 100,000 persons of the population reveals that the rate of suspects increased from 2002 to 2007 by 15 percent, while the rate of convicted offenders remained rather stable and increased by 3 percent only. Presenting offenders and convictions in Austria doesn’t show the whole picture. Since January 1, 2000, diversionary measures are applicable to juveniles and adults. Since 2003 more suspects are successfully diverted than finally convicted, thus showing the importance of diversion in Austria. A look at the kind of offenses reveals that the great majority of recorded crime belongs to property crimes. In 2007 the proportion of this group of offenses amounted to 70 percent. Crimes against life and limbs are the second most categories, responsible for 15 percent of all offenses. Half of this group are traffic accidents causing injury or death. Of the total crimes registered, 4 percent were drug offenses, 3 percent crimes against freedom, and 1 percent sexual offenses; the remaining 7 percent covered a variety of offenses with a small number each. Finally, in 2007 the police in Austria registered 121 cases of homicide, thereof 75 attempts, and 710

cases of rape, thereof 145 attempts. Furthermore, 8,660 offenses were registered as aggravated theft, thereof 629 attempts. The number of burglaries amounted to 104,860, thereof 18,144 attempts. Of the whole group of a little more than 24,000 drug offenses, 10 percent are felonies.

Finding of Guilt Rights of the Accused The minimum standards for rights of accused have been defined in article 6 of the European Convention on Human Rights, which has been elevated to constitutional rank in Austria. According to this article the accused is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The rights are further defined in Austria’s Criminal Procedure Code, and are mostly also applied for suspects. The accused is entitled to defend himself or herself and to the assistance of a defense lawyer at any stage of the proceedings. This right is strengthened by the provision that the accused must not be forced to incriminate himself or herself. If he or she pleads guilty, this is to be taken into account as an extenuating cause in fixing the sentence. To enable him or her to defend himself or herself effectively, the accused has the right of obtaining information, of participation, and of a fair hearing. This is why the alleged offender has to be informed by the criminal police or the state prosecutor as early as possible of the proceedings opened against him or her, of the charges, and of his or her essential rights. In addition to this the accused has the right to be given access to his or her file. The right to ask questions—the accused is entitled at all hearings at which he or she may lawfully be present to put questions to the person under examination—and the right to demand a hearing of evidence enable the defendant to make sure that facts important to him or her are taken into account. People who are not sufficiently fluent in the language of the court are entitled to the assistance of a translator. Until a legally valid verdict has been reached, the accused is presumed to be innocent, which means that the accused benefits from the presumption of innocence throughout the entire proceedings. Before


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Psychological consultant Heidi Kastner, left, and defense lawyer Rudolf Mayer talk in court prior to the trial of Josef Fritzl in the provincial courthouse in St. Poelten, Austria, March 16, 2009. Fritzl is accused of imprisoning his daughter for nearly a quarter of a century and fathering her seven children. (AP Photo/Robert Jaeger)

a verdict is reached, the prosecution must not come down in favor of an appraisal of the evidence to the detriment of the accused or rashly present the accused as convicted, for instance, at a press conference. In the last resort the presumption of innocence will prevent the court from convicting the accused unless his or her guilt has been proved beyond reasonable doubt. The accused is moreover entitled to the court case being terminated within a reasonable time frame, which applies in particular to accused persons in detention; the Austrian Code of Criminal Procedure does not, however, specify the criteria for what is reasonable in this context. Equally unknown to Austrian law are sanctions for unduly protracted proceedings, and it is also not a mitigating

circumstance, which have to be taken into account; appeals to the European Court of Human Rights are, however, possible. The accused is entitled at any stage of the trial to make use of one (or more) defense lawyer. Any person is eligible for the role of defense lawyer who has qualified as a lawyer, barring the case when a lawyer is himself or herself the object of legal investigations on account of the same crime. The accused—already when he or she is a suspect—has to be informed of his or her rights in the criminal police proceedings. In case of arrest he or she has to be given the opportunity to contact a defense lawyer of his or her choice or the counsel who happens to be on duty at the lawyer emergency service. Until the alleged offender’s commitment


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to prison (which may not be deferred for longer than 24 hours), the criminal police are entitled to monitor contacts between him or her and his or her counsel. Once he or she has been committed to prison, his or her exchanges with the defense lawyer are left unmonitored on principle, the exception being danger of collusion or danger of suppression of evidence or when there are especially serious reasons to fear that evidence might be tampered with in some way. To guarantee an effective defense the alleged offender may be granted the right to have the assistance of his or her counsel at his or her very first interrogation (even though this can be ruled inadmissible if it may reasonably be concluded that the counsel’s presence might be detrimental to the investigation). However, the Austrian Code of Criminal Procedure does not provide for an active part played by the defense lawyer during the first interrogation. It is only after the suspect has been questioned by the police that the defense lawyer is entitled to put supplementary questions to him or her. In certain cases, such as a main trial before a court of lay assessors, a grand jury, or a single judge with an impending custodial sentence of more than three years, a defense lawyer is obligatory. If the accused opts against the involvement of a defense lawyer in a case of obligatory defense, he or she is assigned a court-appointed legal defender whose expenses have to be paid by the accused, though if unable to pay the costs of the counsel he or she is granted free legal assistance. Handicapped persons are also entitled to receive this legal assistance. In county court proceedings the accused may be represented by a Machthaber, a proxy acting on behalf of the accused; he or she is entitled to make depositions and perform other relevant acts.

Prosecution and Investigation The first phase of the trial—the pretrial—is conducted by the public prosecutor, who also bears ultimate responsibility, in collaboration with the criminal police. The prosecution commences once the criminal police or the public prosecutor’s office start a criminal investigation and/or use coercive

measures against a person known or unknown, who is suspected of having committed a criminal act. The Public Prosecutor’s Office is entitled to carry out the investigation on its own; in practice, however, the taking of evidence is carried out by the criminal police, as they are entitled to carry out investigations independently. Certain types of evidence taking require the public prosecutor’s prior directive. For the most invasive of coercive measures, such as arrests or house searches, the public prosecutor must seek the court’s consent, with the exception of cases where there is danger in delay; here no directive is needed and the criminal police are entitled to use these coercive measures without formal authorization, but a subsequent permission is necessary. The criminal police are obliged to keep the public prosecutor informed throughout to enable him or her to conduct and monitor the preliminary investigation. In the final report of the police the facts of the case are expected to be sufficiently clear for the public prosecutor to base a decision on them whether he or she is going to formally charge the suspect, recommend a diversionary process, or terminate the investigation.

Alternatives to Trial Within the spectrum of lesser to medium crimes a criminal charge may be disposed of without a formal trial and without a traditional sentence, if the public prosecutor agrees to a diversionary procedure. Prosecution is temporarily deferred and the charge is ultimately dismissed if the conditions under which diversion was granted are successfully completed. In this way a criminal record is avoided. A diversionary procedure cannot be used if the maximum sentence that may be passed down exceeds 5 years of detention, and when the other preconditions are fulfilled. Diversionary procedures include the following: • A probation period of up to 2 years. The temporary deferment of prosecution may be tied to the completion of certain tasks, such as, above all, the compensation of the victim and/ or submission to a probation regime.


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• The suspect may be charged with the payment of a sum of money to the treasury, if possible, under the auspices of compensation. This Geldbuße may not exceed a maximum of 180 daily rates of fine. • Community service (at most 240 working hours) performed in the suspect’s spare time within the framework of a social institution such as an old people’s home or a hospital. • Victim-offender mediation. For this it is necessary for the suspect to realize the extent of his or her culpability and to confront the consequences of his or her crime, and the victim must consent. • A special provision—the first diversional provision in the Austrian Criminal Law—can be found in the Addictives Act, which requires the public prosecutor to defer prosecution for certain drug and drug-related offenses. The probation period must be combined with drug addiction treatment.

HOW ARE THE MAJORITY OF CRIMINAL CASES “SOLVED”? In 2007 the prosecution authorities in Austria had to deal with more than 300,000 known perpetrators. In 25 percent of the cases they brought in an accusation, in 13 percent they offered the suspect a diversionary measure, the great majority of them accepted by the perpetrators. Nearly 44 percent of all cases ended up by closing of the proceedings. The remaining share covers mainly waiver of prosecution concerning juveniles and the dropping of proceedings in the absence of the perpetrator. Austrian courts registered in 2007 about 85,000 new cases requiring a decision of the trial court. In nearly 84,000 cases one judgment was rendered. Slightly more than 43,000 persons were found guilty and nearly 10,000 perpetrators accepted a diversionary measure offered by the judge.

Incarceration before or Awaiting Trial The preconditions justifying arrest are a concrete suspicion and at least one of the following states

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of affairs that are taxatively listed by the law: for the suspect to be caught in the act; a high degree of probability that the suspect will abscond, suppress evidence, or attempt to enter into an agreement with witnesses or accomplices, commit another similar criminal act, or realize a threat (the chargeable criminal act must carry a threat of punishment of 6 or more months imprisonment). Arrest and pretrial custody are mandatory in cases of criminal acts that carry a minimum threat of punishment of 10 years (e.g., murder). Arrests are carried out by the police who are also entitled and obliged to act on their own initiative in cases of danger in delay. In all other cases a public prosecutor’s arrest warrant authorized by the court is needed. The suspect has to be informed of his or her rights and imprisoned within 48 hours at the detention facility of the competent court, where he or she has to be questioned as soon as possible. The competent court has to reach a decision within 48 hours from the imposition of pretrial custody. The imposition of pretrial custody has to be reviewed regularly, for a first time 14 days after the initial imposition; 1 month after the first prolongation; and then every 2 months. The Code of Criminal Procedure stipulates a maximum duration of pretrial custody (in cases where there is a danger of the suppression of evidence and/or collusion up to 2 months; in cases of misdemeanors up to 6 months; in cases of felonies up to 1 year; and in cases of aggravated felonies up to 2 years). After a verdict with a sentence to imprisonment, the pretrial custody term will be deducted from the term of imprisonment.

Criminal Court Judges The number of professional and/or lay judges depends on the type of court. Three judges and eight jurors (district court as jury court) are required to deal with criminal acts that carry a threat of punishment of a life sentence or between a minimum of 5 to more than 10 years and for criminal acts explicitly specified in the Code of Criminal Procedure, such as treason.


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Two judges and two lay assessors (district court as a court of lay assessors) are to be put in charge of criminal acts carrying a threat of punishment of more than 5 years’ detention, for certain sex offenses and such crimes as voluntary euthanasia. For prosecutions on account of sex offenses the law has provisions that ensure that a certain number of judges and of lay assessors belong to the same sex as the accused and the victim, respectively. One single judge is required at regional court level to preside over trials that deal with criminal acts carrying a minimum threat of punishment of more than one year. All other criminal acts carrying a threat of punishment in the form of a fine or detention not exceeding one year also fall within the remit of a single judge but at district court level. Appeal cases are heard by senates. At the higher district court the senates consist of 3 judges; at the Supreme Court, which is especially in charge of nullity appeals, there are 5 judge senates. To reach a decision in exemplary cases at the Supreme Court (if, for instance, there is no uniform jurisdiction), that number is increased to 11 judges. Justices must have a master’s law degree (in Austria called Magister) and must undergo a four-year training course at a court. To make sure prospective judges obtain a comprehensive overview of legal practice, they will be given the opportunity of firsthand experiences in different areas of judicature and at different levels within the court. After their appointment they are eligible for further training. According to the Juvenile Court Act, judges presiding over juvenile cases must have a certain amount of expertise in the areas of psychology and social work.

Juveniles The Juvenile Court Act contains substantive and procedural regulations, including regulations on the enforcement of imprisonment. For all juveniles there is the possibility of nonintervention; the prosecutor and the judge may drop the case of a juvenile, if the offense is punishable by a fine or not more than five years of imprisonment and a diversion or

a sentence is not necessary to prevent the juvenile from committing further crimes. Nonintervention is particularly recommended in cases of petty misdemeanors of nonproblem juveniles, for whom a special preventive effect results from the mere fact that the authorities have become involved with the attendant consequences in the social environment of the juvenile. If a nonintervention is not possible, then a diversion (see also above) has to be taken into account by the public prosecutor or by the judge. A broader application of the diversion than for adults is also possible. Fines and imprisonment may only be implemented as measures of last resort.

Punishment Punishment aims above all at special or general prevention and at the protection of victims. According to law, the aspect of retribution has been eliminated almost completely.

Types of Punishment FINES AND IMPRISONMENT The law indicates in every case a range of sentences by stating minimum and maximum sentences (only in the case of minor misdemeanors no explicit minimum sentence is specified), which stake out the range within which courts must hand down a sentence that is proportionate to the criminality of the act and the culpability of the criminal. The two options that are available for sentencing according to Austria’s Criminal Law are fines and prison sentences. Imprisonment is either limited to a maximum of 20 years or it takes the form of a life sentence. The minimum term is one day. To prevent the potentially negative consequences of short prison sentences (up to 6 months), the Criminal Code allows under certain circumstances for the substitution of a fine for imprisonment. A fine is fixed according to the daily rate of fine system; the number of daily rates depends on the seriousness of the crime and on the criminal’s culpability, the amount of the specific daily rates on the


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criminal’s income and his or her pecuniary circumstances. If the fine proves uncollectable, an alternative prison sentence is imposed, which is put into effect in the same manner as a normal prison sentence. Since 2008, the convict does, however, have the possibility of averting the alternative prison sentence by performing community service. Fines and prison sentences may be suspended under certain circumstances in connection with a probation period. If a prison sentence is put into effect, the convict may be eligible for early release after serving at least one-half of his or her sentence in connection with a probation period. After 15 years of imprisonment even a convict sentenced to life imprisonment may be eligible for release. In addition to the sentence the Criminal Code and a number of auxiliary laws provide for so-called legal consequences, which enter into force automatically in the case of adults. Under certain conditions the sentence is followed by loss of office or of a business license.

PREVENTIVE MEASURES Preventive measures do not focus on the culpability of the convict but on the danger that he or she poses to the public. The Criminal Code provides for the possibility of detention for three categories of convicts: the dangerously disturbed, addicts in need of drug detoxification, and dangerous recidivists. These preventative measures remain in effect as long as they are deemed necessary. Therefore, the judge does not order a temporal limit of the measure in the verdict. But there are regular reviews, whether the person can be released, and there is a maximum period of detention: 2 years for drug detoxification, and 10 years for dangerous recidivists.

DIRECTIVES AND PROBATION SERVICES If a sentence of imprisonment/fine or a preventive measure is suspended or the convict is released early after the setting of a probation period, the court will give the convict a directive. Among the directives explicitly mentioned in the law are an alcohol

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ban and the convict’s consent to a psychotherapeutic and/or medical treatment.

CORPORATE CRIMINAL LIABILITY Since 2005 corporations may also be prosecuted under penal law in Austria. A Verbandsgeldbuße may be imposed to which the daily rate of fine system is applicable. Here too a conditional suspension is possible together with the setting of a probation period and, if necessary, also the imposition of a directive.

Typical Punishments Murder carries a prison sentence of 10 to 20 years or a life sentence. Manslaughter carries a sentence of 5 to 10 years’ imprisonment. Whoever kills someone at his or her express and urgent request is to be punished with a prison sentence between 6 months and 5 years. The same applies to assisting suicide. For a mother who intentionally kills her child during or immediately after birth the Criminal Code specifies a sentence of up to 1 year in prison. In 2007 the typical punishment in practice for intentional homicide (not including attempts) was imprisonment of more than 5 years. Out of 81 convicted persons, 10 received a life sentence. Rape carries imprisonment between 6 months and 10 years. If the rape results in grievous bodily harm or pregnancy, the sentence will range from 5 to 15 years’ imprisonment. If the rape results in the victim’s death, the threat of punishment is increased to imprisonment between 10 to 20 years or a life sentence. The typical punishment implemented for rape is imprisonment of more than 1 year. In 2007 30 percent of all convicts, mostly persons with no previous criminal record, were sentenced to a partly suspended prison sentence. Serious theft (e.g., stolen value of more than €3,000, if the victim was helpless) receives a custodial sentence of up to 3 years. For theft committed on a professional basis or within the framework of a criminal organization, the threat of punishment is expanded to between 6 months and 5 years; if the value of the stolen object exceeds €50,000, the


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range of sentences is from 1 to 10 years in prison. The typical punishment is imprisonment, for convicts with no previous criminal record, mostly (partly) suspended. The length of imprisonment depends on the seriousness of the case but the average was 1 to 3 years in 2007. In exceptional cases we can find imprisonment with duration of more than 5 years, too. Burglary receives from 6 months to 5 years, and if it is done on a professional basis, from 1 to 10 years. In 2007 in Austria 90 percent of all convictions accounted for imprisonment (partly) suspended for persons with no previous criminal record. The average prison length imposed by judges ranged from 6 months to 3 years. Aggravated robbery receives between 5 and 15 years imprisonment. This increases to 10 to 20 years in prison or to a life sentence if the robbery resulted in a death. In 2007 in Austria mostly imprisonment of more than 5 years is registered in the statistics. Differentiating between perpetrators with and without a previous conviction reveals that nearly one-quarter of all persons with no previous criminal record were sentenced to partly suspended imprisonment, even for aggravated robbery.

Death Penalty The death penalty, which held out longest in Military Law, was finally abolished in 1968. Its abolition is also enshrined in article 85 of Austria’s Federal Constitution and in Additional Protocols of European Human Rights Convention Nos. 6 and 13 that have constitutional rank in Austria.

Prison The number of inmates according to statistics published by the Ministry of Justice has increased dramatically since 2002. While the daily average of inmates in 2002 amounted to about 7,500, the number for 2007 was nearly 9,000. Nearly one-quarter of all arrests are pretrial detentions. The total increase in the number of inmates is mainly due to an increase of foreign inmates. On January 1, 2008, the percentage of foreign inmates

from more than 100 nations in Austrian prisons was 46 percent. Looking at pretrial detention only, the share of foreign inmates was 60 percent. The total number of penal institutions in Austria adds up to 28. There are 9 prisons for convicted persons sentenced to imprisonment of more than 18 months. There are 16 prisons established at the seat of the provincial courts being competent for penal cases, and 3 institutions are specialized for the execution of preventive measures. The dimension of the institutions varies between 63 and 990 places. The biggest prisons for inmates serving longer sentences are the penitentiaries in Stein, GrazKarlau, and Garsten. Depending on the kind of offense, the personality of the convicted person, and the capacity, perpetrators are allocated to a single institution by decision of the Ministry of Justice.

WORK IN PRISONS The Prisons Act contains provisions that convicts and pretrial prisoners should have the opportunity to work. Useful and, in the case of juveniles, educationally meaningful tasks are supposed to be performed, such as helping in the kitchen or in renovation work in the institution or work in the institution’s workshops (inter alia metalworking and woodwork shops, garages), which also accept orders from private businesses and clients. Socalled day-release prisoners are entitled to accept jobs outside the institution. To the extent this is possible—this applies in particular to juveniles— convicts are to be given the opportunity to get vocational or further training that may improve their job prospects after their release. For this reason the time and conditions of work are supposed to be organized in a manner that corresponds to the situations of life outside the institution; juveniles are given longer breaks as a matter of principle. Convicts are entitled to pay (approx. €5 for light unskilled work and up to approx. €7 for skilled work and work as a foreman); after the deduction of their contribution toward costs and the unemployment


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insurance premium, this money is at the disposal of the convicts as inmates’ allowance and as a setaside for the time after their release. It is, however, not possible for organizational reasons (such as staff shortages) or owing to a lack of demand to provide work for all inmates. Depending on the institution, nonemployment rates may be as high as 40 percent. For juvenile inmates school attendance is compulsory, which means that youth penitentiaries have to organize classes on a regular basis. The aim is to give inmates the possibility to obtain basic school leaving certificates or to attend vocational school as part of an apprenticeship. To avoid stigmatization school certificates contain no reference to where they were obtained. For adults, extra occupational courses are provided and they are entitled to enroll in distance learning or e-learning courses that they follow in their spare time.

VISITING POLICIES AND OTHER PRIVILEGES IN PRISON Convicts may become eligible for phone calls to their relatives even though there are no special circumstances, such as illness, to justify them. The law provides also for minimum entitlements regarding visits; these are expanded in the case of good conduct. Each penal institution has its fixed hours, when inmates are entitled to receive previously announced visits of at least half an hour’s duration (for juveniles 1 hour) a week. Prisoners awaiting trial need court permission for visits. Visiting time is to be extended to 1 hour once every 6 weeks or in cases where visitors have a long way to travel to the prison. Important personal, economic, or legal reasons entitle convicts to receive visits outside the fixed times. These visits are moderately supervised and additional privileges such as the so-called table visits or 24-hour visits in so-called cuddle cells are possible. Other types of privileges are the so-called interruptions of detention and the day-leaves; the convicts’ conduct at the detention facility is one of the factors that is taken into account in granting these privileges. Under certain circumstances the prisoner may be granted (repeatedly) upon request an inter-

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ruption of detention of up to 8 days or a day-leave of 12 hours (twice in 3 months at most).

TRANSFER OF PRISONERS According to the Act on Extradition and Mutual Assistance a sentenced person can be transferred to his or her home country. According to the Council of European Convention on the Transfer of Sentenced Persons and to all bilateral treaties on mutual transfer, the sentenced person has to give his or her consent to the transfer. Without the consent of the person a transfer is allowed when the original sentence includes a deportation order. Karin Bruckmüller and Christian Grafl Further Reading Bertel, Christian, and Klaus Schwaighofer. (2008). Österreichisches Strafrecht. Besonderer Teil I (§§ 75 bis 168b StGB) [Austrian Penal Law]. Vienna: Springer. Bertel, Christian, and Andreas Venier. (2009). Strafprozessrecht. 3rd ed. Vienna: Manz. Bruckmüller, Karin, Arno Pilgram, and Günther Stummvoll. (2010). “Juvenile Justice System in Austria.” In Juvenile Justice Systems in Europe: Current Situation, Reform, Developments and Good Practices, edited by Frieder Dünkel, Joanna Grzywa, and Ineke Pruin, pp. 41–98. Mönchengladbach, Germany: Forum Verlag Godesberg. Grafl, Christian. (2007). “Community Service in Austria: Main Results of a Feasibility Study.” Probation Journal 54(3): 251–263. Gratz, Wolfgang, Andreas Held, and Arno Pilgram. (2001). “Imprisonment in Austria.” In Imprisonment Today and Tomorrow: International Perspectives on Prisoners’ Rights and Prison Conditions. 2nd ed., edited by Dirk van Zyl and Frieder Dünkel, pp. 3–31. The Hague, the Netherlands: Kluwer Law International. Kienapfel, Diethelm, and Frank Höpfel. (2007). Grundriss des österreichischen Strafrechts: Allgemeiner Teil. 12th ed. Vienna: Manz.


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

Background The Constitution of the Republic of Belarus of 1994, with amendments and additions adopted at the National Referendum of November 24, 1996, defines the Republic of Belarus as a unitary democratic social state. It is a presidential republic, with power residing strongly in the head of the state. Historically, the Belarusian legal system has developed within the continental legal tradition. However, the influence of the Soviet Union has deeply affected the structure and the contents of its legal sources. At present, Belarus is a country of written and codified law. A written constitution occupies the top of the pyramid of the Belarusian law. The first level beneath the Constitution is represented by codes and codified provisions that have prevalence over laws adopted by Parliament (the National Assembly). After annexation of the actual East-Belarusian lands by the Russian Empire in the 16th century, the Russian Code of Penal Laws (1832) was introduced. Russian law made legal rules more organized and introduced in 1864 the Institute of Justice of Peace for treatment of minor offenses to relieve the overburdened judicial system. The Russian Code of Criminal and Correctional Punishments of 1903, with its classification of crimes and principles of penal responsibility, became then the prototype of the future criminal legislation in Belarus. The first decrees of the Soviet power established criminal responsibility for offenses against the new regime: counterrevolutionary activities, sabotage, corruption, profiteering, desertion, and so forth.

The adoption of the socialist Criminal Code marked a significant regression in the development of Belarusian legal tradition. This code allowed for applying its rules by analogy: if the code did not expressly provide for a certain offense, the courts could determine the punishment for it on the basis of rules that they deemed similar; in effect, the abandonment of nulla poena sine lege (no punishment without law) principle. The crimes were categorized into two groups: crimes against the Soviet regime and other crimes. For the first type of crimes, the code established a minimum threshold of punishment, and for the second type—only a maximum limit. Another peculiarity of the code was the rejection of a fundamental principle, that of individualized criminal responsibility. Restrictive measures could be applied not only to the culprit, but also to his or her immediate family who could be deported to remote regions of Siberia. The age threshold of criminal responsibility was lowered to 12 years. The number of criminally reprehensible actions was considerably enlarged during the 1930s: abortion, leaving the workplace without permission, absence at workplace without medical certificate, and so forth. Most of the repressive trends in the criminal law development were reversed in 1958, with the adoption of the Model Criminal Law of the Soviet Union and Soviet Republics, proclaiming the adherence of the union to humanist principles, including nulla poena sine lege. In Belarus, this was followed by the adoption of the new Criminal Code in 1961. Despite the proclaimed decriminalization of a large number of offenses, some of them remained in the code, in violation of common principles of international human rights law: circulation without passport, vagrancy and mendicancy, private entrepreneurship and agency. After the proclamation of independence of the Republic of Belarus in 1991, the Criminal Code of 1961 continued to be applied. It was subject to multiple modifications adapting Belarusian criminal law to the human rights and free market philosophy. In June 1999, the Chair of Criminal Law of Belarusian State University presented to Parliament a project of New Criminal Code of the Republic of Belarus, based on the new social and economic


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model. It was adopted by both chambers of Parliament, respectively, on June 2 and June 24, 1999, and promulgated by the president on July 9, 1999.

Crime Types of Crimes According to the Belarusian Criminal Code there are four requisite features of crime: social danger, unlawfulness, culpability, and punishability. The code classifies crimes according to the following four degrees of social danger. • Crimes that do not represent considerable social danger. Offenses that traditionally fall within this group include inciting to suicide; illegal abortion; nonaccomplishment of parental duties; nonaccomplishment of the obligation of taking care of elderly parents; unauthorized disclosure of an adoption kept in secret; violation of the medical secrecy; defamation; coercion; threats of murder, of violence, or of destruction of property; slander; insult; and discrimination. • Less serious crimes. This group traditionally includes murder in a fit of passion; assisted suicide; libel; public insult; torture; putting someone at risk of HIV contamination; violent coercion to donate organs or tissues for transplantation; consensual sexual intercourse or other sexual acts with a minor under 16 years of age; coercion to prostitution; inciting minors to regular consumption of alcohol, narcotic substances, to vagrancy or to mendicancy; theft; robbery; and car highjacking. • Serious crimes traditionally include rape, intentional infliction of a severe bodily injury, intentional contamination by HIV, human trafficking, and kidnapping. • Crimes of particular seriousness include murder, international terrorism, genocide, ecocide, preparing and leading an aggressive war. Crimes recorded by the police and the number of offenders convicted in 2004, published by the Min-

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istry of Internal Affairs, Information and Analytics Department, were as follows:

Murder Sexual crimes (Rape) Serious bodily injury Theft and misappropriation Robbery and plundering Burglary Car highjacking Fraud Counterfeit currency

Crimes 1,010 1,102 386

Convictions 1,058 660 357

2,368

2,132

93,660

31,977

10,692 23,865 1,260 5,218

6,891 8,448 1,798 1,600

2,844

2,118

Crimes of Particular Challenge According to the Ministry of Internal Affairs, three types of crimes represent a real social scourge for Belarus: human trafficking, drug offenses, and economic crimes.

HUMAN TRAFFICKING In Europe, Belarus is a recognized exporter of “live merchandise.” During the 2000–2006 period, Belarusian investigation authorities revealed 3,162 human traffic offenses, 963 of which involved international trafficking. Since 2002, the investigation bodies, including the General Prosecutor’s Office, have suppressed the trafficking activities of 48 organized groups and 10 criminal organizations. During the same reference period, 2,600 victims of human trafficking have been identified, 2,250 of which were forced into prostitution, and 350 were subject to forced labor. Proliferation of human trafficking in the Belarusian territory is partially related to the low quality of the post-Soviet legislation. The low efficiency of anti-traffic measures provoked in the late 1990s an intensive legislative effort in this sphere. The reform started with the Ordinance of the Council of


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Ministers of November 8, 2001, putting into effect the State Program on Complex Measures to Counter Proliferation of Human Traffic and Prostitution for the Period of 2002–2007. At the present day Belarus participates in all existing universal conventions in the sphere of human trafficking. Human trafficking is punished exclusively by deprivation of liberty (imprisonment), which may eventually be supplemented with confiscation of property and revocation of rights to exercise certain activities or occupy certain positions. Today, the Criminal Code defines the following acts as human trafficking: • Profiteering from or facilitating prostitution or coercion to prostitution. • Involving minors into antisocial activities (prostitution, vagrancy, or mendicancy). • Traffic of human beings. • Kidnapping for exploitation purposes. • Illegal assistance for employment abroad. • Diffusion of pornographic materials. In 2005, there were 650 recorded cases of human trafficking, while in 2006 there were 567, according to the Ministry of Internal Affairs. The Ordinance of the President No. 352 of August 8, 2005, On Preventing Negative Consequences of Human Traffic, established measures for the protection and rehabilitation of victims. Among these were nondisclosure of identity, exemption from being present during the court hearings, closed hearings, and surveillance of their domicile and property. The Ministry of Labor and Social Protection organizes centers of psychological aid and rehabilitation of victims. Trafficking victims not having reached the age of legal majority undergo rehabilitation programs in special pedagogical centers (total number of 101) and in social care centers (140), organized by the Ministry of Education.

DRUG OFFENSES According to official statistics, the number of drug addicts in Belarus remained stable in 2006 and 2007: around 127 persons per 100,000 inhabitants actually suffer addictions to narcotic or other psychotropic

substances. There is an increasing accessibility to drugs principally due to Belarus’s geographic situation on the crossroads of two principal traffic streams, one coming from Afghanistan, Central and Southeast Asia (heroin, hashish, marijuana) to Western and Northern Europe, and the other of synthetic drugs coming in the opposite direction. In recent years, Belarus seems to have ceased to be just a place of transit. A large part of the transiting “goods” actually remains in the internal market, where it easily finds consumers. The flooding of the market with new products (methadone and amphetamines) provoked a general fall of the drug prices, thus increasing their accessibility for younger consumers. These trends are accompanied by a pronounced increase in the number of drug offenses. According to data of the Ministry of Internal Affairs, during the last five years, the number of drug offenses increased by 26.7 percent, and the number of convicted persons by 32.3 percent. In 2006, a total of 4,959 drug offenses were registered, 1,945 of which related to illegal sale. A total of 719 kilograms (1,584 pounds) of papaverous straw, 16,446 kilograms (36,246 pounds) of drugs ready for consumption, 9,014 kilograms (19,866 pounds) of psychotropic substances, and 7,846 kilograms (17,292 pounds) of precursors were confiscated. The national strategy of struggling against drug offenses is established by the Law of May 22, 2002, on Narcotic Substances, Psychotropic Substances and Precursors. The law establishes the national classification of the above substances. The official list of narcotic substances, psychotropic substances, and precursors is established by the Ordinance of the Ministry of Public Health of May 28, 2003. Only the substances that are included in this regularly updated list may constitute the object of a criminal offense. The following types of offenses qualify as criminal by the Belarusian Criminal Code: • Theft of narcotic substances, psychotropic substances, and precursors. • Illegal circulation of narcotic substances, psychotropic substances, and precursors, including fabrication, processing, conservation, transportation, and conveyance thereof.


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• Sowing or cultivation of prohibited plants containing narcotic substances. • Violation of rules of treatment of narcotic or psychotropic substances. • Inciting to consumption of narcotic substances, psychotropic substances, or derivatives thereof. • Organization or keeping of dens for consumption of narcotic or other stupefying substances.

ECONOMIC OFFENSES Economic offenses include corruption and abuse of power, coinage offenses, illegal circulation of precious metals and nonferrous metals, illegal production and sale of alcohol-containing products. In 2006, Belarus registered 8,000 new incoming cases as economic offenses. Among these, the share of serious and particularly serious offenses constituted 50.8 percent according to the Ministry of Internal Affairs. There were 980 cases of corruption, 82 of which were committed in the industrial sphere, 75 in the construction sector, and 70 in educational establishments. The construction sector seems particularly affected by the corruption problem. Cases of bribery are frequent to obtain a permission of construction and leasing lots for construction of houses or commercial premises. In 2006, the authorities of primary investigation registered 2,118 cases of marketing counterfeit currency, 240 of which concerned national currency. In the first semester of 2007, the number of cases amounted to 922, 133 of which concerned national currency. In 2007, the authorities of preliminary investigation dismantled 19 criminal groups specialized in counterfeiting bank notes. Yet, the principal difficulty of these cases relates to the fact that a large majority of the group members are aged less than 16 years, and therefore may not be criminally liable.

Finding of Guilt Rights of the Accused The Code of Criminal Procedure of the Republic of Belarus specifies 28 rights to which the accused is entitled, of which the major ones are the following:

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• To be immediately informed of the charges. • To obtain written information on the rights of the accused. • For family members to be informed of the place of his or her detention. • In case of pretrial detention, to obtain a free legal consultation before the first interrogation. • To testify and refuse to testify. • To submit evidence. • To use his or her native language and have an interpreter. • To plead guilty or not guilty. • To object against actions of the investigating authority and have the objections registered in the protocol of the proceedings. • To contest before a court of law his or her arrest, preliminary detention, home arrest, or placement in a psychiatric establishment for examination. • To have access to the files of the criminal case and make copies thereof, after the investigation is officially terminated. • To get acquainted with the protocols of the court audience, submit objections in respect to correctness and exhaustiveness thereof, and complete the protocols. • To take part in the court debate, if the accused chose to carry out his or her own defense. • To submit objections against protests of the public prosecutor, prosecutors, and against complaints of other participants of criminal proceedings. • To obtain full compensation of damage caused by illegal actions of the authority in charge of the criminal proceedings, and be entirely rehabilitated, if the accusation is not confirmed. The accused is entitled to a defender. The defender must be a lawyer belonging to the National Bar Association and qualified to practice law. However, in-court representation by a lawyer is not mandatory. The accused may opt to be defended by a close relative or by a legal representative. The right to legal aid is guaranteed by the state. Free legal aid may be provided by local bar associations and is financed by the state budget.


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A lawyer’s participation is generally obligatory if solicited by the accused, or if the accused is a minor, physically or mentally impaired, illiterate or cannot speak the language. Total or partial exemption of legal fees is within the discretion of the president of the bar.

Prosecution and Investigation of Cases Criminal investigation is carried out by prosecutors, as well as criminal investigators and officers of preliminary investigation. The prosecutors are in charge of investigation of the crimes of particular seriousness as described in an earlier section. Other offenses fall under the jurisdiction of criminal investigators and officers of preliminary investigation belonging to the Ministry of Internal Affairs.

Alternatives to Trial In the present state of legislation, there are no alternative (nonjudiciary) methods of treating criminal cases. However, in cases called “of private accusation,” the criminal proceedings are initiated by the victim and may be terminated by reconciliation. However, the parties may reconcile at any moment of the criminal proceedings, before the judge leaves the courtroom for final deliberation. Only in 1.8 percent of cases are criminal proceedings terminated before trial. According to official statistics (Ministry of Justice, first semester of 2007), the majority of cases end up with a verdict of “guilty” (96.6%).

Incarceration Awaiting Trial Preliminary detention of suspects or the accused is permitted by article 126 of the Code of Criminal Procedure. This measure of procedural constraint is applied for the offenses punishable by imprisonment for a term exceeding two years or on the grounds of the particular seriousness of the suspected crime. Preliminary detention may be exceptionally applied in less serious cases, when the suspect or the accused has no permanent residence in the territory of Belarus. Preliminary detention must be sanctioned by

the prosecutor general, regional prosecutors, municipal prosecutors, or prosecutors having an equivalent status.

Status of Criminal Judges There are no judges specializing in criminal matters in common courts. Criminal cases, as well as civil and administrative ones, are handled by the same judges within the common courts. Regional courts, possessing a more complex structure, have civil and criminal collegiums allowing a specialized approach to criminal cases. To access the judicial profession, a person must satisfy the following qualification requirements: be a citizen of the Republic of Belarus, be over 25 years of age, have an excellent knowledge of the national languages, have a university law degree, have no criminal record, have no less than three years of experience in legal practice, and have successfully passed the qualification exam. Judges of all courts are appointed by the president, according to the Constitution of the Republic of Belarus and the Code on the Judicial System and Status of Judges.

Juveniles At present, there is no specialized system of juvenile justice. Cases involving minors fall under the jurisdiction of common courts. However, the Code of Criminal Procedure contains specific provisions for criminal proceedings instituted against minors (under 18 years of age). General rules of criminal procedure remain applicable, but they are adapted to the age and the special needs of the accused. Thus, juvenile participants (suspects, accused, victims, witnesses) are mandatorily accompanied by their legal representatives (parents or legal guardians) and a pedagogue (a psychologist). The participation of a lawyer is obligatory, if the accused has not reached the age of majority on the day of the trial. Criminal cases against minors are entrusted to judges having special training and experience in the matter. If the charges are brought against several persons, one of which is minor, the case against the latter is detached into a separate procedure, provided that such separate investigation “will not hamper an


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exhaustive, thorough and objective study of the case” (art. 431 of the Code of Criminal Procedure). Interrogation of minors may not last more than two hours without intermission and may not exceed four hours in total. During the trial, minors are removed from the courtroom whenever the proceedings may negatively affect him or her. When sentencing, the court must give first priority to sanctions that are not related to deprivation of liberty.

Punishment Article 47 of the Belarusian Criminal Code gives a legal definition to punishment as applied to criminal matters: “Punishment is a coercive measure, provided for by criminal law and applied on the basis of a judicial decision to a person convicted for crime. It consists in limiting convicts’ rights or depriving them thereof under conditions provided by law.” The peculiarity of the Belarusian law system is that coercive penalties are far from monopolizing the criminal law. In fact, some rules of administrative law also provide for sanctions that consist in limiting personal rights or depriving offenders of certain liberties, that is, administrative fines, administrative arrest, correctional services. These correctional measures are not defined as punishment under criminal law. They are subject to special regulations under the Code of Administrative Offenses of April 21, 2003.

System of Punishments The Belarusian Criminal Code establishes a system of punishments, which is an exhaustive list of legally possible sanctions arranged in a definite order, according to the degree of their severity. The system of punishments outlined by article 48 of the Criminal Code is constructed upon the principle of increasing severity of sanction, as follows: • Public works • Fine • Revocation of right to occupy certain positions or to exercise certain activities/occupations

• • • • • • • •

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Correctional work period Restrictions in military service Arrest Limitation of liberty Assignment to a disciplinary military unit Deprivation of liberty Life sentence Capital punishment

The criminal sanctions are also categorized into three general types: principal punishments, complementary punishments, and mixed ones. Principal punishments are assigned by the judge, where they are provided for by the Criminal Code, as basic sanctions and may not be assigned as penalties complementary to other punishments. The punishments situated on levels 4 to 11 in the system of punishments may only be applied as principal punishments. For every committed crime, the judge may assign only one principal punishment provided for by the relevant article of the Criminal Code. Complementary punishments may not be applied as an independent sanction, but only as an adjunct to a principal punishment. Where the code provides for several possible complementary sanctions, the judge may assign one or multiple complementary punishments. The severity of the complementary punishment may not be greater or equal to that of the principal punishment. Mixed punishments may be used as principal punishments or as complementary ones, depending upon the case. The punishments situated on levels 1 to 3 in the system of punishments outlined above are mixed punishments. The general system of punishments is not applicable to juvenile offenders. The system of punishments for juveniles consists of the following sanctions: • Public works • Fine • Revocation of right to occupy certain positions or to exercise certain activities/occupations • Correctional work period • Arrest • Deprivation of liberty


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The first three levels are considered mixed punishments, whereas the last three may only be applied as principal ones. Despite the fact that limitation of liberty may not be assigned to minor convicts, judicial practice allows it when minors have reached the full legal age on the date of pronouncement of the verdict.

Types of Punishment Public works consists in compelling the convicts to carrying out community services or other works of public interest, free of charge and during their free time. In general, public works are applied in cases where convicts’ modest income does not allow them to pay the fine and when there is no evidence of evasion from the punishment. The duration of public works varies from 60 to 240 hours (from 30 to 180 hours for minors). Criminal fines are pecuniary sanctions considered as interchangeable with public works. A fine may be applied as a principal and as a complementary sanction. The articles of the Criminal Code do not establish the amount of the fine applicable for different offenses. The judge determines the concrete sum on a case-by-case basis, taking into consideration the nature and the seriousness of the offense, as well as the convicts’ paying capacity. The concrete amount is calculated in “basic units,” which are microeconomic indicators established and regularly revised by the National Bank, within the boundaries running from 30 to 1,000 basic units. The given maximum and minimum boundaries are doubled for lucrative crimes and crimes committed for mercenary ends. The revocation of rights to occupy certain positions or to exercise certain activities/occupations is applied when the crime is directly connected with the convicts’ activity or with their position. The punishment may be for a term of one to five years. A copy of the verdict is sent to the employer, which must suspend the convicted worker from his or her functions within three working days. A correctional work period consists in putting the convicted persons under an obligation to pay 10 to 25 percent of their income to the state budget

during the period running from six months to two years. Income retentions are carried out monthly by the employer. Correctional work periods are not applied to minors aged under 16, to women aged over 55, to men aged over 60, to pregnant women, to persons on parental leave, to handicapped persons having an established degree of invalidity, and to military personnel. In case of the convicted person’s unemployment on the day of the verdict’s pronouncement, the person is required to find an employment corresponding to his or her qualifications within a two-week period. If the employment search turns out be fruitless, the convict is directed to the Public Service of Employment to acquire a priority job placement. Restrictions in military service, applicable to military personnel, are similar to correctional works. Restrictions in military service are assigned to officers and other military personnel undergoing their military service on contract basis. Restrictions consist in imposing income retentions running from 10 to 25 percent of monthly pay and in impossibility of career advancement during the restrictions period. Criminal arrest consists in temporary detention, during which the convicts are kept in the conditions of strict isolation. The convicts serve their sentence in detention homes, located within the region of their primary domicile. Depending on the nature and the seriousness of the crime, the term of detention may vary from 1 to 6 months. Juvenile delinquents having reached 16 years of age may be assigned a term of arrest varying from 15 days to 3 months. During the detention period, the convicts are not entitled to visits, other than visits of their lawyers and legal advisors. They are not entitled to receive packages, except for those containing the objects of primary necessity and seasonal clothing. Junior inmates not having reached 18 years of age are entitled to a monthly 4-hour visit of their parents or legal guardians. The inmates enjoy the right of a 1-hour walk per day (1-and-a-half-hour walk for junior inmates). Limitation of liberty consists in placing the detainees in an “open-campus” correctional establishment and imposing on them an obligation to work for a public or private enterprise designated


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by the correctional establishment. The punishment entails multiple limitations of personal freedoms: freedom of movement, freedom to choose one’s domicile, freedom of labor, freedom to choose one’s occupation, and so forth. Thus, the inmates may not leave the territory of the correctional establishment without special permission to do so. The inmates are placed under constant surveillance of the penitentiary establishment: their person, their room and personal effects may be subjected to a search at any moment without a prosecutor’s warrant. The inmates live in special dormitories of the correctional establishment. However, upon permission of the director of the correctional establishment, the inmates may live with their families in rented apartments or in their personal domiciles, provided that they do not violate the conditions of their detention and their work for the assigned enterprise. For the term of detention, the inmates’ passports are taken by the administration of the correctional establishment and temporarily replaced by inmates’ identity cards. Limitation of liberty is usually assigned on the grounds that the convict’s correction and resocialization is possible without his or her isolation from the society. It may only be applied as a principal punishment for the minimal term of six months and for the maximal term of five years. Assignment to a disciplinary military unit is applied to military personnel on temporary service having committed a military crime or any other crime during their service. The term of detention is set between three months and two years. Deprivation of liberty (imprisonment) consists in placing convicts in conditions of strict isolation from society and from their immediate entourage and keeping them in a correctional establishment of a determined regime during the term established in the verdict. Deprivation of liberty or imprisonment may only be assigned as a principal punishment. Deprivation of liberty is considered to be an exceptional measure and is applied only for crimes of a particular social danger, if the judge deems, considering all the circumstances of the case, that a milder sanction shall not be proportionate to the convict’s measure of responsibility. Article 57 of

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the Criminal Code sets general guidelines for determining the term of imprisonment. The deprivation of liberty may be assigned for the minimum period of 6 months and for the maximum period of 12 years. However, for the crimes of particular seriousness, the maximum limit is extended to 15 years, or even 25 years of imprisonment if there was especially intentional human suffering inflicted by the offender. The term of imprisonment for nonintentional crimes may not exceed 7 years. Sentences of imprisonment are served in a variety of correctional establishments specifically designated to match the social danger of the convicted individuals and the eventual risk of flight. A part of the imprisonment sentence may be served in prisons, but no longer than five years, by persons sentenced for crimes of particular seriousness and in case of multiple recidivism. Reinforced and special regime are not applied to women, who are placed into correctional establishments reserved for women. Minor convicts aged less than 18 years old on the day of the verdict serve imprisonment sentences in educational colonies. Life imprisonment is applicable as an alternative to capital punishment for crimes connected with encroachment on human life in presence of aggravating circumstances. Life sentence may not be assigned to minors or to women and men having attained 65 years of age on the day of the verdict. Persons convicted to a life sentence serve their punishment in correctional colonies of special regime, in isolation from common inmates. They are usually kept in separate cells, with no more than two inmates per cell. The correctional colonies do not organize any continuing educational training for convicts sentenced to life. However, they are obliged to create all necessary facilities for selfeducation. Revocation of a military title may be applied exclusively as a complementary punishment (art. 60 of the Criminal Code), but in very serious cases the court may order permanent revocation of the special or military title. Confiscation consists in total or partial requisition by the state of the convicted person’s property. It may be mandatory or alternative. The property


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subject to confiscation may not be substituted by a proportionate sum of money. When applying confiscation measures, the judge must take into consideration the convicted person’s family situation, the level of income, and the number of eventual dependants.

DEATH PENALTY Capital punishment is still practiced in the Republic of Belarus. No moratorium on the application of capital punishment is envisaged in the near future. However, on March 11, 2004, the Constitutional Court rendered public its assessment of the compliance of the death-penalty provisions in the Criminal Code with the Constitution, following a request from the House of Representatives of the National Assembly. The court found a number of provisions of the Criminal Code to be inconsistent with the Constitution, thus providing for the possibility of either the abolition of the death penalty or the imposition of a moratorium on executions as a first step toward full abolition. The constitutional court’s ruling provoked a legislative reform of the Criminal Code. The constitutional law adopted on June 23, 2006, supplemented the Criminal Code with a reference to the temporary character of the death penalty, which, until its abolition, may be assigned as “an exceptional measure which may only be applied for cases of premeditated murder with aggravating circumstances” (art. 59.1 of the Criminal Code). Thus, the actual wording of article 59.1 suggests that the evolution of the criminal legislation will ultimately lead to a total abolition of this type of punishment. The Supreme Court has emphasized that capital punishment is to be applied in exceptional cases, when the crime was committed in aggravating circumstances, the seriousness of which characterizes the author of the crime as particularly dangerous for the society. If a life sentence is substituted for capital punishment, the judge must present clear and exhaustive reasons in the final verdict. The reason for the punishment is subject to thorough review by the superior jurisdictions, a procedure initiated by the prosecutor general.

In the present state of law, capital punishment may be applied for the following 14 types of crimes, directly provided for by the Criminal Code: • Unleashing or leading an aggressive war • Murder of an official representative of a foreign state or of an international organization with an aim to provoke international tensions or war) • International terrorism • Genocide • Crimes against security of humanity • Use of weapons of mass destruction • Violation of laws and customs of war • Aggravated murder • Terrorism • High treason associated with murder • Conspiracy aiming at taking over state power, entailing accidental death, or associated with murder • Act of terrorism • Act of sabotage • Murder of a police officer Compared to the old legislation, the number of cases in which the law directly allows for application of capital punishment has considerably diminished (30 to 14). In addition, all of the aforementioned articles provide for life sentence as an alternative to capital punishment. The law prohibits applying capital punishment to the following categories of convicts: (1) persons having committed a crime before having attained 18 years of age, (2) women, and (3) men having attained 65 years of age on the date of the verdict. If the convict has reached 60 years of age on the date of verdict enforcement, the court must substitute imprisonment. Persons sentenced to a death penalty are entitled to file a clemency application. Appeals are initially considered by the Clemency Commission. If the application is granted, the death penalty is commuted to life imprisonment. In any case, death penalties may not be put into effect unless the clemency application is officially rejected. Since 1994, the cases of all individuals sentenced to death are


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automatically considered, regardless of whether the sentenced person has submitted an appeal for clemency. According to Organization for Security and Co-operation in Europe (OSCE) data, in the period from June 30, 2006, to June 30, 2007, the president did not grant clemency. The method of execution of capital punishment in Belarus is death by shooting. The death penalty is executed in complete secrecy, in presence of the prosecutor, the penitentiary establishment director, and a doctor. Relatives are not informed in advance of the date of execution. The administration of the correctional institution where the execution is carried out is obliged to notify a close relative once the execution is realized. The body is not returned to the family, and the place of burial is not disclosed. The number of death penalty sentences in Belarus is covered by state secret. The official statistics on the number of executions are therefore not available. According to United Nations data, five death sentences were executed in 2005. The number was brought down to three in 2006. According to the information provided by the Supreme Court, during the period from June 30, 2006, to June 30, 2007, one individual was executed. However, due to inaccessibility of the official data, the real number of executions may be considerably higher.

Typical Punishments MURDER Murder is punishable by 6 to 15 years of imprisonment, 8 years to life imprisonment, or death penalty with aggravating circumstances. According to statistics of the Supreme Court for 2002, in 97 percent of nonaggravated murder cases and 99 percent of “aggravated” murder cases, the tribunals opted for imprisonment.

RAPE Rape entails limitation of liberty for maximum duration of 4 years or, alternatively, of imprisonment for the term of 3 to 7 years and in aggravating circumstances 5 to 13 years.

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SERIOUS THEFT Serious theft is punished by 2 to 7 years of imprisonment, with assorted confiscation or without such. Particularly large-scale theft, the economic value of which is beyond US$16,556 (1,000 basic units), and theft committed by an organized group are punished by 3 to 12 years of imprisonment, with assorted confiscation.

DRUG OFFENSES Manufacturing, processing, acquisition, storage, transportation, or remittance of narcotic or psychotropic substances with the aim of sale thereof, or sale of narcotic or psychotropic substances, is punishable by limitation of liberty for the maximum term of 5 years or, alternatively, by 2 to 5 years of imprisonment; if by an organized group, 10 to 15 years of imprisonment, with assorted confiscation. The most commonly applied punishment is imprisonment for the term of 1 to 2 years. In 2005, such sanction was assigned in 55.7 percent of cases.

Prison The number of inmates kept in correctional colonies, educational colonies, and prisons on January 1, 2006, was 41,538, of which 19.6 percent was pretrial or remand prisoners, 7.5 percent were female, 2 percent juveniles, and 4 percent foreigners. The number of correctional institutions numbered 32, with an official capacity of 43,400.

WORK IN PRISON Socially useful work is considered to be the key to the prisoners’ rehabilitation program. For this reason, inmates are required to work, while serving their sentence, for the enterprises officially operated by the Penitentiary Administration and equipped to accommodate prisoners. Prisoners work in workshops established in the confines of the penitentiary establishment, or in workshops situated outside of the penitentiary establishment. In general, all public and private enterprises may employ prisoners, provided that their factory premises are secured and isolated.


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Male prisoners having reached 60 years of age, female prisoners having reached 55 years of age, and handicapped persons do not have an obligation to work. However, their employment is encouraged, as a measure of rehabilitation and reintegration in the society. Juvenile prisoners having reached 16 years of age are required to work on a regular basis, but no longer than 35 hours per week. Upon a written permission of parents, guardians, or educational establishment, juvenile prisoners not having reached 16 years of age may carry out easy tasks, which do not present any health risks and do not interfere with their studying process. The maximum length of the workweek may not exceed 23 hours for juvenile prisoners aged 14 to 16. The time of work in prison is counted within the time of continuous service for the purposes of social security and retirement funding. Prisoners are entitled to an annual paid leave of 18 workdays for inmates of educational colonies, and of 12 workdays for inmates of correctional colonies. For prisoners serving their first sentence, paid leave may be granted outside of the correctional establishment. Prisoners’ labor is paid proportionately to their working time or to their output rate. In any case, the salary may not be lower than the level of the minimum monthly income established by law for the particular type of work. Monthly salaries are paid directly to prisoners’ personal bank accounts. The correctional establishment deducts amounts for catering and clothing fees and costs of the communal services (gas, electricity, heating). However, the monthly deductions may not take more than 75 percent of a prisoner’s salary. Prisoners subscribe to mandatory social insurance contracts and pay superannuation contributions to the Retirement Pensions Fund. According to article 101 of the Code of Execution of Punishments, prisoners’ labor may be used free by the correctional establishment for cleaning, laundering, cooking, and other services.

EDUCATION IN PRISON Considered as one of the principal means of the prisoners’ correction, educational measures are

mandatory. Correctional establishments, in cooperation with public organizations, nongovernment associations, and religious organizations, organize educational activities, aiming at providing prisoners with legal information; stimulating their interest in cultural, political, social life; involving them into team sport activities; and keeping them from losing touch with life outside prison. Educational activities in correctional colonies are supervised by section directors, and in educational colonies by special educators. A staff psychologist is present at every correctional establishment. General secondary education is compulsory for all prisoners not having reached 30 years of age. Prisoners having reached 30 years of age and handicapped persons may attend the courses on a voluntary basis. Continuing education facilities are organized in cooperation with local executive authorities. Prisoners are offered a paid leave for the term of the examination period. Article 108 of the Code of Execution of Punishment allows creation, within correctional establishments, of voluntary associations of prisoners, aiming at improvement of the quality of life in prison, organizing and diversifying leisure time, maintaining order and discipline, and carrying out other activities. Members of associations are not entitled to any privileges. However, participation in associations is taken into account when evaluating prisoners’ degree of rehabilitation for the purposes of release on parole, reduction of the term of imprisonment, or substitution of imprisonment by a milder sanction. Daria Solenik Further Reading General Prosecutor’s Office: http://prokuratura. gov.by. Krygier, Martin, and Adam Czarnota, eds. (1999). The Rule of Law after Communism: Problems and Prospects in East-Central Europe. Aldershot, UK: Ashgate. Ministry of Internal Affairs: http://mvd.gov.by. Ministry of Justice of the Republic of Belarus: http://www.minjust.by.


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National Center of Legal Information: http://www. ncpi.gov.by. Obokata, Tom. (2005). “Trafficking of Human Beings as a Crime against Humanity: Some Implications for the International Legal System.” International and Comparative Law Quarterly 54(2): 445–457. The Supreme Court of the Republic of Belarus: http://www.supcourt.by. Szirmai, Zsolt, ed. (1994). Law in Eastern Europe: A Series of Publications. Criminal Law. Leyden: University of Leyden, the Documentation Office for East European Law; A. W. Sijthoff.

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

Background At the time of its independence in 1830, Belgium retained from its period of annexation to France (1792–1815) the repressive Napoleonic laws that were in vigor at that time, that is, the 1808 Code of Penal Procedure and the 1810 Penal Code that had basically not been changed during the reunion with the Netherlands (1815–1830). The adoption, in 1867, of the first Belgian Penal Code followed the spirit of the previously existing laws, although the severity of the punishments was somewhat moderated. With regard to penal procedure, the system proposed by the legislator in 1808 was retained, containing elements of both the accusatorial and inquisitorial systems. The preliminary phase of the penal process during which the repressive dossier is constituted is more of the inquisitorial type (secret, noncontradictory, and written), whereas

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the judgment phase is more of the accusatorial type (public, adversary, and oral).

Police As of the law of December 7, 1998, a single integrated police service is organized and structured on two autonomous levels, the federal and the local level. The local police fulfill the basic police tasks at the level of the 196 police zones covering one or more municipalities. The federal police fulfills tasks on the whole territory, conducting specialized and supralocal tasks of administrative and judicial police, as well as tasks in support of the local police and of the police authorities. The Ministry of Interior and the Ministry of Justice are responsible for coordinating the general policy with respect to police and the management of the local and federal police forces. The idea to reorganize the structure of the police followed a series of tragic events that have marked the history of Belgium during the 1980s and that have brought the shortcomings and dysfunctions of the administration of criminal justice, and of the police in particular, to the foreground of the political scene. This reform process, described very briefly here, did, however, not develop without friction and criticism. At the time of the reform the local police comprised about 27,500 people and the federal police some 10,000 people, which brought the total number at close to 37,500, or about 3.7 policemen per 1,000 inhabitants. The overall numbers have hardly changed, but the reform is said to have resulted in a decrease of the proportion of policemen working at the local level from three-quarters to about two-thirds of the whole group. To these operational police officers, one has to add the civilian staff that resort under the administrative and logistical framework that are constantly on the rise (close to 7,500 in 2006). In a structural way, at the local level the police has gone from 586 municipal police brigades and 429 territorial gendarmerie brigades to 196 police zones. The federal police, on its side, has since its creation in 2001 undergone important structural reorganizations.


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Crime Classification of Crimes Belgian penal law distinguishes between three categories of criminal acts in increasing order of seriousness: contraventions, misdemeanors, and felonies. The categories are defined in law not based on intrinsic characteristics of the behavior but based on the nature of the penalty applied to them. Contraventions attract police punishments, misdemeanors correctional punishments, and felonies criminal punishments. In principle, the police court presides over contraventions, the correctional court over misdemeanors, and the cour d’assises over felonies. However, acts that are normally classified as felonies can be subject to a process of “correctionalization” by applying mitigating circumstances and hence be judged by a correctional court. The possibilities for correctionalization have gradually been broadened over the last 30 years to such an extent that it is now possible for all felonies that do not attract a penalty of more than 20 years and for a certain number of felonies for which the legal penalty is more than 20 years. In the same manner mitigating circumstances can lead up to a misdemeanor being tried before the police court. This means that the division of criminal acts in three categories is constantly up for discussion through the continuous extension of the technique of correctionalization, and—to a lesser extent—of “contraventionalization.” These processes make it virtually impossible to make a definitive list of criminal acts falling under the different categories.

Crime Statistics Police crime statistics are only recently available in Belgium. The first were gathered for the year 1994. Since 2000, due to the police reform, a different system is used to produce the statistical data. Excluding traffic offenses, 1,002,829 cases were recorded by the police in 2007, of which 93.4 percent were completed acts and 6.6 percent attempts. The category that is represented the most in the police statistics is the one including all kinds of thefts, burglaries, and robberies: they comprise about 42 percent of registered crime in 2007. This proportion is slowly decreasing: it was 50 percent in 2000 and 52 percent in

1994. Next come the violent property crimes (vandalism, destruction, arson) amounting to 12 percent of registered crime in 2007, which represent a slight increase as compared to 2000 (10.5%). The group of offenses against physical integrity, consisting mainly of assaults but also of rapes and murders, represents about 9 percent of the criminality registered in 2007. This was 7 percent in 2000. Fraudulent crimes against property (fraud, breach of trust, receiving and concealing stolen goods, etc.) constitute about 5 percent of crimes registered in 2007, which was about 7 percent in 2000. Finally, drug-related criminality (possession, use, or trafficking) amount to a bit more than 4 percent of the crime registered in 2007, a proportion that has hardly changed since 2000. These five categories together represent 70 percent of the total amount of registered crime. Crimes (per 100,000 population, not including attempts) recorded by police in 2006 are as follows: Homicide Rape Theft Of which robbery Bodily injury Of which nonfamily Of which in family Drugs total Of which traffic

2.1 27 3,533 168 674 429 245 384 112

A recent study of the National Institute for Criminalistics and Criminology, based on data of correctional and youth courts, shows that the portion of registered crime that can be attributed to minors is about 11 percent.

Finding of Guilt Judicial Organization, Procedure, and Rights The exercise of penal justice belongs in principle to the police courts for contraventions, to correctional courts and its court of appeal for misdemeanors, and to the cour d’assises—court with a jury—for felonies. This principle is modulated because of the application of a process of correctionalization or of contraventionalization due to the admission of mitigating circumstances.


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Ronny Baudewyn, the lawyer for Marc Dutroux, speaks during a court session at the Palace of Justice in Arlon, Belgium, June 21, 2004. Prosecutors called for convicted pedophile Dutroux to spend the rest of his life behind bars for multiple counts of child rape and murder. Dutroux is seen at rear right. (AP Photo)

The burden of proof in penal matters rests exclusively with the prosecution authority. The public prosecutor plays an important role in the Belgian system: the police must inform him or her of every offense and he or she then decides which measures have to be taken by the police to gather the necessary elements related to the offense. The public prosecutor can also requisition an examining magistrate that will examine the case both for and against the offender. The suspect or prosecuted person can rely on the presumption of innocence, on the right to a fair trial, and on the right to defend oneself according to the principles conferred by article 6 of the European Convention on Human Rights. The position of the parties is, however, very different

depending on whether it is the preliminary phase of the penal process, which is of the inquisitorial type, or in the adversarial phase of the judgment. The Law on March 12, 1998 Concerning the Improvement of Penal Procedure at the Pre-trial Stage brought about important changes in the existing balance between the rights of the prosecution authorities, the victim, and the accused. At the stage of information gathering, the rights of the accused still remain almost nonexistent, except for the possibility to ask for a copy of one’s interrogation. At the stage of the preliminary investigation, however, the position of the accused has been completely revisited. Thus from now on, the investigating judge has to formally charge the person against whom serious indications of guilt exist, which brings about


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a number of rights for the accused. The accused has the right to request access to the dossier or to ask for additional investigative acts to be undertaken. Whereas, at the time, the critics of the law saw it as only a tentative and partial reform, it has proven to be a stimulating factor in the next improvements of the penal procedure. The role of the victim, especially since the Dutroux affair (a widely known case of a child murderer and sexual abuse that instigated a public outcry and the White March of 300,000 people in protest), has become more important. Since 1985, the state may compensate certain victims of intentional violent crimes. The provictim movement also resulted, in the 1990s, in a number of concrete actions in favor of victims and their need for recognition. In 1993, the Chamber of Representatives called for the creation of a national forum for a provictim policy and in 1996 the minister of justice established a victim aid service in every public prosecutor’s office. The law of March 12, 1998, concerning the improvement of penal procedure aims to put victims on the same level as suspects in terms of rights and guarantees: their prerogatives are strengthened during the preliminary investigation and, to a lesser extent, at the stage of information gathering. Consideration of the victim was even accentuated further by the law of May 17, 2006, concerning the external status of persons convicted to deprivation of liberty and concerning the victim rights recognized in the framework of the modalities for executing a punishment.

Alternatives to Trial In Belgium, the fact that an offense was committed, the identification of its author, and the collection of sufficient evidence against the offender do not in all cases lead to a criminal process. The public prosecutor indeed has the possibility to drop the case for various reasons. These can be linked to the nature of the facts themselves (limited social repercussions or very limited damage, for example), to the person of the offender (no prior record, disproportionate consequences, etc.), or to criminal policy considerations (priorities, investigative capacities). This possibility is used frequently: in 2007 it represented

about 77 percent of the decisions to close a case at the level of the correctional court (excluding the decisions to dismiss a case because the offender could not be identified, because there was no crime, or because of insufficient evidence). In 18 percent of these cases, a penal process takes place, and in another 5 percent an alternative way of handling the case is used, that is, a penal transaction (2.5%), penal mediation (1%), or praetorian probation (1.6%), according to prosecution authority sources. The penal transaction consists of the prosecutor inviting the offender to pay a certain sum, to give up certain objects that were seized or to return them. The fulfillment of the penal transaction leads to the extinction of the public action. Penal mediation encompasses a proposal to mediate between offender and victim in search of a negotiated solution, but also extinction of the public action as a result of performing community service, following a training, or following therapy. Finally, praetorian probation entails the postponement of the prosecutor’s decision to prosecute following commitments made by the offender. Its use should remain exceptional (1.6% of the cases in 2007).

Incarceration before Trial Detention before judgment is possible in the Belgian system. Its use is regulated by the law on detention on remand. The framework for pretrial detention is of the inquisitorial type even though the legislator of 1990 introduced a certain contradictory element during the required interrogation by the investigating judge. In theory, pretrial detention has to remain exceptional: the law limits its use to cases where it is absolutely necessary for reasons of public safety and only if the fact would call for a detention of at least 1 year. In addition, if the maximum punishment would not surpass 15 years of imprisonment, there has to be a risk of reoffending, a risk for proof to disappear, or a risk of conspiracy with third parties. It is clear that these elements are susceptible to speculation. In practice the use of pretrial detention may indeed be questioned due to its increasingly frequent


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use. Research conducted by the National Institute for Criminalistics and Criminology shows besides that for all arrest warrants issued in 2003, the proportion of arrest warrants that are not motivated by at least a violation of physical integrity is very variable depending on the judicial district. Whereas it is close to 30 percent in one of the 27 judicial districts, it reaches 75 percent in another, which indicates a strong divergence in judiciary practice.

Juveniles The age of criminal majority is fixed at 18, which also corresponds to the age of civil majority. For acts committed before this age, the minor will fall under a specific jurisdiction, the youth court, which is one of the sections of the court of first instance. However, in certain cases the youth court can send the minor to adult court when it considers that a “safeguarding, protecting or educational measure” is not adequate and on the condition that the facts were committed by a minor more than 16 years of age. Although they did not fundamentally touch upon the philosophy of this model, the recent laws of June 13 and 15, 2006, have, nevertheless, after decennia of critique, debates, and attempted reforms brought about important changes at the level of the range of measures available until then. The reference model remains protectionist even though both “restorative” and “punishment” approaches have been introduced.

Punishment Types of Punishment Belgian penal law basically allows distinguishing between the different existing punishments on the basis of two criteria: the relationship between the different punishments on the one hand, and their level of seriousness on the other hand. In function of the relationship between the punishments, Belgian penal law basically distinguishes between three categories: the principal punishments, the accessory punishments, and the subsidiary punishments. The principal punishments, which are the direct

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punishment for the offense, exist autonomously and can be imposed alone, without being accompanied by any of the other types. Following the law of July 10, 1996, that abolished the death penalty and modified the criminal sentences, the principal sentences are imprisonment, the work sentence, and the fine. The work sentence, considered to be more serious than a fine, was introduced in the penal code by the law of April 17, 2002. It has been foreseen as an alternative to imprisonment and can thus not be added to a term of imprisonment. The effective application of these different sentences—or a part of them—can be made conditional on probation, in the form of a suspension or a postponement. In case of a suspension, the judge suspends the judgment during a fixed probationary period. In case of a postponement, he or she passes judgment and imposes a sentence but suspends its execution. Both suspension and postponement can be accompanied by probationary conditions. These can take different forms and can consist of either an interdiction (not being allowed to frequent certain places or people, a prohibition to perform certain activities, etc.) or an obligation (obligation to undergo medical or therapeutic follow-up, obligation to repair the harm caused, etc.). Before the introduction of the work sentence as an autonomous punishment in 2002, the performance of a community service was also a possible probationary condition. The accessory punishments are punishments that necessarily owe their existence to the existence of a principal punishment to which they are being attached. The accessory punishments are notably the suspension of certain civil and political rights, the closing of an establishment, the dissolution of a driver’s license, the publication or the distribution of judgments and arrests, the special confiscation, or the fine accompanying a prison sentence. Another accessory punishment is the order to remain at the disposal of the government—which was replaced recently by remaining at the disposal of the court for the application of sentences—with the aim to protect society against people who have committed certain serious acts that have touched upon the integrity of people and/or recidivist offenses. This complementary punishment takes place after


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the prison sentence and can last for a minimum of 5 years and a maximum of 15 years. The subsidiary punishments are punishments that replace the ones pronounced if the latter are not being executed. Until recently only imprisonment could be used as a subsidiary punishment in case of nonpayment of fines. The duration of the subsidiary imprisonment is fixed in the sentence from the outset. Since the introduction of the work sentence, the fine may also constitute a subsidiary sentence to the work sentence, in the same manner as imprisonment. Finally, since 2003, in the case of traffic offenses, the dissolution of the right to drive can be applied in case a fine has not been paid. In terms of their level of seriousness, one may distinguish—in decreasing order—three categories of sentences among the principal sentences: the criminal sentences, the correctional sentences, and the police sentences. Life imprisonment is at the top of the scale of punishments. Temporary criminal detention is of at least 5 years and can be pronounced for four different terms depending on the degree of seriousness: from 20 to 30 years, from 15 to 20 years, from 10 to 15 years, and from 5 to 10 years. In principle it is the cour d’assises that passes judgment over crimes. However, they can be the object of a process of correctionalization through the admission of mitigating circumstances for acts normally defined as crimes, in such a way that they can be tried before the correctional court. Correctional imprisonment can in that case be of 10 years, and exceptionally more due to the application of the rules on recidivism and on the convergence of offenses. The following three principal punishments can be correctional punishments: imprisonment of a minimum of 8 days and a maximum of 5 years, a work punishment of 46 to 300 hours, and a fine of a minimum €26 (US$33) (multiplied by a coefficient that is regularly adapted to the actual value of money). The same three punishments can be police punishments to respond to a contravention: imprisonment of 1 to 7 days, work punishment from 20 to 45 hours, and a fine of a maximum €25 (US$31). When we consider all the cases in which judgment was passed by the different tribunals, and if we

exclude the acquittals, about 95 percent of the cases lead to a sentence of punishment, close to 5 percent to a suspended sentence, and only 0.2 percent to an internment, according to figures of convictions (Ministry of Justice). Of all the punishments pronounced as a principal or accessory punishment, the fine is the most frequently used: of the 359,965 punishments pronounced in 2002, 179,897 were fines (in 164,514 distinct convictions), amounting to 50 percent. In 74 percent of cases the fine is imposed as a principal punishment. On the other hand, about 36 percent of the fines are postponed and this is more frequently done when the fine is imposed as a principal punishment (40%). The punishment that comes second in terms of being imposed the most is the dissolution of the right to drive, which represents 40 percent of the totality. For the same year, 2002, the deprivations of liberty represented 7.6 percent of all punishments. The work sentence, introduced quite recently, has known a rapid development: the mandates given to the justice assistants that are charged with their implementation increased from 556 in 2002—the first year in which the punishment was introduced—to 10,131 in 2008. The predominance of the fines is, however, related to the high number of traffic offenses. If we leave out this category of offenses, and if we also do not consider the cases decided by the police courts, it is the deprivation of liberty that is by far the punishment being imposed the most: in 2002 deprivation of liberty was imposed by way of principal punishment in 77 percent of cases (23,510) whereas this was the case for fines in 19 percent of cases (5,854). According to the Ministry of Justice figures available for the years 1995 to 2004, on average, 54 percent of the imprisonments imposed by correctional and police courts are accompanied by a postponement of either the whole punishment or a part of it. This proportion is almost identical for the imprisonments up to 6 months as for those between 6 months and 5 years. It is, on the other hand, only 1 percent for the punishments of 5 years and more. In terms of evolution (1995–2004), one can notice the downward trend of the prison sentences up until 6 months (34% less over 10 years), whereas the sentences from 6 months to less than 5 years have


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increased (13% more over 10 years). This increase is even more important for prison sentences of 5 years and more—of which 97 percent are sentences between 5 and 10 years—since they have increased 24 percent over this period. In regard to the prison sentences imposed for felonies by the cour d’assises one can see that 80 percent of the sentences imposed are longer than 10 years. Even though it is difficult to draw firm conclusions based on relatively weak numbers, we can nevertheless discern a general upward tendency in the number of long sentences imposed over this 10-year period (58 in 1995 and 93 in 2004).

Typical Punishments While it is difficult to account for the different punishments for different crimes because of the use of accessory punishments and cumulated punishments, the proportions of those sentenced to prison for a selection of offenses is of interest. It is for homicide, and more particularly for completed homicide, that imprisonment is the most typical sentence. In this case it represents, in 2004, 78 percent of the 241 convictions. This compares to rape with 537 convictions and 36 percent sentenced to prison; 4,904 convictions for bodily injury with 28 percent sentenced to prison; robbery, 2,739 convictions and 43 percent sentenced to prison; theft with 8,446 convictions and 48 percent receiving prison; drug offenses, 4,317 and 31 percent receiving prison. The use of postponed detention, either totally or partially, was used the most in case of rape (or attempted rape) with 63 percent receiving suspended sentences. In the case of theft and violent theft, imprisonment is imposed in almost half of the cases.

Tribunals for the Application of Punishment The recent law of May 17, 2006, established tribunals for the application of punishments, which now belong to a specific jurisdiction to decide on granting the different modalities to execute a prison sentence. These concern conditional release, but also limited detention (authorization for the inmate to leave the prison during 12 hours per day), electronic

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monitoring, provisional release with a view to leaving the territory (for convicted persons without a residence permit or who will be extradited or handed over as a result of a European arrest warrant), or still the replacement of the prison sentence with a work sentence. For the sentences of which the outstanding part is more than 3 years, the decision has to be made by the tribunal (one judge and two assessors). For the sentences of which the part that remains to be executed is below or equal to 3 years, the judge of application of punishment can decide alone. However, he or she will only be given these competencies starting from September 2012. Since 1930, Belgium has had a specific regime for criminals who, because of mental problems, are not considered to be responsible for their acts. These do not receive a punishment but are imposed measures of internment that resemble much more safety measures and that aim at protecting society as well as at treating the ill. This regime has, however, been changed by the law of April 21, 2007, which has given the competence related to the execution of internment measures to the new tribunals for the application of punishments. These dispositions will, however, not enter into effect before January 1, 2012.

Prison PRISON POPULATION On March 1, 2008, the Belgian prison population amounted to 9,858 detainees or 93 detainees per 100,000 inhabitants. Compared to other European countries, this detention rate might seem moderate. However, when we consider the Belgian situation on its own and especially when we consider it from a long-term perspective, the inflation of the prison population is a striking phenomenon. An upward trend could already be observed in the 1980s but it was mainly from the 1990s on that the increase became important and continuous. The average population was close to 6,000 in 1991 but more than 10,000 in 2007, which is an increase of more than 60 percent in 16 years. Over the long term of these last three decennia, the inflation of the prison population is not due to


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the incarceration of a higher number of people: the entries in detention are much higher in 1975 or 1980 than in 2007. Prison inflation is likely linked to the fact that the length of detention has in general increased considerably rather than to the actual sentencing of more individuals to prison. The average length of imprisonment, calculated on the whole prison population, has increased from 3.5 months in 1980 to 7.1 months in 2007. There are two large categories of the population that also weigh the heaviest on the phenomenon of inflation of the prison population. The first of these are the convicted prisoners (51% of the population in March 2008), and the second the detainees whose conviction is not definite yet (34%, of whom 28% are detained before judgment and 6% have appealed against their judgment or are within the terms for doing so). The category of detainees that fall under the specific regime for persons having a mental illness represents 14 percent and is relatively more stable. Youth represent only a very small proportion of the Belgian prison population. Between 1980 and 2007, the number of prisoners whose conviction was not final yet had multiplied by about 2.5. Before the 1990s the rise of this category of prisoners was linked to an increase in the duration of pretrial detention. However, since then two phenomena coincide: an increase in the number of arrest warrants and an increase in the duration of pretrial detention (1.6 months in 1980 and 3.2 months in 2005). During the same period, the population with a final conviction has doubled. The observed inflation is mainly due to a rather phenomenal increase in the population of those sentenced to terms of more than 5 years of imprisonment. The number of prisoners convicted to long sentences was below 500 between 1975 and 1980. Afterward it increased to almost 3,000 in 2007, which means a multiplication by a factor of more than 6.5. The increase in the number of those purging a correctional sentence between 3 and 5 years is also considerable: the population has multiplied by 4. The category of those purging a correctional sentence between 1 and 3 years was relatively stable until the end of the 1990s and afterward shows a significant downward

trend. The number of those serving a correctional sentence of less than 1 year of imprisonment is clearly decreasing. On the long term the above confirms the hypothesis of a bifurcation in the use of imprisonment, that is, a lower use of deprivation of liberty at the lower end of the penal sentences but longer prison sentences at the upper end. Electronic monitoring was introduced in Belgium as an alternative way to undergo a prison sentence. It was first applied in 1998, as a pilot, and later became a legally recognized form of deprivation of liberty. It can, in principle, be applied to both the shortest and longest sentences. According to figures from the Prison Administration, the use of electronic monitoring has clearly not helped to stop the increase of those convicted to the longest sentences. It also cannot explain by itself the decrease in the group of those convicted to a sentence of less than 3 years in prison because of its relatively minor application. The introduction of electronic monitoring thus seems not to have had a real significant impact on the volume of the prison population. The evolution of the convicted population can be explained by two types of factors: on the one hand, what happens at the level of imposing prison sentences, and on the other hand, what happens at the level of the practice of early release. The reconstruction of series (1975–2004 with a break within 1992 and 1994) clearly shows the important increase of the totality of the sentences of more than 5 years. The two series of those convicted to a long-term sentence and of those in prison convicted to a longterm sentence actually presents a high correlation (R2 = 0.76). The rise of the population of detainees convicted to long sentences is thus certainly the reflection of an increased severity in the decisions by the courts and tribunals. But a look at the data relating to early release will, however, show that this is not the only factor providing an explanation. Belgium has two main forms of early release. Conditional release exists since 1888 and may in principle be applied to all categories of convicted people. Whereas before it was a prerogative of the executive power (Ministry of Justice), it is now—since 1998—subject to a process of judiciarization. The decision to grant


Belgium

conditional release was first entrusted to commissions for the application of early release, and more recently, since 2007 (law of May 17, 2006), to the new courts for the application of sentences. Provisional release is a form of early release awarded by the minister of justice, and more precisely by his or her administration. Whereas before it was granted for special reasons, it has become—in the 1980s—a way to manage prison overcrowding and is applied in a systematic way to those convicted of a sentence of a maximum 3 years. Available figures clearly show a considerable rise of the provisional releases over this period, that is, mainly benefiting those convicted to a sentence of less than 3 years, and on the other side, a significant downward trend of the conditional release since 1991. But a more useful indicator is the time span between the moment at which the prisoner is legally eligible for conditional release and the moment of the effective release. The results are striking: this time span evolves from an average of 5.2 months in 1990 to 14.4 months in 2007. The “waiting” time between the date at which the prisoner is eligible for conditional release and the conditional release in itself has thus been multiplied by 2.8 in 17 years. The transfer of the decision-making power relating to conditional release from the administration to the judiciary, which took place in the “after-Dutroux” context, has thus also been accompanied by a more restrictive use of releases. This observation helps to explain the previously established phenomenon of bifurcation.

PRISON SYSTEM In 2007, there were 31 penitentiaries in Belgium for adult detainees, one (federal) center depending on the penitentiary administration for the placement of minors that cannot be placed in the institutions for the protection of minors, and three social defense institutions for mentally ill who have been placed on internment after having committed an offense. However, the current minister of justice announced a building plan in April 2008 to respond to a deficit that was evaluated at 1,500 cells. The law of January 12, 2005, or the law Concerning the Principles of the Administration of the

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Penitentiary Institutions and Concerning the Legal Status of Detainees, saw a crucial improvement of the rights of detainees. For the first time, starting from the objective to limit the negative consequences of detention, the legislator defined the rights and duties of detainees, the basic principles of detention, and the organization of the prison system. Pushed by budgetary reality, the legislator has nevertheless left it up to the executive power to fix the dates of the entry into force of the different dispositions. In October 2008, this law is only very partially in application, the executive power having considered that a prior evaluation of the needs generated by the law, particularly in terms of personnel and infrastructure, was needed. It is quite evident that the overcrowding, but also—to a lesser extent—the resistance of the surveillance staff, is an important restraint for the concrete implementation of this law. Whereas the fundamental principles have effectively entered into force, important parts like the ones concerning the living conditions in prisons—material conditions or conditions related to living together—the detention plan, education and leisure activities, work, or the creation of consultative bodies are still not being applied. Thus, whereas the prisoner in principle has the right to participate in the available work in the prison, and in theory benefits of the widest possible access to education activities, these rights are in practice seriously limited because the prisons are not able to make these possibilities available. Currently, priority has been awarded to three issues: order and security, discipline of the inmates, and health care. Charlotte Vanneste Further Reading Bosly, Henri, Georges Demanet, Jean-Michel Messine, and Michel Bernard, eds. (2007). Cent ans de publication de droit pénal et de criminologie: Le centenaire de la Revue de Droit pénal et de Criminologie [Hundred Years of Publications in Penal Law and Criminology: The Hundredth Anniversary of the Revue de Droit pénal et de Criminologie]. Brussels: La Charte.


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Federal Police: http://www.polfed-fedpol.be. Heirbaut, Dirk, Xavier Rousseaux, and Karel Velle, eds. (2004). Histoire politique et sociale de la justice en Belgique de 1830 à nos jours [Political and Social History of Justice in Belgium since 1830]. Brussels: La Charte. Ministry of Justice: http://www.just.fgov.be. National Institute for Criminalistics and Criminology: http://incc.fgov.be. Snacken, Sonia. (2007). “Penal Policy and Practice in Belgium.” In Crime, Punishment and Politics in Comparative Perspective, edited by Michael Tonry, pp. 127–215. Chicago: University of Chicago Press. Van Outrive, Lode. (2005). La nouvelle police belge: Désorganisation et improvisation [The New Belgium Police: Disorganization and Improvisation]. Brussels: Bruylant. Vanneste, Charlotte. (2001). Les chiffres des prisons: Des logiques économiques à leur traduction pénale [Prison Data: From the Logics of Economics to Their Penal Translation]. Paris: L’Harmattan.

Bosnia and Herzegovina Legal System: Civil Murder: Low Corruption: Medium Human Trafficking: Medium Prison Rate: Low Death Penalty: No Corporal Punishment: No

Background Bosnia and Herzegovina (BH) is a small country, situated in the Balkan Peninsula, with a population estimated at 3.85 million. It has a territory of 51,209 square kilometers (approximately 19,771 square miles). Per capita income in the country is US$3,815 (2006 est.), and the unemployment rate is among the highest in Europe, reaching 31.1 percent in 2007. As a result of the 1992–1995 war BH

consists of two entities, the Federation of Bosnia and Herzegovina (FBH) and the Republic of Srpska, plus the Brcˇko District of Bosnia and Herzegovina (BDBH), each having an autonomous, separate administration and criminal justice system. Furthermore, FBH consists of 10 cantons, each with a high level of autonomy. After the Ottoman conquest (1463–1878), Bosnia took on its unique character as a province with a large Slavic, Muslim population. Under Austrian rule, the Habsburg military code of law was introduced in 1878 and on January 1, 1930, the Criminal Code of the Kingdom of Yugoslavia came into effect. The Socialist Federative Republic of Yugoslavia (SFRY) introduced the Criminal Code in 1951, followed by the passage of the new SFRY Constitution in 1974, when the SFRY for the first time abandoned the centralized socialist criminal justice system and introduced nine separate criminal codes, one at the federal level (SFRY), six criminal codes at the level of socialist republics (Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Montenegro, and Macedonia), and two province-level criminal codes (Kosovo and Vojvodina). After the dissolution of the SFRY in the early 1990s, Bosnia and Herzegovina, as a sovereign and independent state, introduced new criminal legislation based on the existing Criminal Code of the Socialistic Republic of Bosnia and Herzegovina and the Criminal Code of the Socialistic Federal Republic of Yugoslavia. The Constitution of the FBH entailed that the FBH was itself only competent for a few crimes, such as terrorism, drug crime, organized crime, and the so-called intercantonal crime. All other crimes were in the competency of cantons (10 cantons in the FBH), so that each canton could introduce its own criminal code. Nevertheless, in 1998 the cantonal authorities realized that this was a major absurdity and transferred their legislative powers onto the FBH. Separate criminal codes were also introduced in 2002 by both the Republika Srpska and the Brcˇko District of BH, so that three criminal codes prevailed on the BH territory during this period. At the time, the Criminal Code of BH did not exist. Eventually, on March 1, 2003, the High Representative of the International Community in BH



imposed both the Criminal Code of BH and the Criminal Procedure Code of BH. This reform also initiated the establishment of the state-level prosecution office, state court, and some, although modest but important, police capacities at the level of the state of BH. BH became a full member of the Council of Europe in 2002, thereby committing it to harmonize its criminal legislation with the European Convention on Protection of Human Rights and other relevant documents. Today, BH is also seeking full membership in the EU. There are courts of different jurisdictions in BH: (1) the Court of BH (the highest judicial instance) and (2) the Constitutional Court of BH. The Court of BH has a general department, criminal department, administrative department, and appeals department. It is the highest judiciary court in the state. In the FBH there are a Supreme Court, cantonal courts, and municipality courts. In the Republika Srpska there are a Supreme Court, district courts, and basic courts. Finally, Brcˇko District has an Appeals Court and a Basic Court. In October 2003, the Parliament of BH adopted the Law on the Prosecutor’s Office of BH. In 2004 the Court of BH and the Prosecutor’s Office of BH took jurisdiction over the prosecution of war crimes including the war crime cases from The Hague Tribunal.

Police In BH, there are three levels of organization of police forces. At the level of the state of BH, there are several organizational units: the State Investigation and Protection Agency (SIPA) and the Border Police of BH. The Republika Srpska has a totally centralized system of police organization modeled after the socialist models from former Yugoslavia, while the police in the FBH is totally decentralized and divided into 10 ministries of interior with broad powers. The police forces of the Brcˇko District also constitute a separate police force. In the FBH there are 9,574 police officers (1 per 242 citizens); in the Republika Srpska, 6,267 police officers (1 per 185 citizens); and in the Brcˇko District, there are 307 officers (1 per 350 citizens). This compares to the 2004 EU recommended standard

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of 1 police officer per 1,000 citizens in urban areas, and per 2,000 citizens in the rural areas. While the conventional crime and traffic-related issues are in the competency of the local police forces in the Republika Srpska, that is to say, of the cantonal police forces in the FBH, for some more complex crimes, the competencies have been delegated to a small number of state-level police organizations. SIPA is the first police agency at the state level. It is a governmental agency within the Ministry of Security of BH. This agency performs tasks within its jurisdiction on the territory of the whole of BH and has operational independence. SIPA deals with prevention, detection, and investigation of organized crime, terrorism, and illegal trade—war crimes and acts punishable according to international and humanitarian law, trafficking in human beings, as well as all other crimes within the jurisdiction of the Court of BH. SIPA has been a very successful agency, having begun with just 3 employees, whereas today it has more than 850 employees working in 11 organizational units at the headquarters of the agency and in 4 regional offices in Banja Luka, Mostar, Sarajevo, and Tuzla. Finally, the Border Police of BH was established in 2004, with operational independence within the BH Ministry of Security. The Border Police was established for the purpose of performing police tasks linked to the BH border surveillance and border crossing control, implementation of the provisions of the Law on Movement and Stay of Aliens, and other matters regulated by the BH Criminal Code.

Crime Classification of Crimes Criminal legislation of BH is not applicable to children under 14 years old. Offenders who at the time of the commission of an offense were 14 or older, but still not 18, are considered juvenile offenders and they are considered criminally liable. Their criminal liability, however, is established in accordance with the procedure designed for juvenile offenders


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(see below). All perpetrators who at the time of the commission of an offense were 18 or older are considered adults. Criminal legislation in BH does not differentiate between more and less serious offenses explicitly. Nevertheless, such distinction is implicitly introduced through several provisions. For example, there are many instances of crimes that merit prison and crimes for which prison cannot be imposed. At the state level, the number of “serious” criminal offenses listed by the criminal legislation is vast, including criminal offenses such as espionage, trafficking in human beings, or terrorism. Less serious offenses include unauthorized use of personal data and illegal manufacturing. On the local level of entities, murder, robbery, fraud, or arson would

be considered serious criminal offenses whereas light bodily injury or serving alcohol to persons younger than 16 would be considered less serious offenses.

Challenging Crimes Following the serious social, economic, and humanitarian problems caused by the four-year war in BH, and the political instability that followed, it may be said that criminality itself is overall the biggest challenge. Nevertheless, some forms of criminality are a special problem. War crimes constitute one of the most frequently addressed topics in the postwar BH. The court procedures conducted before the International Criminal

Bosnian State Border Service officers display a load of marijuana, confiscated at the southeastern Bosnian border near the town of Trebinje, during a ceremony marking the first anniversary of the Bosnian State Border Service in Sarajevo, August 15, 2001. (AP Photo/Hidajet Delic) © 2011 ABC-Clio. All Rights Reserved.


Tribunal for the former Yugoslavia (ICTY) and the local courts against persons suspected for crimes of genocide, war crimes against civilian population and prisoners, involving mass expulsion and ethnic cleansing in some parts of the country, have been almost daily topics of the public life in BH. A special challenge for governmental response lies in some crimes involving concealment of war crimes or war crime perpetrators, support to perpetrators after commission of crimes, and harming or injuring of war crime victims or witnesses. Corruption, economic, and organized crime are forms of crime primarily directed against the legally protected assets as particularly vulnerable targets for high-level perpetrators in a politically problematic transition process in BH. There has been an inadequate response by criminal prosecution authorities to perpetrators of such crimes. Harmful consequences of these crimes emerge in the struggling business, economic, and political development of BH, especially in regard to abuses in the privatization process, crimes involving money laundering, corruption, abuse of office, and so forth. Terrorism and causing of public danger constitute crimes the commission of which in most cases requires firearms or explosives. Given that even 14 years after the end of war, BH still has major difficulties involving illegal holding of these materials (in the majority of cases, these involve arms left over from the war), a special challenge for the criminal justice authorities lies in the crimes related to terrorist activities and the crimes related to causing of public danger. Human trafficking is a phenomenon strongly prevalent in southeastern and Eastern European countries, particularly those with major socioeconomic problems or political instability, such as BH. In addition to the fact that the citizens of BH are very frequently victim-clients of human trafficking, it often happens that the territory of this country is used as a transit route for trafficking of persons originating from East Europe and Asia too. The tasks faced by policy makers in BH pertain to reforms in regulating border and customs controls, and the issues related to visa system, citizen records and registries, and so forth.

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Juvenile delinquency is a particularly distressing issue in BH because a large number of children have been left without one or both parents due to war consequences, and many families are in economic distress. These problems strongly influence the drastic increase in the rate of violent offenses among juveniles, abuse of narcotics, as well as the traditionally high rate of property offenses among this category of delinquents. The state has not yet developed the infrastructure required to respond to juvenile offenses both mild and serious.

Drug Offenses The war as a factor in the etiology of crime in general has played a key role in the etiology of drug crime in BH and its emergence as international organized crime. The countries created through the dissolution of former Yugoslavia, and BH in particular, have been the most favorable ones as the primary destination on the Colombia-Europe drug trafficking route. The Albanian-Sanjak criminal organization has a major influence in the Balkans. This cartel has a strong association with the Albanian and Turkish mafia, and it is believed that some individuals from this criminal milieu have gained such influence in BH that they act as an extended arm of the Turkish mafia. Criminals originating from BH serve as contact points for Germany, Switzerland, and the Czech Republic. And finally, it is estimated that BH is both a transit country and one in which drugs are stored waiting for further transport. Major quantities have been seized in the interior of the county, mainly on the territory of the Republika Srpska, or at the demarcation lines between the entities of the Republika Srpska and the FBH. The drugs most frequently enter BH from southern Serbia and from Montenegro and are bound for the three largest cities in BH, Sarajevo, Mostar, and Banja Luka, where they are stored until the continuation of transport into the countries of West Europe. In mid-2003, the new state-level Criminal Code of BH in its article 195 provides the crime of unauthorized distribution of narcotic drugs to cover exclusively international illegal transactions involving drugs.


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POSSESSION OF NARCOTIC DRUGS As a separate form of crime, the criminal code of FBH and the criminal code of BDBH provide the unauthorized possession of narcotic drugs. Previously, drug possession, without an intention to place it into distribution, was treated as a minor offense rather than as a crime. However, the fact is that there have been many difficulties involved in the efforts to prove the intention to distribute drugs in unauthorized possession. Furthermore, the quantity of drugs has always been questionable. As an example, there is no comparison between the harm that may come from one kilogram of heroin and one kilogram of marijuana. Thus, when unable to prove the intention to sell drugs, the court shall be able to qualify the offense as unauthorized drug possession.

Crime Statistics According to the Ministry of Security of Bosnia and Herzegovina, Information on Security Situation in Bosnia and Herzegovina, 2007, crimes (not including attempts) registered by the police for 2006 for FBH, Republika Srpska, and BDBH combined were as follows: Murder Rape (all forms) Car theft Production and trafficking in drugs

74 40 2,439 486

Finding of Guilt Criminal proceedings in BH are based on several important principles that stem primarily out of the Constitution of BH and the European Convention on the Protection of Human Rights and Fundamental Freedoms and its protocols. Some of the most important principles are the principle of legality, presumption of innocence, no crime without law, protection against double jeopardy, legally inadmissible evidence, and the accusatory principle. Criminal proceedings in BH may only be initiated and conducted upon the request of the prosecutor. Upon receiving and analyzing a written or

oral report that a crime is committed, the prosecutor shall order an investigation if grounds for suspicion that a criminal offense has been committed exist. In the course of the investigation, the prosecutor may undertake all investigative actions, including the questioning of the suspect and hearing of the injured party and witnesses, crime scene investigation and reconstruction of events, undertaking special measures to protect witnesses and information, and may order the necessary expert evaluation. However, if there are grounds for suspicion that a criminal offense has been committed that is punishable by more than five years of imprisonment, an authorized official (in most cases a police officer) shall immediately inform the prosecutor and shall under the prosecutor’s direction take the steps necessary to apprehend the perpetrator, to detect and secure the clues to the criminal offense and objects which might serve as evidence, and to gather all information that might be of use for the criminal proceedings. Once the prosecutor finds that there is enough evidence that the suspect has committed a criminal offense, he or she refers the indictment to the preliminary hearing judge who may confirm or discharge all or some of the counts in the indictment within 8 days from receipt of the indictment. Upon confirmation of some or all counts in the indictment, the accused and his or her defense attorney are presented with the indictment and a plea of guilty or not guilty on each count is required within 15 days. If the accused fails to enter a plea, the preliminary hearing judge shall record that the accused enters a plea of not guilty. If the accused enters a plea of guilty and thereby accepts the sentence proposed in the indictment, the preliminary hearing judge shall refer the case for a hearing at which it shall be determined whether the conditions for the acceptance of the plea exist. The court must ensure the following: (1) that the plea of guilty was entered voluntarily and that the accused was informed of the possible consequences; and (2) that there is enough evidence proving the guilt of the suspect or the accused. The date for the pronouncement of the sentence is scheduled within 3 days.



Plea bargaining may occur at any stage of the criminal proceedings. The prosecutor may propose an agreed sentence of less than the minimum prescribed by the law for the criminal offense(s) or a lesser penalty against the accused. Such agreement has to be prepared in writing and submitted to the preliminary hearing judge, who may sustain or reject the agreement. The court must ensure the following: (1) that the plea of guilty was entered voluntarily and that the accused was informed of the possible consequences; (2) that there is enough evidence proving the guilt of the suspect or the accused; and (3) that the suspect or the accused understands that by agreement on the admission of guilt he or she waives his or her right to trial and that he or she may not file an appeal against the pronounced criminal sanction. If the accused does not plead guilty or the court rejects the plea bargaining agreement, the case goes to trial, which is directed by a judge. According to the Annual Report for 2007, the majority of indictments on the state level were confirmed by the court without the warrant for pronouncement of sentence (62.5%), while a smaller number was confirmed with the warrant for pronouncement of sentence (20.8%) and proposed plea bargaining agreement (16.7%). It is interesting to note, however, that the court only exceptionally rejects the plea bargaining agreement. When it comes to acceptance of the plea bargaining agreements, the situation is not significantly different on the level of FBH, Republika Srpska, and the Brcˇko District, where the plea bargaining agreements have been reached in 9.3 percent, 17.6 percent, and 23.7 percent of cases, respectively.

Rights of the Accused The suspect or accused shall be entitled to have a defense attorney throughout the course of the criminal proceedings. If the accused does not hire a defense attorney, a defense attorney may be engaged for him or her by his or her legal representatives unless he or she does not explicitly oppose it. However, if the accused is mute or deaf or if he or she is suspected of a criminal offense for which a penalty of

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long-term imprisonment may be pronounced, a defense attorney at the first questioning is mandatory. Otherwise, a suspect or accused must have a defense attorney immediately after he or she has been put in to pretrial custody. After an indictment has been issued for a criminal offense for which a prison sentence of 10 years or more may be pronounced, the accused must have a defense attorney at the time of the delivery of the indictment.

Custody Any person caught committing a criminal offense may be restricted in his or her movement by any other person. The person must be immediately turned over to the court, prosecutor, or to the nearest police authority. This general right to restrict someone’s movement is different from taking an accused into custody. A person can be taken into pretrial custody if there is a grounded suspicion that he or she committed a criminal offense or if other circumstances exist that suggest a possibility of flight; or if there is a justified fear to believe that he or she will destroy, conceal, alter, or falsify evidence. Additionally, in exceptional circumstances, such as an offense for which 10 years or more severe punishment may be pronounced, a person can be taken into pretrial custody if the release would result in an actual threat to public order. Pretrial custody can only be ordered by a court’s decision on a prosecutor’s motion. The duration of the custody is determined by both the so-called functional and time limits defined in the legislation. Pretrial custody, after the indictment is confirmed, may be no longer than 1 month and can thereafter, should it be needed, be prolonged for another 2 months, and in the cases of criminal offenses calling for 10 years of imprisonment, for additional 3 months. This means that, under normal circumstances, pretrial custody cannot last longer than 6 months. However, in an extraordinarily complex case for which a long-term imprisonment is prescribed, custody may again be extended for no longer than 3 months. Such an extension may occur twice consecutively, following a motion of the prosecutor for each extension, so that pretrial custody can in fact last up to 12 months.


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Juveniles For criminal offenses punishable by up to three years of imprisonment or a fine, the prosecutor may decide not to file the indictment even though there is evidence that the minor committed the criminal offense if the prosecutor feels that it would be detrimental to conduct a criminal proceeding against the minor in view of the nature of the criminal offense and the circumstances under which it was committed, the minor’s previous life, and his or her personal characteristics. The juvenile may be summoned via his or her parents, or decisions may be delivered in writing. In the trial, a judge can exclude the public and the presence of the representative of a social welfare center can be required. The minor must be separated from adults when in custody. For criminal offenses for which a fine or a punishment of imprisonment for a term not exceeding three years is prescribed, educational recommendations may be imposed. The purpose of educational recommendations is to avoid initiation of criminal procedures against juveniles and to use the educational recommendations as a means of influencing them not to perpetrate criminal offenses in the future. For these recommendations to be applied, the juvenile has to admit that he or she has perpetrated the criminal offense and has to express willingness to make amends to the injured party. The catalog of recommendations includes personal apology; compensation; regular school attendance; working for a humanitarian organization or local community; accepting an appropriate job; being placed in another family or institution; treatment in an adequate health institution; attending instructive, educational, psychological, and other forms of counseling. Taking the overall interests of both the juvenile (such as regular schooling or work) and the injured party, the competent prosecutor or judge for juveniles selects one educational recommendation in collaboration with the juvenile’s parents or guardians and institutions of social care. The chosen educational recommendation may not last longer than one year. Upon becoming effective, one educational recommendation may be replaced with another, or it may be cancelled.

As far as the criminal sanctions are concerned, juveniles can be sentenced to educational measures or juvenile imprisonment. Educational measures include committal to a disciplinary center for juveniles; intensified supervision by parents, guardians, or foster home; and committal to an educational institution, educational-reformatory home, or some other training establishment. Which of these will be imposed depends on the age of the juvenile, the degree of his or her mental development, and other personal and social factors. Whereas the educational recommendations and the educational measures can be imposed on all juvenile offenders, juvenile imprisonment can be imposed only on juveniles who at the time of the commission of the offense were 16 years or older and if they committed a criminal offense for which 5 years of imprisonment may be imposed. However, imprisonment may be imposed only if it would not be justifiable to apply an educational measure because of the grave consequences of the offense perpetrated and the high degree of criminal responsibility of the juvenile. The duration of juvenile imprisonment may not be shorter than 1 or longer than 10 years and is to be pronounced in full years or half-years.

Judges The institution in charge of appointing all judges (including the court presidents, lay judges, and reserve judges) and prosecutors (including the chief prosecutors and deputy chief prosecutors and prosecutors) at all levels of judiciary in BH is the High Judicial and Prosecutorial Council (HJPC). The HJPC is additionally in charge of appointing international judges and prosecutors to the Court of BH and the Prosecutor’s Office of BH, as well as to give proposals to relevant institutions for the appointment of judges in the entity constitutional courts and appointment of judicial associates. Based on the Annual Report for 2007, out of 885 available positions for judges in all courts in BH, 856 were occupied. The basic requirements for appointment are citizenship, law school education, and the bar exam.



Other requirements are personal integrity, moral standing, professional ability and required training and qualifications, and work experience. The HJPC is also obliged to consider professional knowledge and performance, academic written works and activities within professional associations, communication abilities, and reputation, among other factors.

Punishment Given the divisions in the legislative competency in BH, punishments are prescribed in the state-level or entity- or district-level laws. To avoid repetitive presentation of the systems of sanctions in all the criminal codes in force in BH, only the one contained in the criminal code of the FBH will be presented here.

Types of Punishment The system of criminal sanctions in the FBH comprises penalties, warning (noncustodial) sentences, security measures, educational measures for juveniles, and educational recommendations for juveniles.

PENALTIES Penalties include imprisonment and fine. Whereas imprisonment may only be imposed as principal punishment, a fine may be imposed both as a principal and as an accessory punishment. If both penalties are prescribed for a criminal offense, only one of them may be imposed as a principal punishment. For criminal offenses motivated by greed, a fine may be imposed as an accessory punishment even when that is not specifically prescribed by the law or in cases where the law prescribes that the perpetrator shall be punished by imprisonment or a fine, and the court decides to impose the punishment of imprisonment as the principal punishment. Prison is the core criminal sanction prescribed either as a sole sentence or as an alternative sanction with the fine. The prison sentence can be imposed for period ranging between 30 days and 20 years.

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For perpetrators of the aggravated forms of serious crimes, the prison sentence prescribed may even be in the duration from 20 to 45 years. Short-term prison sentences (up to 6 months), as well as fines that are not paid in due time (see below), may be, with the consent of the accused, replaced with community service. The duration of the community service has to be proportional to the imposed imprisonment and can range, depending on the perpetrator’s personal circumstances and employment, from a minimum of 10 to a maximum of 60 working days. The period in which the community service is to be performed shall be neither shorter than 1 month nor longer than 1 year. Fine is pronounced in “daily amounts,” and if this is not possible it may also be pronounced in a “fixed amount.” If a perpetrator does not pay a fine in full or in part within the period determined in the judgment, the fine shall be substituted by imprisonment. One day of imprisonment is computed as about 50KM (US$38), but the period may not exceed one year.

WARNING SENTENCES In cases where imposing a penalty (imprisonment or a fine) is not needed, the judicial admonition and the suspended sentence (warning sanctions) can be imposed. In principle, a judicial admonition may be pronounced for criminal offenses for which an imprisonment for a term not exceeding one year or a fine is prescribed, also taking into account the perpetrator’s attitude toward the injured party and compensation for the damage caused by the criminal offense. For a suspended sentence the court determines a punishment, but at the same time orders that it shall not be executed if the convicted person does not perpetrate another offense over a period of time established by the court. In principle, a suspended sentence may be imposed only when a punishment of imprisonment for a term not exceeding two years is the case. The court may also order that the convicted person shall make a restitution and be placed under protective guardianship. The protective guardianship, which may not last less than six months nor exceed two years, encompasses treatment in an


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appropriate health institution, refraining from alcoholic drinks or opiates, attending psychiatric or other counseling centers, training for a certain profession, accepting employment and disposing with the salary or other income and property.

SECURITY MEASURES The purpose of security measures is to remove situations or conditions that might influence an offender to commit offenses in the future. The catalog of security measures that may be imposed on perpetrators of criminal offenses includes mandatory psychiatric treatment; mandatory medical treatment of addiction; ban on carrying out a certain occupation, activity, or duty; ban on driving a motor vehicle; forfeiture.

Typical Punishments • Murder: a prison sentence of 5 to 20 years, extendable to 45 years for aggravating circumstances, reduced to 1–10 years for mitigating circumstances (manslaughter) and 6 months to 5 years for accidental murder, and for murder of child at birth in the maximum duration of 5 years. • Rape: 1 to 10 years in prison. • Theft: fine or up to 3 years’ imprisonment. Burglary (a type of aggravated theft): Prison sentence in the duration of 6 months up to 5 years (FBH and BDBH, but in Republika Srpska 1 to 8 years in prison). • Serious theft and robbery: 1 to 10 years in prison. • Unauthorized production and distribution of narcotic drugs: 1 to 10 years in prison, if organized, 3 to 20 years. • Allowing drug consumption to children, juveniles, or multiple persons: 1 to 10 years in prison.

Prison As of July 31, 2007, the total prison population in BH was 2,668 persons. Of this number, 1,086 persons were placed in enclosed facilities, 1,210 in

semi-open facilities, 146 persons in special institutional wards, 205 persons in district institutions, and 21 persons were placed in the preliminary investigation unit of the Court of BH. In BH, there are 11 operating prison institutions with three separate departments. Of the total number of institutions, two are enclosed (Zenica and Focˇa), six are of semi-open type (Sarajevo, Banja Luka, East Sarajevo, Tuzla, Mostar, and Bihać), three institutions are district jails (Bijeljina, Trebinje, and Doboj), and three departments also function as separate units (Orašje, Busovacˇa, and Ustikolina). Juveniles serve prison sentences and other institutional measures at separate wards of the prisons in Zenica, Focˇa, and Banja Luka, and the prison sentences for women are executed at wards of prison institutions in Tuzla and East Sarajevo. The total capacity of the prisons in BH has been estimated at 2,700 persons, based on the standard of 4 square meters (42.9 square feet) of space per inmate. In BH a new prison is planned for 2011 to include 29 single and 156 double cells, with total capacity of up to 350 inmates, which should significantly lighten the burden of prisons in Zenica and Focˇa. The largest prison in BH, the Penal and Correctional Institute of enclosed type, is located in the central town of Zenica, at one of the major intersections of roads connecting the northern and southern, or western and eastern, parts of the country. This prison is in the competency of the entity of the FBH, so that the majority of the inmates convicted at the courts of this entity are the ones serving sentences there. The prison in Zenica includes several cellblocks for accommodation of inmates in various categories (adults, juveniles). Additionally, the prison contains the forensic cellblock, where security measures involving mandatory psychiatric medical treatment are executed. The prison includes a reception cellblock, labor unit, and custody unit. Convicts are accommodated in 38 single and 48 double cells, and the majority of them have been placed into group dormitories with a large number of beds, which is one of the major problems for this institution. The shortage of space and accommodation capacities


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are the biggest concerns for the prison in Zenica, resulting in inadequate facilities for problem inmates, guards, and for mentally incompetent inmates. There are specific provisions on organization of labor for inmates, financial outputs of such labor, work hours, protection and security at work, and on the compensation for labor. The inmates should be assigned with the type of work in line with the needs of their treatment, mental and physical capacities, affiliations, personal properties, and their vocational training. In relation to educational activities, special attention is paid to juvenile inmates as well as to junior adults who have not completed primary school. In such cases, institutes are mandated to organize training aimed at acquisition of primary education, as well as training for vocational education. Inmates are entitled to maintain communication via mail (letters) and telephone without restrictions with their family members and with persons and representatives of organizations that can assist in their treatment. Close family members are allowed to visit inmates without any special consent from the administrator, whereas visits by other persons require the administrator’s consent. Among other benefits that may be singled out are receipt of parcels with clothing, personal items, press, books, and money, but only from close family members. Special benefits that are subject to additional requirements pertain to free movement outside the site of the institution, city visits, leave of up to seven days and annual leave spent with family. Relocation of inmates from the institution located in one entity of BH into an institution located in the other entity is permitted only after half the time of the sentence has been served. Almir Maljević , Elmedin Muratbegović , and Muhamed Budimlić Further Reading Court of Bosnia and Herzegovina: http://www. sudbih.gov.ba. Functional Review of the BH Police Forces: Final Report. (2004). Sarajevo, Bosnia and Herzegovina: Ministry of Justice.

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Petrović , Borislav, and Elmedin Muratbegović . (2008). “Criminology in Bosnia and Herzegovina: History, Recent Trends and Research.” Journal of Criminal Justice and Security 10(2): 353–368. Prosecutor’s Office of Bosnia and Herzegovina: http://www.tuzilastvobih.gov.ba. Sijercˇić -Cˇolić , H., et al. (2005). Komentari zakona o krivi cˇ nim postupcima u Bosni i Hercegovini [Commentaries of the Criminal Procedure Codes in Bosnia and Herzegovina]. Sarajevo, Bosnia and Herzegovina: Vijeć e Evrope/Evropska Komisija. Vije c´ e Evrope/Evropska Komisija. (2005). Komentari krivicˇnih/kaznenih zakona u Bosni i Hercegovini, Knjiga I. i II. [Commentaries of the Criminal Codes in Bosnia and Herzegovina]. Sarajevo, Bosnia and Herzegovina: Vijeć e Evrope/Evropska Komisija.

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

Background The modern Bulgarian legal system can be traced back to the end of the 1870s, where influences of continental traditions of the Russian, German, and French criminal justice systems are already visible. After the liberation of Bulgaria in 1878 the first step toward a comprehensive system was the bringing together of all authorities participating in judicial activities. This arrangement existed up to the adoption of the Tarnovo Constitution of Bulgaria, in force from April 1879 to December 1947. The text laid down the foundations for a modern constitutional state and the building of a legal system.


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The structure of the judicial power has been formed by temporary rules at the end of 1878 with the institution of the Supreme Court in the city of Sofia. These rules prevailed until the adoption of the Courts Arrangement Act in 1880 and the Criminal Court Proceedings Act later in 1897. The Tarnovo Constitution established that the judicial power belonged to the judicial authorities, who acted on behalf of the Royal Prince; however, the judicial power was not subordinate to the prince. According to the provisions of the Constitution, the Royal Prince has the right to cancel punishments as well as the right to clemency. The right of amnesty belonged to the Royal Prince and the National Assembly. The notions of prosecution and investigation appeared, in a structured way, for the first time in the Courts Arrangement Act of 1880. Prosecutors worked both within the district court and the appellate court, as the structure somehow recreated the French model of the ministère public. At the same time, judicial investigators were officially declared “agents of the judicial police.” They were subordinate to the prosecutor whose orders were mandatory. The prosecutors at the Supreme Court of Cassation and the ones at the appellate courts were appointed by and subordinate directly to the minister of justice. After World War II, the organization of the Bulgarian judicial system gradually changed, in response to the Soviet legal system. It acquired characteristics such as, for example, an independent prosecution, a powerful investigation apparatus, a centralized administration, and the diminution of the rights of party litigants. The Constitution of the People’s Republic of Bulgaria of 1947 upheld several principles such as the division of powers, the independence of judges, or the participation of jurors in the administration of justice. The prosecutor general was to be elected by the National Assembly and was to appoint and dismiss all other prosecutors. New laws on the structure of the courts entered into force, as well as the Law on the Prosecution.

The Modern Criminal Justice System The building of the Bulgarian criminal justice system was further modified by the adoption of a new

Constitution of the Republic of Bulgaria in 1991. The Constitution defines the judicial power as a system of authorities: the Supreme Judicial Council, the courts, the prosecution, and the investigation services, as well as the Supreme Judicial Council Inspectorate and the Bar. All these authorities are free, independent, and self-governing. The Judicial Power Act of 2007 sets up in detail the structure and function of the different units, the status of the magistrates, their rights and duties, as well as the organization and activities of the Supreme Judicial Council (SJC) and its Inspectorate. The SJC is composed of 25 members; the chairman of the Supreme Court of Cassation, the chairman of the Supreme Administrative Court, and the prosecutor general are members by right. Other members of the SJC are elected among jurists of high professional and moral qualities who have a work experience of at least 15 years. Eleven members of the SJC are elected by the National Assembly and 11 by the judicial authorities for a term of five years. Justice is administered by the Supreme Court of Cassation, the Supreme Administrative Court, as well as the appellate, district, administrative, military, and regional courts. Special courts can be set up by means of an act, but extraordinary courts are not admitted. In the period 2003–2007, three amendments related to the judicial power and connected with the reform of the judicial system have been made to the Constitution. The amendments referred to issues of immunity, irrevocability, mandate and responsibility of the magistrates, and the management of property. At the present stage, the recommendations of the European Commission and international acts do not require specific changes in the structure of the Bulgarian judicial system. The Constitution is fully harmonized with the democratic legal arrangement of the European states. Some of the principal rights are set up in articles 30 to 35 of the Constitution. Everyone has the right to freedom and privacy. No one may be detained or subjected to inspection except on the conditions and in a manner established by law. In urgent cases explicitly stated by the law, the competent authorities may detain any citizen yet have to inform without delay the judicial authorities. Everyone has the


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right to a lawyer’s defense from the moment of his or her detention or charging as defendant. Everyone has the right to meet in private the person defending him or her; the secret of their communication is guaranteed. Everyone accused of a criminal offense needs to be handed over to the competent judicial authorities within the term defined by the law. No one can be forced to plead guilty, nor be convicted on the sole basis of his or her confession. The defendant is deemed innocent until proven guilty by an effective sentence. Statutory limitation does not apply to war crimes and crimes against humanity. Fundamental constitutional rights of the citizens may be limited only by and with permission of the court. The Bulgarian criminal law is intended to regulate the commission of negative acts that endanger or damage the society or the citizen. It is sanctionrelated, relies on strong pretrial proceedings, and ensures the protection of existing social relationships. Pretrial proceedings involve the process of investigation as well as the actions of the prosecutor upon the completion of the investigation. The investigation is performed by examining magistrates, investigators or investigating officers, while investigations in relation to materials received from the State Agency for National Security are conducted by a prosecutor, who may then assign the investigation of certain facts to an examining magistrate. The administration of justice in criminal cases is performed by courts only, as established by the Constitution. No extraordinary courts are admitted. Court proceedings are the key elements in the criminal process and are regulated by the Bulgarian Criminal Code of Procedure.

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Criminal proceedings instituted by the authorities of another state or any effective sentence adjudicated by the court of another state and not recognized by this code is no impediment to the institution of criminal proceedings by the authorities of the Republic of Bulgaria for the same crime against the same person. However, if the sentence is not recognized in the way of the Criminal Code of Procedure, it is not subject to execution.

Police The police in the Republic of Bulgaria are a state institution and part of the Ministry of Interior. The Minister of Interior is the sole central authority of the executive power that directs, coordinates, and controls the implementation of state policies for the protection of the rights and freedom of the citizens, the national security, and the public order. The Criminal Police General Directorate is a national specialized operational search structure of the Ministry of Interior devoted to counteracting crime and to carrying out activities related to the detection and prevention of crime. The Pre-trial Proceedings General Directorate, another specialized structure, is in charge of the various activities surrounding crime prosecution. Crime investigations are conducted according to the Criminal Code of Procedure by the authorities of the respective units in the district directorates. The upholding of order and security in the Ministry of Defense and the Bulgarian Army is assigned to the Military Police Service.

Judicial Authorities International Legislation The Republic of Bulgaria has practically accepted and ratified all important international acts of the United Nations, the Council of Europe, and the European Union. Pursuant to article 5, paragraph 4, of the Constitution, the international agreements constitutionally ratified, published. and effective for the Republic of Bulgaria, are part of the domestic legislation. They have priority over the domestic legislation.

In all cases, judges, prosecutors, examining magistrates, administrative managers, and deputy administrative managers are appointed, promoted, transferred, and dismissed from duty by decision of the Supreme Judicial Council. The chairman of the Supreme Court of Cassation, the chairman of the Supreme Administrative Court, and the prosecutor general are appointed by the president on proposal of the Supreme Judicial Council for a term of seven years without the right to reelection. In 2007, there


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were 2,215 judges in Bulgaria, of which one-third works in the criminal field. Judges, prosecutors, and investigators must have a Bulgarian citizenship, have completed higher legal education, have passed the required postgraduate training and have acquired a legal capacity, possess the required moral and professional knowledge of the rules for professional ethics, have never been sentenced to imprisonment for a premeditated crime, and do not suffer from any mental disorder.

Crime Classification of Crimes A crime is a socially dangerous act that has been committed by an offender and declared by the law as punishable. An act is not criminal if its criminal elements are of such minor importance that it is not socially dangerous or its social danger is obviously negligible. A socially dangerous act is one that threatens or harms the Constitution or other interests defended by the law. Criminal offenses are defined in the Bulgarian Criminal Code. The concept of “serious crime” qualifies any criminal offense subject to a custodial sentence of 5 or more years. The concept of “particularly serious crime” refers to any criminal offense that constitutes an exceptionally high degree of social danger because of its consequences, aggravating circumstances of the act, or the perpetrator’s character. The concept of “minor fact” qualifies any criminal offense that represents a low level of social danger because of insignificant harmful consequences. A criminal act is intentional when the perpetrator has been aware of its socially dangerous character, foresaw its socially dangerous consequences, and yet he or she has accepted these consequences. A criminal act is negligent when the perpetrator has not foreseen the occurrence of socially dangerous consequences, however, he or she had been obliged and could have foreseen them, or when he or she had foreseen the occurrence of these consequences, however, he or she thought of preventing them. The negligent acts are punishable only in the cases stated by the law.

The Criminal Code applies to any adult who has committed a crime. Juveniles aged 14–17 are criminally liable only if they could understand the illicit character and the significance of their offense. If necessary, juvenile offenders, who cannot be charged for a criminal offense, can be placed in a correctional boarding school or in another suitable facility by a court decision. A person is not criminally liable when he or she acted in a state of insanity because of mental underdevelopment or temporary/chronic mental disorder, as the person could not understand the quality or the meaning of the act perpetrated or could not manage his or her acts.

Crime Statistics Statistics for the registered criminal and economic crime for 2008 are not yet available. The source is the Coordination and Information and Analysis Activities Directorate at the Ministry of Interior in agreement with other authorities. Criminal offenses (not including attempts) for the first six months of 2008 were as follows: Crime against the personality Homicide Completed rape Bodily injury Trafficking in people Property crimes Robbery Theft Fraud Drug-related crimes Total

2,817 247 113 1,538 34 34,150 1,323 28,479 870 1,312 70,883

DRUG OFFENSES The strategic location of Bulgaria on the so-called Balkan drug route shapes the policy of the state in the field of countering illegal traffic of narcotic substances and precursors. The Balkan route is used mainly for illegal transportation of heroin. Drug trafficking is one of the most profitable spheres of organized crime, along with trafficking in human beings, smuggling, economic crime, and money


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laundering. At the same time, over the last 10 years, the country has evolved from a transit point into a final destination for various narcotic substances, in the sense that we are now witnessing how the inclusion of local criminal groups into international drug trafficking leads to the increase of drug distribution on the territory, as well as the increase of the number of people using drugs. State efforts are aimed at counteracting drug trafficking both on the territory of Bulgaria and in cooperation with international law enforcement authorities.

CORRUPTION The prosecution uses a working term for “corruption,” which includes all forms of misuse of power aimed at acquiring personal or group benefiting. This includes a multitude of criminal offenses, for instance, articles 201–205—misappropriation in public office; article 219—careless management of public property; article 220—conclusion of unprofitable transaction by an official; article 225c—bribe when performing commercial activities; article 282—crime in public office by an official; articles 301–307a— bribe to an official.

MONEY LAUNDERING Who carries out a financial operation or a transaction with a property, or hides the origin, location, movement, or actual rights on a property about which he or she knows or suspects that it has been acquired through crime or another socially dangerous act is punished for money laundering by imprisonment of 1 to 6 years and a fine of 3,000 to 5,000 lev (US$1,925 to $3,209)—article 253 of the Criminal Code. The punishment shall be imprisonment of 1 to 8 years and a fine of 5,000 to 20,000 lev (US$3,209 to $12,838) if the act has been committed by two or more persons who have conspired in advance, or by a person acting on an errand or in fulfillment of a decision of an organized criminal group; two or more times; by an official within the scope of his or her office; by opening and maintaining an account in a financial institution under a fictitious name or under the name of a person who has not given consent for that. If the means or the

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property are of particularly large size and the case is particularly serious, the punishment is imprisonment of 5 to 15 years and a fine of 10,000 to 30,000 lev (US$6,419 to $19,258). The subject of the crime or the property into which it has been transformed is seized in favor of the state, and if it is missing or alienated, its equivalence is adjudged.

Finding of Guilt Criminal Procedure Within the framework of the judicial system, the Constitution shares out competences between the court, the prosecution, and the examining magistrates. The court administers justice, the prosecution charges the persons who have committed a crime and supports the indictment in criminal cases, and the examining magistrates, the officers of the Ministry of Interior and the Ministry of Defense investigate committed crimes. Judges, court assessors, prosecutors, investigating authorities, lawyers, private plaintiffs, private prosecutors, civil claimants, and civil defendants and witnesses take part in the criminal proceedings. Only evidentiary material collected by the competent authorities and in conformity with the requirements of the Criminal Code of Procedure is admissible. All criminal cases fall under the jurisdiction of regional courts, as courts of first instance, except some cases specially mentioned in the Criminal Code of Procedure that fall under the jurisdiction of the district courts. Court composition at the first level (i.e., number of judges and assessors) is decided upon the seriousness of the crime. Hearings at the appellate instance are conducted by three judges, similarly for cases heard at the Supreme Court of Cassation. No one can be detained for more than 24 hours without authorization of the court. The prosecutor can order detention of the accused up to 72 hours. The defendant or the detained person has the right to be assisted by a defense counsel; however, in certain cases, his or her defense is mandatory. The victim is granted the necessary procedural means for defense of his or her rights and lawful interests. The Legal Assistance Act provided for the building of a system and the setting up of a


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National Bureau for Legal Assistance, which guarantees equal access to justice for all and effective assistance by lawyers.

THE FUNCTIONS OF THE PROSECUTOR The prosecutor raises criminal charges and presents the indictment related to criminal offenses of general character. In the discharge of his or her duties, he or she does the following: • Directs the investigation and exercises constant supervision for its lawful and timely conduct. • May perform investigation or other investigative or procedural actions. • Participates in court proceedings as accuser on behalf of the state. • Takes measures for the elimination of law infringements. • Exercises supervision for legality in the enforcement of coercive measures. When the prosecutor withdraws from proceedings (i.e., in cases of complainant offenses), the victim may proceed with maintaining the accusation, acting as a private complainant. The ProsecutorGeneral of the Republic of Bulgaria provides methodological guidance for other prosecutors’ actions and ensures respect of legal provisions.

REMAND MEASURES Remand measures are based upon the degree of social risk inherent to the criminal offense perpetrated and the evidence gathered against the accused party. His or her health condition, family status, occupation, age, and other personal characteristics shall be taken into consideration as well. Measures include, for example, signed promise for appearance, bail, house arrest, or remand in custody (i.e., pretrial detention). House arrest, as a remand measure in pretrial proceedings, is pronounced and supervised by the court of first instance at the prosecutor’s request. The process is identical for pretrial detention; it is applied in cases that fulfill the following cumulative conditions: a reasonable assumption can be made that the accused party has committed

a criminal offense subject to a custodial sentence or another more severe punishment, and a set of evidence indicates the person is at risk of absconding or reoffending. The measure of remand in custody may not exceed 1 year for serious intentional criminal offenses, 2 years for offenses subject to a custodial sentence of at least 15 years. In all other cases, remand in custody in the course of pretrial proceedings cannot exceed 2 months.

Juveniles According to the Bulgarian Criminal Code of Procedure, one of the cases in which the participation of a defense counsel in criminal proceedings is mandatory is in cases where the accused party is a minor. The penal proceedings establish special rules for examination of cases of crimes committed by minors, taking into consideration the special features of the offense, the age of the perpetrators, and the particularities of their psychological development. In these cases, pretrial proceedings are conducted by specifically trained investigative bodies. Only the following remand measures can be applied to juveniles: supervision by the parents or guardian; supervision by the administration of the educational establishment where the minor has been placed; supervision by the inspector at the child pedagogical facility or by a member of the local Commission for Combating Anti-Social Acts of Minors and Underage Persons; remand in custody. The remand measure of custody is taken only in exceptional cases. Where it is necessary, a pedagogue or a psychologist can take part in the interrogation of a juvenile offender; he or she may ask questions with the permission of the person in charge of the investigation. Court hearings in cases against juvenile offenders are conducted behind closed doors, unless the court finds it in the interest of the public to examine the case at an open court hearing. To guarantee the minor perpetrator’s rights and for the purpose of establishing an appropriate environment for the child, the parents or guardians are summoned to the hearings. They have the right to take part in the collection and verification of evidentiary materials and to make requests, remarks,


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and objections. In cases against underage persons, the participation of a prosecutor is mandatory. A specialized state body, the Central Commission for Combating Juvenile Delinquency, and local commissions are being established at municipalities. The central commission develops, participates in the drafting, and proposes programs and activities to prevent and combat crime, such as outreach programs for juveniles to prevent and eliminate antisocial behavior; programs for their education and social integration; vocational training and employment programs; or outreach programs for parents whose children have committed misdemeanors or offenses. Only a limited number of punishments can be imposed on minors who have committed a criminal offense; all intend to reeducating and preparing juveniles for socially useful work. When the court decides to suspend a sentence, it should inform the local commission to make arrangements for educative care.

Punishment Types of Punishment Punishments can be of a criminal type, legal type, disciplinary type, or civil type. There is no death penalty in Bulgaria. Punishments are defined in the Criminal Code and include life imprisonment; imprisonment; probation; confiscation of available property; fine; revocation of the right to occupy a definite state or public position; revocation of the right to practice a definite profession or an activity; revocation of the right to received orders, honorary titles, and insignia of honor; revocation of military rank; and public reprobation.

IMPRISONMENT Life imprisonment without alternative, the most severe sentence, is a temporary and exceptional measure imposed only in cases of serious deliberate crimes threatening the basis of the republic and where no alternative lesser punishment is conceivable. Offenders sentenced to such punishment must be older than 20 at the time of offense, older than 18 during war time. Such punishment cannot be

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imposed on women pregnant at the commission of the offense or at the pronouncing of the sentence. Life imprisonment can be replaced by an imprisonment for a period of 30 years if the convict has served no less than 20 years. Imprisonment can be from 3 months to 20 years. Exceptionally, it can be extended up to 30 years in replacement of life imprisonment for multiple crimes or for some particularly serious deliberate crimes in the cases specially determined in the Criminal Code. Imprisonment is the most common punishment imposed by courts. Custodial sentences not exceeding 3 years can be suspended for a period of 3 to 5 years. Stay of execution is applicable only if the offender has not been previously sentenced to imprisonment, and if the court finds it more appropriate for the objectives of the punishment and the rehabilitation of the offender. The stay of execution cannot exceed the term of the imposed punishment of imprisonment by more than 3 years. During that time, the convicted is obliged to study or work, unless mandatory medical treatment was decided. Custodial sentences are served in prisons, correctional homes, or prisoners’ boarding houses. Such sentences range from 3 months to 20 years (30 years in some cases defined in the Criminal Code). In these facilities, convicts are placed at a primary regime indicated in the sentence, which can be modified later depending on their behavior. Imprisonment shall be accompanied by a suitable, respectively paid, and socially useful work, which shall aim at the rehabilitation of the convicted, as well as the creation and improvement of their professional qualifications. Work days are considered in reducing the term of the sentence, as two work days equal three days of imprisonment. Convicts who avoid socially useful work opportunities or intentionally commit an offense or a serious breach of the established order are considered as showing low probability of rehabilitation. Therefore, the court is allowed to ignore, partially or totally, work days accomplished during the two years following the offense in the count of time served. Decisions related to imprisonment and its administration are ruled by the Serving Sentences Act.


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PROBATION MEASURES Probation refers to a set of measures destined to control and have an influence on the convict. Probation measures can be imposed together or separately and include obligatory registration at the present address; obligatory periodical meetings with a probation employee; restrictions of free movement; attendance of courses for professional qualification or programs for public influence; community work; voluntary work. Probation measures are implemented in compliance with the law and their duration varies depending on the types of measure: between 6 months and 3 years for the first four measures, between 3 months and 2 years of community work, and between 100 and 320 hours per year for no more than 3 consecutive years of voluntary work. The first two measures shall be imposed to all individuals sentenced to probation. Community and voluntary work cannot be imposed on juvenile offenders under 16 years old. In case a probation measure is not respected and upon request of the Probation Council, the court can impose other probation measure(s), or pronounce a custodial sentence in partial or total replacement of the probation measure not carried out.

MONETARY SANCTIONS Confiscation is a compulsory and ex gratia requisition of a definite property of the convict, or parts of such properties, in favor of the state. Confiscation shall not be ruled if the convict does not possess available property that can be subject to this punishment. The belongings necessary for personal or family expenses, the objects necessary to the exercise of a profession, as well as any resources necessary to support of a family for a period of one year cannot be subject to confiscation. In case of confiscation, the state shall be liable up to the value of the confiscated property for recovery of the damages caused by the crime, and subsequently for the liabilities of the convicted that occurred before laying the indictment when the remaining available property is not enough for the recovery of the damages and for payment of the liabilities.

A fine is an enforcement of a monetary liability of the convicted for the criminal offense committed. When imposing this penalty the court has to comply with the property status of the sentenced, with his or her income and the family liabilities. The fine cannot be less than 100 lev (approx. US$64).

REVOCATIONS The punishment of deprivation of the right to occupy a definite state or public position and deprivation of the right to practice a definite profession or activity is imposed in the cases stipulated by the law if the occupation of the respective position or the practicing of the respective profession or activity is incompatible with the nature of the committed crime and is adjudicated for a definite term of less than three years. However, where they are imposed together with imprisonment, the length of the punishment may not be more than the imprisonment by more than three years. Public reprobation shall consist in a public reprobation of the convicted that shall be announced in a suitable way according to the instructions of the verdict. The punishment of deprivation of a right to received orders, honorary titles and distinction, and deprivation of military rank can be imposed only for conviction for serious crime.

Prison The Execution of Punishments Directorate General is a specialized administrative structure whose activity is regulated by the Execution of Punishment and Take into Custody Law. It is connected with the execution of imprisonment, probation, and pretrial detention. Bulgaria counts 12 prisons, with 22 prison boarding houses of open, transitional, and closed type, and one correctional home for juvenile offenders. The latter accommodates juvenile convicts serving a custodial sentence. Prison boarding houses are not self-contained facilities but subunits of the respective prisons. The prosecution exercises control over the observance of legality during the execution of pun-


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ishments. The places of deprivation of liberty are set up and closed by order of the Minister of Justice. They need to comply with the security and health requirements and to have the necessary living, household, and other premises. The investigation detention facilities are places for deprivation of liberty of persons detained pursuant to the Criminal Code of Procedure. Women serve their term of imprisonment in separate prisons and correctional homes. Recidivists serve their sentence in separate prisons and prison boarding houses of closed type. Prisoners sentenced for the first time to imprisonment up to five years for premeditated crime and those sentenced for crime by negligence serve the punishment in prison boarding houses of open type. The prison boarding houses of transitional type accommodate convicts with good behavior, who have served at least six months of the imposed sentence in a prison or prison boarding house of closed type and the remainder of their punishment is not more than five years. The prisoners are divided in groups, which are managed by inspectors in social activities and educational work. The medical assistance for the prisoners is rendered by medical facilities of the Ministry of Justice. The prisoners can receive medication from outside as prescribed by a doctor from the medical facility at the prison. Prisoners with psychiatric illnesses and serious chronic disorders enjoy special care. Where there is no condition in these facilities to perform the necessary treatment, the prisoners are sent to other hospitals. In emergency medical cases the prisoners have the same rights as the other citizens. The newly arrived prisoners are placed in receiving units where they stay from 14 days to 1 month. The prisoners are allowed to inform their relatives of their arrival in the prison or the correctional home. The prisoners in the receiving units undergo sanitary and hygienic control, medical check-up, and psychological survey. The prisoners can enjoy all rights established by the law except the rights of which they have been deprived by the sentence, the rights taken away or restricted explicitly by the law or by another normative act, and the right the ex-

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ecution of which is incompatible with the execution of the punishment. The inmates have the right to be given suitable jobs. For each job the prisoners receive a certain part, but not less than 30 percent of the remuneration for their labor. Inmates do not work in weekends, and students in education facilities can be exempted from work for a term of 30 days for preparation and taking of examinations and preparation of diploma works. Pregnant women and breast-feeding women are placed in suitably furnished premises conforming to the necessary hygienic requirements and are under systematic medical control. The general education and professional technical schooling in the educational facilities is carried out without discontinuing work according to syllabuses and programs. The professional and technical training is carried out in qualification courses without discontinuing work as well as through brigade and individual training. The necessary conditions are created in the prisons and detention facilities for theoretical and practical mastering of the specialty or profession through ensuring training equipment, free manuals, school aids, textbooks and reference books, and so forth. Prisoners are given the opportunity to satisfy their religious need by participation in religious services and rituals, as well as by having access to religious literature. Hristo Manchev and Tsveta Docheva Further Reading Ministry of Interior: http://www.mvr.bg. Stankov, Boyan. (1996). Criminal Justice Systems in Europe and North America: Bulgaria. Helsinki: The European Institute for Crime Prevention and Control (HEUNI). Supreme Judicial Council: http://www.vss.justice.bg. Trendafilova, Ekaterina. (1995). “Criminal Procedure in Bulgaria.” In Legal Reform in PostCommunist Europe: The View from Within, edited by Stanislas Frankowski and Paul B. Stephan, pp. 309–329. Boston, MA: Kluwer International.


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The first democratic elections in Croatia since World War II were held in the spring of 1990. The president is the commander-in-chief of the armed forces and appoints a prime minister and cabinet members with the approval of Parliament. In 1992 and 1993 the Chamber of Deputies and Chamber of Counties, respectively, were created. In March 2001, the Chamber of Counties (upper house) was abolished and the Croatian Parliament (Sabor) became unicameral. The Chamber of Deputies (Representatives) remained, consisting of 153 members who are elected and serve 4-year terms. The Parliament, or Sabor, has 140 members, 10 members from each of the 14 geographic districts, who are also elected.

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

Background The Republic of Croatia (Hrvatska) is located on the Adriatic Sea in Southeastern Europe. It has a total land area of 55,974 square kilometers (21,611 square miles) and shares a border with Bosnia and Herzegovina, Hungary, Montenegro, Serbia, and Slovenia. Prior to World War I, Croatia was part of the Austro-Hungarian Empire, therefore escaping Ottoman Turkish rule. By the end of World War I, it became part of the Kingdom of Serbs, Croats and Slovenes, which remained until 1929 when it became known as the Kingdom of Yugoslavia. After World War II, Yugoslavia became a federal Communist state under the rule of Josip Broz Tito. It remained part of Yugoslavia until the Balkan Wars in the 1990s. In 1991 Croatia declared its independence from Yugoslavia and became a separate state. It applied for European Union (EU) membership in 2003 and is still in the process of negotiating for accession into the EU. In April 2009, it became a member of NATO. In 1990 Croatia adapted the Constitution of 1990, which was later amended in 1997 and 1999. It was altered once more when the Change of the Constitution of the Republic of Croatia was passed at the end of 2000. The final change to the Constitution took place in 2001 with the passing of the Change of the Constitution of the Republic of Croatia. The government is based on the tripartite principle, with the separation of power between the legislative, executive, and judicial branches and a checks and balances system, including an independent judiciary.

Police The police in Croatia are under the command of the Ministry of Interior (Ministarstvo Unutarnjih Poslova, MUP). They have a criminal police directorate, border police unit, special police command, communication center, forensic center, and a police academy. The police are broken up over the 20 counties and divided into four police directorates, or police administrations. District One includes only the police directorate for Zagreb, the capital city of Croatia, and the largest of its cities. District Two includes four police directorates, District Three has six police directorates, and District Four has nine. Each of the counties is further broken down into police stations and includes various other police units based on the need of that county. The SplitDalmatia County, which is located on the Adriatic coast in southeastern Croatia, for example, has various police stations, border police units that include a station in Trilj and one at the airport in Split, and a maritime unit.

Courts The judiciary in the Republic of Croatia is independent and autonomous. The role of the court is to determine guilt and to impose sanctions and measures on criminal offenders for misdemeanors and petty offenses as specified by law; to review legality of acts of public administration; as well as to decide on


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cases involving personal relations, labor cases, commercial law, property, and other civil cases. There is also a Law on Juvenile Courts (Narodne Novine, no. 111/97), which contains provisions for juvenile offenders charged with criminal offenses. This special law creates provisions for courts that dictate the process in cases involving juveniles, as well as providing legal protection of minors throughout the criminal procedure and in the execution of sanctions. The justice system is made up of misdemeanor courts, municipal courts, commercial courts, county courts, the High Commercial Court, the High Misdemeanor Court, the Administrative Court, and the Supreme Court of the Republic of Croatia. As of December 31, 2009, there were 215 courts in Croatia. Of these, 110 are misdemeanor courts, 67 are municipal courts, and 12 are commercial courts; at the appellate level there are 21 county courts, which also adjudicate certain court cases at the nonappellate level. There are a total of 8,754 employees of the court, including 1,886 judges, of which 66 percent or 1,251 are women. In 2009, a total of 2,475,293 cases were adjudicated before all the courts in Croatia. Of the total number of cases brought before the court in 2009, 1,667,955 cases were resolved by the courts, leaving nearly 800,000 cases pending.

Crime Classifications of crime A criminal offense cannot exist without being properly defined. In Croatia, criminal offenses and sanctions are prescribed by statute and are covered in the criminal code. The Criminal Code: The Official Gazette of the Republic of Croatia, passed in October 1997, went into effect in January 1998. This criminal code provides the basis and limitations of criminal law enforcement. It also outlines conduct that is considered criminal. Conduct that does not constitute a criminal offense will not be punishable by law. This criminal legislation is not applied to children who are under 14 years of age at the time the offense was committed. The code does, however, apply to juveniles who are 14 or over, unless they are otherwise protected by a special statute.

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The first nine chapters of the code discuss basic provisions, what constitutes a criminal offense, culpability, types of punishment including noncustodial, and security measures. Chapters 10–26 describe various crimes and the sanctions for those crimes. According to Chapter 1, article 1: 1. Criminal offenses and criminal sanctions shall be prescribed only for acts threatening or violating personal liberties or human rights, as well as other rights and social values guaranteed and protected by the Constitution of the Republic of Croatia and international law in such a manner that their protection could not be realized without criminal law enforcement. 2. The prescribing of specific criminal offenses, as well as the types and the range of criminal sanctions against their perpetrators, shall be based upon the necessity for criminal law enforcement and its proportionality with the degree and nature of the danger against personal liberties, human rights and other social values. Crimes are delineated between serious criminal offenses such as murder, and petty offenses, or misdemeanors. One of the major problems plaguing Croatia is its central location between the opiumproducing Golden Crescent, particularly Afghanistan, and Western Europe. The Balkan Route, which runs through the former Yugoslavia, is a popular land route for transporting illegal contraband to Western Europe. This includes drug trafficking, human smuggling and trafficking, weapons trafficking, contraband cigarettes, stolen vehicles, and the trade in other illegal goods or services. This route is also used for synthetic drugs moving east from the Netherlands, and it has been increasingly used as an alternate route for Colombian cocaine trafficking, which is increasingly being trafficked through Western Africa and then up through the Balkan routes to Western Europe. Human trafficking in Eastern Europe has also remained problematic. The revenue from human trafficking is estimated to be between $7 and $9.5 billion a year, according to the U.S. Department of Homeland Security. Some 200,000 women and children are trafficked through the Balkan region every year.


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Hard economic times and exploitation of women and children have led to an increase in women coming from Moldova, the Ukraine, and Romania. Croatia, due to its central location between East and West, is used as a transit country for many criminal gangs operating networks throughout the Balkans. Also, with the recovery of tourism in Croatia, it is increasingly a destination country for human trafficking, according to Jane’s Sentinel Security Assessment of 2009. Counterfeiting of passports is also a concern. Holders of a Croatian passport are not required to obtain visas for most European countries, which make it especially valuable, particularly for groups engaged in human trafficking or smuggling.

In Title 13, criminal offenses against valuables protected by international law, the majority of offenses reported were for abuse of narcotic drugs. Of the 7,235 cases under Title 13 in 2009, 7,063 were cases involving illegal narcotics. In 2009, there were a total of 658 criminal offenses against sexual freedom and morality (Title 14) reported, of which 76 were rape, and 14 were attempted rape. In terms of property crimes, included in Title 17, there were a total of 37,788 offenses reported in 2009. A majority of these cases were theft, with 12,378 cases reported, and aggravated theft, which includes four subparagraphs for a total of 18,777 cases.

Finding of Guilt

Crime Statistics Criminal offenses are separated between serious criminal offenses and misdemeanors, as well as by adult and juvenile perpetrators. According to Statistical Yearbook 2009, there were 71,221 total criminal offenses reported in Croatia in 2008. There were another 277,631 adults accused of misdemeanor offenses in 2008, of which 46,944 were women. For juveniles, there were 3,419 criminal offenses reported in 2008, and 10,684 juveniles accused of misdemeanor offenses, of which 888 were females. Statistics from the Ministry of Interior Secretariat of the Ministry Department of Analytics are broken down by criminal offenses, based on the title of the criminal code. Title 10 includes criminal offenses against life and limb. In 2009 there were 2,171 crimes reported, of which 2,015 were resolved. In 2008 there were 51 murders, 119 attempted murders, 16 aggravated murders, and 18 attempted aggravated murders. In 2009 there were a total of 31 murders, 134 attempted murders, 18 aggravated murders, and 19 attempted aggravated murders. A majority of the criminal offenses against life and limb included bodily injury and aggravated bodily injury. In 2008 there were a total of 872 cases of bodily injury and 1,128 cases of aggravated bodily injury, while in 2009 there were a total of 810 cases of bodily injury and 1,059 cases of aggravated bodily injury.

The legal system in Croatia is based on the civil law system. In criminal cases in Croatia, investigations are led by investigative judges at the county courts, while trials are held at the municipal courts. The misdemeanor courts handle low-level offenses, which mostly lead to fines and up to two months incarceration. The municipal courts handle most criminal cases and general civil cases. The states attorney is responsible for initiating all criminal procedures. Chapter 3, article 25 of the Criminal Code of the Republic of Croatia states that a criminal offense can be committed by an act or an omission to act. Chapter 3 continues to give exculpatory factors in crimes, such as self-defense, necessity, coercion or threat, lawful use of force, and similar instances. Chapter 4 discusses the culpability of the offender, including mental incapacity, diminished mental capacity, voluntary intoxication, intent, and negligence. The Criminal Procedure Act has 35 chapters, which protect a person during the trial phase. Chapter 1, article 1 states: This Act establishes the rules which guarantee that an innocent person shall not be convicted, and that a punishment or other criminal sanction shall be imposed on the person who commits a criminal offense, subject to the provisions of the criminal law and in lawful proceedings before the competent court.


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Punishment After the court finds an individual guilty of a criminal offense, Chapters 10 through 26 of the Criminal Code of the Republic of Croatia are used to mete out punishment for convicted perpetrators. Punishment prescribed for these offenses varies based on the seriousness of the crime, as well as taking into account mitigating and aggravating factors. According to article 50 of the Criminal Code, “the purpose of inflicting punishment is to express the community’s condemnation of a committed criminal offense, to deter the perpetrator from committing criminal offenses in the future, to deter all others from committing criminal offenses,” by carrying out sanctions to prevent such acts from occurring. The sanctions for committing crime in Croatia include: fines; imprisonment, including parole; noncustodial measures, such as admonition and suspended sentences, including guidelines for probation; security measures, which include mandatory psychiatric treatment, mandatory treatment of addiction, revoked driving privileges, forfeiture, and expulsion of aliens. There are also provisions for confiscating any monetary gains obtained by illicit means. For juvenile offenders the most common punishments include juvenile detention, suspended sentences, and educational measures.

Sentencing The Criminal Code of the Republic of Croatia delineates a range of sentences for all criminal offenses. Croatia does not have the death penalty for any criminal acts. The sentence for murder is not less than 5 years. For aggravated murder, the minimum is 10 years. The sentence for manslaughter is between 1 and 10 years, while the sentences for infanticide and killing on request are both 1 to 8 years. Negligent homicide yields a sentence between 6 months and 5 years. The crime of bodily injury is punishable by the imposition of a fine or less than three years imprisonment. Aggravated bodily injury has three different sentences. If a person inflicts serious bodily injury or severely impairs a person’s health, the perpetrator can be sentenced to

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between 6 months and 5 years; if the bodily injury is so severe that the life of the person is endangered, or causes permanent disfigurement or disability, the sentence is between 1 and 10 years; and if the person dies due to serious bodily injury, the sentence is between 3 and 15 years. The sentence for rape can range from 1 year to 15 years imprisonment depending on the situation surrounding the incident, the amount of injury received, and the age of the victim. In looking at criminal offenses against property, the sentences vary a great deal based on circumstances surrounding the incident. Chapter 17, article 216 details the punishments for petty larceny, which include fines and between 6 months and 5 years imprisonment. Aggravated larceny, described as committing larceny by breaking in, entering by force, or in a dangerous manner, or by taking advantage of a natural disaster, or taking advantage of a helpless person, yields a sentence of between 6 months and 10 years. For those who commit aggravated larceny of items of great value, cultural heritage, or religious or other historical or technical significance, the sentence is 6 months to 5 years. If the aggravated larceny was committed by a perpetrator in possession of a weapon, or if the perpetrator is a member of an organized criminal group, the sentence is from 1 to 8 years. The sentence for robbery is between 1 and 10 years, unless the act was committed by a member of a group or criminal organization or in the circumstances of an armed robbery. In these cases the sentence is between 3 and 15 years. The sentence for those individuals in possession of a controlled substance with intent to sell can range from 1 to 12 years. For those who manufacture or process with the intent to sell, or purchase with the intent to resell, the sentence is 3 to 15 years. Some major issues facing Croatia are from organized criminal groups; therefore, the sentences on controlled substances mentioned are elevated if they are committed by a perpetrator who is a member of a criminal organization. The sentences in those instances can range from 3 years to a life sentence. In cases of human trafficking, which also includes organ trafficking, the sentence is from 1 to 10 years. If the individuals trafficked are juveniles


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or minors, the sentence is from 3 to 15 years. If, however, the offender is a member of a criminal organization, the sentence ranges from 5 years to life imprisonment.

Prison In 2008, there were over 70,000 criminal offenses reported. Of the 71,221 criminal offenses perpetrated by adults, only 4,384 were sentenced to prison. Another 16,922 received a suspended prison sentence. Of the 3,419 juvenile perpetrators charged with criminal offenses, only 9 were sentenced to juvenile detention. Of the 277,631 adults accused of misdemeanors, 185,494 were found guilty, and 7,836 received a sentence of imprisonment. Of the 10,684 juveniles accused of misdemeanors, 18 received a sentence of juvenile detention. These sentences of imprisonment are served in the Croatian penal system. Croatia’s prison system is under the auspices of the Ministry of Justice and is controlled by the Directorate for the Prison System. The penal system includes a central office, education center, penitentiaries, prisons, and reformatories. The central office includes the prison administration, human resources, service for treatment (which includes departments for special treatment programs and the department for juveniles), a security sector, and an analytical department. The education center includes a department for the development of work skills and another for the implementation of educational programs. There are 6 penitentiaries in Croatia, and 14 prisons, including a prison hospital in the capital city of Zagreb, as well as 2 reformatories. The penitentiaries house inmates who have been sentenced to criminal offenses and misdemeanors, people who have replaced their monetary fines with a sentence, a juvenile detention division, and pretrial detention. The prisons are used to execute sentences in misdemeanor cases and are also used for prison security, that is, maintaining internal order among prisoners. The prison also operates a Center of Training, which opened in October 1999, to provide continuous training for correctional officers. The training includes introductory course work,

basic training, additional courses, and specialized training. Vesna Markovic Further Reading Crostat. Republic of Croatia—Central Bureau of Statistics: http://www.dzs.hr/default_e.htm. Government of the Republic Croatia: http://www. vlada.hr/en. Jane’s Sentinel Security Assessment. The Balkans, Security. Croatia, October 28, 2009. Ministry of Interior for the Republic of Croatia (Ministarstvo Unutrasnjih Poslova Republike Hrvatske): http://www.mup.hr/default. aspx?id=1257. Supreme Court of Croatia, Criminal Procedure Act: http://www.vsrh.hr/CustomPages/Static/ HRV/Files/Legislation__Criminal-ProcedureAct.pdf.

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

Background The history of Cyprus goes back to 9000 bc and the legal history of Cyprus is indeed extensive. While the origins of law in Cyprus are lost in the mist of time, historically speaking, the major phases in its development correspond to the powers that have ruled over the island since ancient times until its independence in 1960. Starting at approximately 1250 bc, legal authority was exercised by the kings in the various ancient Greek city-kingdoms in Cyprus, justice administration reflecting such neighboring legal orders as that of Egypt, Assyria, and Babylonia. During the Byzantine period


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(330–1191), justice administration was the responsibility of local officials who applied ByzantineRoman law and there was a right of appeal against their rulings to the higher authorities in Constantinople. Jurisdiction in family law matters, including mediation, was also exercised by the 12 Episcopal (Greek-Orthodox Church) courts. The crusader Richard the Lionhearted conquered Cyprus on his way to Jerusalem in 1291 and soon after transferred it to the knights and finally to the Loisignan kings (French origin). In 1373 the Genoans occupied Cyprus until the Venetians took control in 1489. The Frankish rule that lasted until 1489 introduced the feudal socioeconomic system that existed in Western Europe at the time and the applicable law took the form of the Assizes of Jerusalem and Cyprus. The Francophone law applicable to the landed gentry was the Assises de la Haute Cour and for the serfs the Assises de la Basse Cour. The latter was translated into the local Cypriot dialect in 1244. The Episcopal courts, however, continued to have jurisdiction in family law matters and their role grew in importance as far as justice administration for the local landless population is concerned when the Franks relinquished control of Cyprus to Venice in 1489. The Ottomans invaded and occupied the island from 1571–1878, and the Assizes were replaced by the Holy Muslim Law (sharia), exercised by the local Kadi, a Muslim judge, and the Moufti, a Muslim legal consultant. The Greek Orthodox Church Courts were allowed and continued to apply Byzantine family law. Cyprus was leased by Turkey to Great Britain in 1878 in exchange for the protection of Turkey from the Russian czar. Britain proceeded to annex the island in 1914 and it became a Crown Colony in 1925. By 1882 the judicial system was revised, establishing assise courts, district courts, and a Supreme/High Court. In 1878, there was the Imperial Ottoman Penal Code, which the British, with some amendments, left as it was until 1928 when the Criminal Code of England (now in force in Cyprus) was introduced. The criminal justice system introduced by the British was an accusatorial one, similar to that at Common Law. Inter alia, the Criminal Code and the Criminal Procedure Law were codified in

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1959. When Cyprus gained its independence in 1960, article 188 of its Constitution provided that all laws that applied previously would continue to do so until repealed or amended by law enacted by its Parliament. Thus, the Criminal Code of Cyprus embodies both the general principles and the main offenses of the Common Law of England. There are four criminal courts.

Legal System Like the rest of the government administration, in terms of its legal framework and procedures, the contemporary criminal justice system of the Republic of Cyprus (criminal code, police structure and standard operating procedures, the prison, and the procedures followed by social workers in dealing with juveniles) reflects the significant influence of the British. It should be noted in this context that whereas criminal justice legislation and procedures in England have changed significantly since 1960 when Cyprus became independent, in the Republic of Cyprus a great deal has remained as it was inherited at the time. Also, with the exception of the judiciary, during the period from 1960 to the late 1990s recruitment and promotion into the police and prison services was largely determined by one’s political party connections. Under pressure to harmonize legislation and practices in the aforementioned services in preparation for full membership of the European Union in 2004, entrance and promotion criteria for the police and the prison services became more objective. Nevertheless, the effectiveness and efficiency of the police and prison services have been adversely affected by the established practice by all political parties whereby selection and promotion into the public service generally should reflect their strength in national political elections. This practice was introduced in the late 1980s in an effort to avoid any one political party dominating the composition of the public service, as was the case with the right-wing until recently. Low morale and a certain degree of corruption in the police and prison services can arguably be said to be attributable to low salaries of the rank-and-file and the lack of meritocracy.


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Police The Cyprus police was first established as the Cyprus Military Police when the British took over control of Cyprus from the Ottomans in 1879. Its command structure, operating procedures, and training has been largely influenced by the British police model and its police culture reflects the political and social history of Cyprus. Today, it numbers 5,321 members, of whom 951 (17.8%) are specials, 3,312 (62.2%) police constables, 634 (11.9%) sergeants, 258 (4.8%) inspectors, 96 (1.8%) chief inspectors, 38 (0.7%) superintendents B, 13 (0.2%) superintendents A, 13 (0.2%) chief superintendents, 4 assistant chiefs of police, 1 deputy chief of police, and 1 chief of police. The command structure of the Cyprus police consists of the following: • Under the chief: Executive Office, Strategic Planning Committee, Public Relations and Press Office, and Planning and Operations Planning. • Under the deputy chief: staff officer. • Assistant chief (Education): Police Academy, Recruitment Office. • Assistant chief (Administration): Administration Department, Office for Inspections and Control, Finance Division, Research and Development Department, European Union and International Co-Operation Office. • Assistant chief (Support): Traffic Department, Aliens and Immigration Service, Fire Brigade, Mechanized Rapid Response Unit, Central Information Service, Presidential Guard Unit, Port and Naval Police, Air Operations Unit, Equipment and Provisions Management Office, Airports Security Office. • Assistant chief (Operations): Criminal Investigations Department (including Economic Crime Squad), Forensic Investigations Service, Operations Office, Drug Squad. A similar structure underpins each district police officer in each of six police districts, namely, Nicosia, Limassol, Larnaca, Famagusta, Paphos, and Morphou. The police district of Kyrenia is not functioning due to the continuing occupation of the

northern part of Cyprus by Turkey. Thus, the police command structure is organized at a national and district level. A total of 450 police personnel are assigned to traffic duties. The police has no organic relationship with the Cyprus National Guard other than collaboration in criminal investigations. As provided in the Constitution, the chief and the deputy chief of police are appointed by the president of the Republic of Cyprus and the assistant chiefs by the chief of police in consultation with the minister of justice and public order.

Crime Classification of Crimes The annual report of the Statistical Service entitled Criminal Statistics divides criminal offenses into “serious” and “minor” on the basis of offense seriousness, as used by the police. To illustrate, since 2003, a property offense is classified as “serious” if the value of property stolen or damaged is valued at €850 (US$1,052) or more. The following crimes categories are considered serious: against public order; against lawful authority; injurious to the public in general; sexual offenses; against the person; malicious injury to property; forgery, coining, counterfeiting, similar offenses, and criminal impersonation; and miscellaneous. The annual police serious crime index comprises homicide and attempted homicide, arson, robbery, drugs, criminal damage using explosives, burglaries, theft, and “other serious offenses.” It should be noted that the age of criminal responsibility is 14 years. Of particular challenge to law enforcement in Cyprus are drug offenses, armed robberies, destroying property with explosives, economic crimes, illegal immigration from the Turkish-occupied northern part of Cyprus and, finally, serious traffic offenses that result in one of the worst annual road death tolls in the European Union. Interestingly, however, causing death by want of precaution or carelessness in a traffic accident is no longer classified under serious offenses against the person, as was the case in earlier years, but is treated as a minor offense for statistical purposes under the category of traffic offenses. Causing death by want of precaution or carelessness in all other instances excluding traffic accidents continues to be considered a serious offense against the person.


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Cypriot Special Police officers investigate the house of Cypriot Dimitri Chrisanthou and his wife Monika of Slovakia, who were allegedly stabbed to death by a Chinese worker in Kathikas village near Paphos, Cyprus, February 23, 2007. (AP Photos/Andreas Lazarou)

Unless one can convince a criminal court otherwise, being in possession of or transporting prohibited narcotics is considered as doing so to supply it to a third person if (1) the quantity and the drug involved is as follows: cannabis (30 grams or more), reprocessed opium or its products (10 grams or more), processed cocaine or its products (10 grams or more), or any other prohibited substance (20 grams or more in solid form or 20 cubic centimeters or more in liquid form); and (2) if the number of plants is 3 or more in the case of cannabis, 20 or more plants of papaver somniferum L and, finally, 5 or more plants of the erythroxylum coca category.

rape (30), burglaries (2,587), serious drug offenses (777). Crime rates have been increasing in Cyprus. More specifically, in a total population of 860,000 in the free areas of the republic, the number of adults (17 years of age and older) convicted of serious offenses per 100,000 of the population was as follows: 1976 (115), 1980 (120), 1990 (150), and 2005 (258). The most typical crime in rural areas is theft while in urban areas the most typical crimes are burglaries, malicious damage to property with explosives, drugs, and armed robberies.

Finding of Guilt Crime Statistics In 2008, the following serious offenses were reported to and recorded by the police: murder (9),

Article 12.4 of the Constitution of the Republic of Cyprus provides that every person is innocent until guilty. With the exception of some strict liability


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offenses, both actus reus as well as mens rea are required for a conviction. The rights of an accused to be found in the Criminal Procedure Law reflect provisions in the Constitution, international treaties, and the European Convention for the Protection of Human Rights. A person may only be arrested under the authority of a reasoned judicial warrant, with the exception of a flagrant offense punishable with detention or imprisonment. As far as detaining an arrested person and before charging him or her is concerned, it is provided in the Constitution that such a person must be brought before a judge within 24 hours the latest who will decide whether to release or to remand him or her in custody and on what conditions. An application for remand must be made by a police officer not below the rank of inspector. Within 3 days the judge must decide whether to release the person arrested from police custody or to remand him or her for up to 8 days. The remand periods cannot exceed 3 months from the date of arrest. Following an application to a court, an accused of documented insufficient financial means is entitled to legal aid to have the services of a defense lawyer. Regarding plea bargaining, it does occur, albeit “unofficially,” both between an accused and/or his or her defense lawyer and the police concerning the gravity of the charge as well as the judiciary regarding changing a not-guilty plea for a less severe sentence. In cases where the likely sentence upon conviction is a term of imprisonment of less than five years, an accused pleading guilty can apply for summary trial. There is no jury trial in Cyprus. Most cases are resolved by summary judgment and sentence. The police carry out investigations into alleged offenses and prepare a criminal file for the Legal Service of the Republic, headed by the attorney general who also acts as the director of public prosecutions. Cases are prosecuted by a public prosecutor in the Office of the Attorney General. Occasionally, nonserious offenses are prosecuted by the police themselves. Alternatives to going to trial exist only for juveniles such as an official police warning. In rare cases, the attorney general may decide not to prosecute a case, if it is deemed to be in the public interest. A court may decide that an accused is not

to be released on bail but to be remanded in custody to await trial. There are 32 criminal court judges, 38 percent of the total number of judges. The qualification for application to be appointed to the bench is six years’ practice as a lawyer and all applicants are interviewed by the Supreme Court Bench. There is no separate juvenile court in Cyprus. A district court judge on a given day of the week simply sits as juvenile court.

Punishment Types of Punishment The punishments available for adults are absolute discharge, conditional discharge, binding over, fine, fine and binding over, probation order, suspended sentence of imprisonment, suspended sentence of imprisonment and fine, imprisonment, periodic imprisonment, imprisonment and fine, life sentence, and community service, all of which may be applied to juveniles who may also be committed to the care of a suitable person. Probation order and community service, fine and community service, suspended sentence of imprisonment and community service, and death sentence (only for high treason) are additional punishments. The only sentence for murder is life imprisonment; the typical term of imprisonment in years for rape is 8, burglary 1.5, robbery 6, and trafficking in large quantities of heroin 12 years. The typical sentence for theft is 6 months’ prison. The death penalty (by hanging) has been abolished and it was last used in 1961 for premeditated murder.

Prison There is only one prison in Cyprus and it is in Nicosia, the capital city of Cyprus. On the basis of statistical data (unpublished) provided by the prison authorities, on July 31, 2009, the total number of persons held in prison was 718, comprising 563 (78.4%) prisoners serving their sentences and 155 persons on remand awaiting trial (21.6%). Of the 563 sentenced prisoners, 36 (6.4%) were women. The prison is increasingly seriously overcrowded.


Czech Republic

All sentenced prisoners are required to work, except for medical reasons, as provided in the Prison (General) Regulations of 1997 and 1998. A large number of classes on a broad range of topics is available to prisoners who wish to take them. Unless the prison governor decides otherwise, prisoners held in the closed prison are entitled to eight visits a month and those in the open prison six. Prisoners and those on remand are entitled to and can apply for escorted or unescorted home leave and to be transported to hospital, on a home visit, or to visit a seriously ill close relative, or to attend the funeral of a close relative, or to get married, or to attend the wedding of a close relative, or to attend the birth or the baptism of their child, to attend court as accused or witnesses or, finally, to attend activities organized by the prison authorities. In those cases where a bilateral agreement exists for the exchange or transfer of prisoners, as in the case, for example, of other European member states or Australia, prisoners can be transferred to their home country to serve the remainder of their sentence. To illustrate, at the time of writing, a Greek-Cypriot serving a sentence in an Australian prison is the subject of a transfer procedure, while a national of Bulgaria convicted in Cyprus of trafficking in drugs and sentenced to 11 years in prison was transferred to Bulgaria 11 months after he was sentenced to serve the rest of his sentence there. Andreas Kapardis Further Reading Artemis, P. (1989). “An Outline of Criminal Law and the Working of the Judicial System in Criminal Cases.” Cyprus Law Review 26(2): 4016. Kapardis, Andreas. (2001). Society, Crime and Criminal Justice in Cyprus: The First Years of British Rule. Athens: A. N. Sakkoulas. Neocleous, Andreas, Eleni Christodoulidou, and Panayiotis Neocleous. (2000). Introduction to Cyprus Law. New York: Yorkhill Law. Statistical Service, Ministry of Finance, Republic of Cyprus. (2006). Criminal Statistics 2006 (series 1; report 33). Nicosia: Government Printing Office.

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

Background The Czech Republic is part of Central Europe and its neighbors include Germany, Poland, Slovakia, and Austria. The country’s total area is 78,867 square kilometers (30,450 square miles). Until 1993, the Czech Republic and Slovakia formed a single country created after the break-up of the AustroHungarian Empire in 1918. On January 1, 1993, the two parts of the former federal republic parted ways to establish two independent national states— the Czech Republic and the Slovak Republic. The Czech Republic is a parliamentary democracy. The country’s current Constitution took effect on January 1, 1993. The president is the head of state, elected for five-year terms. The legislative branch is represented by a bicameral Parliament consisting of the Senate (81 senators elected for sixyear terms) and the Chamber of Deputies (200 deputies elected for four-year terms). Executive power lies with the cabinet headed by the prime minister who is appointed by the president. The prime minister is usually chosen from the ranks of the political party that wins elections to the Chamber of Deputies. The Czech Republic is divided into 14 regions including the capital city of Prague, the only city to receive regional status. Each region has a governor and a Regional Assembly while towns are managed by mayors and local assemblies. It has been a NATO member since 1999 and an EU member since 2004. The Czech Republic has a population of 10,220,911, including 5,253,606 women. Youth under 14 years of age represent 13.8 percent of


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the population, and people over 65 years of age 15.1 percent. Czechs’ life expectancy is 76 years. The number of foreigners living in the Czech Republic has increased nearly 10 times since 1990, which is a natural consequence of the deep political and economic changes the country has seen since the collapse of socialism. Nevertheless, the Czech Republic still belongs to countries with a relatively low number of foreigners who currently represent only 2.9 percent of the Czech population. Ukrainians represent the largest group of foreign nationals in the Czech Republic (102,000), followed by citizens of the Slovak Republic (58,000) and Vietnam (41,000). The Czech Republic is also a target country for some asylum seekers. Between 1998 and 2005, the number of asylum applicants fluctuated between 4,000 and 18,000 with a dropping trend since 2002; in 2006, the Czech Republic registered 3,016 asylum applications. In addition to legal aliens, the Czech Republic is also used as a transit or target country of illegal migration. However, the number of identified illegal foreign migrants has been declining since 2000 from approximately 53,000 persons in 2000 to less than 11,000 in 2006. The largest national group among illegal migrants are Ukrainians. With the exception of the Roma (gypsy), there are no significant large ethnic minorities in the Czech Republic. The Roma live practically in all parts of the country. The exact number of their population is unknown but is estimated to be somewhere between 150,000 and 200,000 people. Generally speaking, this ethnic group shows lower levels of education and higher levels of unemployment. The Roma are also more vulnerable to social exclusion.

Legal System The country’s legal system is based on the continental legal tradition. After 1989, there have been numerous fundamental legislative changes aimed at removing legal deformities inherited from the previous socialist regime and implementing legal standards of the European Union. The Czech penal law is largely codified in a single law—the Criminal Act No. 140/1961 Coll., but it has seen many

amendments, especially since 1990. The Chamber of Deputies approved a complete new version of the Criminal Act in 2009 and it came into force on January 1, 2010. The current penal law does not divide crimes into several categories. Antisocial actions and behavior of lesser gravity are addressed in the Offences Act. The minimum age of criminal liability is 15 years with persons between 15 and 18 years of age defined as juveniles. The Czech penal law is based on the principle of personal criminal liability and does not recognize collective liability, liability for the guilt of another, and corporate criminal liability, but the latter has been the subject of extensive legal debate over the past few years. The key principle of criminal procedure is that a person may be prosecuted only on legal grounds as defined in the Bill of Rights and Freedoms (incorporated in the Czech Constitution), meaning that nobody may be prosecuted or incarcerated for reasons and in ways other than those defined by law. Criminal procedure is defined in Act No. 141/1961 Coll.—the Code of Criminal Procedure, which has also been subject to numerous amendments after 1991.

Justice System The judicial system consists of a network of independent courts (the Supreme Court, the Supreme Administrative Court, two high courts, regional courts, and district courts); the system of public prosecutors shares a similar structure. Public prosecution is designed as a system of state offices whose purpose is to represent the state in the protection of public interest in cases defined by the law. Judges are appointed by the president of the republic while public prosecutors are nominated by the chief public prosecutor and appointed by the justice minister. The chief public prosecutor is appointed and dismissed by the cabinet at the suggestion of the justice minister. Investigation is most usually conducted by the Criminal Police Service and the Police of the Czech Republic. Public prosecution is responsible for ensuring that the law is observed during pretrial procedures. Issues of constitutionality are the jurisdiction


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of the Constitutional Court that is not part of the regular court system. The basic principles of judiciary organization and practice are defined in Head IV of the Constitution of the Czech Republic and further addressed in other laws.

Police A fundamental piece of police legislation is Act No. 283/1991 Coll., which regulates the organization and activity of the police of the Czech Republic. Police are under the jurisdiction of the Ministry of the Interior. The chief of police is appointed by the Minister of Interior with the approval of the Czech government. Police are generally divided into the uniformed and nonuniformed police. Uniformed police are responsible above all for the public order and security, and they comprise the Police on the Beat, the Traffic Police, the Aliens and Border Police, the Railway Police, Air Service, and some special departments, as for example, the Department of the Protection of Constitutional Authorities. Nonuniformed police are responsible chiefly for the detection and investigation of crime and comprise above all the Criminal Police and Investigation Service. The scope of activity of some police departments and units covers the whole territory of the Czech Republic (e.g., Department for Detection of Organized Crime, Unit for the Detection of Corruption and Financial Crime, National Anti-Drug Headquarters, Air Service, Rapid Employment Unit, Institute of Criminalistics, Office for Documentation and Investigation of Communism Crimes); other police forces act within the regions and are managed by the regional police headquarters. Local police in the CR may be established by the decision of the municipal council on the basis of the Act on the Local Police No. 553/1991 Coll. Local police is responsible for the public order, especially it assists in providing protection and safety of persons and property, to observe the rules of public peace and coexistence of citizens, traffic safety, and also to disclose the minor offenses and administrative misdemeanors. Local police is headed by the magistrate/mayor or by a selected member of the

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board of a municipal council. It collaborates closely with the police of the CR. Local police is an armed service but the use of guns is allowed in case of urgent emergency only (life threat or the risk of escape of a dangerous offender). In addition to the police of the CR and local police, there are many private security agencies. They are defined as so-called licensed trade under the conditions regulated by the Act on Commercial Activity No. 455/1991 Coll.

Crime Crime Statistics Basic official data are to be found in the Report on Internal Security and Public Order in the Czech Republic.” The report is based primarily on information in the Crime Statistics System of the Czech Police. Another source used in developing the annual reports is the Justice Ministry’s statistics on persons prosecuted, charged, and sentenced on the territory of the Czech Republic during the given year. The level of crime in the Czech Republic dramatically increased in the 1990s, culminating in 1999 with a total of 427,000 crimes investigated by the police, which was three times more than the level in the 1980s. After 1999, however, a decline in overall crime has been recorded and since 2001, the number of investigated crimes has stagnated at around 360,000 cases a year. At the peak of criminal activity in 1999, there were approximately 4,100 crimes per 100,000 inhabitants. In 2007, the figure dropped to approximately 3,500 crimes per 100,000 inhabitants. Both the massive increase and later the decrease in investigated crimes were largely due to what the Czech police describes as “crime against property.” Each year, one-quarter of all crimes occur in the capital city and only 20 percent of cases are solved— that is, the perpetrator is identified. Compared with other regions of the Czech Republic, the crime level in Prague is twice as high but the rate of solved cases is half as high. One interpretation of these findings may be that Prague is the most attractive place for crime (and criminals) in the entire country.


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PROPERTY AND ECONOMIC CRIMES Current police statistics on property crime include theft—the most common type of crime in the Czech Republic (in 2007, there were approximately 210,000 theft cases, or 58.5% of all crimes recorded that year), some types of fraud and embezzlement cases as well as other types of crime. Economic crime constituted 11 percent of all cases recorded by the police in 2007. A dramatic increase in this type of criminality in 2005 was due to a major growth in credit fraud, the single most common type of economic crime in police statistics (32% of all cases described by the police as economic crime).

made up 38% of the “miscellaneous crime” category) as well as avoidance of alimony (20%), dangerous behavior under the influence of addictive substances and alcohol (20%), and road traffic accidents (20%). The total number of persons affected by crime (victims) is reported only in police statistics. The number of victims has been slowly but steadily increasing and in 2004 and 2005 the minimum annual number already exceeded 50,000 people. In 2006 and 2007 it was again approximately 50,000. Men, specifically younger men, are victims of crime more often than women. In 2007, approximately 139,000 crimes were solved, which represents 39 percent of all cases recorded that year.

PERSONAL CRIMES Violent crime constituted 5 percent of all cases recorded by the police in 2007. The most common types of violent crime are bodily harm and robbery. In the past decade, the lowest number of murders was recorded in 2005—186 cases (including cases of attempted murder and planned murder) and in 2007—196 cases. On the other hand, the highest number of murders was recorded in 1998—313 cases. The number of recorded robbery cases continued to grow until 2004 when it reached 6,107 cases; the first decrease (by approximately 600) was recorded in 2005 and another one in 2006 (by 900). In 2007, a total of 4,856 robbery cases were recorded (83 more than in the previous year). Compared with 2006, the police recorded a significant increase in the number of rape cases in 2007 (from 530 to 637 cases). Crimes against morality constituted 0.5 percent of all cases recorded by the police in 2007. The number of cases reported under this category has remained more or less unchanged.

MISCELLANEOUS CRIME This category (in order of frequency in 2007) includes the following types of criminal activity: driving a motor vehicle without license (18,098 cases recorded in 2007) and infringement of other people’s rights (together the two types of criminal acts

Offenders’ Profile The number of known offenders stagnated between 2003 and 2007 at around 121,000–123,000 people with a long-term growth in the number of female offenders. Between 1993 and 2007, the annual number of female offenders increased from around 9,000 to approximately 16,500 persons, and their share of the total group of known offenders thus increased from 8 percent to 13 percent. The number of adult offenders slightly increased while the number of offenders under the age of 18 dropped (with a significant drop in the under-15 category—i.e., persons without criminal liability). In 2007, a total of 9,000 child and juvenile offenders were identified (including nearly 3,000 individuals under 15 years of age). The number of foreign offenders has been relatively stable, and foreign nationals represent approximately 6 percent of all known offenders since 1993. In 2007, there were some 8,000 foreign offenders. Prague has the highest share of foreign offenders—around 15 percent of all known offenders in 2007. The share of first-time offenders (i.e., persons who are entered in police files for the first time) on the total number of offenders still remains very high, around 50 percent a year. The share of recidivists (repeat offenders) on the total number of known offenders has started growing in recent years—there


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was a 46 percent increase in 2006, the highest figure in a decade. In 2007, it was approximately 44 percent.

Organized Crime The phenomenon of organized crime first came to the attention of the general public soon after 1990. A key moment that prompted Czech authorities to take organized crime seriously was the World Inter-Ministerial Conference on international organized crime that took place in Naples, Italy, in 1994. Major legislative changes were made in relation to organized crime in the first half of the 1990s. First, punitive sanctions for crimes committed in organized groups were increased. In 1995, the Criminal Act was amended to include several new concepts such as participation in criminal conspiracy, effective repentance, immunity from prosecution for undercover agents, the possibility of sentencing an offender for a crime committed in favor of a criminal conspiracy and, above all, the definition of a criminal conspiracy. The Code of Criminal Procedure was amended to improve protection of persons involved in criminal prosecution of organized crime such as witness protection, access to hitherto secret bank records, wiretapping, and so forth. The Czech Republic has signed but not yet ratified the UN Convention against Transnational Organized Crime. A key organizational change against organized crime was the creation of the Unit for Detection of Organized Crime of the Criminal Police on January 1, 1995, and the Police Service for Detection of Corruption and Serious Economic Crime on January 1, 1994. In 2000, specialized sections devoted to serious economic crime were created on the prosecution side as well, on the level of the chief public prosecutor and high public prosecutors. The situation in the Czech Republic is further complicated by the fact that no cases of participation in criminal conspiracy (sec. 163a of the Criminal Act) were detected before 1998. After 1998, however, there were dozens of prosecuted and investigated persons. The number approached 100 a year in 2002–2004, exceeded 100 in 2005 and 2006

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(it was as high as 181 in 2005), and once again fell to 78 in 2007. Unfortunately, the number of sentenced individuals was much lower. In 1999, only 1 person was sentenced for participation in criminal conspiracy, 2 persons in 2001, 5 in 2003, 10 in 2004, 9 in 2005, 21 in 2006, and 15 in 2007. Official documents of the Police Presidium indicate that approximately 75 organized groups with a total of 2,000 members were active on the territory of the Czech Republic in 2007. By far the most common activities of organized crime are car theft, prostitution, and since 1994, drug production, smuggling, and distribution. Between 1993 and 1998, one of the most common types of criminal activities was theft of works of art. In 1996, 1997, 2002, and 2005, it was tax, credit, insurance, and foreign exchange fraud. Corruption occasionally comes to the fore, although its overall level greatly fluctuates. Between 1998 and 2004, one of the most common activities among organized crime groups was illegal migration. Since 2005, however, its extent has been falling and in 2006 it ranked 10th in the overall statistics. Several changes occurred in 2006. Money laundering and forgery of documents, bills, and coins is on the rise together with a major increase in computer crime. Since 2005, illegal production and smuggling of alcohol and cigarettes has gained in prominence as well.

Finding of Guilt The law requires the police to investigate crime based on their own initiative to secure evidence necessary to detect facts important for the evaluation of a given case and suspect as soon as possible. The police detect and secure evidence regardless of whether it is in favor of or against the suspect. A suspect cannot be forced to testify or confess in any way. If identified facts indicate that a crime was committed and that it was committed by a specific person, the police immediately decide to start prosecution of the suspect as a person charged. A copy of the order to begin prosecution must be delivered to the person charged no later than on the day of first interrogation and to the public prosecutor and defense lawyer within 48 hours. Defendants may


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complain against the prosecution order to the public prosecutor. Supervision of the legality of crime investigation is exercised by the public prosecutor who also has the right to issue binding instructions to the investigating police units and cancel their illegal or groundless decisions or measures. Each person charged must have a defense lawyer in cases where the maximum possible sentence is imprisonment for more than five years. Defense lawyers are also required in cases against juveniles; in cases where the court or the public prosecutor have doubts about the defendant’s ability to defend himself or herself, especially due to physical or mental handicaps; and in other specified conditions.

Searches In court procedures, a house search may be ordered by the presiding judge while in preliminary procedures it may be ordered at the request of a public prosecutor by a judge with territorial jurisdiction over the premises. A house search order must be in writing and must state the reasons and grounds for the search. Police officers may enter apartments and other residential premises and related land only in urgent cases where entry is necessary to protect the life or health of a person or to provide protection of other rights and freedoms or to avert serious threats to public safety and order. When entering such premises, the police officer must not perform any task or act other than those necessary to avert a threat or to arrest a person based on an arrest warrant or to arrest and deliver a person for execution of a prison sentence. In cases of prosecution of especially serious willful crimes, a judge may, at the request of a public prosecutor, order wiretapping and recording of telephone calls.

Arrest and Custody A person charged may be taken into custody if his or her behavior or other pertinent circumstances give reason to believe that the person may attempt to flee, where the person’s identity is not immediately established, if the person does not have a permanent residence, if there is risk of repeat offenses, if he or she is facing a severe sentence or could

influence accomplices or witnesses. Custody is ordered by a court. Only persons subject to criminal prosecution may be committed to custody. Arrest is executed by police officers who are also responsible for locating the person charged, if necessary. After arrest, the police officer who arrested the person charged based on an arrest warrant must immediately but no later than within 24 hours deliver the person to the court. If this does not take place, the arrested individual must be released. The judge receiving the arrested person must immediately interrogate him or her and decide whether the person should be taken into custody. The decision must be communicated to the person within 24 hours of his or her delivery to the court. If the judge decides for custody, at least one family member of the person charged as well as his or her employer must be informed of the fact without undue delay. However, the person may choose not to have his or her family and employer notified of his or her committal to custody. Juveniles do not have this option, though. Custody is executed in prisons managed by the Prison Service of the Czech Republic (for more details, see below). If the total time of custody during preliminary procedures reaches 3 months, the public prosecutor has 5 days to decide whether to keep the person charged in custody or whether to release him or her. Once charges are brought against the person, the court has 30 days to decide whether to keep the person charged in custody or whether to release him or her. The total time of custody during criminal procedure must not exceed 1 year in cases involving crimes that fall into jurisdiction of sole judges. The time limit is 2 years in cases heard by a senate and 3 years in cases of grave willful crimes. The longest possible time of custody is 4 years in cases that carry maximum possible sentence of 15–20 years in prison or a life sentence. All bodies responsible for penal proceedings must continuously assess whether the reasons for custody still prevail or whether conditions have changed. The person charged may at any time request to be released and a court must decide about the request within 5 days. If a request is turned down, the


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person may repeat the request on the same grounds no sooner than after 14 days. In some cases, custody may be replaced by guarantees, supervision, or promise. A court may also release a person charged from custody against a bail in an amount defined by the court. However, a person suspected of criminal activities may be arrested by police officers in urgent cases for up to 48 hours. Within this 48-period, the person must be either delivered to a court or released.

Summary Process In simple criminal cases that carry maximum sentences of less than three years, a summary process is possible under certain circumstances. The police submit to the public prosecutor a brief report on their investigation and the prosecutor either recommends a sentence to the court or adjourns the case or transfers the case to the relevant body to try the case. Instead of recommending a sentence, the public prosecutor may decide to conditionally postpone such a recommendation if the suspect confesses, pays any damage caused, and agrees with the postponement of prosecution recommendation. The decision to suspend prosecution recommendation must set a probation period of six months to one year. Criminal cases with summary preliminary procedure are heard by sole judges in a summary process. The sole judge may grant a court order without trial with a maximum sentence of one year in prison with conditional suspension of the sentence or a sentence of community service, a money penalty, forfeiture of property, deportation for five years, or five-year prohibition of stay. A sentence order has equivalent force to a conviction.

Juveniles Procedure in cases of juvenile crime is addressed in a special law, that is, Act No. 218/2003 Coll., on juvenile liability for illegal actions and juvenile jurisdiction. Procedures on crimes committed by children under 15 years of age and juveniles (persons between 15 and 18 years of age) must be conducted with due regard to the age, health, mental and moral development of the offender to mitigate negative effects

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on his or her future growth. Personal data and privacy of these persons must be strictly protected. The only sentences available for juvenile offenders are education correction, protective measures, and criminal measures. Education correction includes supervision of a probation officer, probation programs, educational obligations, educational restrictions, and reprehension with caution. Protective measures include reformative education, protective therapy, and confiscation of property. Juveniles may receive only the following types of sentences if convicted of criminal activities: community service, fines, fines with probation period, confiscation of property, prohibition of activities, deportation, prison sentence with a trial probation period, or a trial probation with supervision and imprisonment without probation. A juvenile custody may be replaced by guarantees, supervision, promise, or remitting to custody of a trustworthy person. Bail is also possible. Children under 15 years of age do not have criminal liability. If a child under 15 years of age commits a crime, a court must decide on corrective measures, usually based on the results of a prior expert psychological examination. Judges, public prosecutors, police officers, and employees of the Probation and Mediation Service who deal with child and youth crime must go through special training on how to communicate with and handle youth.

Punishment The fundamental purpose of punishment as defined in Section 23 of the Criminal Act is to protect society against crime and its perpetrators. The objective of punishment, therefore, is to prevent an offender from continuing with criminal activities and to assist in resocialization; a sentence must not debase human dignity. When choosing the type and length of a sentence, a court must always consider the gravity of the crime from the point of view of society and likelihood of correction as well as the offender’s social situation. Courts also consider mitigating and aggravating circumstances, listed in general terms in the Criminal Act (Sec. 33, 34).


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Section 27 of the Criminal Act lists all the possible sentences, that is, imprisonment, community service, loss of honorary titles and distinctions, loss of military rank, prohibition of activity, confiscation of property, fines, confiscation of items, deportation, prohibition of stay. In addition, courts may use exceptional punishments under Section 29 of the Criminal Act. The only types of sentence that a court may pass on a juvenile are imprisonment, community service, confiscation of item, deportation, and fines, if the juvenile already has his or her own income; prohibition of activity is possible only in cases where the sentence does not prevent the juvenile from learning a trade or acquiring education and the sentence cannot be longer than five years. Sentencing guidelines defined by law for judges are cut in half in juvenile cases but the maximum term of imprisonment cannot exceed five years and the minimum term must not be shorter than one year. Protective measures represent a special type of legal sanction that may be issued both to persons with criminal liability and persons without criminal liability (either due to legal age or insanity). Personal measures are used by criminal courts and, in exceptional cases, by civil courts (in cases involving persons under 15 years of age) and may be issued alone or in conjunction with other types of punishment. The objective is not to restrict the offender but to provide treatment, education, or ensure the destruction of an item. Protective measures, therefore, include protective treatment, protective education, and confiscation of item; protective education may be imposed only on juvenile offenders.

Types of Punishment IMPRISONMENT Basically, this form of punishment temporarily restricts the personal freedom of movement of offenders by incarceration in a prison facility and the related restrictions of other personal rights and freedoms. An exceptional punishment is understood to be imprisonment for 15–20 years and a life sentence. An exceptional punishment may be used only in cases specifically listed in a special section of the Criminal Act. Imprisonment for 15–20 years may

be used only in cases where the threat posed by the crime to society is very high or where the chances of correcting the offender are very low. A life sentence may be used only for offenders who commit murder, treason, terrorist acts, or genocide. A conditional stay of prison sentences is used when a court issues a guilty verdict and a prison sentence but waives the imprisonment under the condition that the offender behaves properly during the probation period and meets all conditions set by the court. Conditional stay of prison sentences is often provided in conjunction with supervision measures or certain other obligations and restrictions. If the court concludes that the offender on probation has proven his or her worth, the person is considered as never having been sentenced in the first place. A court may also conditionally stay a prison sentence of more than three years provided that it imposes supervision for the offender. The purpose of supervision is to monitor the offender’s behavior in greater detail during the trial period and provide the necessary assistance and psychological and social care. In addition, courts usually require offenders to pay, according to his or her financial possibilities, the damage or loss resulting from his or her criminal actions.

FINES Fines from CZK2,000 up to CZK5,000,000 (US$97 to $242,724) are mainly used for crimes against property, the most common type of crime in the republic.

DIVERSION In cases where the maximum prison sentence is less than five years, the court may approve a settlement with the consent of both the victim and the offender and stop criminal prosecution. The same can be done by a public prosecutor during preliminary procedures. In this out-of-court settlement, an offender admits to a crime for which he or she is being prosecuted, pays the damage or loss resulting from his or her criminal activity, and pays a certain amount to be used for publicly beneficial ends. However, this option is not widely used yet (in 2006 only 168 criminal cases were settled this way).


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A new Criminal Act was adopted in 2009, and it introduces new alternative sanctions such as home confinement, including possible future use of electronic tagging devices. It also further increases community service options, with different regimes for performance and intensity of repression, and isolation such as weekend punishments or various forms of detention.

Prison Prison sentences are served in facilities managed by the Czech Prison Service, which is part of the Justice Ministry. The justice minister appoints and dismisses the general director of the Prison Service. The general director is accountable to the justice minister for the operation of the Prison Service. The basic organizational units of the Prison Service are the general directorate, remand prisons (for custody), and prisons (for execution of prison sentences). Prisons are managed by prison governors, appointed and dismissed by the general director of the Prison Service. The Prison Service also has a special, independent organization unit—the Education Institute—that provides professional training for prison employees. The Prison Service is responsible for the execution of custody and prison sentences. It uses appropriate resocialization programs to help offenders improve their habits and quality of life after release. The Prison Service also carries out certain business activities necessary to allow inmates to work when serving their sentences (or during custody). The Prison Service consists of prison guards, justice guards, and administration services. Prison guards and justice guards have the status of armed units. Prison guards guard, deliver, and escort persons in custody and persons serving prison sentences while justice guards provide order and security in court buildings and public prosecutor offices as well as on the premises of the Justice Ministry. The administration services is responsible for organizational, economic, and educational issues as well as professional assistance in prisons, including medical services. When being admitted to prison, an offender must be clearly informed of his or her rights and obligations as defined by law and other regulations.

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Men and women are never placed in mixed-gender cells. Youth and adults are usually placed in different cells as well. The same applies to recidivists and first-time offenders and persons who committed premeditated crimes and persons who committed crimes from negligence. Persons suffering from mental disorders and behavior disorders as well as certain other groups of inmates who require special treatment are also housed separately from the general prison population. Inmates serving life sentences are a special group and are placed on separate premises in a few select prisons (with maximum level of security). Naturally, the above general rules are in practice observed as the accommodation capacity of each prison allows. In a situation where the capacity of most prisons is exceeded and prisons are already full, it is hard to expect strict observance of such requirements. The system of “one cell—one inmate” cannot be fully applied because the interior layout of most prisons was designed with traditional group accommodation in mind. There are long-term problems with accommodation capacities, lack of leisure facilities as well as office space for prison employees. Inmates may work either in the prison’s own production facilities or at third-party employers. Work conditions for inmates are subject to the same rules and regulations as work conditions of other employees. Inmates are entitled to remuneration according the amount and quality of their work. Remuneration is lowered by alimony for dependent children, the cost of serving a prison sentence or custody as well as other liabilities of the inmate. The total deduction from an inmate’s remuneration cannot exceed 86 percent of his or her net remuneration. A lack of jobs for inmates has been a long-term problem. Only around 50 percent of the current prison population is employed. Inmates receive regular meals, get eight hours of sleep a day, at least an hour a day for outdoor exercise, and reasonable time for private matters. They may also get education of elementary and secondary vocational level and attend various other courses. Inmates may file complaints that prison governors are obliged to acknowledge without undue delay. The rights of inmates are guaranteed by the Act


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on Execution of Prison Sentences. The scope of inmate rights is in line with European Prison Rules and other international documents (UN Convention of Human Rights, among others). Prisons are divided into four basic categories according to the level and type of security: prisons with supervision, prisons with surveillance, security prisons, and high security prisons. One prison facility may consist of areas with different levels of security. The court chooses which type of prison an offender will be sent to and may decide to transfer an inmate from a prison of one category to a prison of another category, taking into account the progress in the person’s correction. There are 35 prisons in the Czech Republic (including remand prisons); four prisons have capacity over 1,000 inmates but most facilities have capacity between 300 and 600 inmates. The buildings of some prisons are in rather bad shape, especially in the case of historical sites. Public prosecutors regularly inspect premises where custody and prison sentences are executed. The inspecting public prosecutor may issue orders requiring application of valid regulations directly at the prison. He or she may also order that a person held in prison or custody illegally be released immediately. Supervision by public prosecutors does not replace the Prison Service’s obligation to conduct its own control and inspections. The Justice Ministry directly contributes to prison control and supervision through its General Inspector Department. Approximately 10 percent of all inmates serving prison sentences in Czech prisons are foreigners. The population of remand prisons includes approximately 20 percent foreigners. The largest national group are Slovaks, followed by Ukrainians, Moldavians, Belarussians, Bulgarians, people from former Yugoslavia, as well as Vietnam, certain Arab countries, Poland, and Germany. In the early 1990s, the Czech Republic signed the Treaty on Extradition (the treaty is valid in the Czech Republic since August 1, 1992). Extradition is also possible based on bilateral agreements on jurisdiction signed between the Czech Republic and a number of other countries. Each year, dozens of

individuals are transferred to their home countries for the execution of sentences.

Parole When an inmate serves half of his or her prison sentence and his or her behavior during incarceration and performance of obligations shows that the inmate has sufficiently corrected his or her ways, a court may conditionally release an offender if the court receives guarantees from a civic association. For these purposes, civic associations are to be understood as labor unions and other social organizations, work teams, and religious organizations but not political parties and movements. Persons convicted of grave crimes listed in a special section of the act may be released on parole only after serving two-thirds of their sentence. Persons serving exceptional life sentences may be released on probation only after serving 20 years of the sentence. According to the Constitution, the president of the republic is the only person entitled to grant pardons (art. 69.g of the Constitution). The president may also grant across-the-board pardons (amnesty) but the decision requires a joint signature by the prime minister or another member of the cabinet appointed by the prime minister. This means that the cabinet shoulders a part of the responsibility for the president’s decision. Across-the-board pardons (amnesty) are a relatively common event in the Czech Republic. They are most often granted at the occasion of the election of a new head of state as well as important national holidays or other prominent events. For example, when the socialist regime was overthrown, the president granted a large-scale amnesty as of January 1, 1990, and nearly 24,000 inmates of the total prison population of 33,000 were released. This major amnesty caused certain problems as the society was not ready to receive such large numbers of former inmates to regular social life in a very short time. Assistance to persons released from prison is the responsibility of social curators who are attached to district authorities and provide help to socially excluded citizens. The country also has special social curators for youth. When released from prison, each


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inmate is instructed to contact a social curator who will be able to help him or her adapt to everyday life again (accommodation, job, etc.). The main problem is that communication with social curators is not obligatory and many former inmates do not use this possibility despite the fact that they are clearly unable to deal with their new social situation. Prior to release, inmates are prepared for the change and social workers of the Prison Service are there to assist them. Furthermore, there are many nongovernmental and charitable organizations, religious organizations, foundations, and other groups that assist former inmates.

Probation The Czech Republic has a Probation and Mediation Service whose responsibilities include the following: • Gathering information about persons charged and about their family and social situation. • Creating suitable conditions for decisions on conditional stay of criminal prosecution or approval of settlements. • Supervision of charged persons’ behavior in cases where custody was replaced by probation supervision, or where supervision is required by courts as part of the sentence. • Monitoring and control of offenders’ behavior during trial periods in cases of early conditional release from prison. The Probation and Mediation Service plays an important role in providing and controlling alternative forms of punishment replacing incarceration. The most common type is community service (Sec. 45, Sec. 45a of the Criminal Act) and settlement (Sec. 309–314 of the Criminal Act). Punishment in the form of community service is possible in cases with a maximum prison term of five years provided that no other type of punishment is deemed necessary to achieve the purpose of punishment. The court may impose community service in length from 50 to 400 hours and may include cleaning public premises, cleaning and maintenance of public buildings and roads or other

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small tasks for municipalities or state or publicly beneficial institutions, fire prevention, health protection, and many other charitable, religious, and athletic activities. Martin Cejp, Zdenˇek Karabec, Alena Marešová, and Miroslav Scheinost Further Reading Aebi, Marcelo F., Kauko Aromaa, Bruno Aubusson de Cavarlay, Gordon Barclay, Beata Gruszczyñska, and Hanns von Hofer, et al. (2006). European Sourcebook of Crime and Criminal Justice Statistics. The Hague, the Netherlands: WODC. Czech Ministry of Interior: http://www.mvcr.cz. Czech Ministry of Justice: http://www.justice.cz. Czech Statistical Office: http://www.czso.cz. Institute of Criminology and Social Prevention, Prague: http://www.ok.cz/iksp/en/aboutus.html. Karabec, Zdenˇek, and Miroslav Scheinost. (2006). “Czech Correctional and Police System.” In World Encyclopedia of Police Forces and Correctional Systems, edited by Georges Th. Kurian, pp. 335–341. Detroit, MI: Thomson Gale.

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

Background Denmark belongs to the Nordic countries that include Finland, Iceland, Norway, and Sweden. Greenland and the Faroe Islands are also Nordic but are not counted as independent countries. Since the Danish/Norwegian Vikings also conquered Iceland, Greenland, and the Faroe Islands


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in 800–1200, there have been strong connections and to some degree Danish dominance over those areas. Iceland became independent in 1944. Greenland and the Faroe Islands have a home rule system. Today Greenland and the Faroe Islands still have two members each in the Danish Parliament. Denmark is a kingdom with 5.25 million inhabitants covering an area of 43,048 square kilometers (16,621 square miles). The biggest part is a peninsula, Jutland, on the “top” of Germany; there are also more than 400 islands around the peninsula, out of which 80 are inhabited. The biggest island is Zealand, where the capital, Copenhagen, with its 1.75 million inhabitants is located. Denmark had its first Constitution in 1849. It was revised in 1915, when women gained the right to vote. There was a constitutional reform in 1953 after which Denmark had a Parliament with one chamber and a king or queen with mainly formal and ceremonial functions. Parliament has 175 members elected in Denmark plus the above-mentioned two members from, respectively, Greenland and Faroe Islands. Denmark has been a member of the United Nations since its foundation in 1945. In 1949, Denmark entered the North Atlantic Treaty Organization (NATO) and, in 1973, it became a member of the Common Market, now the European Union (EU). It is not uncommon in Denmark for a government to rule on the basis of less than 50 percent of the votes in Parliament, so cooperation and consensus in policy making is a necessity. Before the 1990s crime policy was not only based on political consensus, it was also closely connected to scientific evidence. But in the last two decades crime policy has moved away from the experts into the hands of politicians and has become an issue in political election campaigns.

Crime Reported crime has developed in different directions depending on the kind of crimes. The year 2000 had 500,000 reported breaches of the Criminal Code and 66,000 reported breaches of the so-called special codes, such as the Code against Drugs and the

Code against Weapons. In 2007 the numbers were 445,000 and 69,000, respectively. The Traffic Code is a special code but not counted under reported crime as most of the reports are made by the police themselves. Crimes reported per 100,000 inhabitants over 15 years old for various Criminal Code offenses in 2007 were as follows: Sexual crimes Violence Property crimes Others Total

59 437 9,366 152 10,014

The total number of responses to crime by the criminal justice system was 160,000 in 1997 and 176,567 in 2007, having reached a peak of 223,000 in 2005. By responses to crime is meant all kinds of reactions to reported crime. For instance, in 2007 the total includes 9,000 unconditional prison sentences and an equal amount of conditional prison sentences, whereas the amount of fines was 140,000, out of which 110,000 referred to breaches of the Traffic Code. The rest are mainly withdrawal or dropping of charges, not-guilty findings, and 550 sentences to mental treatment for mentally disturbed offenders. Out of 140,000 fines only about 15,000 are decided in a court, the rest are decided by the police and accepted by the offender. In all years from 1997 to 2007 more than 50 percent of all criminal justice system responses concerned the Traffic Code. Criminal Code responses have declined from 35 percent to 25 percent in the same period. Furthermore, the proportion of criminal justice responses to women increased from 15 percent in 1997 to 21 percent in 2007. The share of juveniles receiving a response to crime has been stable between 11 and 13 percent for the last decade, whereas the proportion of persons over 40 years old has increased and the proportion of persons between 20 and 40 has slightly decreased. The overall clearance rate of all crime has been between 15 and 20 percent in the latest decades. This covers a most different picture from 98 percent of all reported murders being cleared up to not much more than 0 percent of thefts of bikes.


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Police wait outside a bank in Copenhagen, Denmark, after three armed men robbed a bank van, September 4, 1997. (AP Photo/Bent Midstrup)

Finding of Guilt Investigation of crime is carried out by the police who, in Denmark, are divided in 12 districts. Each district has its own director and the commissioner of police; the national head of the police works under the supervision of the minister of justice. Prosecution is carried out by the prosecutors, who are lawyers. The prosecutors are divided in a hierarchy with three levels: the director of public prosecution who is the prosecutor of the Supreme Court, the public prosecutor and the lawyers working with him or her who prosecute cases before one of the two High Courts and, finally, the district attorney who prosecutes cases in the 24 city courts. Exceptions to this main structure are more important jury cases carried out in city courts in first instance, where lawyers from the Office of the Director of

Public Prosecution act as prosecutors. It is explicitly laid down in the Constitution that lay judges must be included in criminal court procedure. The Administration of Justice Act defines the scope and the competencies of the lay judges. Suspects may be arrested by the police but must be let out after 24 hours. Pretrial detention is decided by the court and each decision cannot exceed a period of 4 weeks. The total duration of pretrial detention is limited to 1 year for adults and 8 months for suspects below the age of 18. These time limits may be prolonged by the court under special conditions. In serious cases, the court can decide that pretrial detention is to take place under solitary confinement. If the suspect is younger than 18, the reasons to place the person under solitary confinement must be extra strong, and only in cases concerning the security of the state, be prolonged


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for more than 4 weeks. For adults the maximum (if the court does not see special reasons) period of solitary confinement is 6 months, except for cases concerning the security of the state.

Punishment Types of Punishment The Criminal Code defines the legal limits of the sentencing for each crime. These limits form the starting point for each sentence but the court must also take into consideration past sentencing practice as well as the offenders’ personal circumstances. There are two main ways of sentencing offenders, namely, fine, partly day-fine, and imprisonment. They are not seen as alternatives to each other. Fines are mainly used for breaches of the laws apart from the Criminal Code, such as the Traffic Code but they may also be used for minor breaches of the Criminal Code. Imprisonment is used for more serious breaches of the Criminal Code. It may happen very rarely that a person who does not pay a fine can be taken into prison to serve the sentence. Comprehensively viewed prison sentences may be from 7 days to 16 years, and in some exceptional cases, up to 20 years. In some cases, for example, for murder and arson a sentence to lifetime imprisonment is a possibility. Furthermore, the Criminal Code opens the possibility of sentencing a person to secure imprisonment, which does not have a legal maximum. The duration of secure imprisonment is not fixed in the sentence but is on average about 7 years. Finally, the duration of the treatment of mentally ill people who are sentenced to treatment may also be indeterminate. The principal rule is that the duration of the treatment in hospital should be fixed but in practice the exceptions form the majority of the cases.

Juveniles The legal age of criminal responsibility is 15 but may be lowered to 14, as this continues to be debated intensively in Parliament, as of autumn 2009. To put the age into a relevant perspective of today, it is worth mentioning that the age of (sexual) consent

is 15 as well. However, a Dane achieves the right to vote, to marry, to withdraw/apply for membership of a church, to apply for a driver’s license, and to decide on his or her own personal and financial circumstances at the age of 18. It is possible to buy cigarettes from the age of 18 and to buy beer in a store from the age of 16. Denmark does not have a particular juvenile justice system, juvenile justice law, or youth prison. In principle juvenile offenders are treated within the same complex of codes and routines as anybody else. But in practice, offenders under the age of 18 benefit from a number of sentencing policies and practical options that are not available to adults. The extra options are, for instance, shorter sentences and diversion to the welfare authorities. Further, the Criminal Code states that persons who were not yet 18 years old when they committed their crime may in no case be convicted to more than eight years of imprisonment. Extra efforts are made to divert the youngest offenders from prison and to keep them within the Child Welfare System. The fundamental consideration is that cases against the youngest citizens require rehabilitative rather than punitive responses. Therefore, alternatives to imprisonment, such as social measures and suspended sentences, are always available. To direct a person’s conduct into a more appropriate direction, reactions toward juvenile crime are frequently of a noncustodial type. From age 15 up to the age of 18 a criminal act may lead to a variety of noncustodial orders— supervised by the Child Welfare System. This age group may, however, be sentenced to prison and a prison sentence may be served either in a prison or in an alternative institution with different levels of security. The type of sentence depends on the circumstances of each given case, such as the type and nature of the committed offense, the criminal record, and the child welfare representative’s assessment. Great efforts are made to divert juveniles away from prison. Persons under the age of 18 who receive a suspended sentence are under supervision by the Child Welfare System and not by the Probation Service.


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Youth prison was introduced by the Criminal Code that came into force in 1933. The duration of youth prison sentences was not fixed in court, as it depended on when (within a period of one to three years) the prison administration found the person ready for release. In the 1960s youth prison was only rarely in use and was subsequently abolished in 1973 due to a massive critique that targeted in particular the unpredictable duration of such sentences. Parallel to the rare use of youth prison during the second half of the 20th century, leading principles of offering help and support to deviant children and juveniles became more dominant. But within the last decade this principle has become increasingly challenged, as still more ways of providing help are edging closer and closer to the practical reality of punishment. A clear example of this tendency is the Youth Sanction, which does bear resemblance to the concept of youth imprisonment. The Youth Sanction was implemented in the beginning of the 2000s to replace some prison sentences for 15- to 17-year-old offenders having “deserved” a prison sentence of 3–12 months. The sanction is said to be used when “appropriate” for the prevention of further offenses and the means is a structured and controlled social pedagogic treatment for 2 years divided into three phases. According to the rule in the Criminal Code, the maximum time to be spent in an institution is 1.5 years, with a maximum of 12 months in a secure residential institution (phase 1). After this follows a period in a more open institution (phase 2), and finally there is a period to be spent outside an institution but with support from the Child Welfare System. It is not explicitly stated in the law that the courts should determine the lengths of stay in each type of institution, but this is indirectly indicated in the law as the juvenile offender concerned is given the right to a judicial review of an administrative extension of a stay “beyond the period provided for in the judgment.” The level of criminality that will lead to the imposition of a Youth Sanction is the commission of a serious offense endangering persons, or some other serious offense, such as assault, robbery or rape, or a serious case of theft, embezzlement, or vandalism.

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In addition to the requirements as to the seriousness and extent of the offense, it is assumed that the social profile of the young offender will show clear problems of social maladjustment and inappropriate or abnormal behavior, including criminal behavior of a particularly violent nature. The Youth Sanction is meant for the more serious juvenile offenders but still the comparable sentence is expected to be up to one year, whereas the Youth Sanction has a fixed duration of two years. The introduction of the Youth Sanction has been criticized to be disproportionate and to create inequality in the sentencing system. The number of sentences to deprivation of liberty (including imprisonment and Youth Sanction) has been increasing. Per 100,000 inhabitants over the age of 15 years, the number that had a sentence including deprivation of liberty in 1997 was 512. This number was 399 in 2007. Compared to this the numbers of juveniles in the age group 15–19 years old were 822 in 1997 and 1,014 in 2007. The explanations of more juveniles being sentenced harder are several, as follow: • There was a series of “fights” between police and juveniles about a house in Copenhagen having been occupied by juveniles for several years; the house is now emptied and overturned. • There is a less tolerant policy against possession of small amounts of cannabis. • There is a tendency of reporting more minor violence to the police. • Responses to car theft have become tougher. The length of unsuspended prison sentences varies within the framework as described above. The average length of the 8,800 unsuspended prison sentences in 2007 was 6.2 months; one had life imprisonment, and three were sentenced to secure imprisonment. About half of the sentences, namely 4,465, had a length of 60 days or less, whereas 76 sentences were at a length of more than 6 years of imprisonment. The reconviction rate is increasing for all types of sentences. In 2008, there was a reconviction rate after having been in prison of 30 percent (closed


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and open prison together), after suspended sentence the rate was 17 percent, and after Community Service Orders the rate was 16 percent. The reconviction rate is highest for the youngest offenders: 15–19 years old at 26 percent, whereas 10 percent of the offenders at 50 years or older repeated crime.

Prison With the exceptions of mentally ill offenders and the main part of the juvenile offenders, any detention connected to (suspicion of) criminality in Denmark takes place in institutions ruled and controlled by the Department of Corrections under the responsibility of the minister of justice. The two main categories of penal institutions are, first, the pretrial prisons, which are located nearby the court buildings in the cities and may house persons waiting for trial as well as convicted persons either serving a relatively short sentence (6 months or less) or waiting for a place in a prison; and second, the prisons, which solely house convicted persons serving a sentence. In the pretrial prisons there are about 1,700 places totally in the country, whereas there is a total of about 2,400 places in the prisons. According to the main rule a prisoner is moved to either a closed or an open prison after he or she is sentenced. Most of the five closed prisons in Denmark are located in cities, whereas the open prisons are placed in the countryside. Closed prisons and pretrial prisons are of similar security degree. There are walls all the way round the prison and electronic surveillance on the top of the walls. The prison wards are separated from each other and each ward is locked. Several of the eight open prisons were founded immediately after World War II as work camps for those who collaborated with the German occupying power. Open prisons are more campuslike. The inmates are not allowed to leave the prison area, but there are no perimeter walls and the prisoners can move (more or less) freely on the prison areas, for instance, they can go to work in the prison factory or walk to the prison school without being accompanied by a member of staff. From 9 or 10 p.m. until the following morning, the prisoners in open prisons are locked up in the wards or in the cells.

In open as well as closed facilities each ward is typically of 8–12 cells, and in case the prison houses women there will be wards where the sexes are separated and other wards where they are mixed. In the middle of the 1990s a number of open prisons established semi-open places. The Department of Corrections explained this decision with a lower utilization rate in the open prisons than in the closed facilities, which again was explained with the fact that the proportion of prisoners suited for open prisons was decreasing. In other words an upcoming proportional imbalance between the profile of the prisoners and the capacity of the prisons was foreseen. An inmate may only be placed in a semi-open block if he or she is “qualified” for closed prison but is not necessarily transferred to such a place. All prisons run training programs and the like, such as cognitive skills programs. Further, all prisoners sentenced to three months or more must be offered treatment for drug or alcohol addiction if they ask for it. Including housing, guarding, occupation, and so on, a cell in an open prison costs about half as much as a cell in a closed prison. The daily price for a cell in an open prison is 1,158 Danish krone (DKK) (US$206) and the daily price of a cell in a closed prison is 1,973 DKK (US$351). While the courts decide the length of the prison sentence, the type and location of prison is decided by the Department of Corrections. After having been sentenced in the court, the person is either moved to imprisonment via custody or released until he or she is called in to serve the sentence. The decision about where a sentence must be served must be made within the framework of Sections 20–30 of the Corrections Act, where guidelines for the choice of institution and the transfer of prisoners from one institution to another are laid down. The main rule is that imprisonment is served in open prisons, unless the sentence is of five years or more. If—in spite of a sentence being of five years or more—it is considered unproblematic to let the person serve the sentence in open prison, this is also possible. Furthermore, a person may always be placed in closed prison instead of open for security reasons if the prisoner is seen as dangerous to


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himself or herself or others. More than 90 percent of all prison intakes are in open prisons. When the choice between closed or open prison is made, it is the predominant principle that the prison of the relevant category closest to the prisoner’s home is chosen. This principle can be deviated from for pedagogical, medical, prison capacity, or other reasons. The principle of choosing the prison closest to the prisoner’s home is systematically broken in relation to young men below 23 years, who are collected in one closed and one open prison. The intention is to prevent young men from being badly influenced or exploited by older fellow prisoners. The Danish prison system as a whole includes two different “alternatives” to imprisonment. First, there exist Community Service Orders, which were introduced in the 1980s. When the court is convinced that an unconditional prison sentence is deserved, it may change it into a Community Service Order if it is reasonable to believe it is not necessary to lock the person up. The court decides how many hours (between 30 and 240) the person has to do community service and the Probation Service finds a working place. Second, there is the electronic foot-ring, which was introduced gradually from the beginning of the 2000s. Where the length of a sentence to unconditional imprisonment is three months or shorter, the convicted person may, shortly after being sentenced, receive a letter from the Department of Corrections informing him or her of the right to apply for a so-called home-serving. This implies that the person for the period of the sentence must wear an electronic foot-ring, making it possible for the Probation Service to monitor that he or she does not leave his or her home except for the periods of the day agreed upon, for instance, to frequent school or a job.

EVERYDAY LIFE IN PRISON The Program of Principles for the Department of Corrections, published in 1993, was the very first official definition of principles and functions for the sector. The program lays down that the main

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task is to execute penalties and that this task consists of two parallel components, namely, to exercise the control necessary for executing the penalty and to support and motivate the sentenced person to free himself or herself of criminality by developing socially and personally through work and education. This program can be seen as the beginning of strengthening the focus on education and social/ cognitive training in the prisons. In the following years many prisons developed different concepts for supporting and motivating the prisoners. Every prisoner under any kind of deprivation of liberty has the right and the obligation to take part in work, training/treatment, or school every day. Before the confirmation and implementation of the Corrections Act in 2000, the keyword was work, but now more possibilities of occupation are accepted—even recommended sometimes—and consequently paid for like work. Ordinary basic payment for prison work is 8 DKK (US$1.30) per hour. For extraordinary good or demanding work, the salary may go up to 12 DKK (US$2) per hour (2005). Full-time school, either in the prison school or in some cases in educational institutions outside the prison, or full-time participation in a structured treatment program is economically rewarded at the same level as ordinary prison work. Also individual activities, such as when a prisoner is elected as a spokesperson for the prisoners, are rewarded like work. Different activities for spare time may be organized by prisoners or by staff members. That might be sport, chess, handicraft, or sometimes drama or choir. Prisoners have the right to receive visits and may also be allowed to visit relatives in weekends or at special occasions. On the condition that a mother or father is capable of taking care of her or his child, there is a possibility of having a child in the prison until the child reaches the age of three years. The presence of a baby may cause a placement of parent and child in an alternative institution, an infant home, or the like. This, however, is not in any case a legal right for the imprisoned mother/father but depends on the discretionary power of the prison authority. Some prisons have family wards where sometimes mother, father, and child are placed at the same time.


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One very fundamental principle is that of normalization, which is laid down in the Corrections Act. The principle aims to create a prison life and prison conditions as close as possible to life and conditions in the Danish society. Normalization is consequently not a principle of “normalizing” the prisoners but of “normalizing” life in prison. The principle of normalization consists of at least two core elements, namely, the principles of selfmanagement and supplying oneself with provisions. The idea is a kind of deinstitutionalization of the prisons, which means that even if the prisoners are locked up, they are neither sick nor unable to take care of their own needs during an ordinary day. In other words individual daily routines, as, for instance, cooking, washing, and so on, are to be carried through by every single person. Every prisoner takes care of his or her own cooking, cleaning, and personal hygiene. Except for clothes all necessities must be bought in the prison’s store—including food, soap, toothpaste, and so on. A sum of 51 DKK per day (US$8.60) is paid to all prisoners—if they are working or not—to maintain these kinds of personal needs. In most prisons the prisoners form groups of buying food and cooking. In every prison block is a kitchen and one or two washing machines.

the implementation of a police reform lowering the number of prosecutions and sentences. The overall profile of the prisoners in this decade indicates that 20–25 percent are sentenced for violence, the same share is sentenced for drug crime, 2.5 percent are sentenced for rape, and 20–30 percent are sentenced for property crime, including robbery. The number of prisoners sentenced for all kinds of property crime has decreased during the last decade. The majority of all persons taken into prison in Denmark are Danish, namely 9,000 out of 11,000 persons received in the prisons in 2008. About 60 percent of all prisoners taken in report that they used illegal drugs within a period of 30 days up to admission. For almost 50 percent of the drug users, cannabis is their preferred drug, whereas 22 percent prefer alcohol. There has been a noteworthy increase in the use of disciplinary measurements in the prisons during this decade from a total of 8,000 in 2000 to 15,300 in 2008. There has also been a noteworthy increase in refusals of release on parole from 21 percent in 2000 to 29 percent in 2008. The prisoner may have a refusal of release on parole tried in court. Out of a total of 48 such cases in 2008, two were changed by the court.

SENTENCED PERSONS OUTSIDE PRISON THE PRISON SITUATION By the end of 2008 the prison capacity was about 4,000, divided into 1,400 places in open prisons, 1,000 places in closed prisons, and 1,700 in pretrial prison. One pretrial prison in Copenhagen has more than 500 places and many short prison sentences are served here. Apart from the Copenhagen custody, the majority of the prisons have up to 200 places. The average utilization rate in the prisons was 90 percent and 92 percent in the pretrial prisons in 2008. A few years ago the utilization rate was over 96 percent, which caused a major pressure on the prison system and resulted in the establishment of more prison places. Since then, a few places have been closed down as the pressure eased off in 2006–2007. The leveling off of the pressure on prison capacity was, among other things, due to

Prisoners on parole as well as suspended sentenced persons, those with Community Service Orders, and persons carrying an electronic foot-ring are supervised by the Probation Service. In case they commit a new crime, it is more likely that they will go to prison for the whole or the rest of their time. In case they do not follow the instructions given by the Probation Service, such as attending drug or alcohol treatment, the Probation Service warns them and as the last resort if they do not succeed in following the guidelines, they may be taken into court to change the sentence into an unsuspended prison sentence. At the national level, the Probation Service opens a period of supervision in about 9,000 cases per year. The three main groups are, in order: Community Service Orders, parole, and suspended sentences.


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Between 200 and 250 prisoners are not serving their sentence in prison but in an alternative institution. The two main reasons for placing a prisoner in another institution are drug addiction and young age, but also, for instance, mothers with babies or sex offenders may be placed in an alternative institution. Anette Storgaard Further Reading Kyvsgaard, Britta. (2004). “Youth Justice in Denmark.” In Crime and Justice: A Review of Research, edited by Michael Tonry and Anthony N. Doob, pp. 349–391. Chicago: University of Chicago Press. Ministry of Justice: http://www.jm.dk. Statistics Denmark: http://www.dst.dk. Storgaard, Anette. (2004). “Juvenile Justice in Scandinavia.” Scandinavian Journal of Criminology and Crime Prevention 5(2): 188–204. Vestergaard, Jørn. (2003). Den særlige ungdomssanktion [The Special Youth Sanction]. Tidsskrift for Kriminalret 1: 1–24.

England. See United Kingdom/England Estonia Legal System: Civil/Common Murder: Medium Burglary: Medium Corruption: Low Human Trafficking: Medium Prison Rate: High Death Penalty: No Corporal Punishment: No

Background Estonia is a parliamentary state, situated in the northeastern part of Europe, at the Russian border and belongs to the most eastern EU states. Its territory is 45,000 square kilometers (17,374 square

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miles) and population 1.33 million (2008), of which about two-thirds are Estonians and about one-third consist mainly of various nationalities of the former Soviet Union, predominantly Russians. The capital, Tallinn, has 400,000 population. In November 1917, after more than two centuries under the control of the Russian Empire, the Provisional Assembly of Estonia (Maapäev) declared itself to be the supreme power in Estonia. During the war between Germany and the Russian Army, on February 23, 1918, in Pärnu and on the next day in Tallinn, the Maapäev’s Committee of Elders issued the Estonian Declaration of Independence. As a consequence of the secret Molotov-Ribbentrop pact between Nazi Germany and the Soviet Union in August 1939, the Soviet Union occupied Estonia in June 1940 and annexed it as a Soviet republic (SSR) in August 1940. During World War II, German troops temporarily occupied Estonia but were defeated in autumn 1944 by the Soviet Army. About 70,000 people escaped to Western countries just before the new Soviet occupation. During the following years, repression was widely used, including deportation of more than 20,000 people to Siberia on March 25, 1949. After the death of Josef Stalin in March 1953, hard repression ended. Social and economic conditions became better and, since the late 1950s until the early 1960s, several social problems (e.g., suicide and homicide rate, alcohol consumption) were at the lowest level of the whole Soviet period (1944–1991). Immigration from other republics of the Soviet Union intensified after the mid-1960s and was significant until the mid-1980s, causing a gradual increase of social problems, especially in Tallinn and in the cities of the northeastern part of Estonia (e.g., homicide rate among immigrants was about three times higher than among the native population). In 1985, Mikhail Gorbachev came to power in Moscow. In the following years, he initiated several reforms, but always in the framework of the Soviet system. Censorship in mass media was substantially reduced and discussions on various problems in the society became possible. In the late 1980s, demands for more economic and political freedom from Moscow intensified in the Soviet republics. Estonia


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became relatively free in 1990, and the elected Supreme Soviet declared independence on August 20, 1991, during the military coup attempt in Moscow. In this way, the prewar independent state was formally reconstituted. The Estonian Constitution was adopted by a national referendum in June 1992 and the first completely free elections of Parliament (Riigikogu) took place in September 1992. The last Russian troops left Estonia in August 1994. In spring 2004, Estonia became a full member of NATO and the European Union.

Penal Code introduced several chapters on new types of crime (violation of competition rules, offenses against intellectual property, causing damage to environment, etc.). At the same time, use of illicit drugs or possession of a small amount of illicit drugs for personal use was decriminalized. Sentences for several offense types were increased and new types of supplementary punishment were enacted (fining to the extent of assets, compulsory dissolution of legal person, deprivation of certain rights, expulsion of foreign citizens).

Criminal Law

Police

Inside the Soviet Union, criminal legislation was to a great extent similar in all Soviet republics. Their criminal codes were unified and included, inter alia, several articles on so-called political crimes (e.g., membership in an anti-Soviet organization, disparagement of the Soviet State) and illegal economic activities (e.g., private entrepreneurship, brokerage). Offenses against the state property received harder punishments than other similar offenses. Political articles in the Estonian SSR’s Criminal Code (that entered into force in 1961) were abolished in 1990 and the whole code was revised in 1992. One of the key features of the new code was the abolition of the distinction between state and private ownership. During the 1990s, several amendments to the Criminal Code were adopted. The goal was to adapt the criminal law to the rapid social and economic developments, including an increase in the recorded crime, and the intensifying international contacts between organized criminal groups in different countries (e.g., new Criminal Code articles were introduced to punish membership or development of a criminal organization in 1996, to harden the punishments for drug offenses in 1996–1998, and to introduce life imprisonment in 1996). Capital punishment was abolished in 1998. During the same year, the probation system was implemented on the basis of the Probation Supervision Act. A completely new Penal Code replaced the old Criminal Code in September 2002. The new code implemented principles of continental Europe, particularly Germany’s and France’s criminal law. The

The police forces were formed on the basis of the former militia in 1992. The police is under the supervision of the Ministry of the Interior. The central agency is the Police Board, which manages, directs, and coordinates the activities of all police units under its administration. There are four territorial units (police prefectures) and two national units (the Central Criminal Police, the Personal Protection Service). Prefectures have specialized divisions to tackle crimes against the person, property crime, economic crime, drugs trafficking, traffic offenses, among others. The Central Criminal Police investigate most serious cases, including crimes committed by international organized criminal groups. The highest-ranking police officer, the National Police Commissioner, is appointed to office for five years. The police prefectures are managed by prefects. At the end of 2007 there were a total 3,249 police officers. In 2007, the police initiated about 97 percent of criminal investigations, followed by prisons (1.5%), prosecutors’ offices (0.7%), and Tax and Customs Board (0.4%). The role of other investigative bodies (Security Police Board, Border Guard Administration, Competition Board, and General Staff of the Defense Forces) was smaller.

Prosecutor’s Office Prosecutors conduct criminal proceedings in cooperation with the police and other investigative bodies; they guide the preliminary investigators in collecting evidence and decide whether to bring charges against the suspects. The prosecution


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system consists of four Circuit Prosecutor’s Offices and their superior body, the Public Prosecutor’s Office, headed by the chief public prosecutor. In 2007 there were in total 199 prosecutors.

Courts The court system has three levels. The first level consists of four county and two administrative courts of first instance: Harju (in Tallinn), Viru (in the city of Jõhvi), Pärnu, and Tartu county courts with courthouses in each of the 15 counties, which hear civil, criminal, and misdemeanor matters, and administrative courts in Tallinn and Tartu. The second level includes Tallinn, Tartu, and Viru circuit courts, which review the decisions of county and administrative courts by way of appeal proceedings. The highest court is the Supreme Court in Tartu, which reviews decisions by way of cassation proceedings and is also the court of constitutional review. In 2008, there were 60 criminal judges in county courts and 16 in circuit courts, 6 justices belonged to the Criminal Chamber of the Supreme Court. All judges must have an academic higher education in law, they are appointed to office for life, and they shall not hold any other elected or appointed office, except in the cases prescribed by law. Judges of first and second level are nominated by the president; justices of the Supreme Court are nominated by the Riigikogu. A judge can be removed from office only by a court judgment that has entered into force. Criminal charges may be brought against a judge during his or her term of office only on the proposal of the Supreme Court and with the consent of the president; in the case of justices of the Supreme Court it will be possible only on the proposal of the chancellor of justice and with the consent of the majority of the membership of the Riigikogu.

Crime Classification of Crimes In the Penal Code, offenses are divided into two categories: criminal offenses and misdemeanors. Typical criminal offenses are theft, robbery, fraud, assault, repeated drunken driving. Most common

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misdemeanors are traffic violations (except in the case of accidents resulting in death or serious injuries), violations of the Alcohol Act and Tobacco Act (e.g., drunkenness in public places, use of alcohol or tobacco by minors), breach of public order, and petty theft without aggravating circumstances. Sanctions for all criminal offenses and for some misdemeanors are prescribed in the Penal Code, but for the majority of misdemeanors in a large number of other acts (e.g., Traffic Act, Alcohol Act). Criminal offenses are punishable by a pecuniary punishment or imprisonment, and in the case of corporations, by a pecuniary punishment or compulsory dissolution. Misdemeanors are punishable by a fine up to 300 daily rates (in 2008, one daily rate was 60 Estonian kroons [US$4.80]) or detention up to 30 days. The minimum age of liability for any offenses is 14 years of age. There are two categories of criminal offenses according to the severity of punishment: the firstdegree offense is punishable by imprisonment of more than 5 years and up to 20 years or life imprisonment; the second degree offense is punishable by imprisonment up to 5 years or a pecuniary punishment, which shall be calculated on the basis of the average daily income of the offender.

Crime Statistics During almost the whole Soviet period crime statistics were substantially influenced by the political circumstances and consequently deliberate falsification, as unsolved crimes were often left unrecorded to get “better” clearance rates—although crime statistics were kept completely secret and data on crime were never published. For example, the clearance rate of thefts in Estonia was 98 percent in 1982, but dropped to the level of 51 percent in 1983, due to a drastic increase (2.3 times) in the number of recorded thefts, while the number of solved thefts increased only 21 percent. An obvious reason for such a change was that after the Soviet Communist Party leader Leonid Brezhnev’s death in 1982, the former KGB Chief Yuri Andropov took over the leadership and started to demand reduction of corruption and more reliable information on the crime situation. Statistical manipulations were not so easily


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possible with the most serious crime like homicides. Since the late 1980s crime was no longer seen as a politically sensitive issue by the Soviet leadership and open discussions were allowed; crime statistics became more reliable and were made public. The total recorded crimes in Estonia in 2007 was 50,375 compared with 40,972 in 1997. Essential changes in the society took place in the early 1990s. Political and economic liberalization, changes in legislation, reforms in the police, weak border control with increasing international communication, and other factors created favorable opportunities for illegal activities and produced an increase in the recorded crime. The police forces were in their early stage not able to control crime effectively. The number of recorded crimes remained relatively stable for some years in the mid-1990s, but increased again in 1997–2002. It is unclear how adequately the figures do reflect real trends, as crime victimization surveys in 1993–2004 do not show substantial changes in crime against private persons and against their households in the same time. The police became more efficient in tackling so-called victimless crimes (drug offenses, tax fraud, economic and occupational crimes, corruption, drunken driving, etc.) in the second half of the 1990s, and this may be one of the main reasons of increased crime figures. Simultaneously, public opinion polls showed significant increase in the people’s respect toward the police. In 2007, crimes against property (theft, robbery, fraud, etc.) comprised 55 percent of total registered crimes. Most common offenses were thefts (43% of all crimes), repeated drunk driving (10%), physical abuse (causing damage to the health of another person, beating, battery; 9%), frauds (5%), and aggravated breach of public order (use of violence in public places, resistance to a person protecting public order, threatening with a weapon; 4%). The recorded crimes, according to the Ministry of Justice, Police Board for 2007, were the following: Murder (completed) Manslaughter (completed) Causing serious damage to health Rape (including attempts)

15 78 145 122

Robbery Theft Fraud Drug trafficking

887 21,685 2,481 1,048

Since the early 1990s, the crime rate has been the highest in Tallinn and the lowest in rural areas, especially in the islands of western Estonia. There have been no essential differences in the crime structure between towns and rural areas. The high crime rate in Tallinn has mainly been caused by the large number of thefts (particularly from shops and vehicles). In rural areas, thefts also dominate, usually followed by repeated drunk driving and use of violence or threat to use violence (physical abuse, aggravated breach of public order). The rate of robberies and drug offenses has been highest in Tallinn and other big cities.

Drug Offenses Drug trafficking is among the crime types that have received particular attention during the last years. According to the Narcotic Drugs and Psychotropic Substances and Their Precursors Act, the handling of narcotic drugs and psychotropic substances is prohibited, regardless of the type of illicit substance. Also, cultivation of opium poppy or cannabis for the purpose of preparing narcotic substances is not allowed. Whether administrative or criminal liability is applied depends on the amount of illicit substance and the purpose of illegal activity, as follows: • Illegal acquisition, possession, and use of a small amount of narcotic drugs and psychotropic substances for one’s own consumption is punishable by a fine or detention up to 30 days (misdemeanors). • Any act of illegal dealing with drugs not intended for personal use only, or handling of a large amount of drugs, is considered as a criminal offense (usually called “drug crimes”) and is punishable by a pecuniary punishment or imprisonment. A large quantity of narcotic drugs or psychotropic substances, plants, or mushrooms is an amount


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that is sufficient to cause intoxication of at least 10 persons. The same rule applies in case of mixtures. The most common drug crime, handling of large quantities without aggravating circumstances, is punishable by imprisonment from 1 to 10 years, but if such an offense is committed by an organized group, even up to 20 years or life imprisonment. The police have no discretion; all criminal offenses have to be investigated by the police or other investigative authorities and must be prosecuted by the prosecutor. The prosecutor’s decision can either be a diversion from prosecution or an official charge. Drug abusers commit a large proportion of property crimes (especially thefts from cars and shops, robberies, pickpocketing) and misdemeanors (e.g., petty thefts from shops). In 2007 the share of drug crimes from all criminal offenses was 3 percent, the majority of which were related to trafficking in large amounts, as the police have prioritized tackling of serious traffickers instead of arresting smallscale street dealers and simple users. In the same year 31 organized criminal groups were charged for large-scale drug trafficking, of which 5 groups had been active in international drug trafficking. In addition, a number of single drug couriers have been arrested. Drug offenses have been most frequent in big cities, but differences between urban and rural areas have decreased during the last decade. The most common drugs in local markets in recent years have been amphetamine-type stimulants and Ecstasy, followed by cannabis. Stimulants have been smuggled from the other Eastern and Western European countries, and produced locally. Both in 2006 and 2007 three clandestine laboratories were discovered by the police. Precursors for producing synthetic drugs have been imported mainly from Russia. The majority of synthetic drugs produced in Estonia has been targeted at Nordic countries, but the importance of Russian markets has also increased in the last few years. Cannabis has been smuggled mainly from Spain to local markets and via Estonia to Nordic countries and Russia. Synthetic opiates (3-methylfentanyl, fentanyl) have become widespread and have almost completely replaced heroin in local markets, although heroin from Afghanistan is still smuggled via Russia

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and Estonia to Nordic countries. Cocaine use has increased due to direct contacts of Estonian traffickers with counterparts in the Central American countries, and it is also smuggled to the neighboring countries.

Finding of Guilt Pretrial Criminal Proceedings Pretrial criminal proceedings are led by the Prosecutor’s Office, which also represents public prosecution in court. An arrested person has a right to notify a close person. The maximum length of custody permitted without a court order is 48 hours. He or she has also the right to choose and consult with counsel. If the defendant has not requested it but participation of a counsel in the criminal proceedings is mandatory (e.g., if defendant is a minor or has mental or physical disability), counsel must be appointed by the authorities. Also, in such circumstances the defendant may receive state legal aid regardless of his or her financial situation. If a convicted offender is unable to reimburse procedural expenses, part of the expenses may be covered by the state. According to the Code of Criminal Procedure, the Prosecutor’s Office may terminate criminal proceedings if the following conditions are fulfilled (as a general rule, only in the cases of second-degree offenses): • Termination in event of lack of public interest in proceedings and in case of negligible guilt is possible if the defendant has compensated damages or promised to do it. The court may impose requirements such as compensations and/or performing community service. • Termination of criminal proceedings due to lack of proportionality of punishment is possible if the punishment for the offense would be negligible compared to the punishment that has been or presumably will be imposed for another offense. • Termination of criminal proceedings on the basis of conciliation is possible if there is no


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public interest for prosecution and the defendant has reconciled with the victim, except in certain circumstances (e.g., violent crimes, crimes against the state, occupational crimes, offenses committed by an adult against a minor). In the case of a minor, the consent of his or her parent or a representative is also required.

siders application of a pecuniary punishment as the principal punishment, except if the suspect is a minor. • Expedited procedure is possible if the facts on the crime are explicit and all necessary evidence have been collected. The prosecutor may request to apply such procedure within 48 hours after the suspect has been arrested.

If the offense is committed by a juvenile of less than 14 years, no proceedings are initiated and the materials are forwarded to the juvenile committee. Already initiated proceedings may be terminated and the materials forwarded to the juvenile committee also if the offense is committed by a minor of 14–18 years of age, if it appears that it is not necessary to impose a criminal penalty. Special nonpenal sanctions can be imposed on minors aged 7–18 years. In 2007, termination of criminal proceedings was applied in 19 percent of cleared crimes (of which about 80% were terminated due to lack of public interest and 14% were sent to the juvenile committee).

Settlement proceedings counted 41 percent of all criminal court proceedings in 2007, followed by “short” proceedings (32%), general proceedings (15%), expedited proceedings (7%), and summary proceedings (5%). Pretrial detention is possible on the basis of a court ruling and it cannot last more than 6 months. In exceptional circumstances, if the case is particularly complex or due to international criminal proceedings, this term can be extended at the request of the chief public prosecutor. A preliminary investigation judge or court may impose bail instead of arrest, if requested by the offender. Bail cannot be used in the case of some serious offenses (e.g., murder, extortion, terrorism, membership in a criminal organization), and the amount of bail must be at least 500 days’ wages. Court sessions are usually public, but public access may be restricted to protect a state or business secret, in interests of family life or of a minor, or if publicity may endanger the security of a witness or other persons. Judgment is pronounced publicly, unless the interests of a minor, spouse, or victim require restrictions.

Court Proceedings Prosecutor (or, in most cases, defendant) may request to apply one of the following types of simplified proceedings instead of the general court procedure, if there are no legal obstacles (e.g., the proceeding concerns serious crime for which long imprisonment is stipulated). • Alternative (“short”) proceedings are carried out on the basis of the materials of the criminal file without summoning the witnesses or experts, and the principal punishment is reduced by one-third. If several persons are accused, there must be consensus to apply such proceedings. • Settlement proceedings may be used at the request of the accused or the Prosecutor’s Office, if all parties agree to apply such proceedings. • Summary proceedings are possible if facts on the crime are explicit and the prosecutor con-

Punishment Types of Punishment A natural person can be punished for a criminal offense by a pecuniary punishment of 30 to 500 daily rates (average daily income), or by imprisonment from 30 days to 20 years or life imprisonment. Minors under 18 years of age can be sentenced by up to 10 years’ imprisonment. In addition, various supplementary punishments can be imposed (e.g., occupational ban, deprivation of driving privileges, deprivation of right to hold weapons or


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ammunition). In the case of a legal person, a pecuniary punishment from 50,000 to 250,000,000 kroons and/or the compulsory dissolution can be imposed. Courts’ decisions are publicly available at the Web site of the court judgments register. Conditional sentencing or release from punishment is widely practiced. Probation (complete or partial suspension of the sentence) for a period of three to five years can be imposed instead of the imprisonment or the pecuniary punishment, and the imposed punishment will not be enforced if the convicted offender does not commit a new crime within the period of probation. This option can also require supervision of conduct, which may include certain requirements (e.g., remedy of damage caused by the offense, prohibition of consumption of alcohol or narcotics, prescription of treatment if the offender has previously consented to such treatment). The imprisonment can also be substituted by community service; in such a case one day of imprisonment corresponds to two hours of community service. Juvenile offenders may be released from punishment by the court and alternative sanctions may be used (admonition, subjection to supervision of conduct, placement in a youth home or in a school for pupils who need special treatment due to behavioral problems). A prisoner can be released on parole after serving the required minimum part of his or her imprisonment (depends on severity of the offense, but at least one-third of total sentence time). In certain conditions, earlier release on parole may be possible if the person agrees with electronic surveillance. During the second half of the 1990s, the average numbers of offenders convicted for criminal offenses ranged from 8,000 to 9,000 a year. Since the year 2000 this number has been more than 10,000, particularly due to traffic offenses, as repeated drunken driving within 12 months was criminalized in 1999. In 2007, in total 11,889 persons were convicted, of which 3,565 persons for traffic offenses and 2,311 persons for thefts. The typical punishment for homicide, rape, theft, robbery, and serious drug offenses was imprisonment, but a considerable part of the convictions were conditional (except in the case of homicides), that is, not full prison

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term. Most frequently the prison terms for murder ranged from 10 to 12 years, for manslaughter from 6 to 8 years, for rape from 1 to 2 years (in the case of aggravating circumstances, 6 years), for robbery from 2 to 3 years, and for drug trafficking from 1 to 4 years (but in several cases up to 9 years). In the case of thefts (all criminal offenses, regardless of their seriousness), the majority of given prison terms was shorter than 1 year, and in rare cases more than 3 years.

Prison During the Soviet period punishments were relatively hard and imprisonment was widely used (e.g., 61% of convicted persons in 1980 were sentenced to unconditional imprisonment). The number of convicted and imprisoned persons increased until the mid-1980s. In 1985, there were 8,600 prisoners (including 2,000 suspects under preliminary investigation), that is, 562 prisoners per 100,000 of population. The number of convicted and imprisoned persons decreased in 1987–1988, probably due to liberalization of sentencing practice, convicts from other regions of the Soviet Union were sent back to prisons in their native republics, and some prisoners were released by way of amnesties. From 1988 until 2006, the number of prisoners remained approximately the same, ranging from 4,200 to 4,800 persons. The number of prisoners declined substantially in 2007 due to increased use of parole and a decrease in the number of convictions. Also, electronic surveillance was introduced. At the beginning of 2008, there were 3,456 prisoners: 2,540 convicted by a court and 916 persons in pretrial detention; that means in total 258 prisoners per 100,000 population. Taking into account the most serious crime only, 24 percent of total convicted persons were imprisoned for homicide, 17 percent for theft, 16 percent for robbery, 13 percent for drug crime, 7 percent for a traffic crime, 4 percent for rape, 4 percent for inflicting a serious bodily injury, and 15 percent for other types of offenses. According to imposed time of imprisonment, the distribution was 10 percent of convicted persons were imprisoned for less than 1 year,


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49 percent for the term from 1 to 5 years, 28 percent for the term from 5 to 10 years, 12 percent for the term from 10 to 30 years, and 1 percent (35 persons) for life imprisonment. In most cases actual imprisonment time is expected to be shorter, due to likely conditional release on parole after the prisoner has served a certain part of the sentence imposed by the court. At the same time, about 8,500 sentenced persons were under probation, of those 70 percent had been released immediately after court proceedings, 15 percent had been released from prison on parole, 7 percent had served a short predetermined prison term, and 7 percent were under probation due to substitution of up to 2 years’ imprisonment by community service. There are six prisons that have places for 3,800 prisoners, including pretrial detainees. The two most modern prisons (Viru and Tartu) are cell-type, but other prisons were built in the Soviet period and are colony-type, that is, with common areas for a large number of prisoners. Viru Prison in the city of Jõhvi was opened in spring 2008. It has 1,075 places for convicted males, and for males and females in pretrial detention (both including male minors). There is also a special department for drug addicts. To ensure high-level security, all buildings are connected with special corridors. Inmates have possibilities for recreation and practicing religious activities. The prison offers jobs for 244 prison officers and 106 civilians. A new police detention house is also situated in the same area. Prisons in Tartu and Tallinn have places for convicted male adults, and for persons in pretrial detention. In addition, Tartu Prison has a special unit for drug addicts, and at Tallinn Prison there is a hospital for prisoners from all prisons. Murru Prison is for convicted low-risk male adults, and Harku Prison for convicted female adults and minors (both are located in Harju County near Tallinn). As a general rule, convicted inmates have an obligation to work or attend educational programs. Prisoners have the right to conjugal visits, that is, to meet a spouse or partner in a special room. All prisoners are entitled to correspondence, but only a message written on paper or a photograph is allowed (e.g., it is not allowed to receive money or

magazines). The letters are opened by a prison officer in the presence of the prisoner to detect forbidden items, but the prison officer has no right to read the text of the letter. A convicted prisoner, who has served at least a year of his or her prison term, has a right for prison leave for up to 21 calendar days a year (except persons in pretrial detention and the persons convicted for life imprisonment). His or her arrival to and departure from the destination place must be registered at the local police station, and he or she must return to the prison in time and in a sober condition. Andri Ahven Further Reading Leps, Ando. (1991). Kuritegevus Eestis [Crime in Estonia]. Tartu: Tartu Ülikool, Eesti Akadeemiline Õigusteaduse Selts. Ministry of Justice of Estonia: http://www.just.ee. This site provides information on the criminal justice system and criminal policy; there is an English summary of publications. Saar, Jüri, et al. (2003). Kuritegevus Eestis 1991– 2001 [Crime in Estonia 1991–2001]. Tallinn: Juura. Saar, Jüri, et al. (2005). Rahvusvaheline kuriteoohvrite uuring Eestis 2004. [The Estonian Crime Victim Survey 2004]. Tallinn: Tartu Ülikooli Õigusinstituut, Justiitsministeerium, Siseministeerium.

Faroe Islands Legal System: Civil Prison Rate: Low Death Penalty: No Corporal Punishment: No

Background The Faroe Islands, which are also part of the Danish Realm, are situated far from Denmark in the Atlantic. The 18 beautiful islands cover an area of 1,400 square kilometers (540 square miles) and hold


Faroe Islands

50,000 inhabitants. Approximately 17,000 of these live in the capital of Tórshavn. The Faroe Islands have had a home rule system since 1948, which means that they themselves pass legislation in a number of areas, whereas other areas are regulated by Danish law. Furthermore, the Faroe Islands are represented by two members of the Folketing (Danish Parliament) in Copenhagen. The Faroe Islands has its own police district. The purpose of the police force is in general to maintain safety, security, peace, and order in society. The most important task, though, is to ensure the politicians abide by the Danish legislation. Furthermore, crime prevention, assistance, and law enforcement are important fields of work.

Crime Classification of Crimes The Faroe Islands have the same Penal Code and Administration of Justice Act as the rest of Denmark and the conditions are not different in principle. Some variations, though, have been made in a number of the amendments in the Danish Criminal Code that have not taken effect on the Faroe Islands. According to the Danish Criminal Code only acts punishable under a statute or acts of entirely similar nature can be punished. Unless otherwise provided, legal consequences can always take effect, if provided by the law at the time of the criminal act. Danish criminal law is applicable on crimes committed within the territory of the Danish state, despite that of Greenland, which has its own criminal code. The law applies onboard any Danish vessel or aircraft within or outside the territory (if recognized by international law), abroad by a Danish citizen or any other person with domicile in Denmark if it is an offense against the state and punishable in the country committed. According to the Danish Criminal Code, a person becomes criminally responsible when reaching the age of 15. Criminal offenses are defined either in the Criminal Code or in separate statutes. The general conditions for imposing criminal penalties can be found in the general part of the Criminal Code, which also apply to separately defined statutes.

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A criminal offense can consist of a violation of the code or be a violation of a separate statute. The substantive Danish criminal law is monistic, meaning that violations of the law have never been divided into categories like felonies or misdemeanors, but this does not mean that major offenses would be treated in the same manner as minor ones. The distinction exists, even though the violations are not categorized. According to the Criminal Code the mere possession of drugs is criminalized. However, the law is not enforced regarding possession of very small amounts meant for the offenders’ own consumption. Otherwise it is illegal to use, sell, manufacture, and to transfer narcotics. Danish drug policy has been quite liberal but has started to change during the past five years. New drug policies were drawn up in 2003, which were the first in decades. Denmark is heading more and more toward zero-tolerance drug policy. The policy covers all aspects of drug-related problems, like treatment, drug control, prevention, and harm reduction. What forms the basis of the new line in drug policy is the outspoken focus on zero-tolerance toward not only drug dealing and drug trafficking but also drug use. Minor drug offenses are usually punished by imprisonment from 2 to 6 years and for more serious drug offenses the sentence can be up to 16 years of imprisonment. Particularly serious drug crimes can nowadays receive as much as 24 years, which is much more than the maximum of 10 years that was the case 5 years ago.

Crime Statistics Every year about 400,000 criminal offenses are reported to the police in Denmark. Some people also violate the sections of the traffic legislation and the road traffic regulations. Getting caught for speeding or drunk driving are the two most common offenses. Approximately 275,000 persons are charged with violation of the Road Traffic Act every year according to the Danish National Police. According to crime statistics and research made by the police in Denmark, a little under half of all crimes are never solved. Of all crimes, 60 percent are committed by men, 40 percent by women. Most of the crimes


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are committed in the home environment by 15- to 30-year-old offenders. Most crimes happen because of firearms and other violent hand weapons. Almost 50 percent of all crimes happen within the family, between parents and children. In approximately 40 percent of the crimes committed, the victim and the offender have some kind of a preexisting relationship. Only 10 percent of all crimes happen between strangers.

Finding of Guilt In a situation of self-defense, the danger inherent in the attack, the person of the aggressor, and the social importance of the interests endangered by the attack are taken into consideration. A person cannot be punished for committing an act in saving a person or property from otherwise unavoidable danger. Neither are acts committed in self-defense punishable if it was necessary to resist or avert an unlawful attack, provided that such an act does not manifestly exceed what is normally considered reasonable. If the offender has a mental illness or is irresponsible due to a mental deficiency, he or she is not criminally responsible. Where the punishable nature of an act depends on or is influenced by an actual or intended consequence, the act shall also be deemed to have been committed where the consequence has taken effect or was intended to take effect. The Administration of Justice Act sets out a wide range of detailed rules aimed to guarantee a fair trial for the accused and protecting the rights of the parties. The act also aims to strike a fair balance between the rights of the individual and the interests of society, including the necessary efficiency of the criminal justice system. Basic principles are, for example, the presumption of innocence until proven guilty, the burden of proof placed on the prosecution service, application of free assessment of evidence, the right of the defendant to remain silent, and equality of arms between prosecution and defense. Open justice covers both public access to attending legal proceedings and media access to courtroom coverage. Sometimes, however, it can be harmful for the parties or the investigation.

In these situations, the court may decide to hear the case behind closed doors or impose restrictions on certain parts of the proceedings or the identity of the offender. Faroe Islands has its own court situated in the capital. Its jurisdiction comprises all the islands. The court at Tórshavn has the same type of cases as do district courts in other regions of Denmark. Appeals go to the High Court of Eastern Denmark. Prosecutors on the Faroe Islands have the same authority as the regional public prosecutors, thus coming under the direct authority of the director of public prosecutions. In minor cases where the prosecution results in a fine, the case will be tried by a single judge. In more severe cases the judge sits with two lay judges, and they decide the question of guilt together and impose the sentence.

Punishment Types of Punishment Sanctions available to the court are imprisonment, fines, community service, and probation orders. A prison sentence can either be for a limited time from 7 days to 16 years or a life sentence. As of July 1, 2000, the Criminal Code was amended so that life prisoners can be released on parole when they have served a minimum of 12 years of their sentences. Within the first 12 years release can only take place through pardoning. The vast majority of pardons are granted before the actual imprisonment. Inmates sentenced to imprisonment for life can only be released by the pardon of royal resolution. In recent years Danish prisons have held between 10 and 13 inmates serving a life sentence. Any person who kills another person will become guilty of homicide and liable to imprisonment for any term ranging from five years to life. Any person who negligently causes the death of some other person will become liable to simple detention or to a fine or, in case of aggravating circumstances, to imprisonment for any term not exceeding four years. The special part of the Criminal Code is very detailed and has many paragraphs concerning offenses against family relations, sex offenses, offenses


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of violence against a person, offenses against personal honor and certain individual rights, offenses against personal liberty, and others. The most common sanctions are imprisonment for a certain time limit.

Prison The prison in Tórnshavn was built in 1976 and has capacity to accommodate 15 to 20 people. The prison in Copenhagen has a special unit where serious prisoners serve their sentences. The Prison Service (Kriminalforsorgen) is responsible for implementing new rules and regulations in prisons around Denmark. On the Faroe Islands rules and regulations are mostly within the director-general’s responsibility. The Office of the Director-General of Prisons and Probation reports directly to the minister of justice concerning decisions on specific and general cases relating to enforcement of the punishments, as well as decisions concerning staffing matters. The probation officers work with offenders released on parole, to which must be added the work with remand prisoners and the preparation of pretrial reports. Probation officers have a high degree of freedom to use their own judgment in their work with individual offenders as long as they respect the objectives of the Probation Service and the conditions imposed on the offender. They can even give advice and guidance, issue instructions and requirements, but also ultimately can report the offender to the department or the court if things are not working out. According to the Criminal Code, convicted offenders who have a special need for treatment might have an opportunity to serve their sentence at a hospital or another suitable institution, including different hostels belonging to the Prison and Probation Service. It may, for example, concern very young offenders or offenders who, because of health or abuse problems, have a special need for treatment. A great number of staff members work in crime prevention, especially with young serious offenders between 15 and 18. Anna Gustafson

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Further Reading Danish Judicial System: http://www.justitsminis teriet.dk. Faroe Islands Government: http://www.faroe islands.org.uk and http://landsbank.fo. This site provides news concerning politics, government, culture, and statistical facts. Statistics can be found at: http://www.hagstova.fo; http://www.nationmaster.com; and http://www. dst.dk.

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

Background Finland is situated in Northern Europe with a population of 5.3 million and is one of the Nordic countries (the others are Denmark, Iceland, Norway, and Sweden). Since the 1960s, the Nordic countries have been the leaders in developing the welfare state system, based on advanced social security, public health service, fair justice system with lenient punishments, equal income distribution, high GDP, democratically elected governance, and low corruption. The Finnish judicial system is rooted in Western, Continental culture, and certain Scandinavian features have been prevalent in the Finnish legal system because Finland was part of Sweden for more than 700 years. Finland was under the Russian regime from 1809 to 1917, but retained its autonomous status and fundamental laws as the Grand Duchy under the Russian czar. After the independence declaration in 1917, Finland began to develop into one of the Western European democracies.


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The Finnish Penal Code is one of the oldest in Europe. Published in 1889, it came into force in 1894. Along with the Penal Code, decrees concerning the implementation of the code and the enforcement of punishments were passed. Although the basic structure of the Penal Code has remained unchanged, the contents of the code have been greatly amended during the years. The total reform of the Criminal Code was based on the work of a committee that began its work in 1972. The task was finished in 1999. Becoming a member of the European Union in 1995 has stabilized the financial situation of the country. Finland fulfilled the criteria for joining the European Monetary Union in 1999. In the future, the Finnish judicial system will be developed into a unified format along with Continental Europe.

Police The Finnish police are subordinated to the Ministry of Interior. The Ministry of Interior comprises four departments: the Police Department, the Department for Rescue Services, the Migration Department, and the Border Guard Department. In 2006 Finnish police had 10,950 employees, of whom 8,206 were police officers, and the number of civilians was 2,744 persons. Police officers receive a professional training of 2.5 years, which comprises a field working period as junior officer. Civilians work mainly in administrative duties. Police powers and the key principles of policing are laid down primarily in the Police Act, the Coercive Measures Act, and the Pre-Trial Investigation Act. Police powers have been formulated in accordance with constitutional and human rights and to ensure that the Finnish police are capable of effective cooperation in the fight against international crime. In addition to legislation, police operations are guided by police ethics and citizens’ expectations. According to the Police Act, the function of the police is to secure judicial and social order, to maintain public order and security, to prevent and investigate crimes, and to submit cases to prosecutors for

decision. In practice, the Finnish police is divided into police districts that take care of the local tasks. Most severe and complicated cases are investigated by the National Bureau of Investigation (e.g., homicide, money laundering, organized crime, transnational crime) that operates throughout the country, as do also the National Traffic Police and the Security Police. The function of the National Traffic Police is to carry out traffic control and surveillance and improve traffic safety. The task of the Security Police is to prevent schemes and crimes that may endanger the established governmental and social order or the internal and external security of the state, and to investigate such crimes. The Security Police must also maintain and develop general readiness to prevent actions that may endanger state security. Also the Finnish Border Guards and the Customs investigate independently crimes that are related to their field (illegal immigration, smuggling, human and drug trafficking). Criminal intelligence and analysis functions are carried out together by the police, the Customs, and the Border Guards when investigating cross-border crimes. In Finland, the police authorities are mainly responsible for the pretrial investigation of crimes and, if crime is suspected, they deliver the pretrial investigation protocol to the prosecutor for public prosecution. If the legal conditions for prosecution exist, the prosecutor must prosecute for offenses that have come to his or her attention. However, there are offenses where prosecution is possible only on the request of the victim. These are mostly petty offenses that are of little public interest. The prosecutor can also waive the charges in case of lacking evidence and in a number of petty offenses. The International Crime Victims Survey from 2005 shows that 90 percent of the Finnish respondents thought that the police do a good job in their living area in controlling crime. Reasons for the positive result could be the corruption-free reputation of the police. Police officers are recruited from the average population, and therefore, they represent the same values and have a similar background as the main population. The Finnish police operate


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on the basis of performance guidance procedures, and the main focus areas and targets are reevaluated annually in the performance plan.

Crime Classification of Crimes The Finnish Penal Code is divided into a general part and a special part. In the special part of the code, elements of the offenses are described, as well as the types of the punishments connected to the crimes, and the punishment scale. The criminal law of Finland classifies offenses into three levels of severity. The basic statutory offense is a crime in its most essential form. A criminal case is considered aggravated when it is particularly serious, harmful, and/or premeditated. When a crime is considered as petty, there are significant mitigating circumstances present. There is no lower limit for petty crimes; for example, petty theft can be stealing personal or company property of any value. Petty crimes are classified as complainant offenses, which means that the victim is responsible for the decision whether to raise charges or not. More severe cases are taken to court despite the opinion of the victim. Previously, the basic form of an offense was a complainant offense (e.g., assault was a complainant offense according the former penal code but was changed into a public prosecution offense because it was considered to serve public wellbeing and justice). The age of criminal responsibility is 15 years. Offenders younger than 15 years are responsible only for damages. If they commit a serious offense, they are handed over to the social services. In 2003, according to the program of the Finnish government, a project was launched to map the present state and the development of internal security in Finland. In 2008, the program was updated. The new version emphasizes the following areas in crime control: social exclusion, injuries, relations between the population groups, violence, major accidents, vulnerability of the society, cross-border crime, information network criminality, terrorism, and violent radicalism.

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ALCOHOL, SOCIAL EXCLUSION, AND MALE HOMICIDE The high prevalence of homicide in Finland has been concentrated on two groups: one group consists of men and is characterized by social exclusion, misuse of alcohol, unemployment, and low educational level. The other group is women who have been killed by their male partners. The number of manslaughters has risen among blue-collar workers in the past decades. The drinking habits of Finnish men have traditionally been notoriously reckless. The increased availability of alcohol in the 1970s had its effect on consumption, which in turn reflected on homicide rates. Around 80 percent of perpetrators are inebriated during the time of the attack. It is also common that the victims are under the influence of alcohol. When violence against men by men is concerned, both the typical perpetrators as well as typical victims are 20- to 50-year-old males, who are often unemployed, but consider themselves as laborers or craftsmen. Alcohol-related homicide is often conducted with a knife or a blunt weapon and is often unplanned or unintentional.

VIOLENCE AGAINST WOMEN Each year, around 30 to 40 women are violently killed, which is more than twice as much as in other Nordic countries (men’s homicides are three times more common). Of these women, 20 to 30 are killed by their current or former partners. According to the Finnish Violence against Women Surveys, approximately 8 percent of women face violence in the hands of a male partner in Finland every year. Violence in close relationships is common in all social, economic, and educational backgrounds. Domestic violence has been traditionally regarded as a “private problem” but has gained more public attention during the past two decades. Rape in marriage was criminalized in 1994 and assault in a private place became an offense that is prosecuted under an official charge in 1995. Nongovernmental organizations and shelters have been established to protect victims of domestic violence and to provide legal assistance.


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VIOLENCE AT WORK According to victimization surveys, violence at work has increased in Finland during the last decades, while other forms of violence have remained on a rather stable level. It is common for both men and women, although women suffer more incidents. Violence at work rarely leads to severe injuries, and fatal workplace violence is uncommon. The national victimization survey from 2006 found that the amount of workplace violence is slightly decreasing. Although victimization surveys show that men and women experience violence equally often, the victimization situations differ. Men fall more often victims to violence on the streets by unknown offenders, at restaurants and in other public places, whereas women are assaulted at the workplace and in their close relations.

DRUG OFFENSES Probably because binge drinking is common in Finland, drugs have not become popular among the general public. The level of drug offenses in Finland is relatively low compared to other Western industrialized countries. The market consists mainly of cannabis and amphetamines, and smaller amounts of cocaine, heroin, Ecstasy, and prescription drugs. In the last few years Subutex®, which is used as a substitute treatment for heroin addiction, has become more common in the illegal trade. In 1991, certain immigrant groups brought a new type of mild narcotic, khat, into Finland. The use remains limited to their own ethnic group and it is not commonly available. Efforts to control the drug market have increased in the past 10 years. Tapping phone calls of suspects has been possible from 1995. Since 2001 the police have been allowed to use unconventional methods for the investigation of drug offenses, such as fake purchases and undercover work, but such operations are still rarely used. The Finnish drug market is not highly organized. One of the reasons behind this is the corruption-free reputation of the Finnish police. Another cause is the small size of the Finnish drug market and the negative attitude against drugs among the general public.

There are several organizations that are dedicated to reducing the risks of drugs, such as needle exchange points and other outreach services. Voluntary access to government-funded rehabilitation programs is possible both in society and in prisons. In some cases, drug addiction is controlled with a substitute treatment, such as methadone or Subutex, but these are not widely accepted.

Crime Statistics HOMICIDE (MURDER, MANSLAUGHTER, KILLING) In 2007, there were a total of 127 completed homicides (2.4 deaths/100,000 population). The rate has been quite steady for the past 20 years, although the trend is slightly downward. Most homicides are classified as manslaughters. Killings (homicide in mitigating circumstances) are rare, with only seven cases during the time period 1988–2007. The trend in murders is increasing. Numbers of manslaughter were high through the 1990s and the beginning of the new millennium, but have decreased significantly in the last few years. The trend in assaults resulting in death has been decreasing for the past 20 years. In 2007, 25 persons were killed in this kind of assault. In Finland, for each homicide an extensive questionnaire is completed, and the data are recorded for research purposes. The homicide database comprises incidents beginning from the year 2002. The number of infanticides has been low during the last decades, on the average one incident per year. Reasons for this could be that babies are almost without exception delivered in general hospitals, contraceptives are widely used and, most important, abortion is allowed (the law of abortion was introduced in 1970). Particular tragedies have a significant effect on murder rates. For example, the Jokela school shooting increased the number by 8, making 2007 the murder peak of 20 years. The homicide figures from 2008 are distorted by the Kauhajoki school shooting, in which 10 persons were murdered. The third massacre happened in 2002 in a shopping center. In a bomb explosion 7 persons were killed.


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RAPE AND SEXUAL VIOLENCE In 2007, a total of 2,326 sex offenses were recorded. Of these, one-third were rapes and nearly one-half were sexual abuse of children. The rest of the cases were cases such as coercion to a sexual act, sexual abuse, buying sexual services from a young person, and pandering. A total of 739 rape cases were reported to the police in 2007—over a hundred cases more than in the previous year or any given earlier year. In 2007, 80 percent of rapes were classified as basic rapes (no cases of aggravated rapes recorded in 2007), and 20 percent as coercion into sexual intercourse (attempts included). Cases of child sexual abuse have steadily increased over the past 10 years. The numbers for 2006 and 2007 have nearly doubled compared to the previous decades. The rate of other sex crimes has varied a lot during the last 10 years. The year 2006 stands out particularly: with more than 1,000 cases the number is two to three times as high as the average of the decade. In 2007 there were significantly less other reported sex crimes, but still a lot compared to the beginning of the new millennium. Increase in sex crimes other than rape is likely to be explained by the new police unit specializing in tackling sexual abuse of children and teenage prostitution established in 2006. The statistical increase in rapes does not necessarily mean that the crime of rape is significantly more common than before. It tells more about an attitude change; in the past, rape victims were seen as guilty of provocation or false information.

PROPERTY OFFENSES Nearly one-half of offenses against the Penal Code reported to the police are property offenses. Around one in five crimes (including traffic offenses) is a theft, or unauthorized use of a motor vehicle. The rate of property offenses rose steadily during the 1980s. Consumerism and urban development increased the potential targets and opportunities for stealing. However, the growth of property crimes stopped in the early 1990s, when Finland was struggling with severe financial depression. Since then the decrease in recorded property offenses has been replaced by an

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increase in drug offenses. Commonly, a large part of property crime is committed to finance a drug habit. Only around 1.5 percent of theft offenses are defined as aggravated. The classification is based mainly on the value of the stolen items. A total of 251,000 property offenses were committed in 2007. Over half of them were thefts of different degrees. The number of robberies was just under 2,000, the number of burglaries 25,000 (6,500 domestic burglaries), and almost 15,000 unlawful uses of motor vehicles. The rest included offenses such as possession and hiding of stolen items.

DRUG OFFENSES In 2007 the total number of drug offenses published in crime statistics was 15,000 cases. A relatively small amount of all drug offenses recorded by the police are aggravated (during 1997–2006 on the average 5%). With 883 aggravated drug offenses, the year 2007 reached the peak of the decade. Basic drug offenses were committed over 4,000 times (nearly two-thirds of the drug offenses were drug use). The rate started to increase in the early 1990s and has remained high ever since. It is common for the same persons to have committed multiple offenses.

URBAN AND RURAL CRIMES Homicides are slightly more common in the rural areas than in cities and large towns. On the other hand, assaults are less common in the periphery. There are at least two possible reasons; in the urban areas help arrives faster and the risk of dying of blood loss or other injury is smaller. In rural areas there are more weapons available in the households (e.g., shotguns). In urban areas there are more witnesses and more police officers and stations, so it is more likely that an assault will be reported. Also assaults by strangers are more often reported to the police and in rural areas the victim usually knows the offender and the crimes are perhaps settled in a more unofficial way. Property crime is more common in urban areas, simply because there are more opportunities. Shops and department stores are situated in larger towns and cities, and suburbs offer a chance for multiple burglaries.


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Finding of Guilt Rights of the Accused Every person suspected of a crime has the right to a fair trial. The accused is seen as one party of the criminal process and must be treated as equal in relation to the complainant and the prosecutor. According to the presumption of innocence one must be considered innocent until proven guilty. The court must hold no presumptions about the outcome of the trial. The accused have the right to receive immediate and detailed information on what

they are being charged for, in a language that they understand. They are entitled to a defense and there must be enough time and resources to prepare it. Also translation services must be provided in case where the accused does not understand or speak the language used in the court. A person accused of a crime is not required to contribute to the finding of his or her guilt. The plaintiff and the witnesses are obligated to speak the truth during the hearing, but the accused is not. This is on the grounds that no person can be expected to act in a way that has a negative effect on his or her own situation.

Police escort former world champion ski jumper Matti Nykanen, head covered, to the court in Tampere, Finland, August 27, 2004. Nykanen and his wife, Mervi Tapola-Nykanen, were detained on suspicion of attempted homicide after a 59year-old man was found severely stabbed at a summer cottage in Nokia, near Tampere. (AP Photo/Lehtikuva) © 2011 ABC-Clio. All Rights Reserved.

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ASSISTANCE TO THE ACCUSED Right to assistance is one of the minimum rights of the accused in the human rights treaty. A qualified person can work either as an advocate or an assistant, depending on the needs and capabilities of the accused. The assistant is usually a lawyer, but he or she can also be another law practitioner or an adult civilian with an honest reputation, who has not declared bankruptcy or who has no other restrictions. When a person is suspected of a serious crime the advocate can be appointed by the court. His or her wages are paid by the government, but if the defendant is convicted of a crime, he or she will have to reimburse the amount. The accused also have the right to defend themselves should they wish.

Preliminary Investigation The police must conduct a preliminary investigation on grounds of a reported crime or if there is some other reason to suspect that a crime has taken place. In case of a complainant crime, preliminary investigation will only be conducted if the complainant demands a punishment of the offender. The investigation process must be cancelled if the complainant requests so, except if public interest requires otherwise. The purpose of a preliminary investigation is to find out whether there are grounds for a trial. It consists of finding out if a crime has been committed, in what circumstances, what kind of damage has been done, and what advantages gained. The possibilities of returning stolen goods and reimbursement of financial loss are also studied. A preliminary investigation is usually conducted by the police of the municipality where the suspected crime took place. If a crime is considered particularly serious (e.g., a complicated homicide case or organized crime), the investigation is carried out by the Federal Bureau of Investigation. A preliminary investigation consists of hearing the victim, the suspect, and the witnesses. All the issues both for and against the suspect must be taken into consideration. He or she must be informed about his or her status in the process. A suspect under 18 years of age must be interrogated in the presence of his or her assistant. If the preliminary

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investigation shows that a crime has not been committed or no one can be held responsible, the case is withdrawn. Otherwise the case will be forwarded to prosecution. There are two exceptions: canceling the reporting and restricting preliminary investigation. Police have the right not to report the case if it is assessed as minor and would result in not more than a fine considering that the plaintiff does not have any demands. In around 10 percent of all crimes against the Penal Code, the reporting to the prosecutor is cancelled. Canceling reporting only applies to cases where the crime and the offender have been solved. In some cases the officer in charge of investigation proposes that the investigation be ended. The prosecutor gives out an order to restrict the investigation if he or she is not willing to press charges and public interest does not require so. This can be done even if the offender has been found out.

Prosecution When the preliminary investigation is completed, the police deliver the record to the prosecutor. The main task of the prosecutor is to determine if there are grounds to press charges. He or she assesses whether there is sufficient evidence to support the case. Another primary task of the prosecutor is confirming punishment orders given by the police (e.g., penalty fines for traffic offenses). If the offense is classified under public prosecution, charges will be pressed despite the opinion of the plaintiff. In some cases charges will not be pressed if the plaintiff wishes so and general benefit does not require it (e.g., petty assault). Charges must be pressed as soon as there is reliable evidence that suggest that the defendant is guilty and it must be based on probable causes. Charges can be dropped if the offense is in total considered as minor, the offender is young, or on the basis of consideration of equity. Plea bargaining is not practiced in Finland.

Mediation Mediation is not an alternative to trial, because it does not solve the judicial side of the case, but it has been developed to function as a complementary


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means to trial. However, mediation can influence the outcome of the trial in a mitigating manner, or in some cases the charges can be completely dropped, or the punishment can be waived. An initiative regarding mediation can be done by either party of the case, police, prosecutor, or social service. If the suspect is a minor, his or her guardian or other legal representative has the right to suggest mediation. In case of a violent crime against the offender’s partner, child, or other close person, only the police or the prosecutor can initiate mediation. Mediation is voluntary and both parties must agree to it. Typical criminal cases where mediation is applicable are assaults, thefts, and malicious damage. The more aggravated the crime, the less suitable it is considered to be for mediation. In 2007, 6,825 crime cases were directed to mediation.

Incarceration before or Awaiting Trial The police can hold a suspect in custody for a maximum of 4 days without pressing charges. If a person has been arrested for aggressive behavior or under the influence of alcohol or drugs, but he or she is not suspected of a crime, the person can be held in custody for no more than 12 hours. To hold a suspect for a longer time, the police must obtain an imprisonment order from the court. Remand imprisonment is not a punishment, but a coercive measure used during the preliminary investigation and trial. Its purpose is to secure the investigation and the trial and to discontinue possible criminal activity. The remand prisoner must be placed in another prison or a different ward from prisoners serving a sentence. He or she should ideally be placed in a single cell. It is also possible that he or she will be kept in solitary confinement. A remand prisoner cannot be held for more than four weeks, unless there is a significant reason to do so. If the trial results in a prison sentence, the time spent on remand will be deducted from the total length.

Judges In 2006, there were 691 professional judges or magistrates in Finland (officials authorized to hear civil, criminal, and other cases, including in appeal

courts, and make dispositions in a court of law). Thirty-nine percent of the judges were female. Professional judges must have a master’s degree in law; also training on the bench is required. In Finnish magistrate’s courts there are also lay judges, who participate together with the judge in defining of the outcome of the case. In 2006 the number of lay judges was 3,671; of them 68 percent were women.

Juveniles Juveniles are tried and punished under the same criminal justice system as adults. The age of criminal responsibility is 15 years, and 15- to 17-year-olds are tried as minors. They are sentenced to prison very rarely and never to a life sentence. Around one out of 10 prison sentences is unconditional. Minors represent only 0.1 percent of Finland’s prison population, and 18- to 20-year-olds represent less than 2 percent. Offenders who are over 15 but not yet 21 years old are considered young offenders. They receive custodial sentences less often than adults and are eligible for parole after one-third of the imprisonment has been served. The most common punishment for a young offender is a fine. It is more common that a young offender is sentenced as guilty but left without a punishment. Mediation is often used when dealing with juvenile offenders and it can be applied to under 15-year-olds as well. Under 15-year-olds cannot be tried in court but in serious cases they are put into the custody of social services. Offenders 15 to 17 years old can be treated both under the criminal justice and the child welfare systems. In 1997, Finland introduced a special youth sentence for 15- to 17-year-old offenders. It was first limited to seven courts and became nationwide in 2005. It is considered a more serious punishment than probation. It consists of control meetings, exercises for developing social skills, support, guidance, and looking into employment opportunities. There are two meetings every week, which is considerably more than with an unconditional sentence, where the offender meets with a criminal justice officer only once a month. Youth sentence is typically used as a punishment for violent crime. The average length of a youth sentence has decreased from eight to four months. Around one in 10 is discontinued,


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most often due to a drug or alcohol problem of the offender. The youth sentence is still quite rarely used throughout Finland.

Punishment Finland has pursued a conscious, systematic, longterm criminal policy. The decrease of the prison population is one of the outcomes of this policy. Several reasons can be found behind the decrease of the Finnish prison rates. Nordic penal policy has been described as a pragmatic, less politicized, and nonmoralistic approach, which has had a clear social policy orientation. There has been a strong political will among professionals and practitioners in Finland to decrease the prisoner rate. The comprehensive planning instruments of the welfare society have been utilized. The slogan “effective social policy is the best criminal policy” describes the intertwined structure of the areas: measures against social marginalization and inequality are also effective means against crime. At the same time there has been in the Nordic countries a strong debate emphasizing the ineffectiveness of an extensive use of the prison system. In Finland, an extensive theoretical cost-benefit analysis was used aiming at the minimization of the costs and harmful effects of crime and of crime control, and the fair distribution of the costs among the offender, society, and the victim. Costs in this connection referred not only to the material costs, but also to the immaterial costs to all of the three parties. As a consequence, many laws have been enacted to decrease the prison population. The development of punishments has in practice been directed toward an increased use of fines.

Types of Punishment The following financial punishments are described in the Finnish penal code: • Day-fine. The idea of the day fine system is that the penalty is in relation to the offender’s economic situation. One unit of fine represents approximately 1 out of 60 of the total monthly net income of the person.

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• Conversion sentence. In case a fine cannot be collected, it can be transformed into a custodial sentence. One day in prison makes up for three day fines. A conversion punishment must last for at least 4 and no more than 60 days. • Penalty fine. The penalty fine is a less serious financial punishment than a day fine. The sum is fixed and cannot be more than €200. The penalty fine varies and is always a set amount for a particular offense. An unpaid penalty fine cannot be converted into imprisonment. Police officers and other officials (carrying out a statutory function) have the right to issue penalty fines, while fines are imposed by the prosecutor or the court. The following custodial punishments are described in the Finnish Penal Code: • Conditional sentence. When a prison sentence is conditional the execution is postponed until the end of a probation period. The period lasts for at least one and no more than three years. At the end of the probation, the sentence is cancelled. • Unconditional sentence. A custodial sentence consists of the loss or restriction of freedom. A prison sentence is either a temporary or a life sentence, although the latter is not to be taken literally in practice. An inmate serving a life sentence is eligible for parole after 12 years of incarceration. A single temporary sentence ranges from 14 days to 12 years, and the maximum length of a combined sentence is 15 years. Offenders who are classified by the health authorities as unaccountable are given psychiatric treatment in closed institutions, but this is not considered as a punishment. • Probation. Most convicts are given the chance to spend the end of their sentence outside the prison. It is possible to apply for parole when two-thirds of the sentence are served. If the convict was younger than 21 years old at the time of the sentencing, he or she is eligible for parole after one-half of the custodial sentence.


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• Trial freedom under surveillance. Since 2006, it has been possible, to facilitate social inclusion, to release a prisoner into the society no more than six months before probation, accompanied by an electronic surveillance device. The convict must commit to complete sobriety. • Community service. Community service is a common punishment initiated in the 1990s, which can be applied instead of a no more than 8 months prison sentence. Depending on the length of the sentence the duration of the community service is 20–200 hours. When imprisonment is converted into community service, one day in prison equals to one hour of community service. • Restraining order. Finland started using restraining orders in 1995 (extension involving family members in 1999). It is not a punishment, but a preventive measure to protect a potential victim. It states that the receiver is forbidden from approaching, contacting, following, or watching the claimant. The maximum length of a restraining order is one year, in cases involving family members, three months.

Typical Punishments Typical punishments for crimes are as follows: • Rape: at least 1 and no more than 6 years in prison, up to 8 years if aggravated. • Murder: a life sentence, which is in practice at least 12 years in prison, less for killing with mitigating circumstances. In 2005 the average punishment for manslaughter was more than 9 years in prison. For an attempted manslaughter the punishment was around 3.5 years. • Assault: a fine or custodial sentence of no more than 2 years; at least 1 and no more than 10 years in prison if aggravated. The average punishment for aggravated assault was just under 2 years in 2005. • Theft/burglary and aggravated theft/burglary: varies from a fine to a 1-year-and-6-month custodial sentence. If the offense meets the

conditions of an aggravated theft or burglary, the sentence goes up to 4 months to 4 years in prison. • Serious drug offense: varies from 1 to 10 years in prison. In 2005 the average sentence was a little more than 3 years.

Prison The imprisonment act was renewed on October 1, 2006. Five regional prisons were established. All prisoners begin their sentence in the regional prison of their residential location. A personal needs and risk assessment is made to measure the factors that have contributed to the development of the convict’s criminality and the required level of security. The convicts must be placed in institutions near their homes to preserve relationships between inmates and their families. Other factors that are taken into account are age, gender, health, number of convictions, previous offenses, the convict’s own preference, and possibilities to take part in productive activities while incarcerated. A convict can be placed directly into an open prison, if he or she is serving a conversion of a fine or less than one year’s sentence and commits to sobriety. There are in total 26 prisons in Finland, of which four are open. The largest prison is the Turku prison, which houses approximately 350 inmates. Inmates of all kinds are placed in the Turku prison, from juveniles and first timers to those serving life imprisonment, as well as people serving a fine conversion sentence. In 2007, there were 3,551 prisoners on the average, out of which 7 percent were women and 9 percent foreign nationals. At the beginning of the 1950s Finland had about 200 prisoners per 100,000 inhabitants, while the figures in Denmark, Norway, and Sweden were around 50. By the beginning of the 1990s the prisoner rates in Finland had decreased to the Nordic level, which had during the years remained rather stable (about 60 prisoners per 100,000). The number of prisoners was lowest in 1999 (2,743 persons incarcerated on the average), and since 1999, it increased until 2005 (3,888 persons). The changes in the prisoner rates


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can partly be traced to changes in legislation. Most law reforms from the 1960s up to the beginning of the 1990s were launched to decrease the number of prisoners (more than 25 law reforms). However, from the middle of the 1990s, the punishments for assault, rape, and drug-related crimes increased. In 2006 and 2007, the number of prisoners has been slightly lower than in the antecedent years. The reasons for the decline have been the decrease in theft convictions, while violence has not increased. At the same time the number of default prisoners has decreased. During the recent years, about 35 percent of the prison sentences up to eight months have been converted to community service. The number of community service sentences has been approximately 3,700 per year, and the share of successfully completed sentences has been about 80 percent. One-half of the crimes leading to community service were aggravated drunken driving cases.

EXCHANGE AND EXTRADITION OF PRISONERS Sentences given in other Nordic countries can be put into practice in Finland, if requested by the officials of the country. Similarly a Finnish custodial sentence can be transferred to another country. The transfer must be accepted by the officials of the sentencing country as well as the sentenced person. In 2007 Finland received 109 convicts from other Nordic countries and gave out 56. Extraditions to other countries are arranged by the International Department of the Ministry of Justice. The requirements for extradition are the acceptance of both legal parties, as well as the convict, and the nationality of the receiving country. Since 2001, it has been possible to extradite a sentenced person without his or her own agreement. It is possible in cases where the convict is avoiding going into prison or in cases of banishment.

WORK AND EDUCATION WHILE INCARCERATED Approximately 40 percent of the prison population takes part in employment. About half of them work in maintenance and other activities related to the everyday running of the prison. Another half

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are employed in the production of goods sold in the prison shops and over the Internet. The prisons collaborate with local schools to provide teaching in both general knowledge and practical skills. It is not stated on the certificate that the degree was accomplished in prison. In 2007, a total of 1,737 inmates participated in education while incarcerated. One-third of them were heading for a vocational degree and almost as many for a high school diploma. Most of the teaching was arranged within the institution, but in some cases the inmates were granted the permission to take part in education outside the prison.

KEEPING IN TOUCH WITH THE WORLD OUTSIDE An inmate can be awarded permission to make phone calls outside of the prison. The phone calls can be tapped in case there is a suspicion of misuse, but both the recipient and the caller must be informed about it. The inmates are allowed to exchange letters without any quantitative restrictions. They can be searched for illegal substances or read for security reasons. Friends and relatives are allowed to spend time with the prisoners during specified visiting hours. The prisons provide an apartment for family visits, for the prisoners to meet their loved ones in a more homelike environment. Family meetings are not monitored, therefore, the visitors must meet security requirements. A prisoner can be granted a temporary leave after two-thirds of the sentence has been spent or if there are special circumstances. The reliability of the inmate is assessed and in some cases a chaperone (guard) is appointed for the duration of the leave. The maximum length of a leave is in total three days to two months. Markku Heiskanen and Anna Vuorelainen Further Reading The European Institute for Crime Prevention and Control (HEUNI): www.heuni.fi. Joutsen, Matti, Raimo Lahti, and Pasi Pölönen. (2001). Crime and Justice Systems in Europe and North America: Finland. Helsinki: The


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European Institute for Crime Prevention and Control (HEUNI). Lappi-Seppälä, Tapio. (2007). “Penal Policy in Scandinavia.” In Crime, Punishment and Politics in Comparative Perspective, edited by Michael Tonry, pp. 217–295. Chicago: University of Chicago Press.

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

Background The main features of the French criminal justice system were established at the beginning of the 19th century through the Napoleonic codes. Three court levels (cour d’assises, tribunal correctionnel, and tribunal de police) correspond to three degrees of seriousness of offenses. For each level, there are specific rules about criminal investigation and proceedings. There have been many legal changes over the past two centuries concerning these rules but the dominant role of the public prosecutor remains. The police are made up mainly by the Police nationale and the Gendarmerie nationale but also of other public administrations for some specific offenses (customs, tax department, Department of Labor, for instance). From the beginning of the 1980s, legal changes have become more and more frequent under the pressure of insecurity and political debates. Repeated modifications to the Code of Criminal Proceedings have resulted in a reinforcement of the influence of the police role in judicial decisions through the extension of police officers’ powers (identity control, police data files, assistant police officers).

Crime Classification of Crimes According to the French Penal Code, criminal offenses fall into three categories depending on their seriousness. Felonies (crimes in French) are judged by cours d’assises (assises courts) where a popular jury sits. They are punishable by a prison term of 10 years to life. Misdemeanors (délits) are judged by tribunaux correctionnels (criminal courts) punishable by up to 10 years in prison or a fine of more than €1,500 (US$1,885). Petty offenses (contraventions) are judged by tribunaux de police (police courts) punishable by a fine. Petty offenses are themselves divided into five classes from the first one (maximum fine of €38) to the fifth class punishable by a fine of €750 to €1,500 (US$942 to $1,885). These fifth class petty offenses and misdemeanors are prosecuted in the same way even if they are not judged by the same jurisdiction. They are recorded in the national criminal file. Other petty offenses from the first to the fourth class are also legally considered as criminal offenses but they are dealt with in a simplified way, often following administrative paper proceedings (set fines, penal orders). Some of them are breaches of the criminal code (battery, insults, slight deterioration) and may involve a victim, but most are traffic offenses and other kinds of breaches of specialized legislations (labor, health and environmental laws). A general classification of offenses is as follows: • Felonies (crimes): Homicide (meurtre, assassinat, coups mortels), rape, armed robbery. • Misdemeanors (délits): Assault, threat, sexual assault, unintentional homicide, unintentional injury causing work disability over three months, theft (aggravated or simple), fraud, breach of trust, embezzlement, forgery, serious criminal damage, drunk driving, driving license–related offenses, drug consumption, possession, trafficking, firearms offenses, undeclared work, illegal immigration. • Petty offenses fifth class (contraventions de cinquième classe): Minor assault, unintentional injury causing work disability less than


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three months, minor criminal damage, trucking offenses, speed limit serious offenses.

DRUG OFFENSES In France, consuming any kind of prohibited drug (including cannabis) is a misdemeanor punishable by a prison term of one year or a fine. But, in principle, the priority is to require medical treatment of addicted persons. Drug trafficking is basically a misdemeanor punishable by longer prison sentences up to 10 years. Some kinds of organized international trafficking are legally considered as felonies and may receive longer sentences but, after complex judicial inquiries, very few cases end up in a judgment by a cour d’assises. France also adopted the European rules about the control and the repression of money laundering. They are enforced mainly for drug trafficking.

Crime Statistics For a long time, police statistics, including cases reported to and recorded by the Police Nationale and Gendarmerie Nationale (the two main bodies acting as criminal police), have been the only statistical measurement of crime. Annual results are published each year by the Ministry of Interior including figures about offenses recorded (petty offenses and traffic offenses are excluded), clearance rates by offenses, offenders with a breakdown by gender, age (minor or adult), and citizenship (French citizen or foreigner), and also figures about the use of police custody. This situation has changed now since crime victim surveys are regularly conducted. In some cases, such as burglary, the two measures are similar, but in others there are considerable discrepancies. The table below shows the number of offenses recorded by the police for the year 2007. In principle, from a legal point of view, there is no difference between attempts and completed offenses and police statistics include attempts. Homicide is the only offense type for which the number of completed offenses is collected. In this table assault leading to death is included with completed homicide.

Homicide Of which completed Bodily injury Rape Sexual assault Robbery Theft total Of which motor vehicle theft Of which burglary Of which domestic burglary Fraud Drug offenses total Of which trafficking Offenses against immigration law Total

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2,333 1,168 228,675 10,946 13,754 116,978 1,847,247 231,875 336,240 174,707 181,020 163,297 6,131 131,351 2,695,601

As can be seen, the number of recorded offenses against property is far higher than the number of offenses against persons. Their long-term trends are also quite different. During the 1970s and 1980s, recorded thefts were growing quickly and recorded personal offenses were stable. From the mid-1980s, a regular significant increase in bodily injury and sexual assault appeared contrasting with fluctuations for property offenses followed by a clear decrease at least for burglary, motor vehicle theft, and other thefts in or from a car. Since 1995, this decrease is also shown by national crime victims’ surveys, the situation being less clear for personal theft because the surveys do not allow an accurate breakdown of incidents among theft without violence, robbery and assault without theft, at least before 2005. The rise in reported and recorded bodily injury shown by police statistics during the last 20 years may reflect changes in perception about violence and safety, in reporting and recording practices, and moreover from changes in legal categorization of bodily injury. Recorded homicides do not follow this trend. After a sharp increase between 1972 and 1984, they have been decreasing until 2007, with only some limited occasional upward movements. Since victimization surveys do not yield evidence for a significant variation in serious bodily injury,


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this may be due to changes in recording practices. For example, new tough official guidelines to police forces and prosecution services may have resulted in more recorded cases and more convictions for domestic violence. Police statistics also show a growing number of offenses without individual victims: drug offenses, illegal entries of foreigners, public order offenses. For these offenses, levels and trends in recorded cases reflect variations in criminal law enforcement even if there are some independent sources also affecting changes. When counting offenses, the proportion of these cases resulting mainly from police control and investigation represents only about 10 percent of the total. But the number of offenders is proportionally quite higher, about one-third of the total. This is the consequence of a very low clearance rate for thefts, which still represent the main part of recorded crime (53% in 2007) but a limited proportion of offenders (20%). The shift in recorded crime from thefts to personal offenses and offenses detected by the police produces a significant increase in the number of offenders handled to the prosecution services.

Finding of Guilt In 2007, about 470,000 cases were sent to the criminal courts by the public prosecutors for a normal judgment. Among these, only 2,450 were judged by cours d’assises (felonies) after a judicial inquiry conducted by the examining magistrate (a compulsory phase for felonies). Most of them were judged by tribunaux correctionnels (misdemeanors), sometimes also after the examining magistrate’s involvement (optional) but usually directly after a short preliminary inquiry by the police. The global proportion of cases involving the examining magistrate for felonies and misdemeanors is decreasing (6% in 2007). Direct summons are also the normal way for a judgment by tribunaux de police for petty offenses of the fifth class. But, for these petty offenses and for less serious misdemeanors (mainly traffic offenses), the public prosecutor can get a decision from a court without a hearing (penal orders mainly). Since 2004, they also have the opportunity to propose a court sentence or a kind of sanction to the offenders who

admit their guilt. They also can avoid going to court by proposing to defendants any kind of “alternative” solution among the disposals that appeared in the Code of Criminal Procedure after 1970 and are still in expansion. And, last but not least, French public prosecutors have the legal possibility to drop cases not only for factual or technical reasons, but also in application of the expediency principle (see below). French prosecutors have in fact a key position in the French criminal justice system, not only regarding their role during the treatment of each case but also by selecting which cases will be prosecuted and along which paths in application of national or local guidelines.

Regular Court Proceedings Before the trial by a cour d’assises of a person charged with felony, the examining magistrate conducts a judicial inquiry. During this period police officers are investigating under the supervision of this magistrate—a judge from the bench—and not under supervision of the public prosecutor. This feature seems to maintain the French procedure within an inquisitorial scheme but in practice judicial inquiry has become the procedural framework where accused persons have more rights. They have access to the written file as soon as they are accused or even before: the examining judge must involve any hypothetical offender whose name appears in the police report or in victim’s complaint as témoin assisté (assisted witness). Assisted witnesses and accused persons will get the assistance of their personal advocate or can request for the automatic appointment of an advocate. Under personal resources conditions, they will receive financial help for their defense. Accused persons have the right to ask for some specific police investigation, the hearing of witnesses, or to contest experts’ reports. Their position could be comparable to the prosecutor’s one: the examining magistrate can refuse these demands and the accused person or the prosecutor can appeal from such a refusal. The major difference is, of course, that the accused person is often in pretrial detention. Cours d’assises verdicts are given by a popular jury (9 members) and three professional judges after long


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hearings. Since the jury was not involved during the judicial inquiry, all its findings must be summed up orally, the public prosecutor as well as the counsel for the defense calls in witnesses, experts, and even police officers who participate in the investigation. Victims joining the case on civil ground also play an important role. The court (jury and judges) decides whether the offender is guilty and sets the sentence. Since 2001, this decision (guilty and sentence) can be reviewed by an appeal assises court with a larger jury (12 members). As for other court decisions, the public prosecutor may appeal from a first judgment and the appeal court is not limited by the decision in the first instance. According to statistics related to the period 2001–2005, 23 percent of first cours d’assises decisions were reviewed. Among those who appeal after being found guilty in the first instance, 5 percent were discharged by the appeal court. But among those who were discharged after the first trial (representing 6% of the total number of appeals), 57 percent were found guilty following an appeal from the public prosecutor. For misdemeanors proceedings can also take a long time if the case is transmitted to the examining magistrate before trial. Prosecutors will have to choose this path for complex and/or serious cases. The rights of accused persons are basically the same during the judicial inquiry but in general the trial will not be so long. The tribunal correctionnel includes three professional judges, at least when the maximum penalty is more than five years’ imprisonment. Even in this case, hearings are normally shorter than for felonies and the court will get some evidence about the case directly from the written file. At prosecutor’s level, one reason to transfer a case of misdemeanor to the examining magistrate is to get the possibility of maintaining the offender in pretrial detention. This is possible when the maximum penalty incurred is three years’ imprisonment. Besides these long proceedings, accused persons can be prosecuted on the very fast summary trial track (comparution immediate). On this track a person may be tried within 2 days of his or her arrest by the police when the case has been handed over to the public prosecutor service. If the accused person asks for a delay or if some procedural supplement

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is required, the trial will be delayed for a maximum of 2 months and the court can issue a committal order. With this possible pretrial detention, such a summary trial for misdemeanors appears as an alternative to proceedings starting at the examining magistrate level, and actually during the last 20 years, the ministerial guidelines for prosecutors ask them to choose the fast track whenever possible. Apart from these two solutions allowing pretrial detention, the normal way to prosecute misdemeanors and petty offenses of the fifth class is a direct summons following a preliminary investigation conducted by the police. Prosecutors still have an important role since the police forces investigate under their legal responsibility. Police power is more limited in this case but some procedural acts are allowed when offenders are arrested for flagrant violations (flagrante delicto). Such a possibility is widely used in practice and involves many road traffic offenses as well as less serious personal and property offenses for which the prosecutor will not ask for an unsuspended sentence. From 2002, new simplified proceedings involving a judge and the extension of the existing simplified proceedings (penal order) are aimed at reaching court decisions (convictions) without full trials. In 2008, prosecutors have a wide range of solutions available. These include the following: • Court decisions without hearings. • Paper proceedings. For petty offenses, including the fifth class, the penal order (ordonnance pénale) was implemented in 1972. The prosecutor formulates a written recommendation to the judge, using a standard form. If the judge agrees and signs the order, it is sent to the accused. The offender can object to the decision and ask for a public hearing. Otherwise, the offender is viewed as consenting to the prosecutor’s decision and the penal order will be enforced like an ordinary sentence. • Admission of guilt. A specific kind of guilty plea was introduced in the French Code of Criminal Procedure in 2004 for misdemeanors punished by a principal penalty of a fine or a prison sentence not exceeding five years. The accused person will be heard by the prosecutor


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who will suggest a penalty. The prosecutor’s proposal is made in the presence of the offender’s advocate. Offenders cannot wave this right to be assisted. Offenders who refuse prosecutors’ proposals are prosecuted in a normal way. When the defendants accept the prosecutor’s proposal, the final decision is made by the court. In 2007, the annual number of cases treated in this way (50,000) was slightly above the number of cases following the fast summary trial track (46,000).

Alternative Disposals THE FRENCH COMPOSITION PÉNALE This procedure stipulates that the prosecutor may recommend an alternative to the normal penalty, such as fines, confiscation, immobilization of the vehicle for no more than 6 months, suspension of the driver’s license for no more than 4 months, unpaid work for no more than 60 hours, and miscellaneous other measures involving prohibitions or obligations. This is sanction which, if accepted, would avoid prosecution. The offender must explicitly admit to guilt.

in particular, within the family), the decrease can be seen as a consequence of more severe ministerial guidelines about this type of offense.

DROPPING FOR EXPEDIENCY Simple drops “when justified by the particular circumstances surrounding the acts committed” (the expediency principle) have not yet disappeared even if they have been reduced. The most important decrease during the last 10 years appears for drops grounded on the low seriousness of the damage or of the trouble. Even for less serious cases, ministerial guidelines now enjoin prosecutors to choose a “penal response” among the other disposals. One of the key indicators of local prosecutors’ efficiency is the global proportion of cases receiving a “penal response” among those that can be prosecuted. Simple drop is the only category of decision not counted as a “penal response.” Moreover, to calculate a rate of “penal response,” technical drops are not taken into account. Most of these are cases where the offender remains unknown (about 60% of all recorded cases in prosecution services).

Juveniles OTHER ALTERNATIVE DISPOSALS Other alternative proceedings first appeared in 1970 to avoid prosecution of drug users. The measure was an order to undergo treatment, issued by the prosecutor only, but implemented in collaboration with the health services. If the person subjected to that order complies with the minimum medical requirements, the prosecutor does not institute prosecution for what is still, to this day (2008), a misdemeanor punishable by a one-year prison term. After some local experiences, the penal mediation for adults and reparation for juveniles were added in 1993. To get the offender to engage in a process also involving the victim, a person or an accredited nonprofit organization is designated by the prosecutor and the encounters involved normally take place outside the courthouse, in a maison de justice. These disposals rose constantly until 2004, but they now seem to follow an opposite trend. Since they have been frequently used for less serious violence (but repeated,

The broad principles of criminal proceedings are applicable to juveniles but a specific law (the 1945 Ordonnance) calls for the intervention of specialized courts competent for judging offenders who were under age 18 when the offense was committed. The judge must prefer educational measures, and the maximum sentences incurred are shorter. Prosecutorial proceedings are also of a particular nature: the examining magistrate phase is compulsory, even if it is usually entrusted to the juvenile court judge. Delays may now be imposed on the judge for appearance in court and the prosecutor’s role has been reinforced over the last decade. In the largest courts, prosecution sections specialized in dealing with cases involving juveniles work with the educational agencies in charge of conducting rapid socioeducational investigations for the juvenile court. These are compulsory whenever the prosecutor hands a juvenile over to the court and considers summoning the person shortly or issuing a committal


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order. The principle of a systematic penal response to the least serious kinds of delinquency was put into action sooner for juveniles, producing a considerable increase in the number of cases transmitted to a juvenile court judge. However, the most important change during this period has been the development of measures decided by the prosecutor alone. Court decisions without hearing are not available for juveniles.

Crime Trends Between 1998 and 2007, the alternatives to proceedings and court decisions without hearings grew from 20 percent to 55 percent of all decisions. Simple drops decreased from 31 to 11 percent. The growing part of court decisions without hearing did not produce significant changes in the total proportion of cases transmitted to the courts (about 53%), but the proportion of normal judgments decreased from 49 to 34 percent. In absolute figures, whereas treated cases increased by 23 percent from 1.13 to 1.4 million, “normal” court proceedings were reduced by 15 percent from 552,000 to 470,000. But this trend did not produce a decrease in convictions counted in the national criminal record, which in 2007 remained at 685,335 for all offenses. These statistics reflect the stronger role of prosecution services since the new disposals give them a major role in the choice of the measures and sanctions.

Punishment Types of Punishment According to the Penal Code, different categories of crime receive different punishment. Basically, felonies are punished with criminal imprisonment (réclusion criminelle), ranging from a 15-year term to life sentence. Misdemeanors are defined according to the maximum penalty fixed by the law (imprisonment not exceeding 10 years or a fine of €1,500 [US$1,885] or more). Petty offenses are punished by a fine not exceeding €1,500. But the Penal Code and specific laws add a great variety of other penalties or allow the court to choose milder sentences. In case of reconviction for the same type of crime (recidivism), the maximum penalty is in

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general doubled. Since 2007, for some crimes minimum penalties have been introduced for recidivists (roughly one-third of the maximum), but courts are allowed to choose milder sentences according to the cases and the offenders’ personal situation. When offenders are reconvicted after two previous convictions related to the same type of offense, courts are bound to the minimum penalty unless they show exceptionally high guarantees for their rehabilitation. Apart from prison and fine, the available types of sanctions for misdemeanors are day-fine (fine converted into imprisonment if not paid), community service, citizenship course, and diverse penalties entailing forfeiture or restriction of rights. The last ones are linked to the committed crime (for instance, suspension of a driving license, confiscation, prohibition for a fixed term to exercise some professional or social activity, etc.) and the list may be extended when the law mentions some additional penalty for a specific offense. Courts can use one of them as a main sanction rather than prison or fine. This mechanism, known as substitute penalties, is also possible for petty offenses. Prison and fine sentences may be suspended. Such sentences will not be enforced if the convicted persons do not commit within a period of five years any felony or misdemeanors leading to an unsuspended sentence entailing the revocation of the suspension. In addition to “ordinary” suspended prison sentences, probation appears in the French system as a condition for some suspended sentences. For these suspended prison sentences with supervision, the court can impose a wide variety of supervision measures and special obligations. For instance, convicted persons will have to exercise a professional activity or follow professional training, undergo medical treatment, make up for the damage caused by the offense, and so forth. Some obligations already appeared in the list of additional or substitute penalties. The difference is that they are linked to a suspended prison sentence that can be enforced when convicted persons do not comply with these obligations. Even community service can be imposed as a condition for suspended prison sentences. All suspended sentences but the last one can be combined with an unsuspended sentence (partially suspended sentences).


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A prison guard walks inside the new Bourg-en-Bresse Prison, near Lyon, France, during a visit organized for the press, February 4, 2010. The prison can hold up to 690 inmates. (AP Photo/Laurent Cipriani)

Besides all these available type of sanctions, the court may exempt from penalty a convicted person where it appears that the damage caused has been made good and that the public disturbance generated by the offense has ceased. With such a complexity of legal rules, it is not possible to give a precise quantitative picture about the actual sentencing practice. The usual way to describe it is to count “principal sanctions” only according to a legal order among sanctions. When a convicted person is sentenced to several sanctions, the most severe one only appears. Partially suspended sentences are counted with unsuspended sentences. According to the Ministry of Justice annual report from the national criminal record, for adults and for the total of criminal offenses, fines are the

most frequent sanctions (37.9% in 2006), reflecting the dominant part of traffic offenses. For other offenses fines are not so frequent. Long-term imprisonment is almost the only applicable sanction for felonies such as intentional homicide (96.5%) and rape (96.5%). But unsuspended imprisonment also comes first for drug trafficking (56.8%) and theft (40.5%). Suspended custodial sanctions with supervision (French form of probation) take a significant proportion for sexual assault (26%) and bodily injury (14.5%). They are also frequently used for drug-addicted convicted persons, including alcohol. When minors are convicted they receive milder sanctions. For very young offenders (above 13 this is compulsory) or first-time offenders, the court favors educational measures that are the most frequent


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outcome of a criminal judgment for minors. For less serious cases, this decision is made by a single judge. Educational measures include supervision by social workers and full-time housing in youth centers. But the social concern for juvenile delinquency and the general climate about insecurity has led successive governments to add to the traditional educational centers some new measures, including more freedom restrictions. Known as “closed centers,” their development did not reduce the frequency of unsuspended imprisonment among all sanctions and measures.

Prison The total number of places in the 195 French prisons was 50,610 on January 1, 2008, as defined by administrative standards assessing their capacity. On the same day, the total prison population, excluding 2,927 persons under penitentiary legal responsibility but not staying in prison (electronic monitoring, for instance), was 61,076. These figures include all overseas territories (overseas departments and overseas communities). The average prison density per 100 places is 120.7, but this rate varies significantly among the different categories of facilities. The maisons centrales hold convicted detainees for long-term sentences. The notion of long term is not very accurate. Legally, all convicted detainees sentenced for five years or over could be held in these facilities. But, as the number of these detainees has been increasing for decades, the corresponding 2,060 places are now managed according to security goals. The number of detainees is still lower (1,872) to avoid difficulties coming from overcrowding. The other facilities for convicted detainees (centres de détention) represent the most important part for these detainees with 16,015 places. But, for the same security reasons, the penitentiary administration made the choice to limit the consequences of excess numbers of prisoners. On January 1, 2008, there were 15,446 staying in these centres de détention. The prison density is 96.5 per 100 places; that is a normal situation. But one cannot conclude that all convicted detainees (44,279 on January 1, 2008) are held in normal conditions since only 39

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percent were staying in a maison centrale or a centre de détention. The situation is not the same in the maisons d’arrêt, which were originally devoted to pretrial detention. Convicted detainees with short-term sentences (less than one year) are now also held there and even some detainees with long-term sentences. Pretrial detainees (16,797 detainees without final sentence on January 1, 2008) represent about 39 percent of the total number of detainees in the maisons d’arrêt. All these persons (42,860 on January 1, 2008) were put in for a capacity of 31,582— that is an average rate equal to 135.7 percent. But official reports point that in 62 prisons, the density was over 150 percent. The biggest French prisons fall in this category. Two of them are located in the Paris suburbs (Fleury-Merogis, 2,855 places, and Fresnes, 1,543 places). The third one is in Marseille (Les Baumettes, 1,288 places). On September 1, 2008, 7,922 detainees were staying in these three prisons for 5,686 places. The consequences of this abnormal situation in the maisons d’arrêt have been pointed out for many years by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Council of Europe) and by some NGOs. The French government response focuses on a program adopted in 2002 and planning new prisons for 2012 (13,200 places). Whereas some very old prisons will be necessarily closed before the end of this program, many commentators consider that France persists in a wrong choice, after the last two extension programs. In these overcrowded prisons, not only are housing conditions quite below ordinary standards, but most detainees cannot have access to work, education, or training. For instance, whereas legal rules provide that any (pretrial or convicted) detainee can work in prison, only 32 percent had this opportunity in 2008 for the maisons d’arrêt compared with 51 percent in other facilities. Over the long term it appears that increases in prison population rate are not constant. From the mid-1970s to the beginning of the 1980s, the increase was indeed regular and prison population rose by 65 percent between January 1, 1976, and


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January 1, 1988. After 1996, prison population began to decrease. From 1981 to 1996, the prison population (stock) has been growing but the annual number of entries was decreasing. The stock increase was the consequence of longer prison sentences. From 1996 to 2001, this lengthening was not strong enough to compensate the downward effect of a still decreasing entry flow. At the end of 2001, a sudden turn-up occurred and during the year 2002, the annual number of entries was 22 percent higher than in 2001. Between January 1, 2002, and January 1, 2007, the absolute number increased by 10,000. During the same time, only 1,000 new prison places were created. Between January 1, 2001, and January 1, 2003, the number of convicted persons detained for sentences less than three years increased by 29 percent. During the same period, the number of convicted detainees with sentences of three years and above has been slightly decreasing. The number of pretrial detainees also moved upward between 2001 and 2003 (+31% on January 1), but after 2004, the trend was again downward whereas the total prison population was still significantly increasing. These changes are consistent with the growing use of fast summary trial and that changes occurred in the way sentences are enforced. Two additional features of the French system need some explanation. The first one is the regular use of amnesties and collective pardons, at least until 2002, as a periodical solution to prevent the negative consequences of prison overcrowding. All the major decreases occurring in the total prison population over time are the direct consequence of amnesties following elections (1974, 1981, 1988). Though amnesties also occurred after the 1995 and 2002 elections (but not after the last one in 2007), their consequences on prison population were quite limited since only very short sentences (less than three months) were expunged and convicted persons probably would not have been in prison anyhow. The effects of collective pardons decided by the president of the republic every year (usually on July 14, a national holiday) were significant during the 1990s, most of the prisoners having their sentences reduced by some amount ranging from a few

days to several months, in addition to the normal legal sentence reduction. During the last years, these collective decisions have been criticized because of their alleged effects, and the number of cases excluded from pardon became larger and larger. The main point is that they could undermine any attempt to achieve delinquents’ rehabilitation by individual sentence adjustment decided by the judge in charge of sentence enforcement. The second feature is the French sentencing system itself. The general rule is that sentences must fit the personal situation of convicted persons. The courts’ decision must follow this principle but sentence enforcement also includes a wide range of disposals to achieve the same goal. All probation sentences (suspended prison sentences with supervision) are adapted to the personal situation of the convicted person, for instance. When convicted persons get an unsuspended sentence less than one year and were not detained before their judgment, they must be heard by the judge in charge of sentence enforcement who may propose an alternative solution (electronic monitoring) or a partial release, for instance. Since 2005, prison overcrowding has reached such a high level that the official response to the critics about detainees’ situation is to promote the development of prison sentences enforced without staying in prison. Electronic monitoring is the most frequent solution to keep the “detainees” out of prison and their number increased by 148 percent within two years (September 2006–September 2008). But the absolute number remains low: approximately 3,300 persons were on prison calendar without staying in prison on September 1, 2008; that is about 5 percent of all persons on the calendar. It is low in comparison to the 13,000 missing places in the 136 prisons showing a density rate above 100 percent. Bruno Aubusson de Cavarlay Further Reading Aubusson de Cavarlay, Bruno. (2006). “The Prosecution Service Function within the French Criminal Justice System.” In Criminal Justice


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Systems: The Rise of Prosecutorial Power across Europe, edited by Jörg-Martin Jehle and Marianne Wade, pp. 185–206. Berlin: Springer. Bastard, Benoît, and Christian Mouhanna. (2007). Une justice dans l’urgence: Le traitement en temps réel des affaires pénales. [A Justice System in Emergency: The Real Time Processing of Criminal Cases] Paris: PUF. Kensey, Annie. (2007). Prison et récidive [Prison and Recidivism]. Paris: Armand Colin. Mucchielli, Laurent, and Philippe Robert, eds. (2002). Crime et sécurité: L’état des savoirs [Crime and Security: Current State of Knowledge]. Paris: La Découverte. Penal issues, the CESDIP Bulletin: http://www.ces dip.fr/spip.php?rubrique30. Zauberman, Renée, ed. (2008). Victimisation and Insecurity in Europe: A Review of Surveys and Their Use. Brussels: VUB.

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

Background The Federal Republic of Germany lies in the center of Europe and is a member of the European Union. Its nine neighbors are the Netherlands, Belgium, Luxembourg, France, Switzerland, Austria, the Czech Republic, Poland, and Denmark. Within an area of 357,020 square kilometers (137,838 square miles), the population is about 82 million, 10 percent of whom are non-German citizens; about 20 percent are or stem from immigrants, who arrived mostly in the 1960s or 1970s and then in a second wave in the 1990s of the last century.

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The Federal Republic of Germany was established after World War II in 1949, originally only on the territory of West Germany (including West Berlin), but after the “reunification” in 1990, also including the territory of the former socialist German Democratic Republic (East Germany). According to the Constitution (the so-called Basic Law), the 16 federal Länder are not only provinces, but like states endowed with their own powers. The federal states have important jurisdiction, especially in the areas of education and cultural policy in their entirety as a manifestation of their “cultural sovereignty.” They are also responsible for local government law, the police, and in general for the execution of federal legislation. The real strength of the federal states lies in their participation in the legislative process at the federal level through the second chamber of federal legislation, the Federal Council. The federal constitutional bodies with primarily legislative functions are the Federal Parliament (Bundestag) and the Federal Council (Bundesrat). Executive responsibilities lie principally with the Federal Government (Bundesregierung), headed by the Federal Chancellor (Bundeskanzler). Judicial functions pertaining to the Constitution are performed by the Federal Constitutional Court (Bundesverfassungsgericht). The federation has its legislative powers in fields where it is necessary to have a uniform law for the whole country. The areas that fall into this category are, for example, foreign affairs, military, customs and taxes, traffic, civil and civil procedural law, and criminal and criminal procedural law. German criminal procedure is fundamentally marked by the principle of legality and traditionally by the principle of mandatory prosecution, with the role of punishment reserved for the courts. The second main principle, the principle of material truth, means that the state is responsible for the investigation in finding the truth starting with the public prosecutor (PP) who has to search for evidence for prosecution as well as for exonerating evidence. At the court level he or she and the defense are not parties in the main proceedings, and the court itself has the full obligation ex officio to find the truth. This is usually called an inquisitorial system in contrast to the adversary character in common law countries.


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Police The police are assigned a supporting role in relation to the PP activities because the latter has no executing arm of its own. The police are organizationally answerable to the individual Länder’s ministries of the interior but made functionally subservient to the PP by law as far as the prosecution of offenses is concerned. The police can only take preliminary measures that cannot be delayed. Having carried these out, they are fundamentally required to inform the PP of their actions and to pass their records on to the latter so that the PP can decide how the investigations are to proceed. The police are also the executing organ during PP investigations. The law further assigns the PP auxiliary police officers (Ermittlungspersonen) with special powers and a closer relationship to the PP. In practice this difference is of little significance as almost all police officers are made Ermittlungspersonen. In relation to the prosecution of crimes, the police are viewed only as an organ serving the PP. In practice, however, German criminal procedure is a very different matter. Nowadays, the PP is by no means “ruler of the investigative stage” in most cases. In relation to less serious or mass crimes, this role has long been assumed by the police. They carry out investigations independently and only when these are finished is the file passed on to the PP, which is informed of the case in this way. Where the offense severity increases, so does the intensity of investigation. PP involvement is stronger here, at the same time, police independence wanes.

Crime During the ancien régime, German criminal law was a mixture of common law principles (jus commune) and statutes of the many larger and often only tiny principalities and territories. Since the late 1700s and during the 1800s, most of the surviving principalities codified the criminal law in criminal codes. When the German Empire emerged in 1871, a new German Criminal Code (Reichsstrafgesetzbuch) was enacted, which largely resembled the criminal code of the Kingdom of Prussia of 1851. Despite all the

dramatic shifts in German history since 1871, the Code of 1871 has remained in effect up to today. The Criminal Code has undergone considerable revisions during its long history, for example, concerning the treatment of juveniles (14–17 years), the sanctions (the restrictive use of short prison terms and the introduction of day-fines), the scope of certain offenses (e.g., concerning sexual behavior), and so on. The major reforms of the Criminal Code have in particular changed the sanctions system to a great extent. The 1969 and 1975 reforms restricted short-term imprisonment, extended the scope of fines, moved to the day-fine system, and extended the suspended sentence and probation services. The 1990 reform of the Juvenile Justice Act extended diversion and community sanctions (mediation, social training courses, and community service orders), suspended sentences, and probation and reduced pretrial detention. The 1994 reform introduced mediation into the sentencing provisions. In several steps since 1997, the scope of the preventive measures, imposed besides or instead of punishment, especially preventive detention (after imprisonment), has been extended. As far as the structure of offenses is concerned, a large number of offenses, previously considered criminal, were decriminalized in the 1970s and became offenses against order dealt with administratively. A large number of forms of behavior regarded as socially unacceptable fall into this category. There are two types of criminal offenses: misdemeanors (Vergehen) and crimes (Verbrechen). Crimes are punishable by a minimum of one year’s imprisonment, misdemeanors by less. During the last decades, modern forms of crimes have been introduced, such as money laundering, computer fraud, stalking or terrorist acts, and the penalties for violent and sexual crimes have been increased; especially rape and sexual assault have been redefined. Rape is defined as an aggravated form of a broader concept of sexual assault by means of force, threat, or using a helpless situation regardless of the gender and the marital status of the victim. Drug offenses include the whole range of production, trafficking, and selling, including the mere possession: Cases of mere consumption can


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be dismissed. Low forms of trafficking are seen as a misdemeanor. Aggravated circumstances lead to harsher penalties in three steps: not under one year, two years’, and five years’ imprisonment.

Crime Statistics According to the German Police Crime Statistics of 2007, more than two-fifths of the detected cases are of theft. Serious offenses against the person such as homicide or offenses against sexual self-determination (sexual offenses) are relatively rare. For every 100,000 inhabitants, there are 4 homicides (including attempts), but almost 3,100 thefts, as can be seen in the following table: Crimes

Cases per 100,000 population 7,635 4 68 665

Total crimes Homicides Sexual offenses Bodily injury Robbery, extortion resembling robbery, assault of a motor vehicle driver resembling robbery Total theft Theft under aggravating circumstances Property offenses; forgery Offenses under the Narcotics Act Others

64 3,112 1,515 1,375 302 2,045

It should be noted that, in regard to total offenses, offenses against public order are excluded and traffic offenses, even if criminalized, are not counted in police statistics. From the beginning of the 1960s to the beginning of the 1990s, a tremendous increase of the crime rate took place: from about 3,000 to about 8,000 per 100,000 population. Since then figures have slightly decreased, due to the decrease of theft. But concerning violent offenses, there is the opposite trend: bodily injury has risen strongly over the last two decades, especially where young offenders are concerned.

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SUSPECTS The suspect rates that are calculated only for German citizens show that 76 percent of all the suspects are men; women only account for almost one-quarter. As is to be expected, the vast majority of suspects are adults (21 and over). But the highest suspect rates are recorded for juveniles (14–17) and particularly young adults (18–20): of every 100,000 of the relevant age group, almost 12,000 of young male adults and more than 10,000 male juveniles, that is, roughly every 8 young adults and 1 in 10 juveniles, are on police records, which is the case for only 1 in 30 adults. However, it should be remembered that the crimes in which children and juveniles are mostly involved are generally less serious in nature, such as shoplifting, bicycle theft, or criminal damage, and that the vast majority of young suspects are only recorded once or during a short period of their lives. Non-German suspects account for just 21 percent of all suspects; this is higher than their proportion of the population of approximately 9 percent. However, the different pattern of crime reporting in the population must be borne in mind here, as must the fact that the suspects include tourists, armed forces personnel and their families stationed in Germany, cross-border commuters, and persons staying illegally in Germany—none of whom are included in the population figures. Furthermore, the structure of this group is different from that of the German population (in terms of age, sex, and social structure).

Finding of Guilt Prosecution After the cases have been processed by the police, they have to be passed on to the PP even if no suspect has been found. The PP is also informed directly about certain cases, for example, because they are reported to it or it learns of them itself. As it is “in charge” of the investigation proceedings, the PP takes further steps to clear up the case and identify a suspect. The intention is to ascertain whether there is sufficient evidence against the


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accused for main proceedings to be opened, that is, a level of suspicion that makes a subsequent conviction likely. If the investigations provide sufficient indications to assume that a criminal act has occurred and a suspect can be named, the PP will principally bring a charge against the accused at the relevant court. If it is a simple case that can be dealt with quickly, the PP can apply to the criminal judge or the Schöffengericht for “accelerated proceedings.” In such cases, a formal charge will usually not be filed. In other simple cases, the PP can apply further for a penal order without previous trial. This simplified procedure, with no oral proceedings, makes it possible to deal with uncomplicated cases quickly. However, this approach cannot be applied to Verbrechen (offenses with a minimum punishment of a one-year prison sentence). Also, there are limits to the level of sanction that can be imposed in such

proceedings: at most, this can be either a fine or a suspended custodial sentence of up to one year. Penal orders and accelerated proceedings are not permitted in cases involving juveniles. Instead, the PP can apply for “simplified proceedings,” as long as no period of custody in a young offender institution or measures to reform the offender or protect the public are likely. If no suspect is found, if the act is not criminal, or if there are other procedural impediments, for example, if the case falls under the statute of limitations, the PP will discontinue the proceedings. The proceedings can also be terminated if the offender’s guilt is of a minor nature and there is no public interest in prosecution. This termination can involve the imposition of certain conditions, such as financial redress for the injury caused by the act, the payment of a fine, the undertaking of community service, or, as of the year 2000, offender-victim

Defendant Sven K., center, faces photographers and TV crews in a courtroom in Munich, Germany, August 25, 2008. He is charged with armed theft during a money transport. (AP Photo/Matthias Schrader) © 2011 ABC-Clio. All Rights Reserved.

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mediation. Furthermore, the PP can refrain from prosecution if the crimes involved are insignificant additional offenses compared with the main crime with which the accused is charged. In the case of certain crimes (trespass, minor bodily injury, criminal damage, etc.), the PP can advise that a private prosecution be pursued if there is no public interest in prosecution; the injured party must then bring a charge himself or herself. This is not possible in cases involving juveniles. The approach taken by the PP in individual cases is recorded in the statistics of the courts and Public Prosecution Offices. In 2006 the PP at the regional courts and the local courts dealt with 4,876,989, and at the higher regional courts, with 3,267 investigative proceedings. Of a total of 5,770,785 persons, determination of their cases was as follows: public charge(s) 11.5 percent, application for a penal order 10.3 percent, conditional termination 4.4 percent, and other disposals 73.8 percent. The “other” ways of dealing with the case generally involve discontinuation because of insufficient evidence, unconditional disposals passing the proceedings on to another PP or—in the case of administrative offenses—to the administrative authority, or the recommendation that a private prosecution be brought.

Remand Custody The PP can order coercive measures or apply for their imposition by a judge to secure the investigation. Such means can include the seizure of evidence, searches, measures for identification purposes and, the most intrusive, remand custody. Remand custody can only be ordered by a judge where the accused is strongly suspected of having committed the crime (i.e., it is very likely that he or she will be punished), where the detention is not disproportionate to the significance of the case and to the likely punishment, and there are grounds for remand custody, such as the accused’s flight, the risk of flight, or the risk of evidence being tampered with. About 3 percent of all those judged in court were previously in remand custody; for females, the figure is only 1.1 percent. However, the detention rate fluctuates widely depending on the charge: it is particularly

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low in the case of traffic offenses, and particularly high in the case of homicides. The suspect fleeing or the risk of flight is easily the main reason for imposing remand custody; there are far fewer cases where it is imposed because of a risk that evidence will be tampered with, that is, that evidence will be manipulated or witnesses influenced. There are even fewer cases where remand custody is imposed because of the seriousness of the crime or of the danger of recidivism in the case of sexual crimes or other serious crimes.

Courts Once the charge has been filed by the PP, the court checks whether there are sufficient grounds to suspect the accused of the crime he or she is alleged to have committed and main proceedings can begin. Generally, the local court (Amtsgericht) is the court of first instance. If the crime is one where the punishment is not likely to be more than two years’ imprisonment, the case is presided over by a single judge. If imprisonment of between two and four years is likely or an allegation of a Verbrechen (offenses with a minimum punishment of a one-year prison sentence) is to be heard, the case will normally come before a judge and two lay assistants (Schöffengericht). The regional court (Landgericht) is responsible for serious cases, and the Small Criminal Chamber at a regional court (Strafkammer) hears all cases in which imprisonment of more than four years or commitment to a psychiatric hospital or to preventive detention (postimprisonment) is to be expected. A court with three professional and two lay judges (Schwurgericht) hears particularly serious cases, above all, those resulting in a person’s death. In exceptional cases, including crimes against the state, the Higher Regional Court (Oberlandesgericht) is responsible. Appeals against judgments by the local court can be made to the Regional Court (Small Criminal Chamber), which will review the facts of the case. Instead of such an appeal (on the facts of the case), it is also possible to lodge an appeal with the Higher Regional Court on points of law regarding the ruling made in the first instance by the criminal judge or the Schöffengericht. Appeals on points of law


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can also be lodged against the appellate judgment by the Small Criminal Chamber at the Regional Court. If the court of first instance is the Grand Criminal Chambers at a Regional Court or the Schwurgericht, an appeal can be made on points of law to the Federal Court of Justice (in exceptional cases to the Higher Regional Court). If the court of first instance is the Higher Regional Court, appeal on points of law can only be made to the Federal Court of Justice. In all cases, an appeal on points of law can only be based on the argument that the judgment is based on a violation of the law. There are special juvenile courts for cases against juveniles and young adult offenders. The distribution of responsibilities between the judge of a Juvenile Court (Jugendrichter), the Juvenile Court consisting of a judge and two lay assistants (Jugendschöffengericht), and the Juvenile Court Division (Jugendkammer) is governed by the Act on Juvenile Courts. If the only punishment is likely to be educative or disciplinary measures and the charge is filed with a criminal judge, the Jugendrichter is responsible. The Jugendkammer is primarily responsible in cases which (if they involved adults) would be heard by the Schwurgericht. However, the Jugendkammer also acts in cases involving the protection of young people, that is, crimes committed by adults who injure a child or a juvenile. Apart from that, cases against juveniles and young adult offenders are normally heard in the first instance by the Jugendschöffengericht. In the juvenile court process, each person entitled to challenge a judgment has only one right of appeal: an appeal against judgments of a Jugendrichter or the Jugendschöffengericht regarding the facts of the case can be heard by the Jugendkammer, or an appeal on points of law can be made to the Higher Regional Court; an appeal on points of law can be made against judgments by the Jugendkammer to the Federal Court of Justice. In 2006, the number of cases processed by local courts were as follows: Criminal judge Schöffengericht Juvenile court judge Jugendschöffengericht

518,554 41,298 228,265 61,628

The Criminal Division of Regional Courts processed 48,056 appeals, the Grand Criminal Division 11,978 cases, and the Juvenile Criminal Division 2,498 cases and 8,324 appeals. The Higher Regional Court processed 5,855 appeals and the Federal Court of Justice 3,326 appeals.

Rights of the Accused The accused has the right to keep silence without negative consequences and to be supported by a defense lawyer; in serious cases or in cases of pretrial detention the court has to provide for a defense lawyer. The accused has to be informed about these rights from the very beginning of the investigative proceedings. Through his or her defense the accused is allowed to view the case files, and in main proceedings, he or she can interrogate witnesses and can ask the court to hear witnesses or order inquiries.

Victim Participation The German Criminal Procedure Code has witnessed various changes in recent years to incorporate victim’s interests. The most recent reform took place in 2004. The extent of victim participation legally provided for differs according to the seriousness of the offenses concerned. First of all there is a group of offenses, the Antragsdelikte (application offenses) that will only be prosecuted if the victim requests this and that may well be dropped by the PP with a reference to private prosecution. The victim and close relatives may become joint plaintiffs in proceedings for particularly serious offenses. In these cases the victim has the possibility to suggest a prosecution at pretrial stage. As a joint plaintiff, the victim has participatory rights in the trial as well as a right to appeal and, in some cases, a right to a lawyer paid for by the state. Even if the victim decides not to participate as a joint plaintiff, this kind of victim has a positive right to be present during trial. Furthermore the victim may file for joined proceedings in which he or she applies for civil damages and compensation to be judged in the course of criminal proceedings. These proceedings have been of little real importance in practice.


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The victim also has a number of informational rights: he or she must be notified as to the date of main proceedings, of any decision not to bring the case to court, of the outcome of a trial, and of any measures involving the deprivation of liberty, that is, prison, committal, release, relaxation of or holiday from incarceration. If a case is dropped for evidential reasons, the victim can initiate proceedings to force a charge in more serious cases. The joint plaintiff victim can appeal against a court decision. A victim has a general right to a lawyer and to be represented during criminal proceedings. Through his or her lawyer, he or she has a right to view case files and to be present at court and prosecutor interviews, provided this does not undermine the investigation. Criminal justice institutions are now obliged to inform the victim as soon as possible of his or her rights and the means of achieving them (e.g., to explain joined proceedings), as well as to indicate the potential for support through victim support organizations.

Punishment The main punishments under general (i.e., adult) criminal law take the form of fines and prison sentences (with or without the sentence being suspended on probation). In certain cases, the law also permits additional penalties, such as a driving ban and/or a ban from holding public office. If the accused is sentenced to a prison sentence of up to two years, execution of the sentence can be suspended and the convicted person put on probation. In a period of probation to be determined by the court, the person sentenced should demonstrate that being sentenced was itself sufficient warning and that he or she will not commit any further crimes. At the same time, as the punishment is suspended, the negative effects of confinement are avoided, for example, that the individual is torn away from his or her previous life, work, and social contacts. In combination with suspending the sentence and imposing a period of probation, the court can impose conditions on the person sentenced (e.g., a fine) or issue instructions affecting his or her conduct, for example, he or she can be placed under the supervision of a probation officer for the period of probation.

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If the person sentenced reoffends during the probationary period, or if he or she fails to meet conditions or follow instructions, the suspension of the sentence can be revoked, meaning that he or she must now serve the prison sentence. The longer the prison sentence, the more stringent are the preconditions for suspending the sentence and granting probation. Prison sentences of less than six months are suspended by the court and the individual put on probation if it is likely that he or she will not commit any further crimes without going to prison. Prison sentences of between six months and a year are suspended in the same way, unless it is necessary for the person to serve the sentence to preserve legal order. Prison sentences of between one and two years can be similarly suspended if, additionally, an overall assessment of the crime and the convict’s character indicates special circumstances. If the punishment cannot be suspended and the individual placed on probation, or if the suspension is revoked, for example, because the person has reoffended, the person must serve his or her sentence in a penal institution. After at least two-thirds of the term of imprisonment has been served, the remaining period is suspended and probation imposed—as long as the person agrees and this can legitimately be done in consideration of the interest of public safety. In exceptional cases, the remainder of the sentence can be suspended and probation imposed at an earlier stage, that is, once half of the term of imprisonment has been served. Similarly, the remainder of a sentence to life imprisonment can be suspended and probation imposed once 15 years have been served, if the particular gravity of the convicted offender’s guilt does not necessitate his or her remaining in prison, and if the prognosis is favorable and the prisoner agrees. In addition to the sanctions mentioned above, it is also possible for measures other than punishment to be imposed to reform the offender or protect the public (committal to a psychiatric hospital or institution for withdrawal treatment, preventive detention [postimprisonment], supervision of conduct, withdrawal of permission to drive, ban from the pursuit of certain occupations). Even if the person is acquitted due to lack of criminal responsibility, it


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may be possible for such measures to be imposed; for example, he or she can under certain conditions be committed to a psychiatric hospital or an institution for withdrawal treatment. These measures can be suspended on probation if there are special circumstances indicating that their objective can still be achieved. In total 645,485 adults were sentenced under general criminal law in 2006. Of these, 19 percent were female (121,115). Easily the most frequent sentence imposed on adults is a fine, in 520,791 cases (or 81% of the total); in the other cases a prison sentence was imposed. Roughly two-thirds of the 124,694 prison sentences were suspended on probation, that is, 13 percent (87,112) of all sentences result in the person receiving a suspended sentence and being placed on probation, and 6 percent (37,582) are sent to prison without a suspension. With regard to the length of the prison sentences, most are under 12 months. One-third of the people are given short sentences of under 6 months and two-fifths are between 6 and 12 months; 16 percent are related to terms of between 1 and 2 years. The proportion of prison sentences that are suspended declines in line with the length of the term, but even for sentences of 1–2 years the proportion is above two-thirds. Seven percent of prison sentences are for terms of more than 2 years, and 1.4 percent of sentences are for more than 5 years, with 0.1 percent of prison sentences to life imprisonment.

Juveniles In the case of juvenile offenders (14–17 years inclusive, children up to 13 years are not criminally responsible) and young adults (18–20 years inclusive) convicted under juvenile criminal law, the criminal justice system aims to educate the offender and provides for special sanctions: first, educative and disciplinary measures and, second, youth imprisonment with the possibility of suspension and probation. The imposition of additional legal consequences and measures to reform the offender and protect the public is only possible to a limited extent. A young adult offender is required to be processed under juvenile criminal law if he or she is like a juvenile in

terms of his or her development or if the offense was a transgression of a juvenile nature. The educative measures include the issuing of instructions and the requirement that the offender accept certain forms of educative assistance, that is, socio-educational support or in the form of residential accommodation with back-up support from social workers. These measures are not really intended to punish, but to promote the juvenile’s upbringing in an educative dimension. For example, the instructions may refer to the place of residence, participation in a course of social training, work, or attempts to achieve offender-victim mediation. In contrast, disciplinary measures are also intended as a sanctioning reaction. The juvenile is to be made aware of the injustice of his or her action, without this requiring youth imprisonment. Disciplinary measures include cautions, the imposition of conditions (reparations for the injury, apologies to the injured party, payment of a fine, work), and detention, which can range from a weekend to up to four weeks. Educative and disciplinary measures can be imposed simultaneously. Youth imprisonment is the only real criminal punishment available under the Act on Juvenile Courts. There are differences compared with adult imprisonment rules. The length of the period is limited to between 6 months and 10 years. The judge imposes youth imprisonment when the criminal tendencies of the juvenile, which have become apparent as a result of his or her crime, indicate that educative or disciplinary measures will not suffice to reform the offender or when punishment is needed because of the seriousness of the offense. If it is not possible to ascertain with certainty during the main proceedings whether the criminal tendencies of the offender are such that youth imprisonment is actually needed, the judge will only pronounce the guilt of the juvenile. The decision as to whether a sentence to youth imprisonment should be imposed is suspended for a certain probationary period. The proceedings can be dropped by the PP with the approval of the court and by the juvenile court itself (in 2006: 46,000 cases). Furthermore, the PP itself can decide to drop the case without referring to the court. These decisions can, where they are


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taken by the court or with the approval of the court, be linked to the imposition of certain conditions and instructions on the offender. In minor cases, it may be sufficient for other educative measures to be taken or introduced or for the offender to attempt to make good the injury suffered by the victim. In 2006, 105,902 persons were convicted under juvenile criminal law. Nine-tenths of the juvenile and young adult offenders were male; one-tenth was female. In 84 percent of convictions educative and disciplinary measures were imposed, 10 percent of offenders were sentenced to youth imprisonment with the sentence suspended, and 6 percent were given a sentence to youth imprisonment without it being suspended.

Probation The probation service’s main task is to look after those offenders placed on probation. It also looks after persons whose conduct is subject to supervision. When the prison sentence is suspended, or the remainder of the sentence is suspended, the court can order that the offender be placed under the supervision of a probation officer; in the case of youth imprisonment this is obligatory. Other conditions (e.g., making good the injury caused, community service) or instructions (e.g., regarding place of residence, or regular reporting by the offender to the court or another agency) can also be imposed. Supervision of conduct is one of the measures taken to reform the offender and protect the public. It is imposed when a sentence committing to an institution for withdrawal treatment or a psychiatric hospital is suspended or when continuing accommodation there is suspended, after a period of preventive detention (postimprisonment) has been served, or when the court expressly requires it for particular crimes. The most frequent case in practice is supervision of conduct following the full serving of a prison sentence of at least two years. The offender is then subject to the control and assistance of the supervisory agency and the probation officer. Supervision of conduct can also be linked to instructions. The office supervising the conduct monitors the behavior of the offender and compliance with any instructions.

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The juvenile criminal justice system has a special feature. It is possible for the judge merely to declare the guilt of the juvenile in the main proceedings, but to leave open the decision as to whether to impose a prison sentence and to appoint a probation officer to supervise a period of probation. If, during that period, the bad behavior of the juvenile makes it clear that the offense was committed because of criminal tendencies, a prison sentence will be imposed. If this is not the case, the guilty verdict is extinguished after the probationary period has expired. The probation officer assists and looks after the offender. With the approval of the court, he or she monitors compliance with the conditions and instructions. The period of probation either ends “successfully,” with remission of the punishment or the end of supervision; or the court revokes the suspension of the sentence or of the remainder of the sentence under certain conditions—if the offender commits new crimes during the probationary period, seriously or continually violates conditions and instructions, or continually evades supervision by the probation officer. The probation service keeps its own statistics. The number of probation orders recorded there is greater than the number of people subject to it. This is mainly because a single offender in court for several offenses in various trials can be placed on probation several times. Of a total of 174,207 probation orders in 2006, 21 percent of the probation orders in force on the fixed date result in accordance with juvenile criminal law, and 79 percent in accordance with adult criminal law. As the length of probation periods in accordance with juvenile criminal law is generally shorter than those in accordance with adult criminal law, the proportion of young probationers, who occupy the probation service personnel in the course of one year, is significantly higher.

Prison Only a small proportion of those sentenced actually spend a period in prison: those sentenced to prison or to youth imprisonment without suspension, or those whose prison sentence was suspended but


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whose suspension was then revoked. In addition, there are those who are kept in preventive detention following a prison sentence. Finally, offenders sentenced to a fine end up in prison if they fail to pay their fine and have to serve a period of imprisonment instead. However, the penal institutions also accommodate people not sentenced by the criminal courts: those in remand custody or those deprived of their freedom for other reasons. The latter include people in other judicially imposed forms of detention (e.g., under civil law—in very rare cases) and those in custody awaiting deportation (although the latter are not always housed in penal institutions). Information about the prison system is to be found in the Federal Statistical Office’s prison statistics. Part of the data refer to a fixed date, usually March 31 of the year. While interpreting these numbers it should be borne in mind that shortterm prisoners are underrepresented in comparison to long-term prisoners; the likelihood of a prisoner serving a longer sentence being included in a count that is only carried out once a year is much higher than that of one sentenced to a short term of imprisonment. On March 31, 2007, 75,756 people were imprisoned in 194 penal institutions, about three-fifths in single and two-fifths in shared cells, respectively. The total of 75,756 prisoners in 2007 equals a rate of 93 per 100,000 population. Of the people in prison, 79 percent are serving a prison sentence; approximately 17 percent are in remand custody. Prisoners detained for other reasons, for example, those in custody awaiting deportation, account for 3 percent of the prison population. The numbers of those in preventive detention (postimprisonment) are small (0.5%). Women account for a small proportion of the prison population: 95 percent of inmates are male. According to the Code of Execution of Prison Sentence the prisoners have certain rights, especially regarding communication with the outside world. An important part of this is visits of family or friends within the prison. The legal minimum is one hour per month, but often this time span is

extended. On the other hand the prisoner has the obligation to work or alternatively to undergo a job training. This is embedded in the context of the overall aim of imprisonment, namely, to improve the capacity of the prisoner to live his or her life after release without committing offenses. Jörg-Martin Jehle Further Reading Elsner, Beatrix, and Julia Peters. (2006). “The Prosecution Service Function within the German Criminal Justice System.” In Coping with Overloaded Criminal Justice Systems, edited by JörgMartin Jehle and Marianne Wade, pp. 207–236. Berlin: Springer. Federal Statistical Office: http://www.destatis.de. Jehle, Jörg-Martin. (2009). Criminal Justice in Germany: Facts and Figures. 5th ed. Mönchengladbach, Germany: Federal Ministry of Justice. Kangaspunta, Kristiina, Matti Joutsen, Natalia Ollus, and Sami Nevala, eds. (1999). Profiles of Criminal Justice Systems in Europe and Northern America, 1990–1994. Helsinki: The European Institute for Crime Prevention and Control (HEUNI). Weigend, Thomas. (2004). “The Prosecution Service in the German Administration of Criminal Justice.” In Tasks and Powers of the Prosecution Services in the EU Member States, edited by Peter J. Tak, pp. 203–222. Nijmegen, the Netherlands: Wolf Legal.

Gibraltar Legal System: Common Prison Rate: Medium Death Penalty: No

Background Gibraltar is a largely self-governing territory of the United Kingdom, which assumes responsibility for Gibraltar’s defense and international affairs.


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Located on the southern tip of the Iberian Peninsula, it is surrounded by water on three sides. It sits strategically at the Strait of Gibraltar, the entrance to the Mediterranean Sea from the Atlantic Ocean, and shares a 1.2 kilometer (0.75 mile) land border with Spain to the north. Gibraltar’s territory is approximately 6.5 square kilometers (2.4 square miles). The CIA World Factbook estimates the population, all urban, at 28,034 for 2009. Two-thirds of the population is between the ages of 15 and 64. The remaining population is evenly divided between those under 15 and those over 64. Life expectancy is 80 years. The 2001 Census counted the following national groups: Gibraltarian, Other British, Moroccan, Spanish, Other EU, and Other. English is the official language and is used in the schools. There is no significant migration into or out of Gibraltar, although tourism attracts a substantial number of foreign visitors. Gibraltar was ceded to Britain by Spain in perpetuity under the terms of the Treaty of Utrecht in 1713. It continues to be a source of dispute between the two countries. In 2002, Gibraltarians voted overwhelmingly—17,900 (98.97%) votes to 187 (1.03%)—by referendum to reject any “shared sovereignty” arrangement with Spain. The British government has made further assurances that the will of the people of Gibraltar will be followed. The legal system is British, and English common law applies. Laws enacted by the Gibraltar Parliament, such as the Criminal Offenses Act and the Criminal Procedure Act, provide reference to English sources. As part of the European Union (EU), Gibraltar is also required to implement all relevant EU directives.

Police The Gibraltar police force was initially composed of citizens of Gibraltar commissioned to apprehend deserters from the British armed forces. For many years the British military saw to the maintenance of public safety and security. Policing became the domain of civilian authorities in 1830.

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On June 12, 1992, Queen Elizabeth II conferred the prefix “Royal” to the Gibraltar Police, thus renaming it the Royal Gibraltar Police (RGP). The Gibraltar Services Police (GSP) is a civilian force employed by the Ministry of Defense, which guards and enforces law on military installations and adjacent to certain government buildings in Gibraltar. Regulation of the GSP is achieved by agreement between the Ministry of Defense and the Gibraltar Police Authority (GPA). All such agreements must be approved by the governor. The Gibraltar Coordinating Centre for Criminal Intelligence and Drugs (GCID) was established in 1997 to cope with the increased drugs trafficking, money laundering, and other organized crime. It is composed of officers from the Royal Gibraltar Police, Gibraltar Services Police, and Gibraltar Customs and the United Kingdom’s HM Customs and Excise. The Gibraltar Police Authority (GPA) was established in the 2006 Constitution, and enabled by the Police Act, 2006. It is an independent body responsible for the efficiency and effectiveness of the RGP, for providing information on police issues to the community, for handling complaints against police officers, and for ensuring high standards of policing in Gibraltar. The governor has ultimate responsibility for the integrity, probity, and independence of policing, and the policing aspects of national security, including internal security. He or she has the power to hold the GPA accountable for any matter under the Police Act, and for the professional standards of the force. The GPA is required to provide the governor, the Gibraltar government, and Parliament with annual plans and reports. The annual report includes statistics of “serious” and “minor” crimes and traffic offenses. Five-year comparisons of selected crimes are also reported. The commissioner of police is appointed by the governor with the advice of the Gibraltar Police Authority. By law, the commissioner is a member of the force and is responsible for command, supervision, direction, and control of the force, and for the proper expenditure of all public moneys appropriated to the force.


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Crime Classification of Crimes The Criminal Offences Act provides 22 categories of crime in Gibraltar. However, as mentioned above, the annual reports of the GPA include statistics in three categories: serious crimes, minor crimes, and traffic offenses. Among the serious crimes are the following: • Certain offenses against the person—murder, wounding, assault occasioning harm, child neglect. • Burglary and attempted burglary. • Robbery and attempted robbery. • Sexual offenses—rape, indecent assault on a person under 16, unlawful sex with a female under 16. • Theft—including motor vehicle theft, handling stolen goods, blackmail. • Fraud and deception—including forgery, money laundering. • Criminal damage. • Firearms offenses—illegal possession, discharging. • Drug offenses—cultivation of cannabis, possession, supplying, obstructing the Misuse of Drugs Act. • Violence against police—escaping custody, assault, impersonation. Certain other crimes, labeled by the authority as “miscellaneous offenses,” but still categorized as “serious” include attempts to pervert the course of justice, breaking prison, conduct endangering ships, bomb hoaxes, harmful/obscene publications, interfering with a witness, false declaration, intimidating jurors/witnesses, oil spillage, taking photos within court precincts, contempt of court, assisting an offender, destroying electoral posters, and uttering counterfeit coins/notes. Minor crimes include common assaults; theft from a motor vehicle; attempted theft; causing minor damage; certain antisocial behaviors such as disturbing the peace, loud noises, drunk and disorderly conduct; police-related offenses such as

wasting police time; immigration offenses; tobacco smuggling; selling alcohol to a person under 16; licensing offenses; and a number of miscellaneous offenses. Drugs are controlled under the Drugs (Misuse) Act and subsidiary legislation. Controlled drugs are classified A, B, and C within the act and regulations. Possession is distinguished from supplying or selling by the quantity of the drug. For most classes of drug, the quantity is at 2 grams (but some less), and cannabis at 20 grams. The age of criminal responsibility in Gibraltar is 8 years. Persons between the ages of 14 and 16 are categorized as “young persons.” Charges brought against children and young persons are tried in the Magistrates’ Court, acting as a juvenile court. Special rules under the Criminal Procedure Act apply to these proceedings.

Crime Statistics As one might expect, the number of crimes committed in Gibraltar is low relative to the numbers of much larger jurisdictions. In the 2007–2008 report of the GPA, there were 103 reported serious crimes against the person, 83 of which were assaults that occasioned harm, 5 of grievous bodily harm, 1 threat to kill. There were 17 reported sexual offenses committed, of which 4 were rapes. Among property crimes, there were 194 burglaries and attempted burglaries, 15 reported cases of arson, and 33 cases reported of serious damage to property or motor vehicles. The GPA also reported 551 serious drug cases: 459 were for possession, 38 for possession with intent to supply, and 39 for obstructing the Drugs (Misuse) Act. There were a total of 1,209 serious crimes reported. The Government of Gibraltar Statistical Office also publishes in its Abstract of Statistics the number of criminal offenses committed in each year, with comparative statistics over several years.

Finding of Guilt The Gibraltar Constitution provides the foundation for the rights of accused persons. Any person who is arrested or detained is to be informed as soon as


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reasonably practicable, in a language that he or she understands, of the reasons for his or her arrest or detention. Any person who is arrested or detained has the right to retain a legal practitioner of his or her own choice, and to hold private communication with that person. A minor is afforded a reasonable opportunity to communicate with his or her parent or guardian. Children and young persons are required to have representation. An accused who cannot afford to retain representation may have one provided for him or her at public expense. The accused has a right to a speedy trial. Certain minor crimes are heard in Magistrates’ Court in summary proceedings. Anyone who has reached the age of 14 and charged before the Magistrates’ Court with a summary offense, or as an adult is liable to be sentenced to imprisonment for a term exceeding three months, may make a claim for a jury trial. Exceptions include assault or offenses related to prostitution or solicitation. The court has a duty to explain this right. The Magistrates’ Court is typically the court of first instance in many criminal proceedings. For many minor offenses, the court holds summary proceedings. Juvenile proceedings are heard before the Magistrates’ Court in special juvenile session. The court is presided over by a stipendiary magistrate. Lay magistrates sit in his or her absence. The Gibraltar Supreme Court has unlimited jurisdiction and is both a court of appeal and a court of first instance. As a court of appeal, it may hear appeals from the Magistrates’ Court. Its criminal jurisdiction is similar to that of the English Crown Court. The Gibraltar Court of Appeal hears cases on appeal from the Supreme Court. Appeals may be made from the Court of Appeal to the Queen in Council. Justices of the Court of Appeal are primarily drawn from the English Court of Appeal. It is not a resident court and sits three times per year. Prosecution and investigation of criminal cases is performed by the attorney general (AG) and the police (under the terms of the Police Act). The AG may institute and undertake criminal proceedings before any court of law, except a court established by a disciplinary law; he or she may take over and continue

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any criminal proceeding that may have been instituted by any other person or authority; and discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority. Incarceration before trial is permitted. There is provision for bail. Prosecution may verbally object to bail at the arraignment proceeding and has two hours within which to submit a written appeal. The accused continues to be held until the appeal is either successful or abandoned.

Punishment Typical Punishments Punishment in Gibraltar may take the form of imprisonment, imprisonment and fine, fine, probation, community service, or attendance center. A child may not be sentenced to prison and a young person may not be imprisoned for more than 2 years. Sentences are set by the Criminal Offences Act. The following represent the statutory set penalties for major crimes. • Murder. A person who with malice aforethought causes the death of another person is guilty of murder and on conviction upon indictment is sentenced to imprisonment for life. The court may set a minimum period that should elapse before the governor orders his or her release on license under the Prison Act. The death penalty has been abolished. • Rape. Rape is punishable with imprisonment for life. • Theft/Burglary/Robbery. A person found guilty of theft is liable to imprisonment for 10 years. A person guilty of burglary is liable to imprisonment for 14 years. A person guilty of aggravated burglary is liable on conviction to imprisonment for life. A person guilty of robbery, or of an assault with intent to rob, is liable to imprisonment for life. • Serious Drug Offenses. Production, supplying, offering to supply, possession with intent to supply Class A or B drugs, when convicted on indictment, can carry a life sentence and a


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fine. Sentences for offenses related to Class C drugs vary between 2 and 5 years with fines if convicted on indictment, and 6 to 12 months if a summary conviction.

Alternatives to Imprisonment PAROLE The Gibraltar Parole Board may recommend to the governor the release of a prisoner after he or she has served at least one-third of the sentence, but a minimum of six months; the release of any person detained for consecutive sentences imposed by the Magistrates’ Court; or, after consulting with the chief justice, anyone serving a life term. The governor may at any time release a person on license on compassionate grounds and may do so without the recommendation of the Parole Board if time is an essential factor.

no offense during a specified period of time not to exceed 12 months.

PROBATION Like discharge, where the offense has no fixed term, the court may also issue on order of probation. Probation requires the offender to be under the supervision of a probation officer for a period of no less than 12 months, and no more than 3 years. If the probationer fails to comply with requirements of the order, the chief justice or justice may either impose a fine of 10 pounds (US$14.30), require him or her to attend an attendance center, or deal with him or her as if convicted of the offense. Violation of discharge and probation orders may result in their revocation. The court may deal with an offender who commits a violation as if he or she had just been convicted of the offenses.

COMMUNITY SERVICE PARDON After consultation with the chief minister, the governor may also grant a pardon, either free or subject to conditions; may grant a respite from the execution of a punishment; may substitute a less severe form of punishment; or may remit the whole or any part of a punishment, penalty, or forfeiture.

For persons 16 years or more, convicted of an offense punishable with imprisonment, the court may, if the convicted person consents, make a community service order requiring him or her to perform unpaid work. The court assigns an officer of the Social Services Agency to supervise the performance of the order.

FINES

ATTENDANCE CENTER

Many offenses carry both a sentence of imprisonment and a fine, or a fine alone. Fines are set according to a standard scale established in the Criminal Offences Act.

When dealing with persons between 12 and 20 years of age, the court may order the person to attend an attendance center for up to 36 hours. The activities and instruction given at the center are to be conducive to health of mind and body. If the offender fails to comply with the order or to follow the rules of the center, the court may revoke the order, and deal with him or her as if the order had not been made.

ABSOLUTE AND CONDITIONAL DISCHARGE Where a court convicts a person of an offense that is not fixed by law, and upon considering the circumstances, nature of the offense, and the character of the offender, and that probation is not appropriate, the court may make an order discharging him or her absolutely. The court may also order a conditional discharge if he or she commits

Prison On September 24, 2008, the total prison population of Gibraltar was 43 (approximately 154 per 100,000 total population, based on Gibraltar’s 2008


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population of 28,010). Of those inmates, 53.5 percent were pretrial detainees/remand prisoners, and 25.6 percent were foreign prisoners. There were no female prisoners and none under the age of 18 years. Her Majesty’s prison at Tarik Road is the only prison in Gibraltar. It is administered by the Gibraltar Prison Service within the Department of Social Services and has a total capacity of 69 inmates. All male prisoners over the age of 17 and under the age of 60 are required to work inside or outside the prison, subject to the approval of the governor, and prescribed by regulations or standing orders. An unconvicted prisoner is permitted, if he or she wishes, to work as if he or she were a convicted prisoner. Prisoners may be paid for their work at rates approved by the governor and may spend money on such articles and subject to conditions established by the governor. Prisoners are permitted a limited number of visitors at any one time and a limited number of visits per week. Regulation of prisons and rules regarding prisoners are available in the Prison Act and Prison Regulations. Dennis C. Benamati Further Reading Archer, Edward G. (2006). Gibraltar, Identity and Empire. Abingdon, UK: Routledge. Gibraltar Police Authority: http://www.gpa.gi. Gibraltar Statistical Office: http://www.gibraltar. gov.gi. Laws of Gibraltar: http://www.gibraltarlaws.gov.gi. World Prison Brief, Kings College London: http://www.kcl.ac.uk/depsta/law/research/icps/ worldbrief.

Greece Legal System: Civil Murder: Low Burglary: Low Corruption: Medium Human Trafficking: Medium Prison Rate: Medium

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Death Penalty: No Corporal Punishment: No

Background Greece gained its independence under the London Protocol of 1830, by virtue of which France, Great Britain, and Russia recognized Greece as an independent state, after the Greek War of Independence against the Ottoman Empire in 1821. According to the latest official census (2001), the Greek population numbered 10,934,097 people. The official percentage of foreigners living in Greece is 6.9 percent but is probably higher due to the number of illegal immigrants. In the early 1990s most immigrants came to Greece from Albania and other Balkan countries, while recently most immigrants come from Asian and African countries. Greece became a full member of European Economic Community in 1981 and a full member of the European Monetary Union in 2002.

Criminal Law Greece is a presidential parliamentary democracy. The Constitution establishes the system of representative democracy and the organic separation of powers. Following the tradition of other European continental legal systems, Greek criminal law is defined as a branch of civil law. The first criminal law of the modern Greek state, the “Criminal Statute,” was promulgated in 1934, inspired by Ludwig von Maurer, a professor of law at the University of Munich, who came to Greece from Bavaria as a member of the three-member regency to Otto, the first king of the free modern Greek state. This work was based on a previous law named “Collection of Criminal Laws,” which was composed by a ninemember committee in 1824 on the grounds of the French Code d’instruction criminelle of 1810. Ludwig von Maurer, who had received French legal education, prepared a criminal statute that prevailed in Greece for more than 100 years. After many amendments, the Greek Penal Code of 1950 still prevails, while recently two legislative committees


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Police in riot gear await protestors in front of the parliament building in Athens, September 1, 2009. (Tissman/Dreamstime)

were entrusted by the Ministry of Justice with an amendment of the Penal Code and the Code of Criminal Procedure. In Greece, the Courts of First Instance and the Office of Public Prosecutions are regarded as one entity. Greece is divided in 63 judicial districts. Each of them has a Court of First Instance/Office of Public Prosecutions and a Bar Association. Additionally, there are 299 justices of the peace, which belong to the aforementioned 63 judicial districts. Their main competence is to hear disputes of a civil nature. Second instance cases are tried in one of 13 courts of appeal. Finally, the jurisdiction of Supreme Court cases belongs to Areios Pagos (the Greek Supreme Court), which has a civil and a criminal division. Criminal offenses committed by officers and petty officers of the Greek Army as well as by civilians while serving their compulsory military service are tried by military courts.

Legal System The Greek system of criminal procedure uses a mixed system, namely, inquisitorial in pretrial procedure and accusatorial in trial process. Prosecution and investigation on the one hand and trial on the other hand are fully separated. The prosecution is ordered by the public prosecutor of the Misdemeanour Court, who is responsible for the pretrial stage, and the judgment belongs to the judges of the court, who decide always after trial. In many cases of serious crimes an intermediate stage (between the investigation and the trial) before the Judicial Council, which acts as an indicting chamber, is provided. The investigation is either ordinary or summary investigation. Investigating officials responsible for the pretrial procedures are the investigating judge in case of serious crimes, or the investigating magistrate and the police officers


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in case of misdemeanors. In both cases they are ordered by the public prosecutor. The criminal process generally opens with a prosecution of a criminal offense by the public prosecutor of the Misdemeanour Court and comprises two basic stages: the investigation (pretrial proceedings) and the trial proceedings. In many cases of serious crimes an intermediate stage (between the investigation and the trial) before the Judicial Council, which acts as an indicting chamber, is provided. Prosecution of the offense does not require strong evidence that an offense has been committed. Even slim evidence suffices to open investigation proceedings. If the public prosecutor doubts that there is any evidence to open criminal proceedings, he or she orders a preliminary inquiry, aimed at collecting the evidence that would justify prosecution. The Public Prosecutor of Appeal Court can abstain from prosecution in some cases. Pretrial proceedings have an inquisitorial character. They are written, not public, and nonadversarial. The trial before the Misdemeanour Court, in the Mixed Criminal Courts (three professional judges, four jurors) and in the Courts of Appeal, is public apart from cases of minors or of state security offenses, oral, and moderately adversarial. Areios Pagos sitting in camera as a three-member council of its criminal section decides on appeal after hearing the public prosecutor who submits a written recommendation. Areios Pagos or the Supreme Court may call the parties to appear to argue their case.

Police The first Greek Policing Corps were organized soon after the Greek War of Independence during 1821– 1827. They were the Greek Gendarmerie and the Municipal Police, which coexisted until 1906 when the former remained and the latter was dissolved. The City Police was established in 1920 in the then four large cities: Athens, Piraeus, Patra, and Corfu. The Greek Police in its current form was established in 1984, when the Greek Gendarmerie and the City Police were merged. It is recognized as a security body responsible for all Greek territories

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except the ports and the sea, which are protected by the Port Police Corps. The hierarchical structure of the Greek police is determined by its organizational document, which aims at the following: • Sustain public order and security and assist the country’s defense in collaboration with the Armed Forces. • Secure public peace, good order, and the citizens’ undistracted social life, including general policing and roads traffic. • Prevent and tackle crime and protect the state and democracy according to the Constitution, that is, offering protection both to the public and the state. With respect to geography the police consists of 14 general police regions, which correspond to respective administrative regions, and they are further divided in 54 police directorates, which reflect the 52 municipalities of the country with an additional police directorate in Alexandroupolis (northeast) and separate ones for Athens and Piraeus, which form, however, a single municipality.

Crime Criminal Responsibility Criminal offenses are defined in the Greek Penal Code, which also defines the notion of criminal responsibility. A minor is considered to be anyone whose age is between 8 and 18 years old at the time of commission of an offense. Minors normally are criminally responsible. It follows that those offenders who are younger than 8 years may never be prosecuted and the state will take no action against them. Minors who have not completed their 13th year of age are not criminally responsible and those between the ages of 13 and 18 are called criminally responsible. Criminally responsible minors must be subjected to rehabilitative or therapeutic measures, unless the court believes that a confinement in a correctional institution is more appropriate. Finally, there are also cases of adults, in which the Greek Penal Code provides impunity (grounds


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of excuse). Grounds of excuse amount to these circumstances that prevent the offender from assuming guilt either because, due to his or her mental health or maturity, he or she is not responsible for his or her actions or because unforeseen and unforeseeable events have rendered his or her state of mind not blameworthy. This happens in case of insanity at the moment of the act or omission or at the moment of the trial, intoxication, coercion, ignorance or mistake of law or mistake of fact, report of some criminal offenses to public authorities, remorse after the offense, and impunity based on personal grounds.

the organized crime group, referred to illegal immigration, human trafficking, and drug dealing. It should be noted that organized crime groups are increasingly international with cross-national border activities that tend to block their discovery. Domestic organized crime groups are rather easily broken up because they have loose bonds and hierarchy. By contrast, organized crime groups with origins from the Balkan, East European, and Southwest Asian countries are dynamic and constantly adapt to new conditions.

HUMAN TRAFFICKING Crime Statistics Crime statistics indicate that 139 completed intentional homicides were recorded in 2007 (0.03% of total recorded crimes). The number of homicides in Greece is generally low; the highest number for the period 1991–2007 was recorded in 1997 (203 homicides). In 2007, 185 rapes were recorded (0.04% of recorded crimes). The peak years were 1993 and 2004 with 204 and 191 rapes, respectively. Thefts (vehicle theft is not included) are on the rise in recent years, but the highest number of incidents was recorded during the period 1995–1998. In 2007, they accounted for 13.9 percent (58,472) of all recorded crimes. In 2007, 2,823 robberies were recorded, which make up 0.67 percent of all recorded crimes, the highest numbers since the early 1990s. Finally, police-recorded drug incidents in 2007 and 2006 were 9,271 and 9,600, respectively. Raw cannabis (5.902.861 grams) and heroin (236.504 grams) were the drugs mostly confiscated in 2007.

CRIMINAL ORGANIZATIONS The activities of criminal organizations in Greece include human trafficking, drug dealing, stolen car markets, illegal markets of cigarettes and cultural heritage pieces, fraud, forgery, intellectual property theft, robbery and theft, child pornography, and blackmailing. One hundred thirty-nine cases with organized crime characteristics were investigated in 2005 according to the Ministry of Justice Report. In most cases the main crime, that is, the main activity of

According to police records 162 individuals were arrested for human trafficking in 2008. Most arrestees were Greek, Romanians, Albanians, and Bulgarians. The 78 victims (men, women, and children) were mostly Romanians, Bulgarians, and Russians. Out of 40 recorded cases, 37 referred to sexual exploitation, 2 to labor exploitation, and 1 to trafficking of human body organs. In 14 cases organized criminal groups were involved. The Greek Police Group against Human Trafficking and 14 anti-trafficking groups were established in 2001. In 2002 the penal framework was updated to encompass all modern forms of human trafficking and defined punishment appropriate to serious offense as well as the state’s obligation to actively protect victims. Since 2007, victims of human trafficking are not deported and any prior deportation decision is annulled via special immigration policy clauses. A number of barriers, however, prevent tackling human trafficking successfully. These include the dark but rather high figure of such crimes, a number of impracticalities in the relevant penal code, such as the definition of victim and the small number of convictions against “clients,” as well as lack of welldeveloped victim support services, according to the National Commission for Human Rights.

DRUG OFFENSES Drug use is relatively low in Greece compared to other EU countries, although it has been increasing since the mid-1980s. Drug possession, use,


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production, and dealing are illegal. Drug-related offenses are addressed via penal and therapeutic measures that are implemented either alternatively or supplementary. Thus, a complicated penal framework coexists with a therapeutic one. Drug dealing is dealt with more severely, since it is also covered by the 2001 Law on Organized Crime. A recent (2006) Law Code on Drugs offers a systematic codification of existing legislation, on the basis of which the public debate on the type, intensity, and characteristics of preventive drug policies is to be developed. Drug use is punished with 1 year’s imprisonment. If the user is, however, deemed drug-dependent, he or she is offered the choice to opt for a drug rehabilitation program, in which case prosecution is postponed for a set period. The public prosecutor of misdemeanors in agreement with the public prosecutor of appeals court may further withhold prosecution indefinitely as long as the accused has successfully completed the drug rehabilitation program. Individuals prosecuted for import, export, possession, production, and selling of drugs are punished with imprisonment for at least 10 years and fines from €2,900 to €29,000 (US$3,644 to $36,447). These may increase due to additional incriminating evidence, such as drug dealing as profession or habit, involvement or employment of underage individuals during any of the above actions, firearm use during any of the above actions, or to escape the police.

CORRUPTION A central theme in the public debate of the last few years is corruption. High government officials, political parties, and multinational and domestic companies seem to be involved in such crimes, while citizens have become more sensitized to them than in the past. The most prominent corruption cases of recent years with roughly daily media coverage referred to business contracts in telecommunications between the public sector and a multinational company that paid large sums to political parties and the investment of public pension funds in the private sector with huge losses (pension funds bond scandal). Another highprofile case was the “judicial corruption network”

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of judges, lawyers, businessmen, and a former MP who were prosecuted on crimes such as abuse of authority, participation in money laundering, and attempted fraud. The results of the National Survey on Corruption in Greece 2008 (commissioned by International Transparency-Hellas), showed that the estimated total corruption (in the public and private sectors) was between €681 and €815 million (US$855 to $1,024). Thirteen and a half percent of households reported corruption incidents, with respective 9.5 and 5.1 percent cases in the public and private sectors. According to the public, among the first in rank corruption cases in the public sector were in hospitals, city planning, and Inland Revenue Services, and in the private sector, in hospitals, doctors’ surgeries and medical centers, banks, and lawyers.

Finding of Guilt Rights of the Accused The fundamental principles of the Greek Criminal Procedure define the procedural position of the defendant and allocate the rights of the accused. The main principles of criminal procedure include the principle of searching for truth, the principle of respect of human dignity, the principle of judicial hearing, the presumption of innocence, the principle of fair trial, the principle of justifying the decisions, the principle of a speedy trial or to be judged within a reasonable time and the principle of economy of trial, the principle of adversarial trial, the principle of equality of arms, the principle of judicial assistance, the principle of proportionality, the principle of due process of trial, and the principle of evidentiary law. The Code of Criminal Procedure provides a welldeveloped system of defendant’s rights at the pretrial as well as the trial stage. The defendant’s rights in pretrial stage are as follows: • The right to be informed by the investigating judge or other official of the charges against him or her in a language he or she understands, before being called to answer the charges.


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• The right to be informed and receive copies of all evidence and to ask and take the adequate time (not less than 48 hours) to prepare his or her defense. • The right to remain silent toward the charges or to submit a written defense statement. • The right to appoint defense counsel (no more than two) from the beginning of the police investigation or to receive legal assistance if he or she is indigent and to communicate with counsel at any stage of the procedure. • The right to be present at any stage of the criminal procedure, put questions to witnesses, and submit comments on the evidence collected. • The right to present evidence defending himself or herself and to request the examination of witnesses, experts, and others. The defendant’s rights at the trial stage are as follows: • The right to call witnesses of his or her choice and ask the public prosecutor to call witnesses he or she wishes (one in misdemeanor court and two in serious crimes trials). • The right to examine witnesses and experts and to comment on all evidence. • The right to defend himself or herself in person and/or through his or her counsel and to have the last word. • The right to appeal against conviction and sentence by a first instance court. It should also be added that, according to the Greek Constitution, everyone, namely the accused of an offense, may not be submitted to torture or other inhuman and degrading treatment abusing his or her dignity. Additionally, nobody shall be arrested without a warrant justifying his or her arrest and the Greek Constitution also protects a person’s home asylum from any search that is not in accordance with the law.

Alternatives to Trial Despite the fact that the Greek Constitution provides that the trial of cases belongs to criminal

courts, the Greek legislature has already started to incorporate Recommendations R 68 (25) “for the creation of a simplified procedure regarding the light traffic offenses” and R (87) 20 “about the social reactions against juvenile criminality,” as well as the Decision-Frame of the Council of European Community 15-3-2001 about the regime of victims in criminal procedures, which provided the adoption of the institution of reconciliation in criminal cases. There are several provisions to relieve the criminal justice system from the burden of thousands of cases. The public prosecutor can abstain from prosecution, for example, and order educative or therapeutic measures for cases involving minors, or when a drug addict accused of drug use or supply or possession of drugs for personal use voluntary attends a therapeutic care organization. The vast majority of criminal cases are “resolved” with a court decision after trial. Despite the fact that there are provisions about the penal reconciliation, it is not applied in reality.

Special Matters In Greece, pretrial incarceration is allowed but cannot last more than 6 months in misdemeanors and 12 months in serious offenses. In exceptional cases the maximum limits of pretrial incarceration can be exceeded by 3 and 6 months, respectively, if the Judicial Council in charge decides so. Greek judges are divided in judges of civil and criminal justice on the one hand and judges of administrative justice on the other hand. There is no specialization between the judges of criminal and civil justice. They can judge either a criminal or a civil case depending on the decision of their chief judge. The appointment of a judge presupposes the success of the applicant in the annual national and official examinations that take place under the responsibility of the Ministry of Justice and the National School of Judges and after the successful one-year graduation from the school. The requirements for the application concentrate on the age (between 28 and 40 years old), the previous working experience as a lawyer, the fulfillment of


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military obligations for men applicants, and other factors. There is a separate system for juveniles who are tried by juvenile courts. One-judge courts try petty offenses and appeals against decisions of petty offenses courts and impose therapeutic and educative measures of the Greek Penal Code in case of minors younger than 13 years old. Three-judge courts try juvenile offenses against which are threatened the penalty of confinement in special institution for young offenders. The Juvenile Courts of Appeals try the appeals against one-judge and three-judge courts. The appeal suspends the execution of the decision against the minor by the law in any case. Juvenile offenders enjoy most of the rights that adult offenders do, as far as these rights suit to the character of the juvenile trial. No trial precedent issues in case of juvenile offenses. No publicity is permitted during the procedure of the trial and the announcement of the judgment in minors’ trials. The pretrial detention of juvenile offenders is an exception and it takes place under strict conditions. Confinement as a penalty for a minor must be the ultimum refugium. Juvenile offenders serve their penalty in separated prisons. In Greece, there are three juvenile detention centers all around the country.

Punishment Type of Punishment The Penal Code classifies criminal offenses into three categories according to the threatened penal sanctions: serious crimes/felonies, misdemeanors, and petty offenses. Petty offenses are punished with detention or fine. Misdemeanors are threatened with confinement or monetary punishment or confinement in special institutions for young offenders. Serious offenses/felonies are punished with confinement in a penitentiary for life or for a fixed term between 5 and 20 years. The death penalty provided against serious offenses/felonies was abrogated in 1994. The Greek Penal Code provides a dual system of sanctions: penalties and measures of security and reform.

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PENALTIES Penalty is a harm prescribed by the law and imposed by the penal judge according to a certain procedure against the culprit of an offense and because of it as an expression of a specific disapproval on behalf of the legal order. The Greek Penal Code provides principal and accessory penalties. Principal penalties are imposed without conditions while accessory penalties presuppose the enforcement of the principal penalty and are imposed additionally. Principal penalties include custodial penalties, pecuniary sanctions, and community service. Custodial penalties are enlisted as follows: (1) confinement in a penitentiary for life or for a fixed term between 5 and 20 years and the so-called confinement of indefinite duration, where the court will determine only the minimum term of confinement. This rule is enforced against anyone, who having already been sentenced at least three times for serious crimes or misdemeanors committed with intent to custodial sentences, commits intentionally a new serious crime or misdemeanor; (2) imprisonment (the minimum term is 10 days and the maximum 5 years); (3) confinement in a psychiatric institution in case of defendants who have acted with diminished criminal responsibility due to psychological conditions when a mitigated penalty is imposed; (4) the confinement in a special institution for young offenders (from 5 to 20 years in case the law threatens against the offense committed a penalty of more than 10 years; in any other case confinement limits range from 6 months to 10 years); and (5) detention (from 1 day to 1 month). Two pecuniary sanctions envisaged in the Penal Code are monetary penalties and fines. Usually, pecuniary sanctions are threatened as an alternative to a term of imprisonment. In case neither the custodial sentence nor the pecuniary sanction appears to be adequate punishment to prevent the defendant from offending again, the judge is empowered to impose both penalties. Monetary penalties range from €150 to €15,000 (US$188 to $18,852), unless other statutes contain heavier pecuniary penalties; fines range from €29 to €590 (US$36 to $740).


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The ever-increasing prison population together with the lack of new penitentiaries to accommodate convicts has led the legislator to use the conversion of custodial sentences into pecuniary sanctions as a means to avert prison overcrowding. The Penal Code provides that a custodial sentence that does not exceed one year is automatically converted into a pecuniary penalty or fine. Custodial sentences between one and two years are to be converted into a pecuniary sanction, unless the perpetrator is a recidivist. Custodial sentences exceeding two years can be converted if the convict has served half of the sentence and the remaining term is less than two years. Custodial sentences between two and five years can be converted into a pecuniary sanction, provided that the court considers such conversion sufficient to prevent the defendant from reoffending. Finally, custodial sentences between two and three years can be converted in community service upon request from the defendant or with his or her agreement. There are four accessory penalties: (1) deprivation of political and civil rights, (2) incapacitation through revocation of the special permission for exercising a profession, (3) publication of the judgment of conviction, and (4) special confiscation of the offense’s instrumentality or proceeds. The Penal Code perceives special confiscation as being both an accessory penalty and a security measure. According to the Greek Constitution, general confiscation is prohibited.

MEASURES OF SECURITY AND REFORM As the punitive nature of punishment may not always be appropriate considering the personal circumstances of the offender, and since criminal law also aims at preventing reoffending through rehabilitation, the Penal Code prescribes a number of measures of security and reform. Such measures can substitute a penalty when the defendant cannot be punished as being of diminished responsibility or can supplement a sentence. The Penal Code distinguishes between measures:

• Applying to specific categories of offenders, namely, minors, abnormal persons, alcoholics and drug addicts, and foreigners: 1. Protective/therapeutic and educational measures imposed to minors. All educative and therapeutic measures imposed by the court are subjected to amendment or revocation depending on the minor’s future conduct or the development of his or her personality. Such measures are automatically revoked when the minor reaches age 21. These measures include, for example, reconciliation between the minor and the victim through expression of apologies and amicable settlement; compensation of the victim; community service; following social and psychological programs. Yet most common penalties in legal practice of juvenile courts entrust the minor’s guardianship to probation officers and confinement in special establishments. Penal reconciliation is far beyond implementation due to practical difficulties (lack of probation officers’ education). 2. Protective measures against “abnormal” or habitual offenders. 3. Protective measures against alcoholics and drug addicts. 4. Deportation of foreigners. • Applying only when the otherwise normal personality of the offender reveals a certain behavior that must be specifically addressed, namely, aversion to work (internment to work institutions), or when his or her residing in certain areas poses specific threats (prohibition of residing in certain areas).

Prison Incarceration rates have increased in recent years. Specifically in 2001 there were 79 prisoners per 100,000 population, in 2004, the rate was 82 per 100,000 and in 2008, 109 per 100,000 residents. The total number of incarcerated was 12,300 in 2008, but during 2009, it has dropped.


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On January 1, 2009, the total number of inmates in the Greek prisons was 11,736 and more recently, according to the Direction of Inspection of Prisons and Special Juvenile Detention Establishments, on September 19, 2009, it was 11,225. This slight reduction of prison population observed during 2009 is due to the recent legislation of the Ministry of Justice in an attempt to disburden the suffocating overcrowded Greek prisons. Over the total number of 11,225 prisoners, 5,182 were Greeks (1,448 pretrial detainees and 3,734 convicts) and 6,043 foreigners (2,183 pretrial detainees and 3,860 convicts). There are 33 prisons in Greece. The biggest is Korydallos Prison in Athens, which is divided into six male wings and a separate wing for women who are pretrial detainees. There are 3 agricultural prisons, 3 special Juvenile Detention Establishments, 8 “closed” prisons, 3 therapeutic establishments, and 16 judicial prisons. The possibility of work exists in all prisons with the availability of job vacancies. According to the Greek Penitentiary Code, the five-member Work Council of Prisoners (it consists of the judicial officer in charge as president, the prison warden, the senior social worker, the chief-guardian, and the agronomist or the manager of the technical office) in each prison decides for the organization of prisoners’ employment. Prisoners are employed in accessory services contributing to the functional needs of the detention center, such as cleaning, working in the kitchen, laundry, food services, or in gardening. This employment can last a maximum of three months and can be renewed once. Prisoners can offer paid work outside prison, under specific conditions. In rural prisons, prisoners work in fields and crops and can take advantages of “beneficial calculation,” namely, one day of work equals two or three days of imprisonment, which is equally reduced, so that the prisoner can be released from prison earlier. The Institute of Continuous Education offers educational programs in nearly all prisons. The programs deliver language courses (Greek, English, and French), literature, information technology,

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physical and mental health, music, sign language, creative writing, and pottery, among others. Christina Zarafonitou, Anastasia Chalkia, Maria Galanou, and Andromachi Tseloni Further Reading Anagnostopoulos, Elias, and Konstantinos D. Magliveras. (2000). Criminal Law in Greece. The Hague: Kluwer Law International. Karras, Argyrios. (2007). Criminal Procedural Law. Athens: Sakkoulas. Ministry of Citizen Protection, Greek Police: http://www.astynomia.gr. Ministry of Justice, Transparency and Human Rights: http://www.ministryofjustice.gr. Spyropoulos, Philippos C., and Theodore P. Fortsakis. (2009). Constitutional Law in Greece. Alphen aan den Rijn, the Netherlands: Kluwer Law International.

Guernsey Legal System: Common/Customary Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background Guernsey is a small island located just south of the United Kingdom. The island is about 78 square kilometers (30 square miles) in total area with a population of about 65,726 people. Guernsey is a dependency of the British Crown. Wherever applicable, Guernsey follows all the laws of the United Kingdom, observing common law as well as its own practices. The judicial branch is that of the Royal Court, in which the judges are elected by an Electoral College voting system. All matters of justice in Guernsey are deliberated by the Royal Court. Although Guernsey relies heavily upon the United Kingdom, which also represents it in matters that deal with the United States and the United Nations,


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its criminal justice system has its own unique aspects. Guernsey has its own police force that is separate from that of the United Kingdom. The Guernsey State Police Force is directed by the chief officer of police. In total, the Guernsey police have 177 officers, spread through seven different management levels, all with different titles. The titles, from top to bottom, are as follows: chief officer (1), chief superintendent (1), superintendent (1), chief inspectors (4), inspectors (15), sergeants (36), and constables (119). Each of these officers is assigned to different police units within the police force: the Criminal Investigation Department, Financial Intelligence Service, the Family Protection Unit, Force Intelligence Bureau, the Special Branch, Crime Management Unit, Crime Prevention, and the IT Department. The Guernsey Police Force also works very closely with the law officers of Guernsey. The law officers are the two persons who look over the Crown, the States of Guernsey, the States of Alderney, and the Chief Pleas of Sark. The law officers pledge to provide a comprehensive range of legal services for these areas, which includes provision of legal advice, drafting, crime, civil litigation, and constitutional and international work. Although there is a lot of international work done by the law officers, the State of Guernsey does not have its own military, so if it needs a military defense, it becomes the responsibility of the United Kingdom.

Crime Classification of Crimes Guernsey splits crimes into many categories, for which different police forces may be responsible. The Criminal Investigation Department (CID) deals with the serious offenses in Guernsey, including murder, robberies, and burglaries. A 2006 report states that the Criminal Investigation Department deals with a lot with high-profile crimes, which may not be necessarily violent, but are still considered to be quite serious. The CID usually takes on the investigation, but it must also work with other units of the police force to reach prosecution. For example, a serious offense that the Guernsey police deals with

is fraud and money laundering, for which it must work closely with the Financial Intelligence Service Department. These cases also include situations like terrorism financing. These crimes are considered to be serious offenses and usually result in jail time for the offender. Although these serious crimes warrant a lot of attention, the Guernsey police department also deals with less serious misdemeanors, such as traffic violations, drug offenses, computer crimes, and others, which are usually dealt with by the Force Intelligence Bureau. The bureau operates under the detective inspector and is split into four different departments: Drugs Intelligence Unit, the Special Branch, Crime Management Unit, and Technical Support Unit. Drug offenses, Class A and B drugs, are a big problem in Guernsey, as well as internationally. According to the 2006 police report, two drugs of mention were marijuana and prescription drugs. From 2004 to 2005, there was a big increase in drug-related crimes, and after a 2006 survey by the Guernsey government, the police department developed a plan to crack down on drugs in the island. Another major issue that concerns Guernsey police is traffic violations, which account for a great deal of the police work and are also tied into drug usage. According to the 2006 survey, drinking/ drug-impaired driving rose considerably since 2004.

Crime Statistics Guernsey, although it does not experience much crime, did see an increase from 2004 to 2005. Of crimes that were reported to the police, Guernsey had 3,465, which was 386 more than the 2004 number of 3,079. There were 97 convictions handed down by the Royal Court, and of these, 27 were convictions of drug-related offenses. That means that close to one-third of all the convictions were related to drugs. The next highest convicted offense was of child pornography, of which there were 7 convictions of indecent photos of children. Finally, the third highest number was of money laundering. Close to half of all convictions were for nonviolent offenses. Another problem in Guernsey is the number of children who are convicted of crimes. Of the 97


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crimes recorded in 2004–2005, 21 were committed by children. These crimes were typically criminal damage or drug-related convictions. Thus, according to the 2006 police report, one of the main priorities of the police department’s future policing plan is in drug- and alcohol-related crime where it plans “to increase the number of offenders dealt with for offenses involving Class A and B drugs” and, in particular, to increase the number of “stop/ searches” conducted in respect to suspicion of drug offenses to 180 from 120 in 2005. The age of criminal responsibility is 12.

Finding of Guilt As mentioned, Guernsey has a legal system patterned on that of the United Kingdom. It is not, however, identical. Guernsey has three different criminal parts to its criminal courts: magistrates’ court, royal courts, and the Guernsey Court of Appeal. These courts have different types of legal jurisdiction. The magistrates’ court has limited jurisdiction, the royal courts have unlimited jurisdiction, and finally the Court of Appeal oversees all appeals that need to be processed. The court services are overseen by the law officers, who are responsible for supervising all prosecutions that take place in Guernsey. They are given a great range of power to do what they think is necessary within the criminal law of Guernsey, which is why Guernsey can indict almost all of its cases, excluding usually only minor public offenses and traffic violations. After the collection of evidence by the Guernsey police, it then becomes the responsibility of the prosecutors to make the case. The prosecutors make requests for evidence, as well as witnesses, and statements by these witnesses. On the other side, the defense has advocates, who are lawyers who must be qualified in England and must have passed the local bar system. These advocates split the role of barrister and solicitor for the Guernsey courts, by sharing in advising their clients and preparing to present the case to the court. Unlike the advocates, the law officers usually do not provide advice or counsel to members of the public; they have to find their own.

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Once a case is ready to be heard, it goes before the court, which includes a group of jurors who are elected officials and well-respected people of the community. They rely on precedents that have come prior to hearing the case because that is what the English law follows. These jurors are actually called jurats, which is from the Latin word jurare that means “an oath.” On the opposing side are the law officers who will represent the state in the matters that are at hand. This court system is basically the same for juveniles, except it is carried out in a separate court where procedures are similar to the adult court, but not always resulting in the same punishment.

Punishment In Guernsey the main type of punishment for serious crimes is prison, of which Guernsey has only one, called the Guernsey Prison. Of course, not all criminals are sent to prison, since fines and probation services are widely available. The Guernsey Prison plays a big part in punishing and rehabilitating its criminals. According to the Guernsey government Web site, its “objectives are to protect the public by holding those committed by the courts in a safe, decent, and healthy environment,” as well as to “reduce crime by providing constructive regimes which address offending behavior, improve educational and work skills and promote law-abiding behavior in custody and after release.” According to the yearly prison report, in 2005 there were 105 inmates in the prison compared to 93 in 2004. The high level of drug crime in Guernsey also means that the prison system has the same problems. The prison takes extreme measures to prevent/ limit the drug usage in the system. According to the prison Web site, “all prisoners are assessed [evaluated for drug usage/dependency] on reception.” However, many of the incoming prisoners are already addicts, and unfortunately, there are limited detoxification facilities in the prison’s health center for those who need it. There are drug awareness, drug actions, and drug education courses offered through the prison offices, which are designed not only for the good of the inmates but also to protect


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the workers and the quality of prison life in general. There is a strict policy against drugs either entering or leaving the prisons. According to the prison Web site, there are mandatory and voluntary drug tests, and drug-sniffing dogs are used constantly. Anyone caught attempting to smuggle drugs is handed over to the police. If an inmate is caught smuggling drugs, he or she will have his or her visitation rights stripped away. The Guernsey Prison also works with many different agencies to better its system, including Drug Concern, Probation Service, College of Further Education, Children’s Board, Samaritans, Alcoholics Anonymous (AA), Parole Review Committee, and the Education Department. Timothy McCorry Further Reading Guernsey Island Government: http://www.gov.gg. Island Life: http://www.islandlife.org/legal_gsy.

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

(1.7% of the population) holding residence permits. Most of the population is Roman Catholic (nearly 70%), followed by a significant proportion of Protestant, Greek Catholic, Jewish, and other smaller denominations. Following World War II, the country was brought into the Soviet sphere of interest between 1948 and 1989. During this period Hungary’s legal system belonged to the so-called socialist legal system. The legal basis of the “socialist law” was the Constitution, approved in 1949, which was Hungary’s first written constitution. This Constitution formed a governmental system based on the principle of unity of power rather than the principle of the division of powers. Parliament had a formal as against substantive role. Governance was realized mainly through decrees rather than through legislation. After collapse of the Soviet system, free parliamentary elections in the spring of 1990 ended 40 years of socialist rule. Hungary joined the Council of Europe on November 6, 1990, the North Atlantic Treaty Organization on March 12, 1999, and the European Union on May 1, 2004.

Legal System

Background Hungary is situated in Central Europe with a territory of approximately 93,000 square kilometers (36,000 square miles), and a population of about 10.1 million. Approximately two-thirds of the population lives in towns and cities, with 2 million residents in the capital of Budapest. The ethnic breakdown of present-day Hungary is as follows: 92 percent Hungarian, 5 percent Roma (gypsy), and 3 percent other ethnic minorities (e.g., German, Slovak, Romanian, Serb, Croat, Slovenian, etc.). In 2008, there were 174,000 foreign nationals

A fundamental modification of the Constitution took place in 1989–1990 to comply with the requirements arising in connection with joining the Council of Europe and the ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as with certain historical traditions. For this reason, the change in the regime in 1989–1990 has been labeled a “constitutional revolution.” There was general agreement that even though the Hungarian socialist system before 1989 suffered from lack of legitimacy, the whole legal system could not be regarded as illegal. Thus, in present-day Hungary, there are a number of laws (acts) in effect that were drafted before 1989. Although amended to adjust to the requirements of the modified Constitution and the characteristics of the new state, the Penal Code of 1978 is still in force. Upon the amendment of the Constitution in 1989–1990, the form of government of Hungary


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Flanked by a prison guard, German defendant Dietmar Clodo, right, reads out his last statement to the judge, far left, before hearing his verdict in Metropolitan Court in Budapest, Hungary, December 29, 2001. Dubbed the “bomb manufacturer” by the media, Clodo and his accomplices were found guilty of explosive and shotgun abuse committed in criminal conspiracy as well as of faking private documents. (AP Photo/MTI/Tibor Rozsahegyi)

became republican. The president of the republic is elected by Parliament for five years. Parliament has one chamber with 386 members. Parliamentary elections are held every four years. The prime minister is elected upon the proposal of the president of the republic by the votes of the majority of Parliament. The basic administrative units of the country are the capital (Budapest) and 19 counties. The legal system of Hungary now basically belongs to the civil law system again. Criminal justice is based on the mixed model of criminal procedure, the principle of legality, and mandatory prosecution. The Constitution contains the requirements of due process and limitations of criminal law contained in international conventions. The most important laws shaping the criminal justice system are the Penal Code of 1978, the Criminal Procedure

Code of 1998, the Law on Prison Service of 1979, the Act on Victim Support and Victim Compensation of Crimes of 2005, and the Act on Mediation in Criminal Justice of 2006. In addition, separate laws apply to the courts, prosecutor service, the police, lawyers, and probation officers.

Courts The Hungarian judicial system has four levels: local courts, county (metropolitan) courts, regional courts of appeal, and the Supreme Court. The local court is court of first instance, with competence in criminal cases of lower significance but higher frequency. There are 117 local courts in Hungary. The local court proceeds in chamber (one professional judge and two lay judges) if the statutory penalty for


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the offense is imprisonment for eight years or more, otherwise one professional judge conducts the procedure. The frequency of sole judge procedures at the first instance trial is approximately 60 percent. The 20 county courts (19 county courts, 1 metropolitan court) have dual competence. First, they may handle appeals filed against the decisions of local courts operating in the county, and second, they may conduct proceedings in first instance in cases determined by law. As a court of first instance, the county court handles more serious cases such as offenses with statutory penalty of imprisonment up to 15 years or life imprisonment. These include acts of terrorism and participation in criminal organizations. The county court proceeds in chamber, most often consisting of one professional judge and two lay judges, and, in certain cases, two professional judges and three lay judges. Local courts adjudicate 80,000 to 90,000 criminal cases yearly, while the county courts in the first instance handle about 900. The five regional courts of appeal (Gypr, Debrecen, Budapest, Szeged, Pécs) are exclusively appellate courts. They adjudicate appeals filed against the decisions of local and county courts. The Supreme Court hears cases of two types: first, appeals against the decisions of the regional courts of appeal in the form of ordinary or extraordinary remedies; and second, cases related to the uniform application of the law to ensure the harmonization of judicial practice. The president of the Supreme Court is appointed by Parliament for six years upon the proposal of the president of the republic. Professional judges are appointed by the president of the republic. The Constitution states that the judges are independent and shall be subjected to the laws, exclusively, and also states that they shall not be members of any party and shall not carry on political activities. The Constitutional Court (11 members appointed by Parliament with majority voting) operates outside the general judicial organization for the purpose of reviewing the constitutionality of laws and statutes. In so doing, the court may declare a law as null and void, in part or in whole, effective immediately, or at a later date. Setting a later date

provides the National Assembly with an opportunity to enact a new law to replace the unconstitutional one. The Constitutional Court has delivered numerous decisions in relation to criminal justice. As an example, the Constitutional Court abolished capital punishment in Hungary on October 31, 1990. There are approximately 1,000 professional criminal court judges in Hungary. A professional judge must have obtained a university law degree (the university legal education lasts for five years), then worked as court clerk for three years and passed the bar examination. Following success with the bar exam, the aspirant shall work a year as court secretary before being appointed as judge. During this minimum four-year period, court clerks and secretaries are provided with continuous education at the Hungarian Judicial Academy.

Prosecution The Prosecutor Service is a separate organization, independent from the government. In criminal procedure, the primary tasks of the Prosecutor Service are the supervision of the legality of investigation, and the representation of indictments arising from the public prosecutor. In certain cases, the Prosecutor Service may conduct investigations. Relative to criminal justice, the Prosecutor Service also supervises the legality of the execution of criminal sanctions and the operation of the correctional system. The prosecutorial system is hierarchically structured, the head of which is the chief prosecutor who is appointed by Parliament for six years, upon the proposal of the president of the republic. The structure of the Prosecutor Service is composed of four levels: Chief Prosecutor’s Office, Appellate Prosecutor’s Offices at the seat of the regional courts of appeal, County Prosecutor’s Offices in the 19 counties and the capital, and at the lowest level, the local prosecutors.

Police The authority, tasks, organization, and rights of the police are stipulated in Act 34 of 1994 on the police. Broadly speaking, their tasks include the protection


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of public safety and public order, and protection of the state borders, supervision of frontier traffic, and maintenance of the order of the state border. The police operate independently from the professional army. As a unified police organization, separate organizational units perform the tasks related to the detection and investigation of crimes, trespass, traffic control, the maintenance of order of public domain, the supervision of persons, property protection and private investigator activities, and the protection and supervision of state borders. The police organization is divided into National Police Headquarters, 19 county police headquarters and the Budapest Police Headquarters, local police headquarters, and border control branches. Special units within the National Police Headquarters perform the tasks of examining financial offenses, money laundering, and crime prevention and protection of victims. The police are directed by the Minister of Justice and Law Enforcement (until 2006, the Minister of Internal Affairs). The national police commissioner is appointed and exempted from service by the prime minister upon the proposal of the minister. The police act without political influence in the performance of their duties. The total staff of the police, including the administrative personnel, is about 45,000, or 420 personnel per 100,000 inhabitants of Hungary.

Crime Classification of Crimes The Hungarian Penal Code (HPC) consists of two main parts: the General Part, and the Special Part. In accordance with the General Part, the age of criminal liability is 14 years at the time of committing the offense. Those between ages 14 and 18 are classified as juveniles and are subject to less severe penalties than adult offenders convicted of the same crime. Provisions regarding juveniles are contained in the HPC. There is no separate juvenile justice act in Hungary. In addition to considering the age of the offender, both the criminality of the act and criminal intent (or lack thereof) of the offender are considered.

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The Hungarian Penal Code classifies crimes as either felonies or misdemeanors. A felony (art. 11 par. [2]) is an act of crime perpetrated intentionally, for which the statutory punishment is imprisonment for more than two years. All other crimes are misdemeanors. Thus, an intentional offense is a misdemeanor if the penalty is less than two years. A crime committed due to negligence, such as negligent homicide, is also a misdemeanor even though it carries a statutory punishment of five years’ imprisonment. Crimes, and the punishments ordered for them, are set out in individual chapters within the Special Part. The Penal Code is the only source of legally defined crimes, thus, drug-related crimes, economic crimes, and simple traffic offenses are all in one law.

DRUG OFFENSES Statutory drug offenses are found in the Title 4 (Crimes against Public Health) of Chapter 16 of the Penal Code. Most important characteristics of the law include statutory penalties for drug offenses that do not depend on the type or the harm of drug in question; the quantity of the drug influences the statutory penalty; and offenses committed by users and traffickers are punished differently. Coercive medical treatment as a criminal sanction for drugaddicted offenders does not exist. In the HPC, all illegal drug-related activities are placed together under the heading “Drug Abuse.” Within this, however, there are five different articles. Article 282 contains the so-called user or consumertype offenses. The use of drugs per se is not a punishable criminal act, but the possession of drugs is. Article 282/A contains the statutory offense of illegal trafficking. The penalty range is 2–8 years of imprisonment. Article 282/B specifically addresses offenses for supplying drugs to a minor and for using a minor to supply them, which may be sentenced to up to 10 years. In the most severe cases, these offenses may also be punished with life imprisonment. Article 283 states that if an offender agrees to complete a treatment program of six months the sentence is suspended, and there will be no criminal


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record. If, however, the offender refuses treatment, or if he or she accepts, but later fails to comply, the appropriate criminal sentence will be imposed.

Crime Statistics The official statistical system of recorded crimes and perpetrators was introduced in Hungary in 1964. The Integrated Criminal Statistics of the Police and the Public Prosecution contains, broken down by years, the number of recorded crimes and perpetrators, certain characteristics of crimes (e.g., place and time of perpetration), and certain data regarding the perpetrators (sex, age, etc.). Since 1993 the criminal statistics include the victims of recorded crimes. The system contains data in connection with criminal justice, namely, the number of prosecutorial decisions regarding indictment (e.g., postponement of indictment or filing charges) and of sentencing practice. The most important data are published in an information booklet by the Chief Prosecutor’s Office and the Police, and since 2006 by the Ministry of Justice and Law Enforcement. There is no nationwide, regular crime survey in Hungary as yet. In Hungary, the average number of recorded crimes between the middle of the 1960s and 1980 was approximately 120,000 yearly. In this period the annual average number of offenders was around 80,000. The number of juvenile offenders was typically about 7,000 per year. The number of recorded crimes increased gradually from 1980 to 1988. Subsequently, crime rates increased dramatically from just over 200,000 in 1989 to approximately 600,000 in 1998. The rate of crime detection, at the same time, decreased, and the structure of registered crimes altered. The dramatic increase in criminality during the first decade following the change in the regime may be explained by the expanding possibilities in most fields of social life, and the inequalities that came with it, which increased the number of opportunities for crime and multiplied the risk factors of criminality. At the same time, however, external control on people weakened, and institutions for reacting to criminality outside the criminal justice system, such

as community crime prevention, were not yet established. As the new system stabilized, the increase of recorded crimes subsided, and from 1998 to 2003 (with the exception of one year), the rate decreased. Since 2003, it has been steady. In 2007 the number of recorded crimes was 426,914, and the number of recorded offenders 121,561. The number of juvenile crimes in the same year was 10,909. Almost two-thirds (64.7%) of the recorded crimes were crimes against property, 6.9 percent were violent crimes, and 5.4 percent traffic crimes. The typical criminal offense in Hungary is theft. In the past few years about 40 percent of the recorded crimes were theft, about 25 percent of which were burglary. One-third of thefts were less severe criminal offenses, that is, theft of money or goods with a value less than 200,000 HUF (US$900 or approx. €700). Of recorded crimes, the proportion of drugrelated crimes between 2003 and 2007 averaged 1.4 percent. In each year, among recorded drug abuse crimes, 90 percent were acts related to prohibited use, while less than 10 percent are attributed to supply and illicit trafficking. Among crimes classified as “violent,” the least violent seem to dominate. One-third were attributed to “rowdyism.” The level of robberies has not reached 10 percent, while the level of rape has not reached 1 percent in the past five years. Even though the proportion and number of rapes are low, extremely brutal forms of this offense occur each year. Armed bank robbery is considered a new and relatively frequent crime since the second part of the 1990s. From the middle of the 1960s to 1980, the number of recorded murders never exceeded 237. In 1988 the number of murders was 206, and in 1989 it was 191. From 1990 to 1991, however, the number of murders increased by 50 percent (to 307), and the rate continued to increase from 1991 (307) to 1994 (313). Public opinion blamed the abolition of capital punishment by the Constitutional Court on October 31, 1990, for the increases. In 1995, however, the increases stopped, and by the year 2000, a significant decrease occurred. By 2005, the number of murders decreased to a level even lower than that of the time of the change in


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the regime. There has been no research that attempts to explain this phenomenon. Some regional differences in crime rates are noticeable. Of the 19 counties and the capital, the rate of crime is by far the highest in Budapest, for example, 6,257 in 2007. The national average in the same year was 4,241.1, and the average of the counties was 3,828.8.

Finding of Guilt The procedure for finding of guilt, and the rights and obligations of the participants in the procedure, are stipulated in Act 19 of 1998 on the Criminal Procedure Code (CPC), as amended. The content and structure of the CPC are fundamentally determined by provisions of the Constitution related to criminal justice, such as requirements for fair trial (e.g., Art. 57 of the Constitution). Criminal procedure is based on the principle of legality. This means that investigating authorities and the prosecutor shall commence procedure upon suspicion beyond reasonable doubt, and that they and the courts shall conduct procedure as stipulated by the law. In Hungarian law criminal procedure consists of three phases: investigation, prosecution (filing of charges), and judicial. Investigation may be performed by the prosecutor, the police, and the customs and finance guards. The prosecutor supervises investigation or performs investigation himself or herself, but most are performed by the police (97%). Investigations are to be conducted in the shortest time possible, most often, within two months. In certain cases the period may be prolonged to one year, and in especially difficult cases, for two years. The prosecutor decides about indictment after the closure of investigation. Following the filing of charges, the court holds a trial to determine if evidentiary procedure shall be conducted for the establishment of criminal responsibility of the accused.

Rights of Accused and Legal Representation According to the CPC, criminal procedure may be initiated against the person who is, beyond doubt, suspected to have committed a criminal offense. The accused is entitled to the following rights: right to

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court, and right to independent, impartial court in his or her case; right to remedies (two-level appeal in criminal cases); right to defense; presumption of innocence; prohibition of self-accusation; and right to the use of native language. The accused may perform his or her defense personally or through an authorized or appointed defender. In cases where defense is obligatory, and the accused does not have an authorized defender, the authority appoints one from a registry prepared by the bar.

Trial According to the CPC, the determination of guilt, and the imposition of a penalty may take place only in trial. In Hungary there is no jury trial. Trial is conducted at local courts before a sole judge in cases for which the statutory penalty is up to eight years. In cases of more severe offenses, the local courts and the county courts proceed in judicial panel. In the local and county courts, the judicial panel is composed of two lay judges and a professional judge. Lay judges have the same rights as their professional counterparts in decision making and determining criminal responsibility. Lay judges may be persons between the ages of 30–70, who are elected from among the candidates by the local government or the county (metropolitan) general meeting. The CPC provides the possibility for simplified forms of the procedure that ensure faster closure of the case. Arraignment occurs when the statutory penalty for the crime is not more than 8 years; the adjudication of the case is simple; all evidence is available; and the accused is caught in flagrante delicto or confessed to the crime. If all conditions are met, the prosecutor may bring the suspect to court within 15 days following the commission of the crime. Proceedings against a defendant in absentia may be conducted in cases of criminal offenses punishable with imprisonment; when the accused or the defendant is staying at an unknown location or abroad with well-presumed intention of hiding from the authorities. The participation of prosecutor and defender in such cases is obligatory.


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Waiver of the right to trial may be considered, to a certain extent, “limited plea bargaining.” A prosecutor may terminate the investigation by offering a less strict sentence for a suspect who commits an offense in criminal organization, and the prosecutor received significant information from this person regarding the case or any other criminal cases. Omission of trial occurs upon the proposal of the prosecutor when the offense has a penalty of imprisonment for less than three years; the facts of the case are simple and the defendant has confessed to the offense. This form is typical against perpetrators driving under the influence of alcohol, the most frequent penalty for which is pecuniary penalty or suspension of driving privileges.

Alternatives to Trial In addition to the simplified court procedures described above, there are two methods by which material closure of criminal cases can take place outside the courtroom—mediation and postponement of indictment. Mediation may be applied if criminal procedure was initiated in cases of crimes against persons, property, or traffic crimes that demand a statutory penalty of imprisonment for less than five years. The consent of both the victim and the accused is necessary for the conduct of mediation. In the course of one criminal procedure mediation may be initiated only once. If the penalty is imprisonment three to five years, the criminal procedure cannot be terminated, but the least severe sentence may be applied. Postponement of indictment may be applicable in two cases. In the first, if the offense carries a penalty of imprisonment for not more than three years and, weighing the significance of the offense and extraordinary mitigating circumstances, postponement may be presumed to have favorable effects on the future behavior of the accused. The other instance applies to certain cases of drug abuse in which the perpetrator undertakes to participate in drug dependency treatment, prevention, or counseling. These cases are accompanied by a period of probation and supervision by a probation officer.

Criminal procedure is terminated if the period of postponement is passed successfully.

Incarceration before Trial The law provides for limitations to remaining at large under certain conditions and procedures. Detention is applied in cases of suspicion beyond reasonable doubt of an offense punishable with imprisonment, especially when caught in flagrante delicto, provided that the pretrial detention of the accused may be presumed. Detention may be ordered by the court, the prosecutor service, or the police. Detention lasts for 72 hours, at most. Only judges may order pretrial detention. It is applicable only if the offense is punishable with imprisonment and the defendant escaped, or attempted to escape; if his or her presence cannot be ensured otherwise; if there is a presumption that if released, he or she would hamper the investigation; or if there is a presumption that he or she would commit the attempted offense. Strict rules apply to its length of time and supervision. Primarily, pretrial detention shall last for 1 month but may be extended under various conditions. The absolute upper limit of pretrial detention, with certain exceptions, is 3 years calculated from the date of the order. Pretrial detention is executed in a prison.

Juveniles Juvenile criminal justice is not a separate system in Hungary. The judges and prosecutors of the juveniles operate within the criminal justice system. In the CPC, however, there are provisions different from the general rules regarding criminal procedure against juveniles. For example, the law stipulates that at first instance trials against juveniles, one lay judge of the court shall be a teacher. In procedures against juveniles, participation of a defender is obligatory. Among the different provisions, it may be highlighted that a juvenile may be placed into custody only if the severity of the crime justifies it. Postponement of indictment and mediation may also be applied more widely than in procedures against adults.


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Punishment

Typical Punishments

Types of Punishment

Statutory penalties are set for each crime. For a “basic” case of murder, the statutory penalty is imprisonment from 5 to 15 years. The typical sentence in a basic case is 14–15 years. In “qualified” cases (e.g., “qualified” by the fact that the victim is under the age of 14), the statutory penalty shall be imprisonment from 10 to 15 years or life imprisonment. A sentence of life imprisonment is frequent. In a basic case of rape, the statutory penalty shall be imprisonment from 2 to 8 years. Imprisonment for 2 years is typical. Suspended imprisonment is frequent, especially if the victim is the spouse. For a qualified case of rape (e.g., many persons have sexual intercourse with the victim), the statutory penalty is imprisonment from 5 to 15 years, while the typical sentence is imprisonment for about 10 years.

The punishment system of the Hungarian Penal Code is a dual one. It contains both penalties and measures. The penalties are divided into principal penalties and secondary penalties. The principal penalties are community service, fine, and imprisonment, which may be for a definite period of time, or life imprisonment (since 1999, the court may exclude the possibility of parole in cases of life imprisonment). Secondary penalties include deprivation of basic rights, suspension of license to practice, suspension of driving privileges, ban, expulsion, fine as an ancillary punishment. Measures can be taken in the forms of admonition, release on parole, involuntary treatment in a mental institution, involuntary detoxification, confiscation, confiscation of property, and supervision by a probation officer, and, exclusively in cases of juveniles, corrective education. Statistics show that approximately every second adult offender receives a fine. At the same time, however, it shall be mentioned that the punishment system of the HPC has two characteristics that have remained virtually the same since 1989– 1990. First, it is extremely imprisonment-centered, and second, there is the shortage of noncustodial or alternative sanctions. This is why the penalty system was modified in June 2009 by Act 80. According to this new act, the principal penalties are imprisonment, community service, fine, suspension of license to practice, suspension of driving privileges, and ban. Secondary penalties are deprivation of basic rights and expulsion. The new rules on the penalty system entered into force May 1, 2010. Community service as a penalty is always an alternative punishment to imprisonment or fine. Fine is also primarily an alternative punishment to imprisonment. In a small number of statutory offenses, a fine can be found as individual penalty. Compensation has been available in the framework of criminal procedure since 2007. In this past year prosecutors postponed indictment in nearly 2,500 cases, to facilitate mediation, providing possibility for compensation.

Prison Data regarding Hungarian prison population are available from statistics published by the National Headquarters of Prison Service (NHPC), supervised by the Minister of Justice and Law Enforcement; and the data of the King’s College International Centre for Prison Studies. At the NHPC data regarding the daily population, annual average number of inmates, and the total number of inmates at the end of the relevant year are available. The service publishes the data in its yearbooks. The total number of inmates in Hungarian prisons on December 31, 2007, was 14,353, and the average number of inmates for the year was 14,897. The capacity of the prisons in 2007 was 11,252, and the occupancy level was 132 percent. Three-quarters of detainees are convicts, circa onequarter are in pretrial detention. In the past years 97–98 percent of the inmates have typically been Hungarian nationals. The prison population has significantly decreased compared to the period preceding the change in the regime. In the 1970s and 1980s, the annual average prison population was well above 20,000 and prison population rate per 100,000 inhabitants exceeded 200. As a consequence of modifications to the Penal Code in 1993, and the change in the


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sentencing practice, the prison population rate significantly decreased. After 1995, the prison population and the prison population rate increased. In 1998 the number of detainees was 14,366 and the prison population rate 140. In 2002, it was 17,915 and 178, respectively. With the increase, the prison occupancy level rose from the 140 percent of 1998–1999 to 160 percent. From 2002 to 2006, both the number of detainees (14,821) and the prison population rate (147) fell. Hungary has three levels of prisons. By increasing severity, they are jail, prison, and maximum security prison. There are 32 penitentiaries in total. Of these, 15 are national, 3 are regional, and 14 are county institutions. One of the national institutes and all three regional institutions serve for the placement of juvenile detainees. The largest institution of the country is the Central-Transdanubian National Penitentiary Institute, located in DunaújvárosPálhalma. It was established in August 2007 by the unification of two institutions. The institution is both a prison and maximum security prison with accommodations for 1,200 inmates. Along with farm buildings, there is a large area available for agricultural cultivation. An agricultural and trade limited liability company, operating next to the institution, provides employment for the inmates. Nine industrial and three agricultural companies provide employment for inmates in Hungarian penitentiaries. Inmates have a right to remuneration for work they perform while incarcerated. However, just as in the private sphere, there are not enough jobs for everyone. In 2007 only about 4,000 detainees worked, which is approximately 30 percent of the annual average number of the detainees. Inmates may receive visitors, carry on education, practice religion, access the institution’s library, communicate, receive food packets, and leave the institution for a short period of time to visit their relatives. Miklós Lévay Further Reading Jakab, András. (2008). “The Republic of Hungary.” In Constitutions of the Countries of the

World, edited by Rudiger Wolfrum and Rainer Grote, pp. 1–46. New York: Oxford University. Jakab, András, Péter Takàcs, and Allan F. Tatham. (2007). The Transformation of the Hungarian Legal Order 1985–2005. The Hague, the Netherlands: Kluwer Law International. Kerezsi, Klára, and Miklós Lévay. (2008). “Criminology, Crime and Criminal Justice in Hungary.” European Journal of Criminology 5(2): 239–260. Lévay, Miklós. (2007). “ ‘Social Exclusion’: A Thriving Concept in Contemporary Criminology. Social Exclusion and Crime in Central and Eastern Europe.” In Penal Policy, Justice Reform, and Social Exclusion, edited by Kauko Aromaa, pp. 7–26. Helsinki: The European Institute for Crime Prevention and Control (HEUNI).

Iceland Legal System: Civil Murder: Low Burglary: Medium Corruption: Low Prison Rate: Low Death Penalty: No Corporal Punishment: No

Background Settled by Norwegians and Celts in the ninth century b.c.e., Iceland is home to the world’s oldest functioning legislative assembly, the Althing, established in 930. In the 12th century, the country came under Norwegian, and later Danish, rule, but regained home rule in 1874, and complete independence in 1944. Iceland is the most sparsely populated country in Europe. Roughly half of its 320,000 inhabitants live in and around the capital Reykjavik. The economy is heavily dependent on fishing, tourism, and energy production, and with its high literacy rate and life expectancy, strong social cohesion, and welfare-oriented profile, the country ranked first on the UN’s Human Development index for 2007–2008. It is presently experiencing an economic


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downturn after the collapse of the banking sector in 2008. Many numbers in this article are therefore in flux, and there are calls for constitutional reforms. Iceland is a neutral country with no military. It is a member of the UN, NATO, IMF, World Bank, Council of Europe, International Criminal Court, INTERPOL (and a 2001 cooperation agreement with Europol), Organization for Security and Cooperation in Europe (OSCE), Schengen, the European Free Trade Association (EFTA), and the European Economic Area (EEA). At the time of writing, an application for EU membership is pending. After centuries of ethnic homogeneity, the past few decades saw an increase in immigration, and in 2007, 6 percent of the population held foreign citizenship. A halting of the construction boom has again prompted many foreign workers to leave.

Legal System Iceland is a constitutional republic with a parliamentary government. Its civil law system is modeled on the other Nordic systems, especially Denmark’s. Sources of law are the Constitution of 1944 (Act No. 33, http://www.stjornarskra.is, amended seven times, e.g., to incorporate various provisions of human rights), statutes and regulations published in the Legal Gazette, custom, and tradition of culture (eðli máls), a Scandinavian concept akin to equity. Iceland takes a dualist approach to international law: ratified international treaties do not have direct effect until incorporated into domestic legislation. The European Convention on Human Rights was incorporated by Act No. 62/1994. Criminal law is governed by the General Penal Code (GPC), an official English translation of which is available on the Web site of the Ministry of Justice and Human Rights at http:// www.domsmalaraduneyti.is/laws-and-regulations/ english, as well as of Law on Criminal Procedure, No. 88/2008 (entered into force January 1, 2009).

Judiciary Iceland’s eight district courts (héraðsdómur) are of first instance in civil and criminal matters. District court judges are appointed for an indefinite term by

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the minister of justice. The Supreme Court (Hæsti réttur) is the only court of appeal. Its nine justices are nominated by the minister of justice and appointed for an indefinite term. All criminal judgments may be referred to the Supreme Court without restrictions. (District court decisions available, in Icelandic, at http://www.domstolar.is; Supreme Court decisions at http://www.haestirettur.is.) In 1998, a Judicial Council was given oversight over matters pertaining to the district courts to safeguard their independence, and a committee was established to assess the qualifications of judicial appointees (Reg. No. 693/1999, judicial qualifications, and Reg. No. 436/2000, judges’ part-time employment and ownership of companies: http://www. domsmalaraduneyti.is). In October 2009, it was proposed that the same rules apply to supreme and district court judges, and that while the appointing authority remain with the minister of justice, appointments of persons other than recommended by the committee be approved by the Althing. In his new year’s address to the nation on January 1, 2010, the president of Iceland lamented the fact that judges are still politically appointed.

Police The Ministry of Justice is responsible for the coast guard and police force (25 districts and police academy); and the Foreign Ministry for the police at the international airport in Keflavik. The entire police force is administered by the national police commissioner. A new law entered into effect on January 1, 2009, which restructures the respective spheres of prosecutors and police (Law on Criminal Procedure, No. 88/2008 replacing Law No. 19/1991). There are five main departments, each with subdivisions: (I) e.g., international cooperation and border control; (II) e.g., riot police, search and rescue; (III) e.g., alcohol and firearms; (IV) e.g., narcotics, crime prevention; (V) prosecutions, tax fraud, money laundering, and so forth. A new central police recording system was introduced in February 2005 to track crime data and the home page of the police includes comprehensive and up-to-date crime statistics, available in English at http://www.logreglan.is.


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Crime In Iceland, a person cannot be found guilty of a crime for acts committed while under 15 years of age. The criminal law is divided into two main categories: the General Penal Code (hegningarlög) and special laws (sérrefsilög) for violations of specific acts. The GPC applies to violations such as assaults, murder, sexual offenses, theft, destruction of property, and robbery. Drug offenses are covered by a special law on controlled substances No. 65/1974, and alcohol crimes by special law No. 75/1998. Iceland maintains online statistics on offenses registered by the police in 1999–2008. The total numbers registered in 2008 were 39,734 in the capital region and 35,222 outside the capital region, approximately 75 percent being traffic offenses. (For further details, see http://www.statice.is and http:// www.logreglan.is.) In 2008 no murder was reported, homicide cases in recent years having been between 0–3 annually. Due to the infrequency of certain serious offenses, the data may show apparent fluctuations where trends are in fact stable. The average number of offenses recorded by the police in some main categories for the period 2003–2007, according to the National Commission of Police, Crime Statistics 2008 (reported November 2009, http:// www.logreglan.is) is as follows: Unjust enrichment Alcohol Act violations Violations of privacy Offenses against life and body Vandalism Drug offenses Property theft Forged documents Traffic violations Other

7,722 1,648 737 1,607 3,355 1,763 427 26 53,668 3,268

In 2003–2008, 75 percent of all drug offenses were for possession and use, but there was an increase in sale, distribution, and manufacturing. The number of violations is not indicative of the amount of narcotics seized, which can range from 1–2 grams to tens of kilos. Per capita, most deadly and serious assaults (82) occurred in the Westman Islands south

of Iceland, and in the South-West peninsulas (62 and 61). In the capital region, there were 40 such violations per 10,000 inhabitants. There were also proportionately more sexual offenses outside the capital region. There were 257 thefts per 10,000 inhabitants in 2008, most in the capital region.

Particular Challenges The crime rate in Iceland is relatively low; most violations are traffic-related, and only about 20 percent of recorded violations are GPC violations. Often, crime in Iceland has gone hand-in-hand with alcohol abuse, and most violent attacks still occur during weekend brawls. That said, the work environment of the police is rapidly changing. Crimes that were virtually unknown in Iceland, such as international money laundering, organized crime, drug trafficking, and online child pornography, now demand significant time and resources. Due to the financial crisis, the police department has been requested to cut its operating budget, and a recent report on its Web site lists its core tasks in order of priority with a view to identifying possible cutbacks. A new office of Special Prosecutor was established in 2009 to investigate possible criminal activities connected with the causes of the bank collapse.

Finding of Guilt Assistance to the Accused An arrested person has the right to contact an attorney immediately upon arrest. The police must grant the wish to appoint a defense attorney, and it may appoint one if not requested. The accused may act on his or her own behalf, and shall be provided with needed information if he or she is not legally trained. The accused may at any stage of a case hire an attorney, and the police and judges must inform the accused of such right.

Investigation and Prosecution Criminal investigation is carried out by the police unless otherwise provided by law. Special investigative departments handle investigations of the most serious crimes. According to the new Law on Criminal


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Procedure (88/2008), prosecuting authority is divided into three spheres. District attorneys prosecute in the first instance any major crimes such as homicides, sexual offenses, and assaults, and major fraud; the State Prosecutor’s Office has an oversight role and decides whether to appeal district court criminal judgments; and police chiefs prosecute minor cases such as traffic violations and burglaries.

Pretrial Detention Pretrial detention is only used if there is reasonable suspicion that the accused is guilty of an act punishable by prison. It is justified if the accused poses a threat to the investigation of the case or to public safety. Strict legal restrictions apply to detentions, and there are no limitations on their appeals. Pretrial detention must be ordered by a judge and shall not exceed four weeks, any extensions requiring a new court order. Trials are heard by a panel of judges who deliberate before closed doors and decide on the basis of majority vote.

Punishment Under the Icelandic Constitution, the death penalty may never be stipulated by law. The two categories of punishment are imprisonment and fines. Imprisonment may be for life, or for a period not shorter than 30 days and not longer than 16 years. There is strong emphasis, as elsewhere in Scandinavia, on sentences being served outside prisons in the form of community service, release on probation, conditional arrangements, supervised work or study, and alcohol or substance abuse treatment. More than two-thirds of all sentences were served outside prison in the last decade. Sentences are specified as either conditionally suspended (for less serious crimes) or unconditional imprisonment, for serious and premeditated offenses. Juveniles 15–18 years old who receive an unconditional prison sentence are referred to the Agency for Child Protection for internment in a treatment home. An officially commissioned study of punishments in Iceland during 1951–2000 focused on murder, attempted murder, serious theft, and assault

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(excluding drug offenses—as these changed drastically in recent years—and sexual offenses, the lax punishments for which have been severely criticized, e.g., in a recent (2009) book by Þórdís Elva Þorvaldsdóttir). According to the study, punishment for murder is higher in Iceland than in neighboring countries, a typical sentence for murder being 14 years in prison, but then, homicides are rarer in Iceland than in other European countries (approximately one annually in 1955–2000). Punishment for assaults (nonsexual) varied greatly depending on the circumstances, as its sentencing framework is quite wide (up to 16 years). The maximum sentence for theft is 10 years and it is punished relatively strictly. Alcohol does not play as large a role in this category as in assaults. The report noted that tough sentences have not seemed to deter theft, as such offenses have increased with time. Other social factors are at play. Differences between judged sentences and time actually served were not great overall; the average time served for murder, for example, was 12 years. According to another study, persons convicted of theft in Iceland tend to have grown up in broken families and be repeat offenders or habitual drug users, whereas prisoners found guilty of offenses such as fraud or sexual violence tend to be older, better educated, and from more stable family and work situations. A severe economic downturn could thus be expected to lead to an increase in theft and drug-related crime, and the police in March 2009 reported an increase in theft from the previous year.

Prison There are five prisons operated by the Prison and Probation Administration (PPA), with a total of 85 staff. As of July 15, 2008, they were populated to 97.9 percent of their official capacity of 144 places. The oldest, Hegningarhúsið, built in 1874 is in Reykjavík city center. It is mainly a short-term and reception prison, with space for 14 prisoners and two solitary confinement cells. In Kópavogur, close to Reykjavík, is a women’s prison with capacity for 12 prisoners. Litla-Hraun, on the south coast about 70 kilometers (42 miles) from Reykjavík, is Iceland’s largest prison; 60–65 percent of all prisoners in Iceland serve their sentence there. The low-


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security prison Kvíabryggja on the west coast lies on 30 hectares of land to which the (maximum 14) prisoners have full access. Last and smallest is a prison within the Akureyri police station in the north, with room for 9 short-term prisoners. All prisoners are obliged to work weekdays from 8 a.m. to 5 p.m., or pursue other approved activities while in prison. Consideration shall be given to their personal circumstances and wishes when it comes to work. They are also entitled to pursue studies or vocational training: each hour of study equaling one hour of work. Prisoners are remunerated for work or studies, or receive a per diem allowance for sick days or days on which work was unavailable. On September 1, 2008, the total prison population in Iceland was 140 (7.1% in pretrial detention/remand); representing 44 per 100,000 of the national population. As of July 15, 2008, female prisoners were 4.3 percent, juveniles (under 18) 2.1 percent, and foreigners 19.1 percent.

VISITING POLICIES, LEAVE, AND PROBATION Prisoners may receive visits (usually unsupervised) in prison at least once a week, or they can refuse to receive visits from persons other than those with whom they have official business. When a prisoner has served two-thirds of a sentence, the PPA may allow release on probation, and in special situations when one-half of a sentence has been served. It must be certain that the prisoner has a suitable place to stay, employment, and other necessary support. The return to free society can be very challenging, so in addition to the service provided in the prisons, the PPA has for years sought to acclimatize prisoners gradually to society by allowing them to serve part of their sentences outside prison in treatment or rehabilitation.

EXTRADITION Icelandic citizens may not be extradited. Others may only be extradited if the offense involved, or a comparable offense, could be punishable by more than one year’s imprisonment under Icelandic law unless otherwise agreed in an extradition treaty with other states. Extradition in connection with

political offenses is not permitted, nor if there is a risk that the extradited person will be subjected to injustice or persecution on account of his or her race, nationality, belief, or political opinion in the requesting state. Iceland entered into an agreement with Eurojust in December 2005, for enhanced cooperation in combating serious international crime. An Icelandic citizen may be extradited to one of the Scandinavian countries if he or she has lived there for two years prior to committing a crime in such country and a stricter sentence than four years’ imprisonment applies to the act under Icelandic law. Edda Kristjansdottir Further Reading Gunnlaugsson, H., and J. F. Galliher. (2000). Wayward Icelanders: Punishment, Boundary Maintenance, and the Creation of Crime. Madison: University of Wisconsin Press. Icelandic Government: http://www.government.is. Ministry of Justice and Human Rights: http:// www.domsmalaraduneyti.is. Police Iceland: http://www.logreglan.is. Scandinavian Research Council for Criminology: http://www.nsfk.org. State Prison and Probation Administration: http:// www.fangelsi.is. Statistics Iceland: http://www.statice.is.

Ireland Legal System: Common Murder: Medium Burglary: Medium Corruption: Low Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background After a war of independence fought against Britain between 1919 and 1921, the island of Ireland


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was partitioned, with 26 of its 32 counties gaining a large measure of autonomy and becoming the Irish Free State. The remaining six counties, part of the historic province of Ulster, formed a region of the United Kingdom. In 1948, during a visit to Canada, the Taoiseach (prime minister) declared the Free State a republic and severed any remaining links to the crown. The decision to split the island led to a civil war and successive waves of agitation and terrorist activity that have continued, albeit at a greatly reduced level, up to the present. Organizations such as the Irish Republican Army (IRA) and the Irish National Liberation Army (INLA) strove to reunite what they saw as the national territory. There was a countermovement by groups wishing to maintain the union with Britain, most prominent among them the Ulster Volunteer Force (UVF) and the Ulster Defense Association (UDA). The British Army and the Royal Ulster Constabulary also contributed to the scale of the conflict. The violence associated with the national question, which was furious at times—there were 470 deaths in 1972— was nonetheless highly concentrated and rarely strayed south of the border. Today, the island remains divided into two jurisdictions, the Republic of Ireland (Éire) and Northern Ireland. Since the declaration of a ceasefire in 1994, and the Good Friday Agreement that followed in 1998, the military fortifications that used to be in place along the country’s internal border have been removed and the number of British soldiers stationed in Northern Ireland has been scaled down. Paramilitary prisoners who recognized the legitimacy of the peace process were released en masse and a new police force was established to replace the Royal Ulster Constabulary. Despite occasional atrocities perpetrated by militant splinter groups, the ceasefire has held firm. The focus of this article is the Republic of Ireland, which has an area of 70,300 square kilometers (27,142 square miles) and, according to the census of 2006, a population of 4.2 million (the highest since 1861). Most of the population lives in, or near to, the major cities of Dublin (the capital), Cork, Galway, Limerick, and Waterford. The country

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includes a number of small inhabited offshore islands, which are home to around 9,000 hardy men, women, and children. There is a bicameral parliamentary system with 166 members of Parliament directly elected by the people at least once every five years. The upper house comprises 60 senators who are elected by local political representatives, nominated by the Taoiseach, or voted in by graduates of Dublin University and the National University of Ireland. The national languages are English and Irish (Gaeilge). A significant proportion of the population has a reasonable level of fluency in the latter, which is a compulsory subject in primary (age 4 to 12 years) and secondary (age 12 to 18 years) school and competency is required for entrance to the National University of Ireland and membership of the legal profession. Citizens are entitled to conduct legal proceedings in Irish and to use the language in any dealings with state agencies. When the country achieved independence, it maintained the common law legal tradition and the criminal justice apparatus that it inherited from Britain. The legal process is adversarial and professional (there are no lay judges). Colonial legislative arrangements remained in place, courtrooms and penal institutions continued in use as before, and archaic forms of legal behavior were seamlessly transplanted onto the fledgling Free State. Some statutes introduced by the British Parliament in Westminster before independence are still in force, such as the Probation of Offenders Act 1907. Indeed, it is not just buildings and laws that have endured. So too have a number of administrative arrangements, such as the division of the legal profession. The Royal Irish Constabulary that had policed Ireland prior to independence was disbanded in 1922, followed three years later by the Dublin Metropolitan Police, a dedicated force for the capital. The replacement organization was named An Garda Síochána (guardians of the peace) and, remarkably given the revolutionary context into which it emerged, it was unarmed virtually from its inception. The rationale for this decision was expressed by the first Garda commissioner, Michael Staines,


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as a desire for his men to “succeed not by force of arms, or numbers, but on their moral authority as servants of the people.” The criminal justice system exists within the context of a written Constitution, which was enacted by the people in 1937. This deals with the establishment and operation of the courts, the trial of offenses, and the fundamental rights of the person. There are other criminal justice–related provisions sprinkled throughout the text such as those giving the president the power to commute or remit punishment imposed by any court and prohibiting retrospective criminalization. Perhaps the most significant elements of the constitutional framework are that justice shall be administered in courts established by law; all judges shall be independent in the exercise of their judicial functions; no person shall be tried on any criminal charge save in due course of law; and no citizen shall be deprived of his or her personal liberty save in accordance with law. The Minister for Justice, Equality and Law Reform has responsibility for setting the legislative and policy context according to which the criminal justice system functions. Traditionally this role has involved taking a close interest in operational matters. The minister is also the regular recipient of petitions from politicians on behalf of constituents who wish to have a penalty remitted (usually a fine reduced) or to see an increased police presence on the streets of their area. These factors allow the minister to stamp his or her personality on the portfolio with clearer definition than cabinet colleagues. For about a decade beginning in the mid-1990s, the Republic of Ireland experienced a period of rapid economic growth. By the beginning of the 21st century, Ireland had been transformed from a failing economy that hemorrhaged many of its young people through emigration to a desirable destination for people seeking a better life. One statistic dramatically illustrates the scale of this change. It is the rise in the number of asylum applications from around half a dozen each month in 1993 to almost 1,000 each month by 2002.

Not unsurprisingly given the changed nature of the resident population, media reports of immigrant involvement in criminal activity began to appear in the late 1990s and prisons began to feel the presence of a more diverse clientele, with almost one-third of committals in 2007 being non-Irish nationals.

Crime Broadly speaking, criminal cases are divided into two types, summary and indictable. Summary offenses are those of a minor nature and are tried in the district court by a judge sitting alone without a jury. They are usually prosecuted by An Garda Síochána. The maximum prison sentence that can be imposed for any one such offense is 12 months, and the maximum sentence available to the court for multiple offenders is 2 years. Motoring matters, public order offenses, criminal damage, and theft make up much of the daily business of the district court. Indictable offenses are more serious and can be heard by a judge and jury in the Circuit Court or the Central Criminal Court; the latter forum dealing exclusively with homicide and serious sexual violence. Any sentence can be imposed up to the statutory maximum, which for more serious offenses such as robbery and rape is life imprisonment. Murder carries a mandatory life sentence, and if the victim is an on-duty Garda or prison officer, the minimum term is 40 years. The Offences against the State Act 1939 provided the legislative basis for a (juryless) Special Criminal Court. This was seen as an important weapon in the fight against subversion, to be deployed when the government was satisfied that the threat of juror intimidation was such that the ordinary courts were “inadequate to secure the effective administration of justice and the preservation of public peace and order.” It was reinforced by internment, judicial execution and, in 1940, the establishment (for a brief period) of a Military Court. From its inception, the Special Criminal Court dealt with more than just subversion. While its jurisdiction was restricted to offenses that could not be dealt with by the ordinary courts, what was deemed to satisfy this standard was


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elastic. In the early years, most of the matters dealt with were economic, such as black market trading that exploited the rationing arrangements put in place during the Emergency (this is how World War II was described in Ireland). In 1962, the Special Criminal Court was formally disestablished. It was brought back to life in 1972, in response to mounting violence in Northern Ireland, but in the absence of any evidence that the threat to jurors was such that special measures were required. It has been continuously in existence ever since. The resuscitated Special Criminal Court differs from its predecessor in that its members are drawn exclusively from the judiciary, with no military personnel involved. It is similar in the extent to which it has become a vehicle for dealing with persons (including drug dealers and members of criminal gangs) who have no relationship with unlawful organizations, thereby normalizing what were intended as exceptional measures.

Crime Statistics The compilation and publication of crime statistics was taken over by the Central Statistics Office (CSO) in 2006. A major overhaul followed this transfer of function and in 2008 the figures were published for the first time according to a new scheme, based on the Australian model, and known as the Irish Crime Classification System (ICCS). The table below shows the main crime categories for 2007. It is important to note that, for the purposes of the ICCS, homicide is widely defined, including 78 murders, 6 cases of manslaughter, 1 infanticide, and 48 incidents of dangerous driving leading to death. Homicide Sexual offenses Attempts/threats to murder, assault, etc. Dangerous or negligent acts Kidnapping and related offenses Robbery, extortion, and hijacking Burglary and related offenses

133 1,368 17,550 21,014 108 2,172 23,556

Theft and related offenses Fraud, deception, and related offenses Controlled drug offenses Weapons and explosives offenses Damage to property and to the environment Public order and other social code offenses Offenses against justice procedures, etc.

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75,239 5,848 18,588 3,593 43,276 60,703 10,789

Turning our attention to the geographical distribution of crime, it is clear that for the majority of categories, the highest rates were to be found in the Dublin Metropolitan Region (DMR). Looking at the most prevalent crime types during 2006, the disadvantageous situation of Dublin residents is apparent. The rate of burglary per 1,000 population was 8.3 in the DMR and 3.0 in the predominantly rural, sparsely populated, Northern Region (the national average was 5.8). For theft, the DMR stood at 28.1 compared with 10.1 for the Northern Region and a national average of 17.6. For robbery, the DMR was top once again at 1.4 and the Northern Region was bottom once again at 0.1 (with a national average of 0.6). There was less variation to be found for the statistically infrequent offenses of homicide and sex crime. Drug crime is a cause of concern, particularly in deprived parts of Dublin where opiate misuse is concentrated. Typically, heroin is administered intravenously with predictable consequences for the spread of diseases such as HIV and hepatitis, and a range of other adverse health effects such as ulcers and gangrene. The gaunt and pitted bodies of longterm heroin users are a regular sight in Dublin’s city center. Methadone is widely prescribed as a heroin substitute and dispensed from community pharmacies as well as specialist clinics. The easy availability of methadone is associated with a decline in the kind of offending directly related to drug use. One measure of this is that robberies and aggravated burglaries involving syringes declined in frequency from 1,104 in 1996 to 115 in 2006. On the


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other hand, the financial attractiveness of the drug trade to criminal entrepreneurs has contributed to an upward trend in lethal violence as disputes about debts and distribution networks are increasingly resolved with guns. The schedule to the Misuse of Drugs Act 1977 sets out a long list of controlled drugs from acetorphine to trimeperidine. The most commonly used drugs, based on seizures by police and customs, are cannabis (resin and herbal), Ecstasy, cocaine, and heroin.

Law and Order Politics Anxiety about crime reached a peak in June 1996 with the shooting death in the space of a fortnight of a crime journalist (Veronica Guerin) who wrote for the country’s most-read newspaper, The Sunday Independent, and a Garda detective (Jerry McCabe) who was escorting a delivery of cash to a bank. The killing of the former was thought to have been arranged by a gangland figure about whom she was planning to write an exposé. The latter was shot by an IRA unit that was carrying out an unauthorized operation during a temporary break in the ceasefire that had been declared a couple of years earlier. These deaths raised the specter of gangland drug dealers acting with impunity and renegade paramilitaries continuing to pose a lethal threat to the state. Parliament was recalled from its summer recess for a special debate in July 1996 and the government introduced a swathe of legislation to improve the efficacy of the criminal justice system. Most significant was the setting up of a Criminal Assets Bureau (CAB) to deny offenders the chance to benefit from the proceeds of their crimes. This was a hugely significant development as it meant that assets could be confiscated without a prior conviction or proof of criminal activity; the decision being made on the balance of probability. The onus is then placed on the citizens to establish the innocent provenance of their wealth. These powers have been used with considerable success against individuals believed to have amassed fortunes through the drug trade, extortion, or armed robbery. Often the accused is required to put his or her tax affairs in order by paying the revenue commissioners what

the CAB estimates is owed on the basis of ill-gotten gains. There has been muted concern about the implications of this model of policing for civil liberties, especially the presumption of innocence and the burden of proof. The apparatus of policing is skewed toward offenses such as theft, burglary, public disorder, and gun violence. There is little official recognition of the seriousness of white-collar offending. This is despite the fact that in its annual report for 2007 the revenue commissioners revealed that the cumulative yield from an ongoing investigation into money illegally invested in nonresident bank accounts, insurance policies, and offshore assets had reached €2.4 billion (US$3.02 billion), with just more than €132 million collected during the year in question.

Police An Garda Síochána is a national body with a unified command structure. It is led by a commissioner who is appointed by the government. For policing purposes the country is divided into six regions. These in turn are divided into divisions, districts, and subdistricts. Each subdistrict usually has only one station, the strength of which can vary from 3 to 100 Gardaí. There are 703 Garda stations throughout the country and as at April 30, 2008, the personnel strength of An Garda Síochána was 13,874 with more than 1,000 recruits in training. Uniformed members of the force do not carry firearms. There are approximately 1,700 detectives who are armed and always work in plainclothes. They are available to support their uniformed colleagues should the need arise. There are a small number of specialist units that operate on a national basis dealing with matters such as drugs and immigration. The Policing Plan 2008 set out six strategic goals for An Garda Síochána. These can be summarized as follows: • Maintain national and international security. • Significantly reduce the incidence of crime and criminal behavior. • Significantly reduce the incidence of fatal and serious injuries and improve road safety.


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• Significantly reduce the incidence of public disorder and antisocial behavior. • Provide equal protection and appropriate service, while nurturing mutual respect and trust. • Build a Garda service that reflects the needs and priorities of the people. There has been a high level of concern about police indiscipline and the absence of an adequate framework to call errant officers to account. In combination with the lack of an adequate mechanism to handle complaints from members of the public (until the Garda Síochána Ombudsman Commission and the Garda Inspectorate were created by statute in 2005), this gave rise to a context where a culture of impunity could emerge. Nevertheless, opinion surveys show repeatedly that the police continue to be held in high regard by members of the public and the volume of applications to join the force greatly exceeds the number of available places.

Finding of Guilt The Office of the Director of Public Prosecutions (DPP) decides whether to charge people with criminal offenses, and what the offenses should be; enforces the criminal law in the courts on behalf of the people; and directs and supervises prosecutions. Most of the cases dealt with by the DPP emanate from An Garda Síochána. An Garda Síochána and the specialist investigating agencies conduct most of the summary prosecutions that take place in the district court in relation to minor offenses. For more serious matters directions are sought from the DPP about whether and how to proceed. There are general principles set out in The Statement of General Guidelines for Prosecutors published in 2001, which guide the initiation and conduct of prosecutions. The decision whether to prosecute is based on twin considerations: the strength of the evidence and the public interest. In many cases the evidence will disclose a number of possible offenses. Determining the choice of charge is generally within the exclusive domain of the prosecutor. According to the guidelines, the

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charge should adequately reflect the seriousness of the criminal conduct for which there is evidence and provide the court with an appropriate basis for sentence. The charge or charges laid will ordinarily be the most serious disclosed by the evidence but there may also be circumstances that justify preferring a lesser charge than the evidence would support. The prosecutor should only prefer charges that are justified by the facts and must not “overcharge.” In summary prosecutions the choice of charge will in most cases be made by a Garda. Some offenses can be tried either summarily or on indictment and the law provides for different sentences depending on the method of prosecution. In 2007, the DPP gave directions on files relating to 10,500 suspects (for less serious crimes there is no need for An Garda Síochána to submit a file). In around one-third of these the direction given was not to prosecute, in another one-third the direction was to prosecute on indictment, and the remainder were deemed suitable for summary disposal. For prosecutions on indictment the conviction rate is typically over 90 percent, with the overwhelming majority of suspects entering guilty pleas. There is a strong incentive to do so as such a plea attracts a discount at the sentencing stage. The DPP does not explain the decisions taken in individual cases. This is based on a concern not to condemn a person without a trial. However, in January 2008, the DPP initiated a dialogue about the propriety and practicality of giving reasons, signaling a willingness to consider reversing years of practice. A consultation process was initiated and a reform package may follow. In part this move to render decisions more transparent reflects a growing awareness of the importance of addressing the interests of victims of crime, who can be pivotal to the case for the prosecution but whose needs are often unrecognized or unmet. Organized support services for crime victims scarcely exist in the Republic of Ireland and compensation for criminal injuries, if not forthcoming from the offender, is available only on a trivial scale (and in selected cases) from the state. In essence, the law permits any offense to be transferred to the Special Criminal Court if the DPP


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certifies that the ordinary courts are inadequate to deal with it. The DPP’s discretion in this respect is virtually unlimited and there is no requirement to give reasons. The Special Criminal Court only deals with a handful of cases every year (it heard seven trials involving 10 accused persons in 2007), but each one raises serious questions about the integrity of the criminal justice system and the proper nature of the relationship between the state and the accused. Suspects can be held for questioning by An Garda Síochána for maximum periods ranging from 24 hours to 7 days, depending on the nature of the charge. While being detained they are allowed reasonable access to a lawyer but lawyers are not entitled to be present when their client is being interrogated. When charged and produced in court the accused can be remanded in custody if the offense is serious and, in the terms of the Bail Act 1997, their detention is “reasonably considered necessary to prevent the commission of a serious offense by that person.” Bail can also be denied if there is a risk that the accused will interfere with witnesses or not turn up for trial. If the offense is a serious one and the accused cannot afford to pay legal fees, then the court will grant a legal aid certificate, which meets the full cost of advice and representation. Some of the most able lawyers in the state provide their services to the defense and it would be fair to say that the opposing legal teams are usually of comparable caliber during a criminal trial on a matter of any consequence.

Judicial Authorities Judges are not elected. Rather they are appointed by the government and thereafter almost impossible to remove from office. Although Irish judges are political appointees with a party pedigree that is usually obvious, there is a strong professional norm of autonomy and impartiality once they take office. The courts system comprises several layers. The Supreme Court is made up of the chief justice and seven ordinary judges. The president of the High Court is ex officio an additional judge of the

Supreme Court. This is the court of final appeal. In addition the president of Ireland may refer any bill (or any provision of a bill) to the Supreme Court for adjudication as to whether it is repugnant to the Constitution. The Court of Criminal Appeal consists of a judge of the Supreme Court and two judges of the High Court. It hears appeals by persons convicted on indictment in the circuit, central, or special criminal courts. The High Court (38 judges) exercising its criminal jurisdiction is known as the Central Criminal Court. Trials are conducted by a single judge sitting with a jury of 12 men and women. It deals with murder, rape, and allied offenses. Two courts of limited jurisdiction are organized on a local basis. The first of these is the Circuit Court (38 judges), which deals with indictable offenses other than those that are reserved for the Central Criminal Court. The other is the district court (61 judges), which deals with minor crimes. The Special Criminal Court tries cases where it is determined that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. There is a panel of 11 judges appointed to the court who are drawn from the High, circuit, and district courts. It sits without a jury. In 1995, the law was changed to allow solicitors of at least 10 years’ standing to be considered for appointment to the Circuit Court (as well as barristers). The first solicitors were appointed to the Circuit Court in 1996. Circuit Court judges with at least 4 years’ experience could also apply for appointment to the High Court, meaning that former solicitors could now be promoted to the High Court. In 2002 a further change was introduced to provide for direct appointments of both barristers and solicitors of not less than 12 years’ standing to the superior courts. As a result, the same year, the first practicing solicitor was appointed directly to the High Court. Judges are appointed by the president on the nomination of the government. The government is assisted in this task by a Judicial Appointments Advisory Board, which is chaired by the chief justice.


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response to youth offending is beginning to acquire distinctive characteristics.

Juveniles The district court has jurisdiction to try a child or young person for any offense except homicide provided that, in the case of an indictable offense, the child’s parent or the young person has been informed of his or her right to trial by jury and has consented to be dealt with summarily. In Dublin there is a dedicated Children Court, which sits on each working day of the week. In other cities, the courtrooms where ordinary sittings of the district court take place are used. In 2006 the age of criminal responsibility was raised from 7 to 12 years. There is an exception, however, for children aged 10 or 11 who can be charged with murder, manslaughter, rape, or aggravated sexual assault. In December 2005, following a review of the youth justice system, the government agreed on a reform program. This included the establishment of the Irish Youth Justice Service (IYJS) to coordinate activities that had formerly straddled three government departments (Justice, Equality and Law Reform, Health and Children, Education and Science). The main responsibilities of the IYJS are to develop a unified youth justice policy and devise a strategy for its implementation; to manage and develop children detention facilities and a variety of community sanctions, restorative justice conferencing and diversion schemes; to coordinate service delivery at national and local level; and to produce and disseminate information about youth justice. The approach to dealing with children who break the law is flexible. Unlike for adults, the desire to see detention used only as a “measure of last resort” is given statutory expression in the Children Act 2001. The same legislation allows for the expungement of most criminal convictions acquired when a person was aged less than 18 years as long as there are no further offenses for three years; for adults there is no facility for wiping the slate clean. Also for children there is a long-established scheme of cautioning and diversion that is operated by An Garda Síochána, and since 2006 the Probation Service has put in place a range of interventions and supports that have been designed specifically for young people. While there is some distance yet to travel, the

Punishment There is very little information available about sentencing and it is not possible to determine the average prison terms imposed for different categories of crime, let alone how penalties relate to offender characteristics. What we do know is that there is a great deal of variation. Looking at the district court, the likelihood of imprisonment following a conviction for public disorder or assault in 2007 ranged from 2 percent in one area to 26 percent in another. Turning to the more serious business dealt with by the Circuit Criminal Court, suspended sentences were twice as common outside Dublin (39.4% vs. 19.1%) and prison sentences of more than five years were half as common (6.6% vs. 15.3%). This may result from the balance of offenses coming before the courts, a difference in the characteristics of offenders, or a sterner judicial culture in the capital city. There is perennial concern around consistency in sentencing and the almost unfettered discretion allowed to judges who, generally speaking, are free to impose whatever combination of sanctions or measures they believe best meets the demands of the individual case, subject only to the statutory maximum or the inherent limitation of the court’s powers. They are unconstrained by guidelines. The Criminal Justice Act 1999 introduced presumptive minimum 10-year prison sentences for the possession of drugs worth €13,000 (US$16,338) or more. The clear intent of this legislation was to reduce judicial discretion. However, the court can decline to impose the 10-year minimum if it finds “exceptional and specific circumstances” that would make such a sentence unjust. This clause has been interpreted broadly and few eligible offenders have received the minimum sentence. Penalties are used interchangeably rather than thought of hierarchically and related to offense seriousness. For example, when imposing a fine the number of days of imprisonment that must be served in default is stated. (It is not uncommon for fine defaulters to constitute up to one in


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The interior of Kilmainham Jail in Dublin, Ireland. (Martin Novak/Dreamstime)

four of those committed to prison in a given year.) Similarly, community service is a direct alternative to prison and the judge must state the number of hours of community service to be carried out and how much prison time will be served if the order is not followed. Suspended prison sentences are popular, even for serious offenses. As judicial discretion is broad there is a great deal of variation in the selection of penalties thought to be appropriate even for similarly situated offenders. But checks and balances are in place. Defense appeals against conviction and sentence have been possible for many years and the Criminal Justice Act 1993 allows the DPP to apply to the Court of Criminal Appeal to have a sentence reviewed on the grounds of undue leniency. Such applications were made infrequently at first (two or three times a year between 1994 and 1997) but have become more common recently, with 42 lodged in 2007. Most are successful.

Probation The Probation Service in the Republic of Ireland continues to operate within the framework set out by the Probation of Offenders Act 1907. Although this legislation came into existence before independence was won from Britain, it remains in force. This serves as a reminder of the country’s colonial heritage and the inertia that has characterized criminal justice policy making. The most significant change in the 20th century was the introduction of the Community Service Order under the Criminal Justice (Community Service) Act 1983, a piece of legislation imported almost in its entirety from England and Wales. Probation supervision consists primarily of individual casework. Under the Probation Act there is scope for the district court to find an accused guilty but discharge them. This means that no penalty is imposed and the individual does not acquire a criminal record.


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This option is regularly availed of because there is no facility for the expungement of adult convictions and courts are alive to the lasting ramifications of a criminal record, especially in terms of employment and travel opportunities. In the absence of a modern legislative framework judges have tended to innovate, as evidenced by the popularity of what are known as orders for supervision during deferment of penalty. In such cases the judge postpones sentence until the offender has had an opportunity to demonstrate a willingness to respond to a specified intervention. This may involve the payment of compensation to the victim, participation on a drug or alcohol course, or engagement in mediation. The understanding is that if the offender complies, and the reports are favorable, a prison sentence will not be imposed. Supervision during deferment of penalty is chosen more often by the courts than probation or community service. According to the annual report of the Probation Service, such orders were made on 3,402 occasions during 2007. This contrasts with a total of 2,756 Probation Orders and 1,519 Community Service Orders made the same year. (Imprisonment is more frequently resorted to than probation and community service combined; in 2007 there were 5,715 committals to prison under sentence.) Another judicial innovation is the request to make a contribution to the court poor box. Although without any statutory basis, the poor box has been applied in a range of circumstances including public order offenses, minor theft and criminal damage, careless and dangerous driving, and possession of cannabis for personal use. The amounts are generally modest but in January 2003 a man convicted of possession of child pornography paid €40,000 (US$50,272) to a named charity in addition to receiving 240 hours community service (in lieu of a nine-month prison term).

Prison From an overall daily average population of around 400 in the mid-1950s, by the 1970s, the daily average number of prisoners had begun to rise, exceeding 1,000 in 1975. Crime rates increased dramatically

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during this period, from, on average, less than 20,000 recorded indictable offenses each year in the 1960s to more than 100,000 in 1983. As the prison population grew, the penal system came under increasing strain. This situation was exacerbated by the outbreak of conflict in Northern Ireland in the 1970s, which contributed to an escalation in armed crime, an increased caseload for the Special Criminal Court, and the need to make special provision for politically motivated prisoners. By the mid-1990s, the crime rate was at an all-time high, the prisons were overcrowded, and the safety valve of temporary release (prisoners sent home without supervision before the end of their sentence) was bringing the system into disrepute. When the Department of Justice, Equality and Law Reform relinquished day-to-day responsibility for the management of prisons to the newly established Irish Prison Service in 1999, there were 15 prisons and a daily average population of nearly 3,000. By 2007 the stock of prisoners had grown to more than 3,300 (a rate of around 80 per 100,000 population). Portlaoise prison is the country’s only high-security establishment. Its perimeter is patrolled by soldiers from the Irish Defense Forces. Sentences tend to be short, with 60 percent of those received into prison in 2006 serving less than 6 months and only 4 percent serving 5 years or more (including life). All fixed-length prison sentences automatically attract 25 percent remission, which can be forfeit in the event of prisoner indiscipline. Lifesentence prisoners may apply to the Parole Board after 7 years. They are unlikely to be released before they have served at least 12 years and, when eventually returned to the community, always remain on license and subject to recall. A delegation from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), a nonjudicial body established by the Council of Europe, visited the Republic of Ireland for the fourth time in October 2006. Its report depicted a prison system distorted by a climate of violence and fear. Beatings of prisoners were detailed, and the CPT expressed grave reservations about the effectiveness of Garda investigations into allegations of abuse by prison staff. In addition, there was a worrying level


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of interprisoner violence, with frequent stabbings and assaults, and increasing numbers of prisoners seeking protective custody—in reality 23-hour-aday lock-up—out of fear for their safety. Limerick and Mountjoy prisons and St. Patrick’s Institution for young offenders were deemed “unsafe” for both staff and inmates. The level of violence was attributed to the availability of drugs and the absence of meaningful activities. The CPT found that conditions in prisons were variable, with some inmates enduring prolonged periods in small, dilapidated cells with another prisoner and a couple of stinking chamber pots for company. Hygiene problems were most acute in prisons like Cork and Limerick that also bear the brunt of routine overcrowding. Clearly, there is some way to go before the Irish Prison Service achieves its mission of providing “safe, secure and humane custody.” An inspector of prisons was appointed in 2002 and the work of this office should help to hold the prison service to account by monitoring its activities closely and continuously. Ian O’Donnell Further Reading The Central Statistics Office: http://www.cso.ie/sta tistics/crimeandjustice.htm. Kilcommins, Shane, Ian O’Donnell, Eoin O’Sullivan, and Barry Vaughan. (2004). Crime, Punishment and the Search for Order in Ireland. Dublin: Institute of Public Administration. O’Donnell, Ian. (2008). “Stagnation and Change in Irish Penal Policy.” The Howard Journal of Criminal Justice 47: 121–133. O’Donnell, Ian, Eric Baumer, and Nicola Hughes. (2008). “Recidivism in the Republic of Ireland.” Criminology and Criminal Justice 8: 123–146.

Isle of Man Legal System: Common/Customary Prison Rate: Medium Death Penalty: No Corporal Punishment: Yes

Background The Isle of Man is located in the Irish Sea just off the coast of the United Kingdom. The island is about 572 square kilometers (220 square miles) and has a population of 76,220. It is a dependency of the United Kingdom and therefore has a parliamentary democracy. Its legislative system is based on the laws of the UK but it also applies its own “Manx Statutes” that derive from the Isle of Man Constitution Act of 1961. The Constitution, like those of its fellow Channel Islands of Guernsey and Jersey, is unwritten. However, it has its own legislation that is issued by the Legislative Council and the House of Keys. The Legislative Council is composed of the president of Tynwald, the Lord Bishop of Sodor, and the attorney general (who does not vote), as well as eight other members named by the House of Keys. The House of Keys consists of 24 seats, which are elected by popular vote to serve five-year terms. Since the Isle of Man is a dependency of the United Kingdom, it does not have its own military, which is instead the responsibility of the United Kingdom. While the legal structure of the Isle of Man is similar to many other common law states, it nevertheless differs in many respects, and this is apparent in its police force. In the Isle of Man, the police force is called a constabulary, a common European term. The constabulary in the Isle of Man is run by the chief constable and is composed of 379 officers, 29 of which are volunteers. The highest office is the chief constable, followed by the deputy chief constable, 2 superintendents, 4 chief inspectors, 14 inspectors, 39 sergeants, and 183 constables. In addition, there are the commandant (1), special constables (38), support staff (67), and finally, community volunteers (29). This staff deals with all crimes from the most important criminal offenses all the way down to the smallest traffic offenses. According to the 2007–2008 Annual Police Report, most crime statistics have dropped since previous years. The report also states that according to a recent survey, the morale of the squad and job satisfaction have increased substantially in recent years. The police report concludes


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that “people were feeling a much greater satisfaction toward the police force.”

Crime Classification of Crimes In the most recent 2008 Crime Report, the Isle of Man reports the crimes according to 12 different categories. Surprisingly, murder and homicide are not included, even though according to the Isle of Man local newspaper Telegraph.co.uk, in February 2004, a man was convicted of a double murder and sentenced to 20 years in jail. Nor is money laundering included, which is also a crime problem in the Isle of Man and other off-coast dependencies that are widely acknowledged in the media. According to the U.S. Department of State, the Isle of Man is on its countries/jurisdictions money laundering list of primary concern. The categories reported instead are assault, domestic assault, burglary in a dwelling, burglary other than dwelling, criminal damage, deception, drug offenses, miscellaneous, acts against public order, robbery, sexual offenses, and theft. Each category receives equal recognition for protection, and each is monitored by the police force.

Crime Statistics Overall crime rates have diminished over the last three years in the Isle of Man. In 2007–2008 there were 3,824 crimes recorded, which was a 9 percent decrease compared to the average over the last three years, according to the Isle of Man government Web site. In those three years, the greatest amount of crime was in criminal damage (damaging property). In 2007–2008, the number of criminal damages recorded was 1,228, a decrease of 23 percent over the previous year, with numbers lower than the previous year’s in every month except March. The Isle of Man police force attributes this decline to the police crackdown on crime immediately after 2004, before which there had been considerable increases in crime. The next highest crime rate in the Isle of Man for the 2007–2008 year was theft. Theft fluctuated throughout the year in comparison with

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last year’s numbers, with a 12 percent increase in the crime since the previous year. The third most common crime in the Isle of Man in recent years is assault (not including domestic assault), which since 2004–2005 has been a growing problem. Over the last three years, it increased by 12 percent, though in 2008, there is a sign of decrease as a result of police crackdown, according to the police report. Finally, drug crimes in the three years prior to 2008 have been up a total of 52 percent. In 2003– 2004, the amount of drug crimes reported was 113, which jumped to 276 in 2007–2008. The following year saw an increase of 10 percent in drug crimes.

Finding of Guilt As noted above, the Isle of Man follows a legal system based on that of the United Kingdom. However, it has also developed what is called the Manx System that responds more closely to the island’s social and political history and draws its authority from the Registry of Deeds. Thus, it does not follow the land laws of the United Kingdom. It still refers to the Parliament of the United Kingdom for certain matters that are based on common concerns, such as defense, nationality, and immigration. But in recent years, the changes in law in the United Kingdom have not been followed by the Isle of Man. The court systems in Isle of Man follow the Acts of Tynwald, which have the right to approve any act they want, and the Orders and Regulations made under those acts. In Isle of Man there are many different courts that preside over cases. The lower courts are presided over by the high bailiff and the deputy high bailiff. The higher court is called the High Court and has jurisdiction over all criminal and civil cases. These courts have two trial judges that are called the two “Deemsters,” a term that comes from Viking times. Next there is the Manx Appeal Court that is presided over by the Deemsters and the Judge of Appeal. They are the ones that see all appeals. If they consider the appeal and there is still room for doubt, there is one step higher to appeal, which is that of the Judicial Committee of the Privy Council in London, although that option is rarely pursued.


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Parole, Parole Committee, and David Gray House (rehabilitation).

Punishment Although the death penalty has been abolished, physical punishment has not been completely abandoned in the Isle of Man. Juveniles are allowed to be beaten with a cane or birch; however, the cane cannot exceed 4 feet in length or half an inch in diameter and the birch cannot weigh more than 9 ounces, have a length of 40 inches or more, or have a handle length of 15 inches or more. It is also not to have a circumference of more than 6 inches at the center or 3.5 inches at the butt of the handle. For any indictable offense, up to 6 strokes are permitted to a child and 12 strokes for any young adult. Prisons have been considered fortresses from very early on in Isle of Man history. The first prison, Peel Castle, was used until 1780 as the only prison in Isle of Man. After that it switched to Castle Rushen, which became a prison instead of a castle. In the late 1700s and early 1800s, the government stopped using the court fines to help maintain the prison and so it started to deteriorate. By the 1880s it was deemed inadequate to house all its prisoners. In 1891, the government built a new prison and slowly started to expand it and integrate more and more prisoners into it. In 2005 the Isle of Man began a project to build a new prison, which was the island’s biggest capital project, opening in July 2008 with 138 cells. The government transferred 90 inmates from the old prison to the new one to mark its opening. The prisoners are expected to participate in education and vocational training programs that include workshops for “painting and decorating, joinery, and plumbing skills,” as well as classes in “basic literacy and numeracy, information technology, arts and crafts, music (practical guitar playing), P.S.H.E. (personal, social, and health education), and other academic subjects.” According to the prison Web site, the prisons, although they are meant to be a punishment, also take great measures to reintegrate prisoners into society. This goal is also achieved through the probation system, which focuses on stopping alcohol or drug use, and family and community issues. The probation service works closely with the Isle of Man Prison Service, Drug and Alcohol Team,

Timothy McCorry Further Reading Isle of Man Government: http://www.gov.im. Isle of Man Police: http://www.gov.im/dha/police; http://www.gov.im/infocentre/faqs/police.xml. World Corporal Punishment Research: http://www. corpun.com.

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

Background Italy has a population of around 60.1 million people. The country is largely homogeneous linguistically and religiously but is culturally, economically, and politically diverse. Minority groups are relatively small, the largest being the German-speaking people of the Bolzano Province and the Slovenes around Trieste. Immigration has increased in recent years, but the Italian population is declining overall due to low birth rates. Although Roman Catholicism is the majority religion (85% of native-born citizens are nominally Catholic), the Constitution guarantees equal protection and freedom before the law for all religious faiths. The Italian economy has changed dramatically since the end of World War II. From an agriculturally based economy, Italy has developed into an industrial state and ranks as the world’s seventhlargest market economy. However, the Italian economy remains divided into a developed industrial


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north, dominated by private companies, and a lessdeveloped, welfare-dependent, agricultural south, with 20 percent unemployment. Chronic problems of inadequate infrastructure, corruption, and organized crime act as disincentives to investment and job creation in the south. The country is also affected by a large underground economy, worth some 27 percent of Italy’s GDP. This is not subject to taxation and thus remains a source of lost revenue to the local and central government. Despite numerous recent institutional and legal reforms, the country’s most pressing problem remains the inefficiency of the criminal justice system, as assessed by the 2006 Report of the European Commission for the Efficiency of Justice. The report shows that in regard to the annual budget spent on courts and prosecution without legal aid, Italy is second only to Germany but both civil and criminal decisions are rendered, on average, more slowly than by any other European country. The excessive duration of proceedings and the enormous judicial backlog are part of the problem. In the first semester of 2005, more than 3 million proceedings were pending before the criminal courts. In 2005, criminal proceedings averaged two years and five months for the first instance alone, and their duration reached an average of five years and six months for cases taken to appeal and to the Supreme Court of Cassation. Unsurprisingly, the European Court of Human Rights has repeatedly convicted Italy for violation of the European Convention’s reasonabletime requirement.

Origins of the Italian Legal System Although the origins of Italian law might be traced back to Roman and Middle Age law, the current system derives from the Enlightenment. Before its unification in 1861, Italy was divided in several kingdoms, duchies, and the so-called Papal States. The unification of the legal system was a serious challenge because each entity had its own codes of criminal law and procedure and its own judicial system. The Kingdom of Italy (1861–1946) developed as a progressive enlargement of the Kingdom of Piedmont-Sardinia, and its laws (mostly based

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upon the postrevolutionary French codifications) were initially extended to the newly acquired territories. From the early years of the Italian kingdom, the sources of criminal law and procedure have been codified. The first renowned Criminal Code, inspired by Justice Minister Giuseppe Zanardelli, was approved in 1889, the year that also marked the unification of all prior Supreme Courts in the Corte di Cassazione, based in the new state capital, Rome. In the following year a unified Code of Criminal Procedure came into force, to be replaced in 1913 by a new version that still subscribed to the French inquisitorial model embedded in the 1808 French Code de l’instruction criminelle. During the Fascist period (1922–1943), new codes were enacted and although they both originally emphasized crime control to the detriment of civil liberties, they long survived the birth of the republic (June 2, 1946) and the Constitution (January 1, 1948). Since the 1960s, nonetheless, provisions of the substantive and procedural codes have been subject to the scrutiny of the Constitutional Court, the judicial body designed to ensure the alignment of statutory law with the provisions of the Constitution. A new code of criminal procedure came into force on October 24, 1989, a date that stands out as a turning point in the history of Italian law. The 1989 code marked a departure from the inquisitorial French tradition and partly subscribed to adversarial assumptions. The new code opened the doors to cross-examination of witnesses by parties, private investigation by counsel and detectives, and alternative forms of proceedings (based upon negotiations on the evidence and the sentence between the counsel and prosecutor). More important, the phase of investigation was entirely restructured and the examining magistrate was replaced by a judge of the preliminary investigation with carefully defined tasks (issuing of warrants for searches, wiretaps, remanding of defendants in pretrial custody, etc.). A few remarkable features of the continental system, however, were maintained such as the professional judiciary supervised by the Superior Council of the Magistrates, with authority over both judges and prosecutors, the “right to lie” for defendants who give evidence, and the sentencing phase. Unique


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to Italy is the constitutional principle of mandatory prosecution (Art. 112 I-Constitution), according to which prosecutors are prevented from dropping charges out of their own discretion. However, the idea that discretion could be taken away by constitutional provision is unrealistic, as a prosecution office necessarily concentrates its effort in certain directions and not others, and must eventually make choices in the allocation of scarce resources. The recent fall of corporate giants (such as Cirio and, more recently, Parmalat), as well as other scandals of mismanagement in public companies, has also led to the progressive surrender of another traditional principle of Italian law, according to which a corporation could not be subject to criminal prosecution. Pursuant to Decree No. 231/2001, corporations can now be brought before a criminal court for offenses committed on their behalf or to their advantage by directors, administrators, and other persons responsible for the governance of the corporation. A crucial aspect in current Italian criminal policy is that although its crime rates often rank below the European average, public confidence in the criminal justice system is critically low. Low confidence originates from well-founded concerns over the inefficiencies of the criminal justice system (mainly due to inflated budgets and lengthy proceedings) and from the “uncertainty” of criminal penalties. Defendants seldom serve the prison time that the trial court imposed upon them as the law offers multiple ways to reduce jail time, get early release, and access probation—even in the case of serious offenses.

Police The present organization of public security in Italy dates back to 1981. The National Authority for Public Security is the minister of the interior, responsible for public order and security and the coordination of police forces. Five separate national police forces provide law enforcement: Polizia di Stato, Arma dei Carabinieri, Corpo Forestale dello Stato, Guardia di Finanza, and the Polizia Penitenziaria. The Polizia di Stato is Italy’s national civilian police force. It performs common patrolling, investigative and law enforcement duties, and there

are regional and provincial divisions of this force scattered throughout Italy. The Arma dei Carabinieri may be regarded as the Italian equivalent of the French Gendarmerie, a military corps with police duties. Unrivalled in popular affection and national pride, the Carabinieri perform the same duties as the state police, though some units have recently been dispatched in peacekeeping missions abroad, including Kosovo, Afghanistan, and Iraq. The Guardia di Finanza is a financial and customs police under the Ministry of the Economy. It is a military corps and its duties primarily involve investigating economic crimes, such as tax evasion, financial crimes, money laundering, smuggling, international drugs trafficking, credit-card fraud, anti-mafia operations, and counterfeiting. The Guardia di Finanza has a naval fleet for the overseeing of territorial waters and an air force. The Polizia Penitenziaria is a penitentiary body that operates the prison system and handles the transportation of inmates. And similar to park rangers in the United States, the Corpo Forestale dello Stato (National Forestry Police) controls Italian national parks and forests. Its duties include fighting poachers, safeguarding protected animal species, and preventing forest fires. In addition, every Italian town and city operates its own municipal police force, primarily engaged with traffic patrolling, reporting of petty crimes, and combating antisocial behaviors. In recent years, a new program for a neighborhood police termed Polizia di Quartiere has been launched. The program consists of pairs of state police officers (or carabinieri) patrolling sensitive areas of major cities, on foot.

Crime Classification of Crimes The 1930 Criminal Code groups offenses into delitti (crimes) and contravvenzioni (misdemeanors). Offenses against persons, property, and the state are listed as crimes (e.g., murder, robbery, rape, drug offenses, theft, actual bodily harm), while misdemeanors include, among others, failure to comply with the order of a public authority (Art. 650 CC), failure to disclose one’s identity when requested by


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a public officer, and a number of offenses aimed at protecting the general public and public safety. The age of criminal responsibility is set at 18, pursuant to article 98 of the Criminal Code. For those who were under the age of 18 when they committed the offense, the law provides a mandatory one-third reduction in penalty. If the defendant is between the age of 14 and 18, however, the court must be satisfied that he or she was “mature” at the time of the offense. The state of maturity is to be determined by experts who are supposed to report on the criminological, psychological, and social aspects of the minor’s personality and life. Crimes that are particularly challenging to Italy at present include mafia crimes, the crimes of immigrants, and the corruption in the public sector.

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First, mafia-type organizations—which developed in the 20th century essentially as local and regional enterprises—are now multibillion Euro businesses established across the whole of Italy and even abroad. Besides the world-famous Sicilian Mafia, dating back to the 19th century, the list now includes the Camorra (based primarily in Campania and its capital, Naples), the ‘Ndrangheta (in Calabria), and the Sacra Corona Unita (in Puglia). Mafia-type organizations are characterized by their viciousness and their structural similarity, which is based on a network of secret associations of “men of honor” governed by a code of silence. One of the most significant features of these organizations has always been their aptitude for infiltrating public offices and exerting political influence. In the

A view of the courtroom during former Italian premier Silvio Berlusconi’s trial in Milan, Italy, November 21, 2006. Berlusconi was charged with false accounting, embezzlement, and tax fraud. (AP Photo/Luca Bruno) © 2011 ABC-Clio. All Rights Reserved.

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1990s, Italy adopted a number of measures (such as a tough prison regime for mafia detainees, the encouragement of defections through exceptionally early parole, and the requirement of a low standard of proof to allow the seizure of mafia assets). Second, immigrant crime is currently a cause for serious public concern. While prisons are filled with foreign nationals (see below), figures for immigrant crime have continued to rise systematically in the last decade. Statistics from the Italian National Institute for Statistics (ISTAT) show that immigrants are especially active in thefts and burglaries in shops and apartments. In 2003, in the metropolitan areas of the central and northern regions (around Turin, Milan, Bologna, and Florence), more than 60 percent of all reported offenders were foreigners. Further, it appears that foreign criminals have learned their lessons from their Italian counterparts. As a result, expressions such as “Albanian mafia” and “Russian mafia” are used to describe ethnic criminal groups engaged in all sorts of criminal activities. To be accurate, however, these groups do not resemble the traditional structure of Cosa Nostra since they do not benefit from its political capital. Third, while most if not all prime ministers and major politicians have been subject to criminal prosecution in the last decade—on different grounds and with remarkably different judicial outcomes— various theories have been put forward to explain the economic, political, and cultural causes of corruption in Italy. Some blame the Italians’ poor sense of civic duty, while others suggest that corruption finds fertile soil in the typical Italian attitude of favoring friends and family in social and economic relations. Lack of transparency in the public administration, overly complex legal regulations, and inefficient bureaucracy also play a part. Such challenges to the country’s criminal policy should not, however, lead to underestimating some of the positive developments. The defeat of internal political terrorism, for example, was a major success in the early 1980s, while a number of prominent mafia leaders have been captured in the last 20 years (including godfathers Salvatore Riina, in 1993, and Bernardo Provenzano, in 2006). The last decade also marks a sharp decrease in kidnapping

for ransom, once a profitable business—especially in the southern regions of Sardinia and Calabria.

DRUG CRIMES The substantive and procedural aspects of drug crimes are governed by an entirely separate body of law (Decree 309/1990) and have been subject to swinging reforms amid heated public concern over the alleged primacy of mafia-type organizations and the role of illegal immigrants in drug trafficking. The personal use of all drugs was decriminalized following a national referendum held in 1993. Since then, only administrative sanctions (e.g., suspension of driving license or withdrawal of one’s passport) may be imposed on drug users. Instead, the production, sale, or trafficking of drugs is regarded by the law as a very serious offense with a penalty of between 6 and 20 years of imprisonment (art. 73, Decree 309/1990). Conspiracy to commit drug trafficking is punishable by a prison sentence of no less than 20 years (art. 74, Decree 309/1990). Although personal consumption is not punishable per se, a 2003 statute has nonetheless made it harder for defendants to prove “personal use” when they are found in possession of a quantity of a drug exceeding the figures set in a dedicated ministerial chart. Illegal drugs include opium and its derivatives (morphine, heroin), cocaine and its derivatives, amphetamine, synthetic drugs, cannabis, and hashish.

Crime Statistics According to the Annual Report of Judicial Statistics drafted by ISTAT, murders connected with organized crime (Mafia, Camorra, ‘Ndrangheta, and Sacra Corona Unita) account for over one-sixth of the murders recorded in the entire country. As anticipated, there are major differences between the north and the south of the country. In the last 10 years, the southern regions account for 97.5 percent of the total mafia murders. In 2006, most murders occurred in Campania (140 out of 621, or 22.57% with less than 10% of Italy’s population), while Calabria is the riskiest region, with almost 3


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murders per 100,000 inhabitants. In stark contrast, however, figures for domestic murders are higher in the north. Reported offenses for rape quadrupled in the last decade. The increase may be regarded as the direct result of a sharp increase in sexual offenses, although researchers argue that the figures must be placed in a broader context. First, several statutory reforms have introduced new sexual offenses in the Italian Criminal Code (1996, 1998, 2006). Second, the increase may signal the progressive erosion of the “dark figure,” which used to keep most of women and minors from reporting sex offenders. Still to date, however, reports of sex offenders are more frequent proportionally in the north than in the south, possibly due to different social perception of sex offenses by region. Statistics show a constant increase of robberies in the last decade, while theft remained stable. When broken into regional patterns, these data suggest that robberies are more frequent in the wealthy north, while record high figures have consistently been reported in Campania (the Region of Naples), followed by Lombardy (Milan) and Sicily (Palermo). The ISTAT annual report combines serious drugrelated offenses in one figure, which include both drug manufacturing and trafficking (art. 74 Decree 309/90) and conspiracy to commit drug-related offenses (art. 74 Decree 309/90). There are almost as many drug offenses as there are robberies. A snapshot of offenses recorded by police in 2004 is as follows: Total murders Mafia murders Rape Robbery Serious drug offenses

621 138 3,734 46,265 30,053

Finding of Guilt Rights of the Accused Traditional constitutional guarantees include the principle of legality (no punishment without law), the presumption of innocence (art. 27), habeas

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corpus (art. 13), freedom from torture and inhuman and degrading treatment (art. 27), right to counsel (art. 24), and the right to appeal all judgments on matters of law before the Supreme Court of Cassation (art. 111 para. 6). Human rights discourse in Italy has also focused—especially since the 1980s—on the need to align domestic law with the European Convention of Human Rights. The most noticeable reform was the 1999 “fair trial” amendment to the Constitution, inspired almost literally by article 6 of the European Convention. The amended version of article 111 now includes a blend of long-established domestic principles (i.e., the right to a public trial before an independent and impartial tribunal and the right to an interpreter) as well as new and improved guarantees. By way of illustration, the amendment specifies that every accused person has the right to be promptly informed of the accusations against him or her, to be given adequate time to prepare a defense, to summon witnesses on his or her own behalf, and to confront adverse witnesses before the court. Following the 1999 constitutional amendment, Italian criminal proceedings are subject to principles of adversarial adjudication: an explicit clause prevents the use in evidence of any out-of-court statement made by those who have always avoided confrontation with the accused or counsel. Essentially, the amendment limits the use of prior inconsistent statements and prevents police officers from offering in evidence any statements that they collected from informants during the investigation (art. 195). Similarly, any statements made by codefendants that refuse to take the stand at trial are inadmissible (art. 513). The most striking deficiency of Italian criminal procedure remains the length of proceedings. The lack of an effective case management system has led over the years to an intolerable length of both civil and criminal proceedings—which can often last up to a decade (or even longer). The 1999 amendment, however, stops short of announcing a fundamental individual right to a speedy proceeding, which is nevertheless provided for by article 6 paragraph 1 of the European Convention.


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With regard to the institutional arrangements of Italian criminal justice, one must be aware that criminal cases are heard by several different courts of justice. While minor offenses are tried before the lay justice of the peace, the majority of offenses are dealt with by the Tribunal of First Instance. Depending on the gravity of the offense, the tribunal sits either with a single judge or with a panel of three judges. In contrast, the Assize Court is given jurisdiction over extremely serious offenses (such as murder), and has a panel of eight judges (six lay, two professionals) who retire together and jointly deliberate on questions of both fact and law. Cases may also be dealt with by a single professional judge at a committal hearing if the defendant agrees to certain simplified proceedings. The Assize Court should not be compared to a jury, as no right to trial by jury is in fact ensured in the Constitution. Legal aid is crucial in ensuring equal access to justice for all, as provided for by article 6 (paragraph 3, letter c) of the European Convention of Human Rights. Nevertheless, Italy does not operate a structured public defender system: instead, any lawyer may serve as a public defender when available or “on call.” It comes as no surprise that public spending for legal aid is very limited. In 2004, the annual budget allocated to legal aid was €66 million (US$82 million), as against more than €3 billion (US$3.7 billion) in the UK. In the same year, the overall number of Italian legal aid cases for 10,000 inhabitants totaled 17, compared to 459 in the United Kingdom. To be eligible for legal aid defendants must prove an annual income below €9,723.84 (US$12,219), increased by around €1,000 (US$1,256) for each person of the household.

Prosecution The authority to investigate a criminal case and to press charges against suspects rests with the public prosecutor’s office, which is attached to the local Tribunale (the court of first instance). Prosecutors are magistrati (i.e., members of the judiciary) who have been recruited through the very same examination provided for judges (see below) and usually serve for life. In practice, however, investigations

are often carried out by police officers and agents (usually referred to as the polizia giudiziaria). Appointed agents and officers from all national police corps may serve in criminal investigations under the direct supervision of the prosecution. There are a few acts of investigation that may only be performed by the prosecutor in person. The most important is the interrogation of suspects and questioning of informants who are in custody. During interrogation, suspects must be assisted by counsel—whether their own or courtappointed—as the law does not permit waiver of the right to counsel. Further, the prosecutor has sole responsibility to issue certain types of search warrants and applications for a wiretap warrant to the judge of the preliminary investigation.

Alternatives to Trial Drafters of the 1989 Code of Criminal Procedure were especially concerned with procedural economy since the success of an adversarial system of justice requires trial to be the exception rather than the rule. Along with the traditional accelerated proceedings for flagrant crimes and petty offenses, the new code entered the untested waters of plea bargaining–like procedures. Two procedures are available: the first based upon certain concessions to the defendant in exchange for the surrender of certain fundamental rights (giudizio abbreviato—summary trial), or the second, agreement with the prosecution on the sentence (patteggiamento—application for a penalty upon request). A summary trial allows the findings of the preliminary investigation to be used in evidence, and may act as a waiver of the hearsay rules, and also triggers an automatic one-third reduction in penalty, should the defendant be found guilty. Originally, the only offenses subject to patteggiamento were those that carried a maximum of a three-year term of imprisonment, in line with the idea that this mode of procedure was unsuited to the prosecution of serious offenses. This state of affairs, however, has significantly changed since 2003, when a statutory reform allowed defendants to file an application for a penalty upon request for offenses


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punishable by a term of up to seven and one-half years of imprisonment. In any case, negotiations are capped at a one-third reduction of penalty. The efficacy of trial alternatives must be assessed against their actual use. The 2004 Annual Report for the Opening of the Judicial Year suggests that the prosecutors’ offices initiated 561,000 criminal proceedings in 2003, 180,000 of which were eventually resolved either with a summary trial or an application of penalty upon request. These figures account for 32 percent of criminal litigation.

Pretrial Detention While no right to bail is guaranteed to criminal defendants, any time served in prison before the passing of a final judgment is considered by the law as “preliminary detention.” Preliminary detention may only be authorized when there is a probable cause that the defendant committed the crime and material danger that he or she may (1) escape, (2) corrupt the evidence, or (3) commit further crimes. Preliminary detention is permissible for offenses that carry more than a 3-year imprisonment and it must be authorized by a judge, upon the request of the prosecution. The detention order may be challenged within 10 days before the so-called Freedom Court (Tribunale della libertà). Although the Constitution explicitly states that preliminary detention must be limited in length (Art. 13 para. 5), no further specification is provided therein and, as a result, defendants may in fact spend several years in prison awaiting the final judgment. Since 1989, however, the new code sets an accurate time frame for the overall duration of the preliminary detention as well as for the delay within the different phases of a proceeding. As a result, six months is the maximum duration allowed during the investigation stage, one year for the trial of first instance, and so forth. In total, for the most serious offenses preliminary detention may not exceed nine years.

Judicial Authorities On December 31, 2007, Italy employed 6,377 professional court judges and around 3,200 justices of

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the peace engaged in both civil and criminal proceedings. Although no separate statistics are available to determine the exact number of professional judges involved in criminal cases, a reasonable figure should be around 2,000. To this figure one should add the lay citizens who are occasionally attached to the assize courts (440 units in 2007) and the nonprofessional judges in the juvenile courts and the supervisory penitentiary courts. As of December 31, 2007, there were 2,184 prosecutors. All professional magistrates (judges and prosecutors) are chosen through a single public competitive examination. By tradition, all applicants must hold a law degree. Successful candidates are then trained by working for two years with established magistrates. Both the judges and the prosecutors have a lifetime tenure.

Juveniles Italy operates an entirely separate system for the criminal prosecution of juveniles pursuant to the provisions of Decree No. 448/1988. Special offices of the prosecution and selected police officers and agents investigate juvenile crimes. Juvenile criminal courts sit in panels of four judges (two professionals and two lay persons, chosen from experts in psychiatry, psychology, criminology, and sociology). The lay expert serves in the court for a renewable three-year term. Criminal proceedings against juveniles are designed to serve both as assessment of criminal liability and as a means of reeducating the offender. The law does not allow the trial of juveniles as if they were adults, no matter how serious the alleged offense is and how mentally “mature” the defendant appears to be. The Italian approach to juvenile justice is characterized by leniency, as pretrial detention is only applied under exceptional circumstances and an automatic one-third reduction in sentence applies. To minimize the stigma associated with the criminal charge, hearings against juveniles are usually held in camera and either a family member or expert provides the defendant with psychological assistance. Two alternatives to trial are available to the court in the case of juvenile crimes. First, the


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court may dismiss the case if the offense caused only minor damage or constituted an isolated instance of bad behavior. Second, even in cases of serious offenses (such as robberies and murder), the court may place the minor under a tailor-made program of pretrial probation. Under this program, the juvenile is returned to the community for a period in which he or she will have to abide to certain conditions set forth by the court under the supervision of the office for the administration of juvenile justice. General conditions may include enrolling in a study course or maintaining employment, abstaining from unlawful behavior, and so forth. If the probation period goes well, charges will be dropped and the criminal proceeding discontinued.

Punishment Types of Punishment The main penalties provided by Italian law for criminal offenders are imprisonment (including life in prison for adults) and/or fine. A number of ancillary sanctions may also be attached to a criminal conviction, such as deprivation of the right to vote; a ban on holding public office, exercising certain professions, or contracting with public authorities; and a suspension of parental rights. Corporal punishments and shame penalties are illegal, unless one considers the publication of the guilty sentence in the national and local press their contemporary equivalent. For minor offenses triable before the justice of the peace, the defendant’s reparation to the victim may lead the court to dismiss the case, but this procedure is considered as a settlement of the matter between the alleged offender and the victim, rather than a criminal penalty. In the absence of a prior criminal record, the court may place a sentence of two years or less on hold for a set period of time (two to five years). If, during that time, the convicted person commits no further offense, no punishment will be served. The law also disfavors short-term sentences on the assumption that incarceration undermines rehabilitation, especially in the case of first-time offenders. As a result, the court may apply substitute sanctions

for short-term imprisonment (such as half-time custody and/or libertà vigilata, i.e., release under surveillance). In addition to the aforementioned criminal penalties, a number of “security measures” are laid out by the criminal code with regard to offenders who are deemed socially dangerous. Only noncustodial safety measures—such as the release under surveillance—are served upon those who are found guilty of a criminal offense. Instead, custodial security measures—such as the prolonged confinement in mental hospitals for offenders— are applied in case of insanity acquittals. Italian criminal law operates a “unitary” monophase sentencing model, according to which the court renders the verdict and sentence simultaneously. The model gives the court “guided” discretion within specified sentence ranges but also imposes upon the court an obligation to justify the sentence with reference to both the gravity of the offense and the character of the defendant. In the last two decades, severe mandatory minimums in the penal code have translated into a widespread court practice geared to the issuing of minimum sentence in most, if not all, cases. In this manner the courts essentially forego their discretionary authority and the entire purpose of sentencing is frustrated. Further, the sentence imposed on the defendant at the end of the trial is subject to significant change during the term of that sentence. The Supervisory Penitentiary Court frequently grants good time credit (45 days every 6 months), half-time regimes, home detention, probation, and other benefits to those who qualify for them under the terms of the law (very strict limits on such benefits, however, are provided for mafia and terrorist offenses). In practice, a defendant who files for summary trial in the case of a “simple” murder may be sentenced to 14 years (considering the one-third reduction for summary trial) and then, subject to good conduct, apply for parole, early release, and/or other benefits as early as after 8–9 years of detention. In the case of murder of first degree, instead, application for summary trial would cut the sentence automatically down to 30 years, and the inmate will become


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eligible for half-time detention after 15 years and early release after 19 to 20 years.

Imprisonment The Italian prison system is governed by Statute 354/1975, which is a body of law originally designed to guarantee requirements of article 27 of the Constitution, including freedom from inhumane and degrading treatment and the rehabilitation of offenders. Over the last several decades, the 1975 act has been amended by several major reforms to align prison policy with sometimes contradictory goals: at times, the additional protection of detainees’ rights, and at other times, with public interest concerns for criminal emergencies like mafia and terrorism. In an effort to reeducate offenders, prisons implement tailor-made treatment programs designed by professionals. Treatment includes work assignments, sport and recreational activities, contact with family, the encouragement of spirituality and religious beliefs, and a number of other benefits and privileges (good conduct time credit, release on special occasions, visits to family, and early parole). Italy also operates a maximum-security detention regime for dangerous inmates or detainees awaiting trial. This regime is usually referred to as “Article 41bis,” the provision which governs the matter since the 1992 amendment to Statute 354/75. Article 41bis was introduced in 1986 as an emergency measure to deal with prison unrest and revolts in the age of domestic terrorism. On June 1992, after the killing of magistrate Giovanni Falcone by the Mafia, an amendment to Article 41bis allowed restrictive measures to be taken whenever there was “serious concern over the maintenance of order and security.” The aim was to break the chain of command between Mafia bosses in prison and their subordinates in the outside world. In response to the killing of Falcone’s colleague Paolo Borsellino, more than 400 Mafia inmates were transferred from Palermo to maximum-security prisons on both the mainland and the island prisons of Pianosa and Asinara, where the severity of the “41bis regime” was enhanced by geographical remoteness. Over the years, the “41bis regime” has gradually been relaxed in

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response to domestic court decisions and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommendations, to ensure appropriate contacts and activities for prisoners subject to that regime. The prisons on the islands of Pianosa and Asinara were closed between 1997 and 1998. Nonetheless, a discussion on contemporary prison policy would not be complete without a preliminary reference to the 2006 Pardon Act (indulto). Approved by a two-thirds parliamentary majority as required by the Constitution, the Pardon Act was specifically designed to reduce the inmate population in the light of the country’s very limited prison capacity. Regrettably, Italy has been found in breach of the European Convention of Human Rights for the flagrantly insufficient amount of personal space given in 2002 to a detainee in the Rome-Rebibbia prison (the Sulejmanovic case). Under the terms of the 2006 Pardon Act, all inmates were eligible for pardon, with the sole exclusion of mafia and terrorist offenders. The immediate effects of the statute were remarkable: 61,264 inmates were detained on June 30, 2006, but by August 31, 2006, the figure had dropped to 38,847. A year later, on June 30, 2007, the inmate population had increased to 43,957, which may suggest that some former inmates had reoffended, but, on the other hand, national crime rates did not suffer any sudden increase. In July 2009, however, the prison population was back to pre-Pardon Act figures (63,574). Some statistics may help clarify the current state of penitentiary affairs in Italy. For example, foreigners are disproportionately represented in Italian prisons; in 2007, 48 percent of the incoming inmate population was foreign. In contrast, women are underrepresented and only account for the 4.4 percent of the total inmate population. Additionally, the system is very reluctant to serve prison sentence on minors, as on June 30, 2007, only 393 minors were incarcerated in Italy (50.5% of whom were foreigners). With regard to adults, the most represented age group is 30–34 (at 17% of the total inmate population), and more than 50 percent of inmates are between 24 and 44 years old.


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Prison In 2007, there were 160 facilities for detainees awaiting trial and 37 penitentiaries for convicted inmates. To this figure one must add 8 facilities for custodial security measures, including 6 mental hospitals for offenders. All Italian prisons are administered directly by the state through the Department of Penitentiary Affairs, under the authority of the Ministry of Justice. Nonetheless, the regional and local governmental bodies have taken a keener interest in prison policy as of late. A 2005 regional statute for inmate rights in Lombardy, for instance, supplements national law and has paved the way for similar efforts in other regions. The largest prisons in the country are located in Rome, Milan, and Naples. Milano-San Vittore and Roma Regina-Coeli are 18th-century panoptical prisons, and they host around 1,400 and 900 detainees awaiting trial, respectively. The detention center of Milano-Opera has more than 1,000 inmates and hosts a separate section for detainees in preliminary detention, a maximum-security compound as well as a separate section for female inmates. The prison operates a number of educational and work activities, including courses in creative writing, a tailoring workshop, and the Free Opera soccer team, which is enrolled in the local championship and is allowed to travel for away matches. The prison hospital has a section for infectious diseases. Additionally, a mosque is available for Muslim inmates. The newly built (2000) detention center of MilanoBollate has a maximum capacity of 970 inmates and is among the largest and most innovative in Europe. Its prison cells are equipped with one, two, and four beds. All sections include kitchen facilities, common areas, and a gym. The inmates may work at the prison’s call center, in the information technology department (the prison has a Web site: http:// www.carcerebollate.it), in food services as well as at the carpentry workshop. Convicted prisoners are under the obligation to work, while detainees awaiting trial may do so only upon request. On June 30, 2007, 28 percent of detainees reportedly had a job. Most inmates,

however, were employed by the prison administration itself and served within the walls of the penitentiaries. In the first six months of 2007, there were 317 active professional courses, with a total figure of 3,667 inmate students. Courses include information technology (the most popular), cooking, gardening and farming, electricians, arts and culture, craftwork, textiles, construction, typography, and plumbing. Visiting policies and privileges vary depending upon the prison. Broadly speaking, detainees are allowed six visits each month. Each visit has a maximum duration of 1 hour. For people in preliminary detention, visits must also be authorized by prosecution authorities. Visits take place in dedicated areas, under the visual surveillance of prison guards. Some prisons, such as Rome-Rebibbia, provide dedicated and closed rooms to allow for a more discreet setting for certain intimate meetings. In any case, wiretapping of conversation during visits requires a court warrant. Inmates are also allowed one 10-minute phone call per week. Restrictions do not apply to the visits and communication with counsel. Solitary confinement is allowed only in case of infectious diseases, as a disciplinary measure (for no longer than 15 days) and for detainees in pretrial detention, when the court finds it necessary for the investigation. Italian law allows both the transfer of prisoners to foreign countries to serve the sentence imposed by an Italian court and the extradition of persons that must serve a custodial sentence imposed upon them by a foreign court. These procedures are governed in detail by the Code of Criminal Procedure (art. 697–746), unless otherwise specified by international agreements among the concerned countries. Generally, decisions on these matters are subject to both political and judicial scrutiny, by the minister of justice and the competent court of appeal, respectively. Under no circumstances will the transfer or extradition be allowed if there is reason to believe that the person may be subject to the death penalty, to cruel and degrading treatment, or discrimination on grounds of gender, race, religion, nationality, or political opinions.


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It is worth noting that extradition within part of the European Union has recently been replaced by the simplified system of the European Arrest Warrant (EAW). Italy passed domestic legislation in 2005 to implement the EU directive concerning the EAW. In essence, the European Arrest Warrant means faster and simpler surrender procedures without political involvement. Member states can no longer refuse to surrender to another member state those citizens who have committed, or who are suspected of having committed, a serious crime in another EU country party to the EAW, on the ground that they are nationals. Stefano Maffei and Isabella Merzagora Betsos Further Reading Grande, Elisabetta. (2000). “Italian Criminal Justice: Borrowing and Resistance.” American Journal of Comparative Law 48: 227–259. Maffei, Stefano. (2004). “Negotiations ‘on Evidence’ and Negotiations ‘on Sentence’: Adversarial Experiments in Italian Criminal Procedure.” Journal of International Criminal Justice 2(4): 1050–1069. Maffei, Stefano, and Isabella Merzagora Betsos. (2007). “Crime and Criminal Policy in Italy: Tradition and Modernity in a Troubled Country.” European Journal of Criminology 4(4): 461–482. Perrodet, Antoinette. (2005). “The Italian System.” In European Criminal Procedures, edited by Mireille Delmas-Marty and J. R. Spencer, pp. 348–414. Cambridge: Cambridge University Press. Pizzi, William T., and Luca Marafioti. (1992). “The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation.” Yale Law Journal of International Law 17: 1–40. Note: The authors wish to thank Stephanie Watson for editing this essay and Mariel Covarrubias for research assistance in reviewing the 2006 Report of the European Commission for the Efficiency of Justice for findings relevant to Italy.

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Jersey Legal System: Common/Customary Prison Rate: Medium

Background Jersey is an island located just off the coast of the United Kingdom in the English Channel. The island is 116 square kilometers (44 square miles) and has a population of 91,533 and is the largest of the Channel Islands group, larger than its counterpart Guernsey Island of 78 square kilometers(30 square miles). Jersey is a dependency of the British Crown, and uses the UK laws, although it does have local statutes and its justice system is administered by its Royal Court. It does not have a written constitution and obeys both the statutes and the common law of England. The government is a parliamentary democracy, and Queen Elizabeth is the chief of state. Since it is a dependency, it relies on the United Kingdom for its foreign affairs; this includes any military action. The legislative branch of Jersey consists of the unicameral States of Jersey with 58 seats, but only 55 voters. The three nonvoters are the dean of jersey, the attorney general, and the solicitor general appointed by the monarch. Of the 55 voters, 43 are appointed to a three-year term, and 12 are appointed to a sixyear term. The judicial branch, as mentioned above, follows the Royal Court, which has judges appointed by an Electoral College and the bailiff.

Police The police force of Jersey Island consists of around 240 different officers. It consists of four different departments, the Community Safety Branch, the Drugs Squad, the Public Protection Unit, and the Joint Financial Crimes Unit. These different branches are what control all different aspects of crime in Jersey. Each department has its own officers whose duties depend on their respective unit. According to the Jersey police Web site, the Community Safety Branch consists of many different groups of officers. These officers are community


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officers, licensing unit, crime reduction unit, road safety unit, the youth action team (YAT), the dog section, and also a charity group called “Prison! Me! No Way!” Each of these units has a different role in serving its community. The community officers try to build relationships with community members, all the way down to the dog unit. The Drugs Squad’s mission is to control “all major drugs dealers involved in the supply of illegal drugs in Jersey, whether residing on the Island or in other jurisdictions.” The Public Protection Unit deals with sexual and violent crimes, focusing especially on “dangerous offenders” defined as “people who physically abuse children in their care directly or indirectly—engage in the sexual abuse of children physically or mentally—Abuse intimate partners and adult family members—Commit serious sexual offense—Pose a threat to other members of the public through their tendency to use extreme violence.” They are in charge of the most serious offenses that take place on the island. Finally, the Joint Financial Crimes Unit is the unit that focuses on financial crimes, especially operations that deal with drug money laundering as well as money laundering that supports terrorism.

Crime While there are the usual property crimes and assaults in Jersey, probably the most significant type of crime occurring in Jersey (and other Channel Islands) is money laundering and tax evasion. In fact, these islands are widely considered to be the biggest source of off-shore wealth in the world. The UK government has threatened to impose new regulations and legislation on the Channel Islands, of which Jersey is a major player, to prevent and control money laundering and tax evasion. Jersey actually has about a 25 percent higher standard of living than its partner the United Kingdom, getting most of its money through money laundering. Due to taxes being so much lower in Jersey Island compared to the United Kingdom (no inheritance tax, no capital gains, and only 20% income tax), it is much cheaper to keep money in Jersey Island. Also it makes it very hard for the tax department in the United Kingdom to pick up on any “slip-ups” in

tax write-offs that people may have taken. That is why many British people have off-shore bank accounts registered in Jersey Island. Nor is it just the British people, but more than 100,000 companies also have off-shore accounts registered in Jersey Island. It is good revenue for the island because having these bank accounts is not illegal, so they can charge for holding the money. So while the person who is money laundering can benefit from the possibility of avoiding taxation, Jersey Island makes money in a legal way.

Crime Statistics The 2006 Crime Report for Jersey Island is the most complete, up-to-date report available. The crime report breaks down crime into five different categories: acquisitive crime, offenses against the person, offenses against property, illegal drug offenses, and financial crimes. Over the last three years on average, the most prevalent crimes were acquisitive crimes, followed by offenses against property, offenses against the person, then drugs, and financial crimes. In 2006, there were 5,030 crimes recorded in Jersey Island, a drop of some 5.6 percent from the previous three years. According to the crime report the number of “serious crimes” fell by 7 percent against the three-year average, and a total of 10 percent from the previous year. Also 18 percent of crimes were committed by children ages 14 to 17, which is a 7 percent decrease since 2004. Of all street violence, more than 100 assaults were reported, but no murders.

Finding of Guilt The court system in Jersey Island consists of five different departments comprising Bailiffs Chambers, Law Officers, Viscount’s Department, Judicial Greffe, and Probation and After-Care Service. Four of these divisions help in the court proceedings while the probation and after-care service deals with the offenders and the courts to make sure that the offender will not reoffend. The Bailiff’s Chambers provides support to the bailiff. According to the Jersey Island government Web site, “the Bailiff is the one who is head of the judiciary, President of


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the States and civic head of Jersey.” The law officers’ duties are to protect the state by giving the Crown and states legal advice. Their role is essentially that of attorney general. The Viscount’s Department is the administrative muscle of the departments, making sure that the convictions and decisions of the courts are carried out. Six different courts make up the court system in Jersey Island. These courts are the Royal Court (High Court), the Court of Appeal, the Magistrate’s Court, the Youth Court, and the Petty Debts Court. The High Court is the court that is presided over by the bailiff of Jersey. These courts hear different cases based on their respective jurisdictions. The Judicial Greffe is the department that looks over all these courts and can hear all general matters of the courts. An important service of the Jersey Island legal system is the JLIB, or Jersey Law Information Board. The JLIB was developed in 1998, and has been a very important resource for legal information in Jersey. It can be used for legal issues, research, for businesses, or just for information that any person may seek. The JLIB Web page is one of its main assets, receiving more than 2 million page views per year. The site contains Jersey Law Reports, Royal Court Rules, directives of the Royal Court, and much other useful legal information.

Punishment Jersey Island does not practice capital punishment. Its main punishment for serious crimes is imprisonment. The island has one prison, HM Prison La Moye. The prison can hold up to 184 inmates. Men, women, and juveniles are segregated into separate units. It also has a protective ward for vulnerable prisoners. The prison does have visitation hours but only two visitors over 16 years of age can visit at one time. If the person is under the age of 16, he or she must be accompanied by an adult. Jersey practices an idea of ROTL, which is a Release on Temporary License. This is not a right of the prisoner, but it may be implemented as part of the sentence. It is a way to reintegrate the prisoner into society, providing funds for accommodation, helping with family relationships, or in obtaining

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employment. It is a way to help prisoners by allowing temporary release and slowly returning them to society instead of being suddenly faced with release. Another way that Jersey Island helps its prisoners during their punishment period is through education. When prisoners first enter HM Prison La Moye, they must meet with someone from the Prison’s Education Department. They are then encouraged to take tests and programs that best fit their appropriate level. The Prison Education Department offers six different programs. These are basic skills assessments/lessons, English for speakers of other languages, information communication technology (computers), open learning, and workshop training. Timothy McCorry Further Reading Bailiff and Chief Justice of Jersey: http://www.jer seylaw.je. Jersey Government: http://www.gov.je. Jersey Police: http://www.jersey.police.uk.

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

Background The Republic of Latvia is a parliamentary, multiparty democracy with free and fair elections. The republic gained its independence from Soviet rule in 1991 and entered the European Union in 2004. The Interior Ministry operates under the basic principles of openness, the rule of law, proportionality,


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compatibility, reporting, and due regard to the constitutional rights of citizens. It oversees administrative rights (ensuring public order as well as democratic principles and human rights within relationships between the state and private individuals); criminal rights (focusing on reduction in crime rates; protection of victims; rectification of injustice; fair, speedy, and efficient judgment of individuals convicted of crime; and criminal resocialization); civil and commercial rights; international and European Union rights; and ensures an efficient and reliable court system. The Interior Ministry holds responsibility for upholding the law and oversees the national police, security police, special immigration police, and border guards, while municipal police are under local control. The Ministry of Defense supervises the Military Counterintelligence Service and the National Guard.

Police Police are militarized civil servants tasked with the responsibility of the protection of life, health, rights and freedoms, property, and the interests of society and of the state from criminal and other illegal threats. There are a number of different types of police, including the state police, civil police, criminal police, and local government police. Police have the right to arrest, transport, and detain anyone they believe is acting or has acted unlawfully or is posing a danger to himself or herself or others. They also have the right to enter residential units by force without permission of the residents to arrest an occupant or if there is some danger. Police have the right to use physical force against others as well as weapons. No one has the right to interfere with the police while they are fulfilling their duties. As of

Riot police in Riga, Latvia, prepare for demonstrators at a commemoration of the Latvian Waffen SS unit, March 16, 2010. (Ints Vikmanis/Dreamstime) © 2011 ABC-Clio. All Rights Reserved.

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2002, there were more than 10,000 police officers, just over 4.5 per 1,000 population.

Human Rights The National Human Rights Office is independent from other public authorities and ensures essential human rights are upheld. However, some concerns remain, including police abuse, corruption and bribery within law enforcement ranks, poor conditions within detention facilities and prisons, prison overcrowding, judicial corruption, obstacles to due process, violence against women, child abuse, human trafficking, violence against ethnic minorities and homosexuals, and governmental discrimination against homosexuals. Another concern is the length of the investigatory process, as the average length of time a detainee spent awaiting trial under detention in investigatory jails was seven months.

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Crime Classification of Crimes Criminal offenses are broken down into two categories, criminal violations and crimes. Punishment for criminal violations does not exceed 2 years’ imprisonment. Crimes are classified as less serious, serious, and especially serious. Less serious crimes are punishable by 2 to 5 years’ imprisonment. A serious crime is punishable with imprisonment from 5 to 10 years. Especially serious crimes are punishable from 10 years to life imprisonment. Guilt is based on either intentional or negligent criminal offense. Anyone under 14 years of age cannot be held criminally liable for his or her actions. Individuals found to be in a state of mental incapacity at the time of the offense due to a mental disorder or disability also are not held liable for the offense. If it is determined by a court that the individual was incapable of fully understanding or controlling his or her actions the sentence may be reduced or reversed with compulsory medical measures. Latvian Criminal Law prescribes the following crimes: • Murder is the intentional illegal homicide of another person and is punishable by 5 to 15

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years’ imprisonment with or without subsequence police supervision. Aggravating circumstances can increase the maximum sentence for murder to life imprisonment with police supervision for up to 3 years and confiscation of property. The intentional serious bodily injury of another that is dangerous to life or causing disfigurement, loss of pregnancy, loss of vision, loss of hearing, or loss of any other bodily function is punishable by up to 10 years’ imprisonment with police supervision for up to 3 years. Human trafficking carries a sentence of 3 to 8 years in prison, with or without confiscation of property. Rape, defined as sexual intercourse committed by means of violence, threats or taking advantage of the state of helplessness of a female victim, is punishable by up to 7 years’ imprisonment and police supervision for up to 3 years. Subsequent rape convictions carry sentences up to 15 years’ imprisonment. Rape of a minor female is punishable by life imprisonment. Theft is defined in the Criminal Code as concealed or overt stealing of movable property of another. This carries a maximum sentence of 4 years’ imprisonment but is also punishable by custodial arrest, community service, or fine. Robbery is theft of movable property associated with violence or the threat of violence and is punishable by up to 10 years’ imprisonment with confiscation of property and police supervision up to 3 years. Drugs: The unauthorized manufacturing, production, acquisition, storage, registration, dispensation, transportation, or conveyance of narcotic or psychotropic substances carries a wide array of sentences, including imprisonment up to 5 years, confiscation of property, custodial arrest, community service, and fine. Illegal substances include cocaine, synthetic drugs, opiates, and cannabis.

Crime Statistics According to the Latvia 2007 Crime and Safety report issued by the Overseas Security Advisory


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Council, in recent years crime rates in general have been on the rise in Latvia. Specifically, officials report increases in assault (intentional serious bodily injury), theft, residential break-ins, drug-related crime, and economic crime. According to the Fifth Annual BSA and IDC Global Software Piracy Study, the total crimes reported for 2002 were 49,329. The Eighth United Nations Survey on Crime Trends and the Operations of Criminal Justice Systems reported that there were 1,718 robberies, down from 2,664 in 2000. The total number of adults prosecuted in 2002 was 15,508 and in 2000 the total females prosecuted was 2,014. The total number of adults convicted in 2002 was 12,615. The Regional Security Office at the U.S. Embassy Riga, reported by the Overseas Security Advisory Council, reports the following for 2005: • Juvenile crimes reported: 2,465 (1,427 were theft-related and 144 were more serious robberies) • Murders: 106 with 75 more deaths resulting from intentional serious bodily injuries • Rapes: 221 • Intentional serious bodily injury: 717 Finally, the World Development Indicators database reported that there were 629 drug offenses per 100,000 people in 2002.

Special Matters Suicide is a significant societal problem in Latvia. According to the World Health Organization, the suicide rate in Latvia is one of the highest in the world (45 suicides per 100,000 citizens). Causes of this high suicide rate are thought to include high rates of alcoholism and unemployment. With a high rate of alcoholism, driving under the influence is also of great concern in Latvia. Recidivism rates for DUI offenses are quite high as are rates of vehicular manslaughter taking place while the driver is under the influence of intoxicants. Latvia maintains its rank as having one of the highest per capita vehicle accident rates and vehicle death rates in Europe. According to the Regional Security

Office at the U.S. Embassy Riga, reported by the Overseas Security Advisory Council, in a period of only one month (January 2005) there were 3,640 automobile accidents resulting in 431 injuries and 47 deaths. Reasons for this include the high rate of alcoholism, lack of adequate lighting of roads outside of city centers, and unsafe driving conditions during winter months. Car theft is also a widespread problem in Latvia. Russian organized crime gangs are known to commit vehicle thefts and quickly transport the stolen property across the national border into the Russian Federation. For this reason, over 90 percent of stolen vehicles in Latvia are not recovered. It is also not uncommon for the offender to choose particularly expensive vehicles and contact the owner after the theft to negotiate a ransom for the return of the vehicle.

Finding of Guilt Latvian law requires that all arrests be made openly and with official warrants. Detainees must be informed of the charges being placed against them and the Prosecutor’s Office must either officially charge the individual or release him or her within 48 hours of arrest. Investigation is carried out by officials from state security and defense institutions, officials from those institutions designed for maintaining public order, and other specially authorized agents of the state. Detainees have the right to an attorney’s presence at all times, but this right is often alienated by investigators who conduct interrogations without the detainee’s legal representation present. Indigent detainees are provided legal counsel by the government. A bail system exists in Latvia, but other than in economic crimes, it is rarely used. Pretrial detention is allowed but is limited to 18 months, and this maximum stay is only allowable in cases of the most serious crimes. According to the Overseas Security Advisory Council, reports by the Regional Security Office at the U.S. Embassy Riga indicated that in 2006 there were 76,480 criminal cases initiated in Latvia. Of these, 8,746 were sent to the Prosecutor’s Office for prosecution and 20,599 were dismissed. Less than half of all crimes were resolved in 2006.


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Judicial System Latvia maintains an independent judiciary. The Latvian judicial system comprises district (city) courts, regional courts (which hear appeals from district courts), separate administrative courts, the Supreme Court (which is the highest appeals court), and the 7-member Constitutional Court responsible for hearing cases in which constitutional rights were violated. As of 2000, there were 315 judges in Latvia. Judges are appointed by the Saeima (Parliament) following the recommendation of the minister of justice. Those considered for appointment must be citizens of Latvia and deemed highly qualified and honest lawyers. District judges must have the following minimum qualifications: have obtained a law degree, be at least 25 years old, have at least two years of in-service time within the legal profession, and have successfully completed a qualification examination. Before appointment to the regional or Supreme Court, judges first serve at the lower level of court or as an attorney, prosecutor, or lecturer at the Department of Law at a higher educational institution. All requirements must also be met by judges appointed to the Constitutional Court. In 1998, the Disciplinary Board of Judges was established to ensure objective evaluation procedures and the Judicial Qualification Board was installed to grant qualification degrees after judicial training and enforce high standards for the appointment of judges. Once appointed, judges have full security within their positions and can only be removed from office if convicted of committing a crime. The justice minister is responsible for overseeing court procedures including the discipline of judges. Courts and laws regarding civil, criminal, and administrative matters are regulated by the Constitution, the Act on Civil Procedures, the Act on Criminal Procedures, and the Act on Administrative Procedures. Trials in Latvia are fair and public unless the protection of governmental secrets or minors is at issue. One trial judge hears the majority of cases, while in the most serious criminal and civil cases two lay assessors will join the professional judge on the bench in hearing the case at both the district and regional levels. In some cases, randomly selected citizens will

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make up a modified jury, having limited participation in the trial. Defendants have the right to be present at their trial; read charges and view evidence against them; and call witnesses and offer evidence in their defense. There is a presumption of innocence until defendants are tried and proven guilty. However, it is the defendant’s responsibility to collect and present evidence to substantiate his or her defense. If the defendant is unable to collect this evidence, a request can be made of the court after which the court will assume the responsibility. According to the European Commission Judicial Network, the evidence must be “integrally, fully and objectively” verified by the court and evaluated using logic, science, and experience. After the court has ruled, defendants have the right to appeal the decisions of their case. Individuals committing offenses in Latvian territory but not under the jurisdiction of the Republic of Latvia are held liable for their offenses on an individual basis through agreements made between the states involved. Citizens of other states may be deported for criminal offenses. Judges are held to high standards of conduct regarding fairness, integrity, impartiality, and diligence; however, corruption is a serious problem in Latvia as the judicial system is overburdened and understaffed. According to the European Commission, the Latvian court system is in need of reform as the process of hearing court cases takes an unreasonable amount of time. It is also its opinion that the enforcement of sentences is inefficient due to a lack of necessary enforcement instruments and a lack of authority over many public bodies that implement the court’s decisions.

Punishment Types of Punishment According to the Criminal Law of the Republic of Latvia, the objective of punishment is not only to punish the offender of the criminal offense but also to dissuade the offender and others from committing such offenses in the future. The court system favors prison sentences over alternative forms of punishment, but a number of alternative


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punishments are at the court’s disposal, including custodial arrest (the holding of a person in shortterm compulsory imprisonment for up to one year), confiscation of property, community service (up to 280 hours), deportation, fine, limitation of rights (including the right to entrepreneurial activity, to specific employment, to the holding of certain positions, or the acquisition of permits), and police supervision (for up to three years). When sentences are determined, aggravating and mitigating circumstances are often considered. In 1999, Latvia ratified its Constitution, establishing a clemency board for decisions surrounding use of life imprisonment, which amounts to at least 20 years’ incarceration. Death by shooting was once allowed in cases of murder with especially aggravating circumstances. However, when joining the European Union, Latvia was required to abolish use of the death penalty, which it did in 1999. However, the country has still not ratified Protocol 13 of the European Convention of Human Rights that bans the death penalty for all crimes, including in times of war. Citizens of Latvia retain highly punitive attitudes toward criminal punishment. According to the latest finding of Prison Watch Public Association, the average imprisonment sentence is 4.5 years for men and 3 years for women. In 1998, 5 percent of inmates were serving sentences that were longer than 10 years. However, in general, only 8 percent of all convicted individuals actually serve their full sentence.

Prison In 1995, amendments were accepted to the Latvian Penal Code regarding the implementation of progressive punishment. Punishment is now based on the progressive English system of differentiating inmates into specified prison types. Adult prisons fall into three categories, closed, semiclosed, and open, while juveniles are held in educational facilities. The appointment of prisoners to each prison type as well as the transfer of prisoners between prison types is determined on the basis of such considerations as time served, behavior, crime type, previous

convictions, attitude toward other inmates, and attitude toward prison staff. As of July 2008, of the 15 prisons in Latvia, 8 were closed prisons, 2 were semiclosed (including a women’s prison), 2 were open facilities, 2 were investigatory jails, and 1 was a juvenile education institution. Untried detainees are kept separate from convicted inmates in separate sections within these institutions. The average prison holds between 470 and 970 inmates. The largest, the Central Prison, can hold more than 2,000 inmates. The women’s prison is capable of holding 347. In 2008, Latvia had 15 prisons operating at only 89 percent capacity. As of July 2009, there were 7,200 prisoners including pretrial detainees and remand prisoners. In recent years the prison population has been declining steadily. Convicted individuals are required to maintain employment throughout their sentence. However, in 2006, only 17.6 percent of prisoners were engaged in some form of prison employment. More than half of prisoners at this time were allowed only one hour out of their cells per day, as they were not involved in work or educational programs. Inmates are expected to work an eight-hour workday, six days per week, with additional days off during holidays. Jobs include sewing, metal work, horticulture, and prison maintenance. Prisoner pay is unregulated by legislation but does not fall below minimum wage. Only three of the adult prisons include educational facilities in which prisoners can obtain general education or professional skills training. Although oversight of the prisons passed from the Ministry of the Interior to the Ministry of Justice in 2000, the style of management within the prison system remains militaristic. Prisoners are rarely kept in individual cells and reports often indicate less than ideal conditions of both facilities and prisoner treatment. Some of the prisons are dilapidated and not properly maintained. One report indicated that prisoners were allowed only one shower per week. Poor facility conditions and prisoner treatment may be responsible for suicide being particularly problematic within the prison system.


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Background

Minors (those younger than 18 years of age at the time of the offense) are punishable for criminal offenses by deprivation of liberty, custodial arrest, community service, or fine. Imprisonment of minors cannot exceed 10 years, except in cases of especially serious crimes for which up to 15 years’ imprisonment is allowable. Only one juvenile prison exists in Latvia, Cesu Correctional Institution for Juveniles, which is an educational facility. Cesu currently houses more than 100 inmates, ages 14 to 21. A grant from Norway Grants is currently being used to establish guidelines for prison-building standards as well as to begin a reform to this institute, renovating the dilapidated structures and erecting new buildings for pretrial detention as well as space for educational and rehabilitation activities. This institution will then serve as a pilot project for future improvements anticipated for the other Latvian prisons. Kristen Lee Hourigan Further Reading European Judicial Network in Civil and Commercial Matters, “Taking of Evidence and Mode of Proof—Latvia”: http://www.ec.europa.eu/ civiljustice/evidence/evidence_lat_en.htm. History of Latvian Prisons, Latvijas Republica: http://www.ievp.gov.lv. Smart, Ursula. (2006). “A Visit to Latvian Prisons.” Justice of the Peace 170(47): 810–813. 2008 Human Rights Report: Latvia. U.S. Department of State, Bureau of Democracy, Human Rights, and Labor: http://www.state.gov/g/drl/ rls/hrrpt/2008/eur/119087.htm.

Liechtenstein Legal System: Civil Murder: Medium Prison Rate: Low Death Penalty: No Corporal Punishment: No

The Principality of Liechtenstein is one of a group of modern microstates with significant impact on the fabric of international criminal justice. More notable recently for its centrality in numerous international banking scandals than its thriving industrial sector and charming countryside, the tiny nation presents a rich amalgam of legal customs and practice worth considerable study. This is particularly so with regard to the inherently cosmopolitan obligations of the Liechtenstein economy. As Duursma (1996) states, “Due to the limited possibilities of internal trade . . . the economy is highly dependent on exports and the inflow of foreign capital. Consequently, the economy is more exposed to external influences than those of larger countries” (p. 148). Accordingly, this “exposure” has caused the Liechtensteiner government to reconsider its position regarding both internal legal regulations and its role as a member of the global criminal justice community. That Liechtenstein in all of its scant 160 square kilometers (61.7 square miles) and 35,200 inhabitants should be at the center of international affairs is nonetheless appropriate given its long history as a European crossroads. Liechtenstein has a parliamentary form of government, but it is one situated inside a constitutional hereditary monarchy, according to which the power of the state is vested in both the prince and the people. The Constitution of Liechtenstein sets up a system of checks and balances between all sections of the government and the electorate. The Diet (Parliament) is composed of 25 directly elected representatives who serve four-year terms. Further, the government is led by a prime minister and 4 councilors who are appointed by the prince. This arrangement requires close cooperation between the various governing interests as well as the citizenry. On the matter of public participation, the people of Liechtenstein have the right of referendum, which appears to play a significant part in local politics. The centrality of the Regnant is set down in article 7 of the Constitution of Liechtenstein, “The Prince Regnant is the head of state and shall exercise his sovereign authority in conformity with the


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provisions of the present Constitution and of the other laws.” The only apparent limit to the governmental power of the monarchy was a single caveat that the prince could not appoint or dismiss the head of the government at will. According to a 2003 BBC news report, under threats the Liechtenstein royal family would otherwise “move to Austria,” the people voted to make Prince Hans-Adam II an absolute monarch. While His Excellency already held the power to dissolve the national Parliament and to call elections, he also wanted the authority to remove any member of government at will.

The Judiciary The Liechtenstein judicial system owes much to the Austrian system, on which it is largely based. If a presiding magistrate is acting as a so-called sole judge, that person is a professional magistrate appointed by the prince for life. Typically there are about eight sole judges, some of whom may be from Austria. This rather unusual arrangement stems from an 1884 treaty between the nations whereby Austria agreed to “lend” Liechtenstein judges. If the court consists of more than one judge, the majority will be laypersons. In no instance, however, are foreign judges allowed to comprise a majority on a court. Interestingly, every Liechtensteiner may be appointed for a four-year term as a judge. In criminal proceedings of the first instance, there are four different courts empowered to hear cases. A sole judge is deemed competent to hear cases in which the maximum penalty could be six months’ imprisonment or less. A Court of Aldermen Judges (Schöffengerichtshof ) may hear indictable offenses; a Criminal Court (Kriminalgerichtshof ) will hear the most serious allegations; and a Juvenile Court (Jugendgerichtshof ) is reserved for matters dealing with people under the age of 18. It should be noted that cases of those persons accused of serious crimes (i.e., those heard by the Kriminalgerichtshof ) will be conducted with a public jury as well as presiding judges. All court decisions and indeed all orders of the government may be appealed before the Verwaltungsbeschwerdeinstanz, an administrative tribunal. This body consists of a chairman

(typically a trained jurist) and four appeal judges appointed by the prince on proposal of the Diet. The law also provides that each member shall have a substitute available and that the chairman be a Liechtensteiner. This tribunal has executive authority in that its decisions take precedence over government orders. If a party to a civil, criminal, or administrative case claims that a given law or government order is unconstitutional, the matter is then referred to another body, the State Tribunal. This body consists of five judges each appointed by the Diet for fiveyear terms. The tribunal must include at least two professional jurists and its president is appointed by the prince. The president and at least two other members must be native Liechtensteiners. The Council of Europe reports that the Liechtenstein government spent approximately 0.23 of its 2004 annual budget per inhabitant as percentage of per capita GDP for its courts. This level of expenditure puts Liechtenstein at the average for Europe. Spending per capita on legal aid is among the highest on the Continent. For prosecution of criminal conduct beyond the immediate purview of the Liechtenstein state court system (i.e., matters such as genocide, crimes against humanity, and war crimes), the principality consults the International Criminal Court at The Hague. In 2001, Liechtenstein ratified the “Rome Statute” proffered by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. On the matter of individual rights and fairness of criminal process, the Constitution and laws of Liechtenstein make extensive provisions. Individuals may not be subject to arbitrary arrest or detention. Within 24 hours of arrest, suspects must be brought before a magistrate (often at the behest of a prosecutor). The magistrate is obliged to either file charges or order the subject’s release. An accused person has the right to legal counsel of his or her own choosing during pretrial detention. Moreover, counsel is provided indigent persons. This said, until very recent legal changes, suspects could gain access to a lawyer only after a magistrate had filed formal charges.


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During pretrial detention, visits are not allowed except for some contact with family members. During investigative detention, visits may be monitored to prevent evidence tampering or other behavior that might interfere with administrative process. While awaiting trial, the accused may be released on bail or freed on his or her own recognizance, provided he or she is deemed neither a danger nor a flight risk. At trial, defendants may challenge government witnesses and evidence as well as present witnesses or evidence on their own behalf. Defendants are presumed innocent and have access to government-held evidence relevant to their cases. A new provision, § 128a of the (amended) Code of Criminal Procedure (StPO), mandates that every apprehended person must be made aware, at the time of apprehension or immediately thereafter, of the offense of which he or she is suspected. Further, he or she must be apprised of the reason for his or her apprehension, his or her right to inform a relative or another person of trust and a defense lawyer, and of his or her right to remain silent. Additionally, the accused shall be made aware that any statement he or she makes may be used for his or her defense, but also as evidence against him or her.

The National Police As with the judiciary, policing in the principality has a necessarily internationalist character. With a total personnel of approximately 130 persons (85 of whom are sworn), the National Police or Landspolizei have a broad range of tasks and obligations, including management of the nation’s single correctional facility, the Untersuchungsgefängnis. Since 1960, the agency has been a member of INTERPOL and according to its Web site, “At the regional level, the trilateral police agreement with Switzerland and Austria guarantees cross-border cooperation in the field of crime fighting, mutual assistance in the case of major events as well as in conjunction with the search for suspects.” The Landspolizei are organized into three administrative divisions: Security and Traffic, the Executive Support, and Crime Investigation. Each of

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these reports to a bureau headed by a chief of staff and ultimately to a police commissioner. Each of the constituent divisions within the agency contains six specialized units tasked to deal with particular types of criminal activity or public service. The Landspolizei Web site indicates that the agency answers approximately 159 calls for service each day. The role of women in the Landspolizei has expanded in recent years. According to the agency, there are currently 5 female sworn officers, each of whom performs duties identical to those of male officers. The majority of the 48 support staff members (nonsworn civilian personnel) are female. At a glance, the Landspolizei appear to be as thoroughly modern, well-equipped, and professionalized as any police agency in Europe. New police recruits attend a year-long training academy at the Polizeischule Ostschweiz in Kirchstrasse, Switzerland. The training curriculum consists of lessons covering 50 different topical areas. As of 2005, Liechtenstein and Switzerland have also agreed to share information regarding DNA and fingerprint identifiers relevant to criminal investigations. With regard to broader international criminal matters, the Office of Foreign Affairs for Liechtenstein notes that the principality is a signatory to the European Convention on Mutual Assistance in Criminal Matters as well as a member of INTERPOL. As will be discussed below, Liechtenstein’s position in world banking and financial matters has strongly undercut the vitality of this participation. With regard to the police use of deadly force, the United Nations Human Rights Committee reported, “The rate of use of firearms by national police in Liechtenstein was very low. The last case dated back to March 1996 when a police officer fired a warning shot to stop a robber.” The committee further observed, “And in 1999 a weapon smuggler was shot by the Swiss border control forces after he shot a border control officer. There had been no more incidents of this kind in Liechtenstein during the last ten years.” Beyond observing professional proprieties, the Landspolizei appear to be engaged in an active program of what might be termed communityoriented policing. Current police campaigns include


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promotion of seatbelt use, encouraging respect and tolerance of diversity, home security, Internet safety, safety for elderly persons, drug abuse prevention, credit card fraud protection, violence prevention, and traffic safety.

The Correctional Institutions Given the close connections with the Swiss and Austrian governments, it is not surprising that Liechtenstein has unique arrangements with regard to its correctional institutions. While the vast majority of prisoners are dealt with internally, starting in 1983 Liechtenstein has housed long-term prisoners (sentences longer than two years) in Austrian institutions. Since the enabling agreement went into force, Liechtenstein has referred only a few prisoners each year to Austria. According to a report entitled, Ressortbericht: der liechtensteinischen Justiz aus dem Jahr, in 2007, there were only three Liechtensteiner prisoners in Austrian facilities, representing a combined total of 870 days’ imprisonment. There are, however, a couple of caveats to the bilateral agreement: the offense in question must also be punishable under Austrian law; the maximum period of detention cannot exceed that for which Austrian law would provide and; the prisoners may not be incarcerated for either tax crimes or political crimes. As mentioned above, the Landspolizei are responsible for operation of the nation’s single correctional facility, the Untersuchungsgefängnis. This facility is a part of the police facility and has capacity to house 22 prisoners. In addition to the director, there is a full-time staff of six and a varying number of part-time staff on an ad hoc basis. Several sources indicate that Liechtenstein correctional facilities (inclusive of those prisoners sent to Austria) house as many as 90 prisoners. While this may be true in terms of the total number of individual persons serviced during a given year, it is likely more correct to state that there are approximately a dozen (or fewer) persons incarcerated at any one time. The Council of Europe Annual Penal Statistics report as of September 2006 notes there were 10 prisoners total in the Untersuchungsgefängnis

(including pretrial detainees and remand prisoners). This report further states that 40 percent were pretrial detainees; 60 percent were foreigners; none were either female or juveniles. It is perhaps telling that in its most recent site-visit report, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment states, “No-one was being held in the police cells located within the Untersuchungsgefängnis at the time of the visit.” While all correctional systems doubtless have room for improvement, it appears from a variety of impartial sources that the Liechtensteiner correctional facility is managed with an eye toward fair, humane, and publicly transparent operation. In its Committee against Torture report, the United Nations concluded favorably with regard to the preparation of officers assigned to the facility, “[The officers] are trained for three months in the area of the treatment of prisoners and other persons held in custody. This training includes studies of the relevant international law such as the European Convention on Human Rights, as well as the Penal Code and the Code of Criminal Procedure.” Upon examination of the Council of Europe report on conditions in the facility, it is clear that improvements might be made. On a number of frontiers including access to health care, conditions specific to female prisoners and juveniles, and use of observation cells, there is a need for additional attention. This being said, the report demonstrates that the problems found pale in comparison to those in many other nations; in fact, the relative treatment of Liechtenstein prisoners is arguably excellent as compared to many other correctional systems. According to the Council of Europe report, work opportunities for prisoners had improved over time. Some prisoners were able to secure employment assembling electric guitars. Prisoners are afforded work, recreational, educational, and other opportunities during their incarceration. However, sports activities were “underdeveloped.” The report focused in particular on the absence of a promised, but unrealized table tennis table. In sum the report stated, “there was a pervasive air of boredom in the establishment, prisoners spending most of their


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time playing cards in the small common room, reading books and watching TV.”

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just considering these two years (years for which the most complete statistics are available), most categories of crime show remarkably small variation.

Crime From the preceding mention of a national prison with no prisoners in residence, one may properly infer that Liechtenstein is blessed with an exceptionally low crime rate. Criminal statistics reveal that the occurrence of serious crime is so infrequent that to speak of Liechtenstein’s crime in terms of “rates” is largely uninformative. During the seven years for which data were available, there was only one homicide and there were never more than five robberies per year. Also worthy of note is the fact drug crimes have declined during the last two years. Given the precipitous decline in drug crimes, one is given to wonder whether this change reflects a difference in reporting rather than occurrence, however, no information was available to provide clarification. Moreover, the fact that overall crime has increased markedly during the last two years bears closer examination. Juvenile offending could provide one possible reason for this overall increase. In 2006 and 2007 there were approximately 200 youth crimes and an equal number of petty vandalism crimes each year. If one removes those two categories from the overall tallies, the apparent two-year upsurge vanishes. As with the drug crime anomaly, one wonders whether this also reflects a change in reporting strategies rather than actual occurrence. While no explanation is readily available to account for the apparent drop in drug crimes, some light may be shed on the distribution of total offenses for 2006 and 2007. According to the Landspolizei, of the 134 and 132 drug-related arrests made during 2006 and 2007, respectively, approximately two-thirds were for simple possession or consumption offenses. There were three cases of smuggling in 2006 and two cases in 2007. There was only one so-called severe case (schwere fälle) in 2006. Weapons cases follow a similar pattern with an average of 100 offenses each year. The incidence of frauds, thefts, assaults, arson, promotion of prostitution, and rape is equally stable year to year. In fact,

Punishment As a starting point for criminal prosecution, Liechtensteiner law is couched in the concept of mens rea. Section 5 of the Criminal Code speaks directly to the “willful,” “knowing,” or “intentional” commission of an act. Similarly, the perpetrators of inchoate or “attempted” offenses are criminally liable, “The penalties for willful acts shall not only apply to a completed offense, but also to an attempt and to any participation in an attempt.” Likewise, criminal culpability extends not just to the immediate actor, but to all who assist in the crime, “Not only the immediate perpetrator shall be deemed to commit the punishable act, but also every person who directs another person to perform the act or who otherwise contributes to its performance.” For those persons convicted of crimes in Liechtenstein there exists a broad array of possible penalties. These sanctions range from small fines to life sentences in prison. Liechtenstein abolished the death penalty in the 1980s and according to Amnesty International, the last execution in Liechtenstein took place in 1785. While Liechtenstein law does not permit plea bargains or negotiated sentences, the Criminal Code does permit “Diversion,” which provides an array of alternative settlement mechanisms. According to the Liechtenstein Prosecutor’s Office, “Well over 100 cases are solved like this annually. Typically applied to possession of small quantities of drugs, small thefts, domestic violence cases (mediation), but also in all kinds of other cases where suitable (not felonies).” Liechtenstein also makes extensive use of probation for minor crimes and assignment to treatment facilities for many drug-related offenses. Likewise, Liechtensteiner Criminal Code provides for forfeiture, confiscation, and absorption of assets gained as the result of crime. The Liechtenstein Criminal Code is also structured to take into account mitigating and aggravating circumstances of the offense as


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well as the broader societal implications of a given course of formal sanction. For typical ranges of sanctions for specific crimes, the Criminal Code prescribes the following: For murder, the range can be from 10 years’ imprisonment to a term of life; for robbery, the possible sentences range from 1 to 10 years’ imprisonment; for rape, the penalty is 1 to 15 years’ imprisonment; promotion of prostitution carries a sentence as high as 2 years’ incarceration; for violation of pornography laws, the violator can receive a sentence of up to 1 year’s imprisonment; for the most serious drug offenses, the penalty can go as high as 20 years’ imprisonment. As implied before, it is in some stead difficult to talk about “typical” penalties for many of the aforementioned offenses as they are rarely charged. One category of offense, drug crime, is particularly interesting to discuss with regard to its enforcement in Liechtenstein. Predictably the possession, sale, transportation, manufacture, cultivation, and use of many substances is prohibited here as it is in many nations. All of the commonly thought of illicit substances—marijuana, opiates, hallucinogens, amphetamines, barbiturates—are strictly controlled by the government. For individuals convicted of use/ possession, there are treatment programs. As stated above, for more serious offenses, long prison terms may result. Obviously, there are myriad variations on the severity and extent of sanction. What is perhaps most compelling about drug enforcement in the principality has very little to do with the end user, but a lot to do with the international community through which the drug trade is financed and operates. Banking and secretive finance are arguably the cornerstone of the Liechtenstein economy, a fact that makes it very attractive to money launderers. As T. Patterson of The Independent newspaper of London reported on March 15, 2008, “Banks and ‘discreet’ financial services are the core of its economy. They account for 14.3 per cent of the workforce and contribute to 30 per cent of a gross domestic product of €2.7bn (£2bn).” Following September 11, 2001, Liechtenstein was forced to acknowledge (at least tacitly) that banking practices inadvertently served to fund terrorist activities. As Komisar asserts in her article entitled

“Dirty Money and Global Banking Secrecy,” Liechtenstein belonged to a group of states that “offered state-of-the-art financial services for crooks.” L. MacDonald of The Guardian summarized the principality’s dealings on June 2, 2008, “Millions of dollars of South American drug money were allegedly laundered here; Saddam Hussein’s government even registered a jet. In 2000 . . . the [OECD] named the country as the only money-laundering nation in Europe and put it on its blacklist.” Response from the global community was swift. Whether motivated by diplomatic pressure or economic necessity, the Liechtenstein government was obliged to reform its national banking practices and reassert its position as a responsible participant in global affairs. In October 2001, Liechtenstein established a Financial Intelligence Unit (FIU) as an early warning system for potential abuse of the country’s banking practices. In its fifth report to the UNCTC Liechtenstein cites, “a total revision of its Due Diligence Act.” The necessity of a revision arose primarily from Liechtenstein’s obligation to implement the second EU directive on money laundering. Among the measures taken were amendments to its Criminal Code, the Narcotics Act, and the Mutual Legal Assistance Act, all of which were directed toward implementation of the EU money laundering directive, and the requirements of the UN Convention against Transnational Organized Crime. These changes in Liechtenstein national laws may represent a fundamental shift in at least one important area. Heretofore, the Liechtenstein government appeared extremely reluctant to address any matters of tax fraud. As such, one might cautiously conclude Liechtenstein has embarked upon a discernable change of course. All this said, recent reports indicate that, despite substantial changes in Liechtensteiner financial regulations, old habits die hard. Matthew Pate Further Reading Beattie, David. (2004). Liechtenstein: A Modern History. London: I. B. Tauris Press.


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Duursma, Jorri C. (1996). Fragmentation and the International Relations of Micro-States. Cambridge, UK: Cambridge University Press. Raton, Pierre. (1970). Liechtenstein: History and Institutions of the Principality. Vaduz: Liechtenstein-Verlag. Seger, Otto. (1984). A Survey of Liechtenstein History. Vaduz: Press and Information Office of the Principality of Liechtenstein. Note: The author would like to provide a special thanks to Tina Enz, media specialist for the Liechtenstein National Police, whose help was invaluable in preparation of this article.

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On March 11, 1990, Lithuania proclaimed its independence after the Soviet occupation, which lasted for almost 50 years, and since 2004 Lithuania has been a member of the European Union and NATO. In the referendum of October 25, 1992, Lithuanian citizens approved the Constitution. Lithuania is now a parliamentary republic, so Parliament (Seimas) is the most important national governmental institution. Foreign policy and state representation are among the principal functions of the directly elected president, although the president also has substantial power in the internal life of the state; for example, the president plays an important role in formation of the judicature.

Lithuania History of the Legal System Legal System: Civil Murder: High Burglary: Medium Corruption: Medium Human Trafficking: Low Prison Rate: High Death Penalty: No Corporal Punishment: No

Background Lithuania is a small country situated on the coast of the Baltic Sea, covering 65,301 square kilometers (25,213 square miles). In 2008, 3.36 million inhabitants lived in Lithuania, comprising Lithuanians (83.5%), Poles (6.7%), Russians (6.3%), as well as other nationalities (3.5%). Vilnius is the capital of Lithuania (550,000 residents). The Grand Duchy of Lithuania was formed in the 12th century. It was a part of the Polish-Lithuanian Commonwealth Zecpospolita from 1569 to 1795. Following the destruction of the commonwealth by the Russian, Prussian, and Austro-Hungarian empires at the end of the 18th century, the territory of Lithuania remained a part of the Russian Empire until 1918, when the independent Republic of Lithuania was created. Independence lasted until 1940 when Lithuania was occupied by Soviet troops.

Lithuania has a rich legal history with the first written laws (Pamedes teisynas) dating back to 1340, while the first three codifications of laws (Statutes of Lithuania) date from 1529, 1566, and 1588, respectively. However, after the occupation of the territory of Lithuania by the Russian Empire, the Russian legal system was introduced in Lithuania (in 1840) and the Russian Criminal Code of 1903 remained in force (although with many amendments and additions) in the Republic of Lithuania after the restoration of independence in 1918 up to the Soviet occupation in 1940. During the first decades of Soviet occupation the Criminal Code of the Russian Soviet Federal Socialist Republic was applied in Lithuania, while in 1961 the Penal Code and the Penal Procedure Code of the Lithuanian Soviet Socialist Republic were introduced. The codes literally repeated the corresponding codes of the Russian Soviet Federal Socialist Republic and can hardly be said to reflect the legal culture of Lithuania. On May 1, 2003, the first national Criminal Code of the Republic of Lithuania came into force along with the Code of Criminal Procedure and the Code of Execution of Penalties. The structure and the system of criminal sanctions of the old Soviet code that applied with many changes up to 2003 did not conform to the needs of a free democratic country. Significant changes included the additions of new types of penalties and their application, limitations


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on the use of prison, the availability of reconciliation, and the separate treatment of minors, including alternatives to imprisonment. The New Code of Criminal Procedure is also widely acknowledged to be more liberal in comparison to the one in force until 2003. However, although the Constitutional Court of the Republic of Lithuania has approved the adversarial principle to be one of the essential principles of criminal procedure, the Lithuanian Criminal Procedure Code remains inquisitorial. The code concedes a rather active role of judges both in pretrial investigations and trials.

Political and Social Context of the Criminal Justice System In Soviet times, the extent of criminality was not revealed; criminals were depicted as “public enemies”; and a similar assessment of criminal conduct also prevails in the contemporary Lithuanian society, that is, intolerance. This intolerance combined with the fear of persecution in the previous Soviet society, in which confidence in other persons was undermined, have produced a distinct “us” and “them” psychology. There are some indications that legislation is becoming more resistant to this “us” against “them” mindset. In 2007, among all the penalties imposed by Lithuanian courts, the penalty of fine came to 31 percent and, for the first time in Lithuanian history, it became the most frequent annually imposed penalty, ahead of imprisonment. Therefore, even though legal norms have changed and have had a visible effect, attitudes to criminal conduct and punishment ideas have changed slowly. The society tends to demand strict penalties and isolation of criminals and considers that the new Criminal Code is too mild. Up to early 2008, the new Criminal Code has been modified 14 times already, the Code of Criminal Procedure 15 times, and the Code of Execution of Penalties 5 times. International legal events played an important role in changing the criminal justice policy and legal system of Lithuania. Lengthy international isolation, earlier absence of the rule of law, and the fall of the iron curtain evoked aspiration for

international standards and unconditional belief in their power; especially prior to the membership of Lithuania in the European Council (1993) and the European Union (2004). International standards of human rights were immediately embraced, but in practice change came slowly. Moreover, it should be noted that as soon as Lithuania gained international recognition and joined the main international organizations, direct and constant encouragement to implement international requirements disappeared (as, for example, to reduce the number of prisoners, to improve their imprisonment conditions, etc.), with the possible exception of visits and reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

Police On January 1, 2009, in total there were 12,230 police positions compared to 15,100 on January 1, 1999. The number of police positions per 100,000 residents is approximately 364,322 taking into account vacant positions, based on Police Department records. There are two integrated units of the police in Lithuania: criminal and public. The Police Department is under the Ministry of Interior of the Republic of Lithuania. Besides this department, the Lithuanian police system comprises the following: territorial police units, police professional educational institutions, and specialized police units. There are 59 territorial police departments. Approximately 30 percent of the police work as criminal police, approximately 60 percent in public police, and the remaining in other police units. In addition, there is one more small police unit comprising the military police subordinate to the Ministry of Defense and responsible for the prevention, disclosure, and investigation of crimes and other legal violations within the military territories and the army as well as for the supervision of military transport traffic safety. Alongside the police officers, similar work is carried out by officers working in other related organizations. In 2007, there were 3,611 officers of state border guard, 232 officers of financial crime investigation service; in 2008, 2,690 officers in the prison


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system, 216 officers of special investigation service (investigating corruption cases) plus officers of some other specialized institutions (National Security Department, military police, Fire-Fighting and Rescue Department). Disclosure of white collar and related crimes is mainly within the competency of two institutions not subordinate to the police, that is, Financial Crime Investigation Service under the Ministry of Interior and an independent Special Investigations Service. The Financial Crime Investigation Service is entitled to investigate and disclose criminal offenses that infringe upon the financial system. The Special Investigation Service is also entitled to investigate and disclose criminal offenses of corruption. Each of these services follows the law regulating activity of its service, which it is hoped ensures independence of these institutions. Both services conduct operative investigation and pretrial investigation in criminal cases. Lithuanian residents have little trust in the police. In sociological polls regularly conducted since 1996, the proportion of those trusting the police ranged from 20 to 45 percent. However, the situation is changing for the better. During the last poll conducted in April 2009, 62 percent of participants stated that they trust the police, 30 percent did not trust them, and 8 percent did not have any opinion. This fact undoubtedly plays an important role when recording criminal offenses since during victimization surveys some of the residents state that they do not report offenses to the police because they have neither trust nor belief in their competence.

Crime Classification of Crimes The Penal Code of Lithuania distinguishes two types of criminal acts: crimes and criminal offenses. Crimes are classified into intentional and negligent crimes. Further, intentional crimes are classified into four categories, according to the severity of punishments foreseen in the Penal Code. Criminal acts that can be punished by a punishment not exceeding 3 years of deprivation of liberty are considered to be crimes of minor gravity (e.g., theft,

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fraud, destruction of property, bribery, etc.). Criminal acts that can be punished by a punishment exceeding 3 years but not exceeding 6 years of deprivation of liberty are considered to be crimes of middle gravity (e.g., assisted suicide, robbery, burglary, extortion of property, aggravated destruction of property, aggravated bribery, terror act, hostage taking, etc.). Criminal acts that can be punished by a punishment exceeding 6 years but not exceeding 10 years of deprivation of liberty are considered to be grave crimes (e.g., aggravated assault, trafficking in human beings, rape, aggravated robbery, aggravated extortion of property, aggravated fraud, smuggling, aggravated bribery, etc.). Criminal acts that can be punished by a punishment exceeding 10 years of deprivation of liberty or by a life sentence are considered to be crimes of extreme gravity (e.g., genocide, murder, aggravated espionage, rape of a preteen, trafficking in children, participation in criminal organization, aggravated terror act, aggravated hostage taking, aggravated trafficking in drugs, etc.).

AGE OF CRIMINAL LIABILITY The Penal Code sets three age limits. First, there is a general rule that only persons who have reached the age of 16 can be responsible for criminal acts. However, part 2 of the code also lists 11 criminal acts that persons between 14 and 16 years of age can be sentenced for. These crimes are murder; aggravated bodily injury; rape; sexual coercion; theft; robbery; extortion of property; destruction or damage of property; plunder of a firearm, ammunition, or explosives; theft; extortion or other illegal acquisition of narcotic or psychotropic substances; destruction of vehicles, roads, or road equipment. The list has been created according to the dangerousness of the crime as well as its blatancy. The Criminal Code has a separate section “Singularities of Minors’ Criminal Liability.” This section establishes the penalties applied only to minors (minors are eligible for a life sentence, and a provision stating that minors must receive milder penalties than adults); a separate system of educational treatment is applied only to minors; simplified criteria for release of minors from criminal liability and


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A Lithuanian state border police officer shows smuggled cigarettes at a confiscated cigarettes storage area southwest of the national capital Vilnius, December 15, 2004. Shots are fired almost every night on the Nemunas River, as boats dodge the border patrol’s searchlight. (AP Photo / Mindaugas Kulbis)

suspension of penalty for minors are provided for. Provisions of the section are applied with regard to all the persons who committed criminal offenses being under 18 years old. Despite this, the Criminal Code also specifies that provisions of the section may also be applied to person between 18 and 21 years old if the court decides that according to their social maturity, they are equal to minors.

DRUG CRIMES Chapter 37 of the Criminal Code is dedicated to criminal offenses related to disposal of narcotic or psychotropic, toxic, or potent substances. Offenses provided for in this section differ in their hazardousness. The main criteria predetermining

hazardousness of offenses comprise whether the offense was related to distribution of narcotic substances and what was the quantity of the substance present in the offense. Production, processing, acquisition, storage, transport, or shipment of narcotic and psychotropic substances considered as crimes are classified according to small, large, and very large quantities approved by the order of the Minister of Health of the Republic of Lithuania in 2003. According to data of the Drug Control Department for the year 2006, cannabis was the most prevalent drug, 7.6 percent of the Lithuanian population reported having used it at least once in their lifetimes. Men indicated three times more frequently than women having tried cannabis at least once in


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their lifetimes. Besides cannabis, the most prevalent drugs are amphetamine and Ecstasy. Their prevalence rates are very similar: 1.1 percent of the population used amphetamine at least once in their lifetimes, 1.0 percent—Ecstasy, 0.5 percent—hallucinogenic mushrooms, 0.4 percent—cocaine, 0.3 percent—heroin and LSD each. Recorded criminal offenses related to narcotic or psychotropic substances within the period from 1990 to 2007 increased by more than 20 times (from 76 up to 1,724). These offenses have increased much more than any of the other types of criminal offenses. As soon as the totalitarian system collapsed, more opportunities occurred for the development of the drugs market.

Crime Statistics The number of criminal offenses recorded by police for the period 1989 to 2008 increased from 31,238 to 78,060, having peaked in 2004 at 93,419. Two possible causes of this increase are: (1) failures and delays in creation of a democratic system of formal and informal social control after having passed from totalitarian to democratic system of the state, and (2) increased opportunities to commit criminal offenses (especially those related to property). Furthermore, factors affecting the recording of crimes by police are inhabitants’ (mis)trust in the police (thus not reporting crimes to them) and also conduct of the police upon receipt of the information reported by a victim. Out of the recorded criminal offenses, approximately 40 percent is cleared up in Lithuania. The number of persons accused of criminal offenses within the period 1989 to 2008 almost doubled (from 12,843 up to 23,235), although since 1993 no essential changes have taken place. The number of persons sentenced (i.e., those who received criminal penalties) has also doubled (from 7,546 up to 14,295). However, this number has been significantly decreasing since 2003, suggesting that more often various alternative sanctions have been applied. The largest portion of criminal offenses comprises property-related criminal offenses. Out of all recorded criminal offenses, thefts come to

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approximately 50 percent. For example, in 2008 there were 38,422 thefts compared to 836 serious crimes of violence (homicide, sexual assault, bodily harm). However, it should be noted that the homicide rate per 100,000 residents ranges from 14 in 1994 through 11 in 2005 to 8 in 2007, possibly indicating a slight decrease.

ADMINISTRATIVE VIOLATIONS The Code of Administrative Violations of Law is a single code remaining in force in Lithuania since Soviet times. This code comprises such offenses that in their essence are very similar to criminal offenses, although they are defined as administrative violations of law. Such violations exist in the field of property protection. For example, minor theft of a property belonging to another person is considered an administrative violation of law (up to 130 Litas [US$47.30]), as is intentional destruction or damage of property that did not cause large losses to an aggrieved person, and so forth. Approximately 15,000 administrative violations of law in the field of property protection are recorded in Lithuania every year and these are not included in the statistics of criminal offenses.

URBAN AND RURAL DISTRIBUTION OF CRIME Property-related criminal offenses are the most prevalent in cities and towns. Approximately twothirds of all residents live in Lithuanian cities and towns and approximately one-third of them in rural areas. Out of all criminal offenses recorded in Lithuania in 2008, 77 percent were registered in cities and towns and 23 percent in rural areas. Approximately 2,500 recoded criminal offenses per 100,000 city residents was almost double the rural rate of approximately 1,500 of recorded offenses per 100,000 rural residents. Relatively more robberies were registered in cities and towns than rural areas (88% and 12%). However, a disproportionately greater number of recorded homicides occurs in rural areas. This is probably because the most common case of homicide in Lithuania (almost two-thirds) is related to conflicts among individuals consuming alcohol. This


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problem is especially topical in Lithuanian villages where, due to the difficult economic situation, hopelessness, heavy physical work, and lack of leisure infrastructure, consumption of alcohol is a part of everyday life, not only at leisure but also at work.

Finding of Guilt Prosecution The prosecutor organizes pretrial investigation, starts pretrial investigation, assesses whether pretrial investigation was legally started by pretrial investigation officers, gives necessary instructions to pretrial investigations officials on how pretrial investigation should be conducted, and takes the most important decisions concerning suspension or termination of the investigation. At any time of pretrial investigation the prosecutor may decide to take over and to conduct the whole pretrial investigation. The prosecutor is also entitled to a wide range of powers to apply measures restricting the suspect’s rights: bail, seizure of documents, obligation for the suspect to regularly register at a police station, to obtain a written commitment not to leave, to temporarily restrict the suspect’s or (in exceptional cases) a third person’s property rights. Pretrial investigation officials include officers of police, military police, National Security Department, Special Investigation Service, Financial Crime Investigation Service, State Border Guards, Prison Department, Customs Department, FireFighting and Rescue Department). They must abide by the prosecutor’s instructions on all matters of pretrial investigation; despite this, they are entitled to carry out many procedural actions without coordination with the prosecutor. Pretrial investigation officials may carry out interrogations, confrontations, identification line-ups, and some other acts of investigation. Pretrial investigation officials may also apply separate measures of procedural constraint, such as temporary detention, delivery, examination of a person, among others. In exceptional, urgent cases, searches and seizures may be carried out on the decision of a pretrial investigation official. Participation of a pretrial investigation judge is also important in pretrial process. First, the most

severe preventive measures depend on the decision by the pretrial investigation judge, that is, detention on remand and house arrest. On the decision by the pretrial investigation judge, a suspect may also be temporarily removed from his or her current position or he or she may temporarily be denied the right to be engaged in some specific activity. Second, some specific acts of investigation restricting human rights may not be carried out without approval by the pretrial investigation judge, such as search and seizure, seizure of mail, control of the information transmitted by electronic means of communication, secret surveillance, actions not revealing the identity of pretrial investigation officials or sting operations, and seizure of documents kept in companies or institutions.

Trial Jury trials are nonexistent in Lithuania. During the Soviet occupation, the system of sworn lay judges in session together with professional lawyers was tried, but discarded. Recently the introduction of a jury system has been raised more often, but the probability that it will be introduced is slight. Criminal cases in regional and district courts of first instance are heard by one judge. A board of justices consisting of three judges hears cases in regional courts when cases are related to crimes for which a life sentence is provided or cases in which accused persons in the course of committing a criminal offense were the president, members of Parliament or the government, judges of the Constitutional Court, judges, or prosecutors. A board of justices may be formed in regional and district courts also for hearing of other cases. In the Court of Appeal all cases are heard by a board of justices consisting of three judges. In the Lithuanian Supreme Court criminal cases are heard by a board of justices consisting of three judges. Upon the decision by the chief justice of Lithuania or a chairman of criminal cases department of this court, such case may be handed over to be heard under the cassation procedure by an extended board of justices consisting of seven judges or by a plenary meeting of the Criminal Cases Department at the Supreme Court, when a judge responsible for


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hearing of the case establishes that in the course of investigation it may be necessary to formulate a new judicial interpretation of the legal norm applied or it may be necessary to deviate from the jurisprudence of the Supreme Court that has already been formed.

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a lawyer appointed by the Lithuanian advocacy on behalf of the national guaranteed legal assistance service and paid from the funds of the state budget. The national guaranteed legal assistance in criminal cases in the major cities of Lithuania (Vilnius, Vilnius, Klaip˙eda, Šiauliai) is operated by public lawyers’ offices dependent on the state.

Right to Plead Guilty to Lesser Offense The Code of Criminal Procedure establishes that in court of first instance an accused person is entitled to plead guilty, to give evidence and agree that other evidence is not investigated. In this case, a judge is obligated to familiarize the persons participating in the case with all the evidence and this way to finalize the investigation. However, such provision may not be applied when the accused person is accused of committing a medium and major crime or if a prosecutor or defender objects to such a shortened investigation. At the same time pleading guilty and repentance may be the grounds to terminate the criminal process with regard to minors who are suspected or accused of having committed the criminal offense for the first time (except for the minors suspected or accused of committing a medium and major crime). In fact, criminal laws provide for the release from criminal liability of persons who plead guilty, if they assist relevant law enforcement officers to detect criminal offenses or a coup d’état being planned by an organized group. As a matter of fact, pleading guilty itself, if a person assists the law enforcement officers to solve a criminal offense committed by him or her is a palliative in every case; moreover, pleading guilty allows some release from criminal liability or mitigation of a person’s liability.

Assistance Provided to the Accused The Code of Criminal Procedure specifies that in some specific cases neither pretrial investigation nor trial investigation are possible if a defender is absent in the process. The defender’s participation is essential and if an accused person does not have a defense counsel, one must be appointed by a pretrial investigation official, prosecutor, or the court. The decision to appoint the defense counsel is made by

Alternatives to Trial The Code of Criminal Procedure (CCP) identifies certain formal alternatives for judicial proceedings: article 212 of CCP stipulates that pretrial investigation may be terminated if the perpetrator and the victim reconcile, also when the suspect helps to disclose criminal offenses committed by organized crime or criminal associations as well as in some other cases. These alternatives are only available, however, subject to a variety of conditions such as a very serious crime is involved or a previous case of reconciliation with the victim. A decision to dismiss the pretrial investigation if the accused and the victim are reconciled is taken by the prosecutor and in all cases such decision must be approved by the judge of pretrial investigation. If reconciliation takes place during the court hearing, a decision on the release from prosecution is made by the investigating judge and the board of justices. Criminal cases are not very often dismissed for reasons of reconciliation, probably less than 4 percent of all pretrial investigations completed in 2008. This is because, although the laws of Lithuania specify the possibility of remission of persons from criminal liability after their reconciliation with the victim, there is no formal mechanism of mediation to bring it about. Another basis of remission of criminal liability exists for juveniles. Article 93 of the Criminal Code specifies that a juvenile suspect or accused may be released from criminal liability even if a victim does not intend to reconcile with him or her—it is enough for a juvenile to apologize to the victim and to indemnify the property damage by means of his or her work and money. Moreover, other much simpler grounds for remission of criminal liability are applied. A juvenile may be released from criminal liability if he or she pleads guilty and expresses regret.


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Finally, the criminal code leaves open the possibility for juveniles to receive remission on other grounds, particularly if it is assessed that the offender will not commit again. All decisions on remission, however, must be made by the prosecutor and must be approved by the pretrial investigation judge, or by the trial judge if the case has already gone to trial. A person may be released from criminal liability on bail. Cases of persons who committed a criminal offense for the first time (except for serious and very serious ones) may be dismissed, when they plead guilty, show regret for committing criminal offenses, and indemnify damage caused. The court can request a bondsman to pledge a fixed amount as a condition for bail. One more alternative for pretrial investigation is the procedure of penal order foreseen in article 418 of the CCP. By a penal order the Criminal Code assesses a fine that may be the only punishment foreseen for the corresponding criminal offense, or one of the several punishments foreseen for the act. This procedure may be applied to suspects who make up for the damage caused by a criminal offense or who reach an agreement with the victim regarding its indemnification. The content of the prosecutor’s recommendation (as well as the size of a fine to be imposed) is negotiated with the suspect. If upon drawing up the penal order, the accused does not agree with it, he or she may demand to continue the judicial proceedings of the case. In 2008, 16 percent of all cases brought before the court were ended by a penal order. Similar to drawing up a penal order is the hearing of cases in summary procedure. Even though the Code of Criminal Procedure specifies that the cases of serious and very serious crimes cannot be heard in summary procedure, exceptions are made in a large number of criminal offenses. In summary procedure, the pretrial investigation is not exercised; the case is at once heard in the court. This procedure is applied on the recommendation of the prosecutor and on agreement of the accused (though no requirement is set for the accused to plead guilty for having committed a criminal offense). The Code of Criminal Procedure and the Criminal Code also allow discontinuance of the pretrial investigation by releasing from criminal liability persons

who actively helped to disclose acts committed by an organized group or the criminal association. Article 39–1 of the CC specifies only the extreme restrictions of remission of criminal liability— persons who committed voluntary homicides, as well as persons who themselves were the organizers or leaders of the organized group or the criminal association cannot be released from criminal liability.

Pretrial Detention Detention (also the two other most stringent pretrial detention measures—house arrest and obligation to live apart from the victim) may be imposed only by a decision of the judge of pretrial investigation, at the request of the prosecutor. Article 140 of the CCP stipulates that the prosecutor or the officer of pretrial investigation in particular cases is entitled to temporarily detain a person even though a suspicion for the commission of a criminal offense was not brought against him or her, but such custody may last no longer than for 48 hours. The CCP allows for detention on remand if the judge of pretrial investigation finds that (1) a suspect will abscond from the pretrial investigation officers, prosecutors, or the court, (2) a suspect will obstruct the course of the proceedings, or (3) a suspect will commit new crimes. Article 127 of the CCP also allows for a judge of pretrial investigation to impose custody lasting no longer than 3 months. Imposition of custody may be repeatedly extended by the judge of pretrial investigation for another 3 months, but cannot exceed the term of 6 months. Part 2 of the same article stipulates that due to the particular complexity of the case, the term of custody may be repeatedly extended by a decision of the district court judge up to 18 months (detention for juveniles in no cases may exceed the term of 12 months), but the term of each extension may be no longer than 3 months.

Judges The Law on Courts of the Republic of Lithuania requires that separate departments of criminal and civil cases shall be formed at the Supreme Court of Lithuania (18 judges working in the


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department), the Court of Appeal of Lithuania (13 judges working in the department), district courts (in Lithuania, there are five district courts, in their departments of criminal cases with a total of 72 judges). In the regional courts, separate departments for different categories of cases are not formed; judges hear both criminal cases and cases of other categories. In the Court of Appeal of Lithuania, in all district courts, in the major part of regional courts, judges specializing in juvenile civil and criminal cases are appointed. However, judges of regional courts hear both juvenile civil and criminal cases. According to the Constitution of the Republic of Lithuania, the judges of the Supreme Court of Lithuania are appointed by the Seimas of the Republic of Lithuania on recommendation of the president; judges of the Court of Appeal of Lithuania are appointed by the president with the approval of the Seimas. Other judges are appointed by the president. The Law on Courts of the Republic of Lithuania specifies that a judge must be a citizen of the Republic of Lithuania with a higher university education in law. Moreover, a person seeking judicial office as a regional court judge and thus starting his or her career as a judge should have at least five years’ standing of judicial work. Requirements set for judges include impeccable reputation, reliability, and health. The Commission for Secrets Protection Co-ordination decides whether the person is reliable according to criteria laid down in the Law on State Secrets and Office Secrets. Persons possessing these qualifications take a qualifying examination, which is organized by the examination commission, formed by the Council of Justices, the self-governing institution of the courts. Doctors of social sciences in the field of law, as well as former judges (meeting certain formal requirements), may be appointed as regional court judges, without taking an examination. Persons with no less than five years’ standing as judges of regional courts may be appointed as judges of district courts. Judges of the Court of Appeal of Lithuania may be appointed if they have a four-year work record as judges of the district court. A judge of the Supreme Court of Lithuania

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may be appointed after having an eight-year work record as a judge of the district court or a five-year work record as a judge of the Court of Appeal.

Punishment Types of Punishment In 1991–2002, the major parts of the former punishments in the old Criminal Code were abolished. This included exile, deportation, public reprimand, and dismissal from office. In 1996 a moratorium on the death penalty was imposed, and in 1998 its abolition. Criminal offenses were punished most frequently by real deprivation of liberty. The absolute number of persons punished with the penalty of deprivation of liberty within this period increased by more than three times: from 2,787 (1990) to 8,677 (2002). Until 1994, the penalty of correctional works was quite frequently applied (21% in 1991, 10% in 1993, 7% in 1994), which later, even though foreseen by the law, was not applied because of the type of forced work and difficulties arising from its application under the conditions of a market economy (the convicted person had to work in his or her workplace and from his or her wages from 5 to 20 percent were deducted, therefore the aforementioned punishment was similar to a fine, not to a hard labor). The punishment of a fine only in the last years of the old Criminal Code constituted the more considerable part in the punishment practice (7% in 2001, 13.2% in 2002), and previously was imposed rarely due to a very high minimum limit of this punishment (100 minimum subsistence levels, i.e., Litas 12,500 [US$4,548]). The situation changed with the adoption of the new Criminal Code, which became valid on May 1, 2003, where eight independent penalties were enforced, of which three (community service, restriction of liberty, apprehension) are completely new. The new Criminal Code of the Republic of Lithuania (article 42) foresees the following punishments: • Deprivation of public rights (from 1 to 5 years) • Deprivation of the right to perform a certain job or to engage in activities in certain areas (from 1 to 5 years)


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• Community service (up to 480 hours) • Fine (from 130 Litas [US$47] to 39,000 Litas [US$14,190]) • Restriction of liberty (otherwise, “house arrest,” from 3 months to 2 years) • Apprehension (from 5 to 90 days) • Fixed-term imprisonment (3 months to 20 years) • Life imprisonment (no parole, unless granted by the president or amnesty declared by the Seimas of Lithuania, though no person has benefited from this so far) For the period 2003–2008 after the new Criminal Code was in place, the penalty of deprivation of liberty accounted for about 30–35 percent of all punishments while the penalty of restriction of liberty has become not an alternative but a replacement for adjournment of execution of imprisonment, which in the past years comprised about 15–20 percent. Fines in 2005–2008 increased to 31 percent. Arrest and restriction of liberty accounts for approximately 10 percent each in the structure of imposed penalties. The Department of Prisons under the Ministry of Justice of the Republic of Lithuania calculates the terms of the penalty of deprivation of liberty of the convicts in the detention facilities by separate criminal offenses. The average time served (years/ months) for a variety of offenses for persons released in 2007 was as follows: Homicide Rape Robbery Major theft Drug related Criminal association Bribery

6/4 3/7 2/1 1/11 2/1 4/3 0/7

In general, the time served was roughly half to twothirds the sentence actually imposed by the court.

Prison According to statistics from the prison department from the Ministry of Justice, from the end of 2003,

the average daily prison population has been approximately 8,000 prisoners, constituting 240 prisoners per 100,000 of the population. Distribution of prisoners by age and education has remained stable for many years. Prisoners are disproportionately young and poorly educated. On September 1, 2000, control of the penal system was transferred to the Ministry of Justice from the Ministry of Interior, a major reform. In 2002– 2003, the process of demilitarization of detention facilities was completed. It is notable that within the past years the government approved several programs, the implementation of which should improve considerably the infrastructure of detention facilities and incarceration conditions. Detention facilities where convicted persons serve their terms of imprisonment at the present moment are not overcrowded, except for a hospital. Only remand prisons are considerably overcrowded. In mid-2002, the occupancy of detention facilities in Lithuania reached 114 percent, and at the beginning of 2009 the detention facilities were occupied 87 percent. There are a total of 15 detention facilities operating, including remand prisons and specialized medical establishments for prisoners. The three biggest detention facilities in Lithuania are Alytus Correctional House (1,512 official places and 1,201 persons serving their terms of imprisonment, January 1, 2009); Marijampol˙e Correctional House (1,115 places and 988 persons); and Pravienišk˙es Correctional House No. 2 (1,252 places and 1,171 persons). All of them are in the southwestern part from the geographical center of Lithuania. According to the old system, persons sentenced to imprisonment are accommodated in big dormitories (approx. 20 in each, on the average), but during the day they can walk without restriction in the yard (in their local sector). In the Lukišk˙es prison only and in remand prisons and holding rooms (where a penalty of apprehension is served), several convicts are accommodated in one cell and may go for a walk in the closed yard for one or two hours a day. Each convict serving his or her penalty of imprisonment must work, if it is offered to him or her by the administration of the detention facilities. The administration of the facilities must ensure


Luxembourg

that convicts would be involved in the work, taking into account their capacity for work and, as much as possible, their profession. In addition to the mentioned major detention facilities in Lithuania, another three state enterprises are operating, with branches in some other enterprises. Moreover, the prisoners may be involved in unpaid household work. The total number of the employed prisoners is one of the lowest in the European Union. This is predetermined by the shortage of well-organized work, the lack of motivation for the convicts, and low wages. Together with work, less than one-third of the prisoners are employed. The practice that is usually applied in West European countries of employing the prisoners outside the prison does not occur in Lithuania, even though the legal provisions allow for it. In the detention facilities, the number of visits for the sentenced prisoners as well as contacts with the external world and other rights and duties depend on the group to which the prisoner is allocated (simple, light, and disciplinary). At the beginning of 2008, in all detention facilities the prisoners served their terms of imprisonment as follows: 85 percent in the simple group, 10 percent in the light group, and 5 percent in the disciplinary group. All start serving their terms in the simple group, and then depending on their behavior in the prison, they are allocated either to the light or disciplinary group. Lithuania is a party to many international conventions in the field of criminal law, criminal procedure, and execution of penalties, including Convention on the Transfer of Sentenced Persons (ratified in 1996) and Additional Protocol to the Convention on the Transfer of Sentenced Persons (ratified in 2001). The transfer of sentenced persons is provided in bilateral treaties that Lithuania has concluded with Azerbaijan, Byelorussia, and the Russian Federation. ˇ Algimantas Cepas and Gintautas Sakalauskas Further Reading The Centre for Crime Prevention in Lithuania: http://www.nplc.lt.

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Morag, MacDonald. (2004). Country Report for the CEENDPS Research in Lithuania: Research Project of the Central and Eastern European Network of Drug Services in Prison and HEUNI. Birmingham: Centre for Research into Quality. The University of Central England in Birmingham. Sakalauskas, Gintautas. (2000). “Crime: Patterns and Trends.” In Lithuanian Human Development Report 1999, pp. 141–154. Vilnius: United Nations Development Programme. Sakalauskas, Gintautas. (2005). “The Rights of the Persons with Restricted Freedom.” In Human Rights in Lithuania, edited by Algimanˇ tas Cepas, pp. 304–331. Vilnius: United Nations Development Programme. Statistics Lithuania: http://www.stat.gov.lt. Švedas, Gintaras. (2000). Criminal Justice Systems in Europe and North America: Lithuania. Helsinki: The European Institute for Crime Prevention and Control (HEUNI).

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

Background Luxembourg has been considered a grand duchy since 1815 and is presently the only officially recognized grand duchy in existence. A grand duchy is a territory with a monarch as a head of state, specifically a grand duchess or grand duke. It has been an independent state under the Netherlands since 1835 as a result of the Treaty of London, although it was not until 1839 that it was granted political autonomy. Luxembourg was guaranteed perpetual neutrality and recognized as independent in 1867.


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Luxembourg surrendered neutrality to become a charter member of NATO in 1949, following extensive occupation by Germany during both world wars. Today, Luxembourg is a constitutional monarchy whose current chief of state is Grand Duke Henri. It has a parliamentary system in which Prime Minister Jean-Claude Juncker is the current head of government. Executive power is performed by the grand duke and the cabinet including the prime minister. With a land area of just 2,586 square kilometers (998 square miles), Luxembourg is located between France, Germany, and Belgium. As of 2009, The CIA World Factbook estimates a population of 491,775 people. Approximately two-thirds of the population are between the ages of 15 and 64 years old and the life expectancy is 79.33 years. The national language is Luxembourgish, which blends elements of German, French, and Frankish. German and French are recognized as administrative languages. The judicial system of Luxembourg is an inquisitorial system that embodies influence from the French, German, and Belgian systems. The Superior Court of Justice rests at the top of the judicial system. Judges, at all levels of the court including justices of the peace, are appointed by the grand duke. It is a life appointment barring any misconduct. The Superior Court of Justice comprises the Court of Cassation, which reviews cases that are seeking to have the decision of the Court of Appeal overturned, the Court of Appeal, and a Department of Public Prosecution. There are 5 judges on the bench of the Court of Cassation and 27 judges on the bench of the Court of Appeal. Below the Superior Court of Justice are two district courts that hear more serious cases while there are 3 justices of the peace to deal with minor cases.

Police The National Police of Luxembourg is structured with a general directorate that is in charge of overseeing the successful function of the National Police. There are five branches of the general directorate: Human Resources; Operations, which is in charge of managing larger events such as the National

Emergency Center; Budget and Equipment; Information Technology; and Organization and Methodology, responsible for introducing new procedures with the goal of improving current procedures. There are six subdivisions of the central units. The Criminal Investigation Unit is charged with preservation of the crime scene and collection and protection of evidence. This unit is further divided into specialized units such as organized crime and drug crime. Other units included Airport Control Unit, responsible for issues of immigration and border control; Central Unit of Traffic Police; Special Police Unit; Police School; the Mobile Supply and Guard Unit, which is responsible for securely transporting prisoners to various destinations. Police are further broken down into regional units. There are 13 intervention centers that are responsible for preventing crimes and misdemeanors. As implied in the name they function on a regional level and for this reason often provide a vital link between the people and the larger branches of the police. Luxembourg has a public unit that serves as an external overseer of police activities by investigating potential police misconduct as well as misdemeanors allegedly committed by police officers. This unit also provides audits and reports in hopes of improving police efficiency and supplies legal counsel when laws and regulations are introduced that will affect police personnel. In 2007, there were 1,519 police officers according to Eurostat.

Crime Classification of Crimes Luxembourg has a civil law system. Crimes are labeled differently according to severity and also classified as crime, misdemeanor, and violation. Included crime categories are homicide, aggravated assault, robbery, rape and sexual assault, burglary, and some property crime, including theft, depending on the severity. Misdemeanors may include burglary and various property crimes and minor thefts; violations include traffic offenses and other minor offenses. Luxembourg prohibits both the use and sale of drugs including, as of 2001, cannabis. Punishment


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Armed undercover police officers rush toward a daycare center in Wasserbillig, Luxembourg, after two shots were heard, June 1, 2000. Police shot the hostage taker and freed 25 children and three teachers, ending the 30-hour standoff. (AP Photo/Yves Logghe)

for using cannabis is just a fine as long as there are no aggravating factors, while users of more illicit drugs can face a fine and/or a sentence of 8 days to 6 months in prison. Punishment for drug dealing is more concerned with the outcome of the drug deal than the amount of drugs dealt. Small- or largescale drug deals carry the sentence of 1–5 years and/or a fine. If the drug sold causes severe damage to health the sentence increases to 5–10 years, and if the outcome is death for the user the sentence further increases to 15–20 years. Heroin is the

drug responsible for the majority of drug offenses in Luxembourg.

Crime Statistics According to Eurostat the total number of homicides reported to the police in 2007 was seven, representing a 1.09 percent increase in homicides from 2003. For 2003, the European Sourcebook of Criminal Justice reported the following crime statistics per 100,000 population:


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Homicide (completed) Assault Rape Robbery Burglary Domestic burglary Theft (total) Motor vehicle theft Drug offenses Drug trafficking

0.7 298 8 95 741 339 3,150 115 248 39

The 2006 Crime and Safety Report recognized increasing nonviolent and violent crimes, although Luxembourg still remains reasonably safe. At that time there was also a visible increase in drug sales to youth. The most common nonviolent crime at the time was residential burglary. In 2009, Luxembourg fought to be removed from a tax haven “grey list” maintained by the OECD. The country was originally placed on the list as a result of its bank secrecy laws. Luxembourg was one of three European Union countries to be added to this grey list. The prime minister was outraged to find his country on the list after a verbal agreement earlier in the year that Luxembourg would not be placed on the list. If Luxembourg does not allow more open information sharing regarding tax issues, it could face the consequences of legislative crackdowns from other countries, including the United States.

on the nature and severity of the crime. There is no plea bargaining system in Luxembourg. It is, however, possible to exercise leniency toward persons who cooperate with the police. Defendants may be detained in prison while awaiting trial, although they are kept separate from convicted offenders unless they consent to sharing accommodations with convicted offenders or overcrowding denies the existence of this consideration. There is also no guarantee against contact with convicted offenders while participating in various prison programs. The age of responsibility in Luxembourg is 16 years old. In 2004 Luxembourg had committed to build a secure detention unit for minors. The construction was to commence in mid-2005; however, as of 2008, the unit had still not been completed. The demand for the secure unit for youths arose out of concern for contact between juvenile and adult prisoners while being incarcerated at Luxembourg Prison. While male and female youth offenders are separated, the lack of separate amenities for youths makes it hard to prevent interaction between youths and adults in the prison. Similarly, there is no segregation regarding placement of minors in trouble with the law and minors suffering from severe behavioral and social problems. Also as of 2007, juveniles accused of serious offenses were permitted to be tried as adults.

Punishment Finding of Guilt Accused offenders are given the right to a fair trial. Defendants are presumed innocent and have the right to appeal the outcome of the trial. There are no jury trials. Defendants are allowed to confer with an attorney immediately. An attorney is provided by the government for indigent defendants. Prosecutors are appointed by the grand duke. There are two prosecutor’s offices under the direction of the state prosecutor. There is also a General State Prosecutor’s Office whose prosecutors are charged with overseeing the other prosecutors in the state. The criminal investigation may be carried out by either the police or an investigating judge depending

There are eight recognized punishments in Luxembourg: prison (either life sentence or determined amount of time); fine; special confiscation; removal of degree, title, job, etc.; revocation of civil and political rights; closure of institution or enterprise; publication of sentencing decision; and exclusion from specific professional activities. Certain punishments may accompany imprisonment as opposed to being stand-alone punishments. Removal of degree is mandatory following a sentence to imprisonment and certain rights are revoked following a prison sentence of more than 10 years. The death penalty was abolished in Luxembourg in 1979 with the last execution occurring in 1949, according to Amnesty International.


Macedonia, Former Yugoslav Republic of

Prison According to Eurostat, in 2007 the prison population was 666 inmates. The Centre Pénitentiaire de Luxembourg (CPL) is the largest and possibly only true prison in the entire country of Luxembourg. It is located in Schrassig. As a result of being the main prison, it is responsible for housing not only convicted adult offenders, but also juvenile offenders and foreigners who are being administratively held until the time of their removal. There is a smaller prison in the country, Centre Pénitentiaire de Givenich. This seems to be a prison with a more open set-up with the goal of putting the offenders to work in various trades. In fact, some offenders are permitted to leave the premises to perform jobs for minimum wage. This smaller prison is concerned with preparing individuals for release and reintegration into society. Both prisons have work programs. The work at CPL is often related to upkeep and operation of the prison. In 2006, 106 prisoners worked 35 hours a week to build a new laundry room for the facility. Likewise, both prisons offer education courses for inmates. This is consistent with a recommendation of the Council of Europe, which regards education as a fundamental right and believes that education facilitates the return of the inmate to society. Participation in education or work is voluntary, not compulsory. Prisoners are allowed communication with the outside world except for an extreme situation where an investigating judge temporarily suspends communication privileges of pretrial detainees. Raquel Moriarty Further Reading The Ministry of Justice: http://www.mj.public.lu. Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on His Visit to the Grand Duchy of Luxembourg, 2–3 February 2004, Council of Europe, Commissioner for Human Rights: http://www.unhcr.org/refworld/ docid/4159737b4.html. 2008 Human Rights Report of the Bureau of Democracy, Human Rights and Labor: http://www. state.gov/g/drl/rls/hrrpt/2008/eur/119090.htm.

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Macedonia, Former Yugoslav Republic of Legal System: Civil Murder: Medium Burglary: Medium Corruption: Medium Human Trafficking: Low Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background The Former Yugoslav Republic of Macedonia (FYRM) became an independent nation in 1991 when it successfully seceded from the former Yugoslavia in a referendum. It then ratified its new constitution. Since then, the country has evolved into a market-based, parliamentary democracy in which power rests largely with the prime minister’s government while the president serves a largely ceremonial role. Its legal system is based upon civil law and the judicial review of legislation. The UN officially recognized the new nation’s sovereignty in 1993 as a conflict arose, in which Greece challenged the legitimacy of the country’s name Macedonia. Greek authorities objected to what they have perceived to be the former Yugoslav republic’s unwarranted appropriation of the Hellenic name and that the new nation to their north would develop territorial claims to Macedonian territories within Greece. After Greece’s 1994 embargo of the new republic, the formal name Former Yugoslav Republic of Macedonia was agreed upon while diplomatic negotiations over the “name issue” continue. Apart from the name issue, ethnic tensions have been particularly troublesome. The independence referendum was overwhelmingly ratified by voters, and it did secure independence without armed insurrection. However, ethnic Albanians, who today represent about 25 percent of the population, abstained from the voting because they felt threatened by the Slavic-speaking ethnic Macedonian majority.


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Ethnic Macedonians today represent about 65 percent of the nation’s population, and unlike ethnic Albanians, they are predominantly Eastern Orthodox Christians. Thus, ethnic Albanians did not democratically consent to the new nation’s construction, and significant ethnic tensions have existed ever since. In 2000, ethnic Albanians expressed grave concerns regarding the lack of minority protections and participation. During the first half of 2001, open hostilities ignited near the Kosovo border between the Albanian armed group National Liberation Army and the FYRM government. During the summer of 2001, the sides brokered a ceasefire and agreed to a peace accord within the Ohrid Framework. The framework facilitated a new governing coalition, led to the implementation of constitutional and legislative reforms to improve minority group civil rights, as well as new constitutional amendments. But by 2007, ethnic tensions had arisen, and rival Albanian parties deemed that the original agreement had broken down and protests reemerged. The UN Committee on the Elimination of Racial Discrimination (CERD) recently found that the government was in breach of its obligations toward the minority Romani (gypsy) community, and expressed concerns for the treatment of both Albanian and Turkish children. As well, Amnesty International concluded that Romani females in particular continue to experience “double discrimination” as both minorities and as females. Ethnic tensions and discrimination have also been tied to the challenges posed by internally displaced persons and refugees resulting from various conflicts. During the 1999 Kosovo crisis, 360,000 refugees flooded into the country of just 2 million people, and about 1,800 predominantly Romani and Ashkalia remain under temporary “asylum for humanitarian protection.” An estimated 1,000 persons remain internally displaced from the 2001 conflict.

Justice System Since independence, the civil sector and the media have developed rather well compared with some

other countries in the region. Adopted in 2004, Constitutional article 16 guarantees freedom of speech and access to information. But media outlets are highly partisan in their coverage of issues along ethnic and political lines. Reporters without Borders expressed concern that speech is prohibited that is deemed to invite national, religious, or ethnic hatred. As well, journalists and broadcasters are faced with suppressive libel suits, criminal prosecution resulting in onerous fines, and are frequently targets of physical harassment. Further, NGOs have warned that while civil institutions have developed rather well, the government appears to be setting up its own proxy organizations to crowd out legitimate independent governmental watchdogs. To adjudicate legal disputes, the country has a three-tiered court system with trial courts, appellate courts, along with courts such as the new administrative court and the Supreme Court. Citizens can bring lawsuits through the appellate courts and the Supreme Court to try to stop various human rights violations or to receive compensation. The Constitutional Court handles matters that involve constitutional interpretation and certain human rights protections. In 2007, the Law on Public Prosecution, the Law on the Council of Public Prosecutors, and changes in the Law on Courts were adopted to finish the legislative framework that was set out in the constitutional amendments of 2005. The changes to the Law on Courts provide for improved protection of citizens’ rights to have their cases adjudicated in a timely manner. The judiciary also includes the Public Prosecutor’s Office and the public attorney. The Judicial Council is responsible for the election, discipline, and removal of judges. In 2007, the government authorized the new administrative court. This court is responsible for hearing cases against state institutions. Unfortunately, because of political battles over the membership of the Judicial Council, judges have not been appointed to the court, and by 2009 it had not yet processed any cases. Outside the country, the International Criminal Tribunal for the former Yugoslavia (ICTY) has had jurisdiction in certain ongoing cases involving



Macedonian officials alleged to have had command involvement in serious violations of laws regulating the customs of war during the 2001 conflict. One high-profile case involves former Minister of Interior Ljube Boshkovski and Johan Tarchulovski for their alleged involvement in the deaths and inhuman treatment of ethnic Albanians. Although the U.S. State Department regards the government as generally complying with the ICTY, Amnesty International has expressed its concern over delays in the draft Law on Cooperation with the Tribunal and the country’s recent amnesty legislation.

Police The Macedonian police force is a centralized national force under the auspices of the Ministry of Interior. It consists of uniformed police, criminal (civilian) police, and the border police. The Eighth UN Survey on Crime Trends and Operations of Criminal Justice Systems (UNCTS) reported police manpower to be 9,789. Both the United States and EU have reportedly been actively involved in providing training and guidance in professionalizing and organizing the police forces, particularly with respect to policing corruption and organized crime. This responsibility officially rests with the Organized Crime Department, which is also under Ministry of Interior authority. Part of the Ohrid Agreement was that the government would actively recruit ethnic Albanians into the police forces to better reflect their proportional representation in society. But they are still disproportionately represented. The U.S. State Department reports that in 2007, only 20.3 percent of police were minorities, short of the 25 percent government quota. While 25 percent of the population, Albanians are only 16 percent of the police force. Further, they are particularly underrepresented in the intelligence and counterintelligence agencies of the police and military. Human rights groups have been particularly sensitive to matters of police misconduct and brutality, especially in light of ethnic tensions and past conflicts. For example, Amnesty International has expressed concern about police excessive use of

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force against people in the village of Brodec during Operation Mountain Storm aimed at recapturing members of armed opposition groups who had escaped from Dubrava Prison in Kosovo. As well, it has expressed concern about cases of past ill-treatment and torture by “Alpha” special police forces. During the 2001 conflict the “Lions,” a monoethnic paramilitary police unit, was set up by the Ministry of Interior following the National Liberation Army uprising. According to credible accounts reported by the ombudsperson, these too committed various human rights violations. The same was reportedly true for the “Tigers” commando military unit and the Security and Counter-espionage Service (DBK). Further, there still has been no progress made in resolving cases of enforced disappearances of ethnic Albanians during the 2001 conflict. Based on testimony from former high-ranking officials, police informants, and victims, the Macedonian Helsinki Committee for Human Rights (MHC) has reported on the existence of a police infrastructure of torture and corruption. Although they did not operate secret prisons, both the Ministry of Interior and the DBK have owned roughly 40 secret apartments throughout the country. In them, they have tortured at least 15 individuals over the past 10 years. They have also used luxury apartments with cameras hidden within television sets to blackmail public figures, foreign diplomats, foreign intelligence services employees, among others. The people’s defender (ombudsperson) is responsible for reporting human rights violations and corrupt acts by various government agencies, including criminal justice, to the Ministry of Interior. The Professional Standards Unit (PSU) is responsible for investigating and preventing police misconduct. Unfortunately, NGOs cite corruption, the lack of transparency, and political pressure within the Ministry of Interior as having hindered crime-fighting efforts, especially against organized crime. The U.S. State Department believes that police impunity is still problematic, but that more aggressive internal investigations coupled with the ombudsperson’s work have helped.


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Crime Various external agencies and internal NGOs have closely monitored corruption and organized crime in Macedonia. These problems remain serious and widespread, and this is particularly so with official corruption. In recent years, there have been highprofile arrests and investigations that the government has reported to the UN Office of Drugs and Crime (UNODC) regarding its efforts to abide by the UN Convention against Corruption. Unfortunately, some have accused officials of making partisan- and revenge-driven arrests in anticorruption cases, selectively prosecuting some while ignoring others. Still, in 2007 the government launched its Macedonia without Corruption campaign. This included a media campaign and a special 199 telephone line for members of the public to report corruption. Due to efforts like these, organizations like America’s Freedom House (FH) and the European Parliament report that the level of corruption is falling. While attempting to deal with the serious corruption and organized crime problems, the government has been urged to seriously address crime involving trafficking in persons and prostitution. Illegal in FYRM, trafficking in persons usually involves people from the Balkans being trafficked to South Central and Western Europe. Less than a third of the potential victims eligible for government assistance in Macedonia actually avail themselves of it. In 2007, prosecutors brought 57 cases and put 184 suspects on trial. Prostitution is illegal, but laws are not always enforced. Some foreign women are deported, and some men are prosecuted for “mediating” in prostitution. Still, in 2008, Human Rights Watch (HRW) condemned the government’s mass arrest of alleged sex workers in the capital city Skopje. The country is a major transit country for hashish and heroin, and to a lesser extent, cocaine, destined for Europe. As well, money laundering is believed to be problematic because the economy is so cash-dependent. The prevalence of drug abuse appears to be relatively low. According to the World Drug Report 2008, the annual prevalence of abuse as a percentage

of Macedonians aged 15–64 for opiates was 0.5 percent in 2005. For cocaine, it was even lower, 0.08 percent in 2007. Back in 1999, Ecstasy abuse was reported to be 0.1 percent of this population. Intentional homicide rates in the country tend to be low. According to the UNODC International Homicide Statistics, estimates ranged from 2.4 to 5.2 intentional homicides per 100,000 people in 2004. The Eighth UN Survey of Crime Trends and Operations of Criminal Justice Systems (UNCTS) suggested that about 35 percent of the homicides result from firearms. The same survey data reported that there were 296 robberies and 27 rapes. Rape, including spousal rape, is specifically prohibited. However, the crime requires a higher burden of proof than do other crimes. There must be evidence of both penetration and signs of physical resistance by the victim. Victims must overcome significant cultural stigma, and authorities seem reluctant to seriously investigate and prosecute these cases. Domestic violence seems to be quite prevalent in FYRM. An NGO, the Association of Emancipation, Solidarity, and Equality of Women (ESE), provided research that estimates that as many as half of all women experience psychological abuse, and about a fifth experience physical abuse. AI estimates that Romani females suffer even more abuse, with an estimated 70 percent being abused. The Ministry of Interior statistics report that during the first six months of 2007, reports of abuse increased with 1,409 reports of psychological abuse, 130 reports of physical abuse, and 3 rapes. The government operates six shelters while an NGO operates a hotline and a temporary crisis shelter in Skopje. Human rights investigators have generally viewed the government response as poor. Police officers are often unaware of provisions that authorize them to respond to domestic violence cases more assertively, although officer training programs are underway. Child abuse is problematic in some areas. The Ministry of Interior statistics recently included 96 cases of child sexual abuse. The Department of Juvenile Delinquency and the Ministry of Labor and Social Policy’s (MLSP) Center for Social Work are responsible for child abuse cases.



Finding of Guilt Macedonian law requires that police get arrest warrants from the investigating judge in each case, and police generally abide by this requirement. Prosecutors must arraign a detainee within 24 hours of arrest. Only an investigative judge, at the prosecutor’s request, may order detention for longer than 24 hours. The judge may approve two additional 24hour periods. Again, it is believed that authorities generally abide by these legal rules. Defendants are legally entitled to be presumed innocent and have open court proceedings except for trials that involve minors, sexual offenses, or those in which the defendant’s personal safety may be at risk. Defendants have the right to contact lawyers when they are arrested, questioned by police, and during any court proceedings. Although logistical challenges arise, authorities appear to generally abide by these rules. Indigent clients are also legally entitled to defense attorneys. Defendants are entitled to question witnesses and present evidence. Although not always respected in practice, defendants have a right to access government-held evidence. They also have the right to appeal their convictions. Courts may try defendants in absentia as long as they repeat those trials if the convict returns for trial at a later date. Consistent with a civil law system, there are no juries. Two lay judges assist each judge in determining the verdicts. But the judges generally make the final decisions on sentences. During pretrial detention, investigative judges have to grant permission for family members, physicians, diplomatic representatives, and representatives from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) or the International Committee of the Red Cross (ICRC) to access detainees. Judges typically grant access, but not always in a timely manner. The bail system is such that pretrial detainees may be held up to 30 days. There is then the possibility of up to 180 days of extensions if a council of three judges first orders a 60-day extension for further investigation, then a superior court orders an additional 90-day extension.

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This extension is only allowed in cases for which the crime under investigation is subject to a sentencing guideline of at least 5 years’ imprisonment. NGOs have expressed concern that judges are increasingly abusing their pretrial detention authority. They assert that judges are too often declining to grant bail or use alternative measures of guaranteeing that defendants show up to trial. These might include home confinement or having defendants relinquish their passports. Human rights groups are also concerned that there is undue pressure on judges in politically sensitive cases. The Constitution and the law provide for judicial independence. However, there is still significant political pressure, intimidation, and corrupting influences on the judiciary. For example, the government may manipulate the judicial budget, such as cutting funds available for the “goods and services” part of judicial operating budgets, which thus hinders the ability of the courts to operate efficiently. FYRM has recognized the need to improve both judicial independence and efficiency. The problem stems partly from political disputes over the composition of the Judicial Council whose members must be elected by a two-thirds majority of Parliament. The council is supposed to be composed of 13 judges elected by their peers, the Ministry of Justice, and the president of the Supreme Court as ex officio members, all totaling 15 Judicial Council members. The delay in selecting members has resulted in delays in the appointment of judges needed to operate courts efficiently. The Ministry of Justice reports that while many laws relating to the judicial system have been adopted lately, they still require implementation. Indeed, the U.S. State Department believes that the government continues to delay implementation of a number of 2006 judicial reform laws that were meant to enhance independence and efficiency. The government’s unofficial reports show that during the first half of 2007, only about 30.6 percent of the 1.1 million cases were actually adjudicated. It is hoped that the 2006 Law on Mediation will reduce court workloads through the use of alternative dispute resolution. As well, the Academy of Judges and Prosecutors has been established to provide


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continuous training to promote professionalism and competence within the judiciary. Some measures have been taken to improve the proper prosecution and adjudication of corruption and organized crime. In 2008, amendments were made to the Criminal Procedure Code and the law on monitoring of communications to allow special investigative measures in corruption cases, and law enforcement agencies seem more willing to coordinate their activities, resulting in more successful convictions. The Public Prosecutor’s Office prosecutes those charged with organized crime and corruption. This can be done, for example, under article 357 of the Criminal Code. Further, the Law on Courts has been amended so that there will be only one specialized court department to deal with organized crime and corruption, instead of five. It is hoped this will improve efficiency in such cases. Although arbitrary arrest and detention and police misconduct are prohibited by law, they still remain problematic. Police have been known to invite suspects to police stations for “informative talks” without informing suspects of their rights. Although it appears that such interviews do not result in suspects being arrested or held for any length of time, there are concerns that individuals are improperly questioned for political reasons. The Macedonian Helsinki Committee for Human Rights (MHC) reports that there have been cases of torture and ill-treatment during arrest and detention, cases which the Ministry of Interior has failed to investigate according to provisions in its own internal procedures, domestic law, and international standards. Foreign governments and the EU continue to monitor the police and advise the Ministry of Interior on police reforms. Inside the country, the Professional Standards Unit (PSU) is responsible for conducting investigations into cases of police misconduct. In 2007, the PSU reported that citizens filed 137 complaints of police misconduct, including 64 alleging excessive use of force. Citizens also filed 243 complaints of police misconduct with the ombudsperson. The PSU reportedly visited 20 police stations and made recommendations on preventative

measures against misconduct in 2007. That same year, the PSU conducted investigation into 4 cases of police excessive use of force during the apprehension and detention of suspects. According to the U.S. State Department, the PSU has been slow to complete investigations and bring charges. But it believes that there has been improvement in the MOI response to new cases as well as more frequent discipline. In 2007, the PSU recommended disciplinary action against police employees in 90 cases. The MOI reduced pay for 96 employees in 56 cases, suspended 39 employees in 10 cases, and reassigned 53 employees in 24 cases. The PSU also submitted criminal charges against 75 employees for 70 crimes. But it is not clear whether or not prosecutors actually prosecuted them. Although torture and extrajudicial killings are clearly illegal, there is compelling evidence that in 2002 in the aftermath of the 9/11 terrorist attacks in New York, FYRM police ambushed and shot to death seven male Pakistani and Indian immigrants north of Skopje. Although police alleged that the men were plotting terrorist attacks and that security services had acted appropriately, Western diplomats expressed doubts. The Parliamentary Assembly of the Council of Europe reviewed the official FYRM account of the killings and concluded that it was “utterly untenable.” However, American officials appear to have been suitably impressed with the government’s antiterrorism zeal and made the former Yugoslav republic a junior partner in its rendition program. In this program, American agents typically abduct persons whom they suspect of terrorist affiliation then deliver them to security service in governments who reliably torture them to produce the requisite “confessions.” In one notorious case, FYRM agents kidnapped Lebanese-German Khaled el-Masri on New Year’s Eve 2003 during his holiday in Macedonia. They then delivered him to American CIA agents who allegedly took him to be tortured in Afghanistan. Convinced of his innocence and making little progress, they eventually released Masri on a deserted road near the Albanian border.


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that the Indrizovo and Skopje prisons, in particular, have been severely overcrowded.

Punishment FYRM law does not provide for the use of execution for any crime, and it prohibits the forced exile, either internally or externally, as a means of penal punishment. Imprisonment is available for criminal violations. For example, for a serious crime such as rape or forcible sexual assault the law imposes from 1 to 15 years’ imprisonment. The Ministry of Justice Directorate of Prison Administration operates eight facilities. According to the International Centre for Prison Studies, there were 2,200 prisoners for an imprisonment rate of 107 prisoners per 100,000 in 2008. The prison population has been rising since 2001, when there were 1,518 prisoners. Within the overall population, the number of female prisoners is low, composing 2.7 percent of the total in 2007. That same year, juveniles and foreigners made up 0.8 percent and 4.1 percent, respectively. There is concern about the fact that juveniles and adults are being held together due to limited space. Pretrial/remand prisoners represented 8.9 percent of the total in 2007. Prison officials usually allow groups such as the ICRC, the CPT, and the country’s ombudsperson to visit the prisons and interview prisoners. As a result of their visits to prisons and detention facilities, the CPT expressed concern with the lack of progress that prison officials had made in addressing concerns that the CPT itself had previously raised. In particular, they condemned the practice of chaining prisoners to restrain them and the provision of too little prisoner supervision. The CPT described prison conditions as “inhuman and degrading.” According to the U.S. State Department, prison conditions barely met international standards in 2007. There have been serious problems with poor hygienic conditions, insufficient medical care, as well as inadequate funding and staffing in some facilities such as the Skopje detention center. Overcrowding appears to contribute to many of the problems within the prison system. The system’s official capacity was reportedly 2,005 in 2007. Yet occupancy level was 102.2 percent. In that year, the Council of Europe Directorate of Legal Affairs reported

Paul Schupp Further Reading Jelavich, Barbara. (1983). History of the Balkans. New York: Cambridge University Press. Roma in Macedonia, (Gypsy) Rights Network. (2009): http://www.romarights.net. WashLaw, Legal Research: http://www.washlaw. edu/forint/europe/macedoni.html.

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

Background Malta is a small nation, or micro-state, in the center of the Mediterranean Sea. The country of Malta comprises a chain of five islands; most of the population resides on Malta, the largest of these islands, and some on Gozo, the second largest. Malta is the smallest state in the European Union (EU) with a population of 400,000 and a land area of 316 square kilometers (122 square miles). The economy is based on tourism, as well as financial and information technology services, some manufacturing, and a thriving film industry. Each year, more than a million tourists visit the islands.

History From the 1800s until 1964, Malta was under British rule. In the administrative language of the British Empire, Malta fit into the category of Crown Colony, meaning the governor embodied the whole


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of civil and military authority. The Palace of the Grand Masters became the British governor’s office and Castellania Palace served as the law courts under British rule until 1853. The first British governor, Sir Thomas Maitland, instituted a Constitution of the Criminal Court that abolished torture and established some rules of criminal procedure.

The Criminal Code The first effort to write a criminal code occurred in 1826 during the administration of the second British governor, General Francis Rowden, who requested Ignazio Bonavita, senior judge of the Criminal Court of Malta, to prepare a report. Bonavita’s criminal code relied on the Neapolitan Code and later revisions in the French code, both of which drew on Roman law. In 1842, the code was sent to Andrew Jameson, a Scottish lawyer. He sought to reconcile Bonavita’s code with principles of English criminal law. The code was not brought into effect until 1854. Over the years, numerous amendments have been made, although the framework of the original 1854 code remains. Legislation enacted in 2002 specified new procedural rights in favor of the accused and established several new offenses, including conspiracy. More recently introduced procedural rights relate to bail, habeas corpus, and redress against unlawful detention, consistent with requirements of the European Court of Human Rights. In addition, special laws define a variety of criminal offenses such as drug offenses or traffic offenses.

the standards of recruits, conditions of service, and collection of crime statistics. In 1956, the first female constables were appointed at the Malta police. Currently, the Malta Police comprises about 1,600 officers of lower ranks (constables, sergeants, sergeant majors) and more than 100 senior officers (inspectors, superintendents, assistant commissioners, the deputy commissioner, and the commissioner). Police are deployed across regional districts, managing local police stations, or at general headquarters, carrying out administrative duties or working in specialized squads. Specialized squads include the cybercrime unit, homicide squad, drug squad, economic crimes squad, vice squad, antiterrorism unit, and immigration branch. The Police Academy has responsibility for training of the national police force. The academy, in conjunction with the Institute of Criminology of the University of Malta, provides a two-year, part-time intensive diploma course in policing for police inspectors.

Crime Classification of Crimes Maltese criminal law distinguishes between two categories of offenses: crime and contraventions. Although the Criminal Code does not delineate the specific offenses within each category, it is obvious that contraventions are offenses of a less serious nature than crimes. Other laws establish offenses (both crimes and contraventions) not found in the Criminal Code, such as drug trafficking, money laundering, and forgery of currency.

Police The Malta police originated in 1814 when Maitland consolidated the Coast Artillery, the Provincial Corps, and the Police Corps into a single institution, the Police Corps. Several reorganizations took place in the first half of the 19th century. A significant reorganization of police followed the events of June 7, 1919. Known as the Sette Guigno, this is the day when a Maltese National Assembly formed to demand independence and British forces fired shots in the direction of a crowd, killing four Maltese. In the 1950s, in the years before independence, the organization of the police was further revised, which improved

TERRORISM, IMMIGRATION, AND MONEY LAUNDERING Terrorism, illegal immigration, and money laundering present particular areas of concern. Concerns about terrorist violence had led to recent changes in legislation. Until the first half of 2005, activities related to terrorism were punishable under several Maltese laws. The absence of a counterterrorism act was not in conformity with EU standards. The Criminal Code was therefore amended in 2005, creating numerous terrorist offenses, such as hostage taking, hijacking of transport, and the manufacture of biological and chemical weapons.


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The Malta Armed Forces Maritime Squadron assists would-be immigrants as they cling to tuna nets in the Mediterranean Sea not far from the coast of Malta, June 15, 2008. The 28 people were stranded when their boat allegedly capsized after colliding with the steel nets. (AP Photo/Rohan Dalli, Malta Armed Forces Maritime Squadron)

In recent years, there has been a sharp increase in the number of illegal immigrants arriving in Malta by boat, and this has raised concern within the government and general population. Given its geographic position, Malta finds itself at the crossroads of irregular migration. In 2006, the Malta police responded to 57 incidents involving some 1,780 persons who either had to be brought ashore or had landed illegally in Malta. About half of these socalled boat people were of Eritrean, Egyptian, Somali, or Moroccan nationality. Most sought to apply for asylum status and received assistance from the Ministry of Family and Social Solidarity. Malta accepts more than half of all asylum seekers, the highest acceptance rate in Europe, and questions have been raised in government and media circles about the extent to which this level of absorption can be sustained. Malta already has, by far, the greatest population density in the EU, with 1,250 persons per square kilometer.

Malta is keen to protect its expanding economy from international crime. The government has sought to establish and promote Malta as an international financial center. However, foreign investment increased fears that money obtained by drug trafficking, used to support terrorist financing, could be laundered through the banking system. To protect the integrity of the country’s financial institutions, the government enacted the Professional Secrecy Act (1994) and Prevention of Money Laundering Act (1994). This was followed by creation of a national Financial Intelligence Analysis Unit in 2001. Malta has contributed to international efforts to suppress money laundering. International concerns led to creation of the multinational Financial Action Task Force in 1990, following the initiative taken at the G-7 summit in Paris the previous year. This organization urged criminalization of money laundering, confiscation of money laundering proceeds, and greater international


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cooperation in investigation and prosecution of money launderers.

DRUGS AND ALCOHOL Malta has sought to contribute to international efforts to reduce drug-related crime. In 2006, the Drug Squad of the Malta Police seized various drugs, in amounts of 2 kilos or less, at the Luqa Airport. These included cocaine, cannabis, heroin, and Ecstasy tablets. New substances uncovered for the first time in Malta included benzylpiperazine (BZP) and khat. Overall, there were 361 convictions for possession and 96 for trafficking. Drug use among young adults in Malta probably began during the 1970s. Pharmaceutical drugs, such as tranquilizers, made an appearance, as did cannabis smoking and inhalants among a limited group. Heroin has been in use since the 1980s. Caritas Malta opened a drug-rehabilitation center in 1985, and in 1994, the government established a national drug agency (Sedqa), which developed community-based programs, a prison-based facility, and extensive prevention programs. Much of the concern has focused on drug use among youth. Malta participated in European-wide school surveys of the use of alcohol and other drugs during the 1990s sponsored by the Council of Europe. Essentially, Maltese youth consume more alcohol, but less illicit drugs, than youth elsewhere in Europe. More than 90 percent of students in secondary schools in Malta report having consumed alcohol on more than one occasion. This places Malta in the top category of “drinking countries,” alongside Denmark, the United Kingdom, and (the Republic of) Ireland. Maltese youth prefer wine and spirits rather than beer. A similar percentage of schoolage youth in Malta report that they have never used an illicit drug during their lifetime. This is the lowest figure among students reporting illicit drug use across Europe. Lower use among Maltese youth, compared to European youth generally, is also true of tobacco. Nearly half of Maltese youth surveyed reported that they had never used tobacco; this is the lowest figure reported in school surveys across Europe.

Crime Statistics Although the Malta police do not issue annual crime reports as such, statistics are easily accessible upon request. The limitations of police statistics as a valid indicator of crime are well known. That said, Malta has a relatively low crime rate as can be seen from the data collected in 2006 presented here. Type of Crime Arson Bodily harm Property damage Homicide Prostitution Sexual offenses Theft Violence against police Total

Number 2 228 356 2 259 160 631 53 1,691

In 2006, there were more than 16,000 reported crimes. Theft and damage to property account for most—about 80 percent—of these. Violent crime, particularly homicide, is rare. The Malta police does have a special squad for investigation of homicides, although there were years (e.g., 2006) when no homicide was reported. The single largest category of theft, about 28 percent, consists of theft from motor vehicles. Thefts from residences, bars, hotels, public beaches, and retail stores comprise about 22 percent of total recorded thefts, and holdups amount to less than 1 percent. Criminologists in Malta have analyzed the geographic distribution of crime. St. Julian’s, St. Paul’s Bay, Sliema, and Valletta have been the areas of highest crime during the past decade. Marsaxlokk, Ta’Xbiex, Pembroke, and Gozo have been the areas of lowest crime. This pattern can be easily explained by the tourist and leisure economy. The hot spots are those areas with the greatest concentration of recreational and retail outlets and a high population density. The areas of lowest crime, Marsaxlokk, Ta’Xbiex, and Pembroke, are those with settled residential populations. The island of Gozo is a more tightly knit society than Malta—residents tend to leave doors unlocked, leave valuables in the open, and exhibit other behavior confident of


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secure surroundings. Although, it must also be said, that the criminal aspect in Gozo is covered by a veil of omertà. Criminal victimization of tourists presents a special concern given its potential economic impact. Tourism is the strongest sector of the economy, with about half of the jobs in Malta connected directly or indirectly to tourism. Recent research carried out by Victim Support Malta shows that while Malta lives up to its reputation as a safe destination for tourists, the authorities could do more to assist those who are victimized. The research team interviewed persons departing from Malta’s International Airport at Luqa during a 12-hour period and obtained 719 cases for analysis. Of these, 3 percent reported having experienced victimization while in the country; nearly all had been victims of theft at hotels. This figure is higher than the official tourist victimization rate derived from police statistics, which likely reflects the reality that reporting by tourists is low. Some areas of Malta have been known for particular criminal activities. During the years when the British Navy maintained its Mediterranean Fleet in the Grand Harbour, Strada Stretta in Valletta, was notorious for prostitutes. This area contained many music halls catering to sailors and soldiers on shore leave. A number of young women from Poland, Russia, and elsewhere in Eastern Europe came to Malta to work in the music halls as artistes or barmaids The nighttime economy has now moved to St. Julian’s and Sliema, and locations in ˙ adjacent areas of GZira, Msida, Marsa, and Ta’ Xbiex have become notorious for prostitutes. But some things have not changed: many of the allegations of prostitution continue to involve foreign women.

Finding of Guilt The administration of justice presents a fusion of civil law and common law principles. There is an inquisitorial aspect of Maltese procedure nearly as strong as the Italian system, although the system also reflects nearly two centuries of British influence.

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Criminal Responsibility Onus probandi incumbit ei qui dicit non ei qui negat— the onus of proof is on the person who alleges, not who denies. Witnesses, evidential material, and forensic evidence in combination with circumstantial evidence are the necessary ingredients that may infuse the proof that laws have been breached. There are particular cases where the offenders can be exempted wholly or partially from the criminal responsibility; these take into account age, physical or physiological conditions, and insanity. Children under 9 years are considered to be doli incapax. This means that according to the law, they are incapable of having a malicious intent, thus are exempted from criminal responsibility for any act or omission. Minors under 14 years of age are similarly exempted, unless there is a mischievous discretion. If the minor is between 14 and 18 years of age, the punishment applicable to the offense shall be decrease by one or two degrees.

Court Proceedings The Criminal Court incorporates the inferior courts, which are convened by a magistrate, and the superior courts, which are convened by a judge. The majority of the criminal cases are tried by summary proceedings in the magistrates’ courts. Few cases are tried by jury in the superior courts. The prosecution must prove its case beyond reasonable doubt, and in line with the principle audi alteram parte, the defendant has the right to bring forward any evidence to substantiate his or her defense. The Maltese inferior courts are presided by 15 magistrates, 6 of whom are women. The superior courts are presided over by 19 judges including the chief justice, only 2 of whom are women. In the superior courts, 4 of the serving judges preside (separately) over the Criminal Court, hearing trials by jury and appeals from decisions of the inferior criminal courts. Appeals from decisions of the Criminal Court given in the first instance are decided by the Criminal Court of Appeal, which is presided by the chief justice and 2 other judges. According to the Maltese Constitution, the president appoints the judges of the superior courts and


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the magistrates on the advice of the prime minister. To qualify as a judge of the superior courts, a person must have practiced as an advocate, or have served as a magistrate, for at least 12 years. To qualify a person must practice as an advocate in Malta for at least for 7 years. Both judges and magistrates shall vacate office by the age of 65 years. The Constitution provides that a judge may be removed from office by the president following a resolution supported by not less than two-thirds of the House of Representatives on the proven inability to perform functions of this office or on account of proven misbehavior.

Plea Bargaining The concept of finding an agreement regarding punishment to be meted out in case of admission of guilt has been informally resorted to for many years in the Criminal Court. In 2002, plea bargaining was officially regulated with the introduction of Section 453A of the Criminal Code, which is called Sentence at the request of the parties. If the accused pleads guilty, the accused and the attorney general may request the court to apply a sanction or measure agreed between them. Upon a plea of guilty by the accused the court can proceed to pass the sentence indicated to it by the parties. The court should declare in its judgment that the sentence is awarded on the request of the parties. However, the final decision is of the judge or magistrate, who has to consider the various circumstances that may have been involved in each individual case. Thus, the court may accept or reject the recommended sanction

to 6 months imprisonment and acts as a court of inquiry in respect to indictable offenses dealt with by higher courts. It implies compiling evidence and deciding whether there are sufficient grounds for the defendant to be indicted. Conclusions of the court are transmitted to the attorney general. The attorney general may request that the case proceed summarily before the magistrates’ court if the crime is punishable by imprisonment not exceeding 10 years. If the defendant has no objection to the case being dealt with summarily, the Court of Magistrates will become competent to try and judge the accused. The prosecutors in this court are police inspectors or police officers of a higher rank. For offenses subject to a custodial sentence exceeding 10 years, or in case the defendant objects to being tried summarily, the case will be heard in the Criminal Court. This court is presided by a judge together with a jury of nine persons. The attorney general is the prosecutor before the Criminal Court. Appeals are tried by the Court of Criminal Appeal. Appeals from the decisions by the Court of Magistrates are heard by one of the judges sitting on the Criminal Court. Appeals from decisions of the Superior Court are heard by the Court of Criminal Appeal; this court is presided over by the chief justice and two other judges. Finally, the Juvenile Court is presided over by a magistrate assisted by two persons. It is customary to hold sittings in a less formal environment than that of a courtroom, which is intended to make the juvenile offenders feel more at ease. The Juvenile Court hears charges against minors of less than 16 years of age

Court Structure The criminal courts are housed in the Courts of Justice building in Valletta, although the Juvenile Court is currently housed in Santa Venera. There is also a magistrates’ court in Gozo. The magistrates’ court (Court of Criminal Judicature and Court of Inquiry) has both civil and criminal jurisdiction. It is competent to try all offenses within its original jurisdiction that are punishable by up

Use of Arrest and Pretrial Detention The police may request a warrant of arrest from a magistrate. When the warrant of arrest cannot be obtained in such a short time, a police officer may arrest any person that is in the act, has committed, or is about to commit an unlawful act. When a person is arrested, the investigating officer may grant “police bail.” Police bail is a break in the


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arrest where the person is released under particular conditions such as to return to the police station in a specific time and date and not to leave Malta. However, when a senior officer concludes that the arrested person is being investigated and it is necessary to detain the arrest person more than 6 hours, the duty magistrate is notified of the circumstances thereof. The magistrate may order the transfer of the arrested person in another place if it is deemed necessary. As prescribed by the Maltese Constitution, any person arrested for the purpose of being arraigned before a court and/or is suspected of having committed or was about to commit a criminal offense must be released within 48 hours of the arrest. The Police Act also prescribes that during these 48 hours, every 12 hours the custody officer has to verify with the investigating officer whether the continued detention is justified. Thus the person under arrest must be brought before the court during the 48-hour period. On arraignment the court may release the person unconditionally or may impose conditions that ensure that this person appears for the trial and for any other court proceedings preliminary to the trial. If the person does not abide by these conditions, he or she is brought again before the court. One of the bail conditions that may be imposed is that the person is confined in his or her house and should inform the police every time that person needs to go out. It is commonly called “house arrest,” although house arrest as such is not contemplated by Maltese law and the time during which these conditions are in force is not deducted from any term of imprisonment eventually given as is the case with preventive custody. Together with the bail conditions the court may also issue a provisional order of supervision. If the person is granted bail he or she may be put under a provisional order of supervision. The accused will be under the supervision of a probation officer even during any criminal proceedings. A provisional order of supervision may be issued irrespective of the nature of the offense with which a person is charged, even if the penalty is more than 10 years

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of imprisonment such as drug trafficking or voluntary homicide.

Punishment Types of Punishment The Maltese criminal justice system provides for an extensive inventory of punishments for crimes, including imprisonment; solitary confinement; interdiction; pecuniary penalties; detention; suspended sentence; suspended sentence with a supervision order; probation order; community service order; combination order; absolute and conditional discharge; reprimand or admonition; interdiction and pecuniary penalties.

IMPRISONMENT AND SOLITARY CONFINEMENT Persons sentenced to imprisonment shall be confined in the prison or in that part of the prison appointed for persons sentenced to that punishment. These persons are subject to the restrictions prescribed in the prison regulations, which are lawfully made. The duration of the punishment of imprisonment is specified for every individual case. The punishment of solitary confinement demands keeping the person in the course of an imprisonment sentence continuously closed in an appointed place within the prison. In such eventuality only persons assigned on duty are authorized to access that person. Solitary confinement shall not exceed 10 continuous days and can only be applied with an interval of 2 months between one term and another. This punishment can be inflicted in case of any infringement of the prison regulations, or for any other offense committed during the intervals. Before awarding the punishment of solitary confinement the court shall satisfy itself by medical evidence, which may include a medical examination, that the person convicted is fit to undergo this punishment. If the person is not fit to undergo such punishment the execution of this punishment shall be suspended until the person is considered medically fit to undertake such punishment.


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FINES

PROBATION ORDER

The Maltese law distinguishes between a fine in case of a criminal offense, which is called multa, while for a contravention it is called ammenda. Fines serve as a sole punishment for misdemeanors or as part of a combination sentence in a more serious case. The fine shall be paid within a specific period of time. If a person is sentenced to pay a fine and is granted the benefit of time by order of the court and does not pay such fine, he or she is liable to be arrested and brought before the court. The court shall commit such person to undergo the detention or imprisonment prescribed in substitution for the fine or the still-unpaid balance as the case may be; maximum terms are prescribed according to the amounts of unpaid fine.

Instead of sentencing an offender the court may award a probation order. During this order the offender will be under the supervision of a probation officer for a period of not less than 1 year and not more than 3 years. This order can be made only if the offender is convicted of an offense that is not punishable only with a fine and it is not an offense that is punishable with imprisonment for not more than 7 years and, in particular circumstances, up to 10 years’ imprisonment. The court is convinced that the supervision by a probation officer is in the interest of securing the rehabilitation of the offender while protecting the public and preventing the offender from committing further offenses; and it is considered appropriate when taking in consideration the circumstances of the case, including the nature of the offense and the character of the offender. A probation order may require the offender to comply with a number of requirements during the whole or any part of the probation period. The court considers such requirements as necessary for securing the good conduct of the offender and preventing further repetition of the same or commission of other offenses. When the court considers the circumstances that surround an offender, these may include the home surroundings of the offender and the mental condition of the offender that may require treatment such as for drug addiction. A probation order may include a requirement that the offender shall undergo treatment during the probation period. During the treatment the offender can be a resident patient, a nonresident patient in a hospital or other appropriate agency or institution, or under the direction of a suitably qualified person as may be specified in the order or as indicated by the probation officer. Another important requirement that can be added to a probation order, community service order, combination order, or an order for conditional discharge or absolute discharge is that an offender may be required to compensate for the damages of the injured parties.

SUSPENDED SENTENCE When court awards a sentence of imprisonment of not more than two years for an offense, it may order that the imprisonment sentence shall not take effect immediately, and order a suspended sentence. The suspended sentence can be applied with some exceptions (the person is a recidivist, for example). The law provides that the court shall explain the suspended sentence in ordinary language so that the offender can understand better the imposed conditions. Where the court awards a sentence of more than six months’ imprisonment and suspended in accordance, the court may add a supervision order. In these circumstances the suspended sentence will be referred to as suspended sentence supervision order. The offender is placed under the supervision of a supervising officer for the period specified in the order, which does not exceed the operational period of the suspended sentence (from one to four years). The supervising officer is a probation officer appointed under the Probation Act and named in the supervision order. The supervision order requires the offender to comply, during the whole or any part of the period of supervision, with requirements as may be imposed by the court.


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COMMUNITY SERVICE ORDER The court may award a community service order to an offender aged 16 years and over. Such an offense must not be punishable only by a fine and cannot be an offense, which apart from any increase in punishment in view of the continuity or of previous convictions, is punishable with imprisonment exceeding 7 years but not exceeding 10 years, like in the probation order. In this case the court orders the offender to be placed on a community service order. This will require the offender to perform unpaid work for a number of hours as specified in the order. The number of hours ranges from 40 hours of work to 240 hours. These hours are to be performed in not less than 3 months and in not more than a year. However, the court may extend the period of 1 year by 6 months so that the order is carried out. The offender has to work the specified number of hours unless the order is revoked. These hours must not interfere with normal working hours or school attendance. The Probation Services reports that since 2003, when the community service order became effective, the total number of community service orders issued so far amount to 3,320 hours.

Prison In the islands of Malta there is only one prison, the Corradino Correctional Facilities, built in the 1840s. Numerous additions have been undertaken since that time, such as facilities for secure confinement, a young offenders unit, and secure detention facilities for offenders with addiction or other psychiatric disorders.

PRISON POPULATION The population of the prison on May 15, 2008, was 417 persons. This figure included 299 sentenced persons (283 men, 16 women) and 118 persons (113 men, 5 women) awaiting trial. Eight prisoners were serving a life sentence (5 Maltese, 3 foreign). Maltese prisoners numbered 258 or about 68 percent of the population; prisoners of foreign nationality numbered 132 or about 32 percent. Most of these came from North Africa and Eastern Europe.

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Between 2004 and 2006, Malta had an average rate of 76 per 100,000, one of the lowest in Europe. Historically, imprisonment in Malta reached highest levels during World War II and in the 1990s. Imprisonment rose in the 1990s due to sentencing practices and changes in the population sent to prison.

CONDITIONS OF CONFINEMENT Attending educational classes is not obligatory for adult inmates and there are no repercussions for those who choose not to participate in available educational opportunities. Young offenders and illiterate offenders are to be given special attention to their educational needs. In respect to work, both inmates serving a prison sentence and those awaiting trial are regulated by the Prison Regulations 1995. In no instance can the work provided be of an afflictive nature. Inmates serving a prison sentence are allowed one contact visit a week, which lasts 45 minutes. If these inmates are working as part of the prison regime, then they are given an extra contact visit of 45 minutes per week. Inmates who are awaiting trial can also avail themselves of a daily 15-minute nocontact visit with only those persons that the police and the courts have issued a legal permit allowing the contact to take place. Additionally all inmates can benefit from a 2.5-hour unsupervised family extended visit with their loved ones, when certain criteria are met. Paul Knepper and Trevor Calafato Further Reading Bell, A. (1995). Changing Dimensions of Inmate Population in Malta. Malta: Ministry for Home Affairs and Social Development. Calafato, Trevor, and Paul Knepper. (2009). “Criminology and Criminal Justice in Malta.” European Journal of Criminology 6(1): 89–108. Grech, Jean-Paul. (2006). Criminal Justice Systems in Europe and North America: Malta. Helsinki: The European Institute for Crime Prevention and Control (HEUNI).


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

Background In 1812, after Bessarabia was annexed by the Russian Empire, several attempts to apply Russian law were undertaken. The name of “Moldova” was changed, and the territory between Prut and Dniester was called “Bessarabia.” In spite of the efforts of the local population to keep their own law, on April 29, 1818, the Act of Constitution of the Province of Bessarabia was approved. Since this date, the Russian judicial organization model has also applied in these territories. Three authorities were set up: district courts, regional criminal courts, and the Supreme Council. The Russian Revolution of 1917 and the end of World War I in 1918 saw the return of the territory of Bessarabia to Romania. The modified Criminal Code of 1937 introduced the final distinction between the common law crimes and the offenses of a political nature. Impregnated with strong democratic ideas, Romanian law was used even as a source for certain European codifications of that time. But the period of progressive development was hampered by the beginning of World War II and by new annexation of the territory of Bessarabia in 1940, which became in short time the Moldavian Soviet Socialist Republic (MSSR). The organization of the legal institutions in the MSSR was subjected to the same principles as in the majority of the republics of the Soviet Union (USSR). Primarily, the law applied to this territory was that of the Ukrainian Soviet Socialist Republic, taking up the generalized model of the USSR. Serious crimes were judged in accordance with the national USSR law, whereas sentences for less serious

offenses were provided by the Criminal Code of the MSSR (CP MSSR). Even after the proclamation of independence, the CP MSSR of 1961, subject to important modifications and additions, was applied until 2003, when the new Criminal Code came into force. The legislative changes were very important compared to other former Soviet republics. For example, the Republic of Moldova (RM) was the first to abolish the death penalty. The Constitution of the RM represents the primary source in the national legislation. The main constitutional standards constituting the base of the criminal procedure are access to justice, presumption of innocence, nonretroactivity, and the right to be informed of its rights and obligations. The Constitution of 1994, amended in 2001, specifies the conditions of arrest and the protection of the person during arrest. Currently, the RM is carrying several legal reforms, in compliance with international European standards. At the present time the legal system is mixed, combining the principles of both the accusatorial and inquisitorial systems, thus moving away from the former Soviet system. However, distance from the Soviet tradition is still a long way off, taking into account the fact that the party in office since 2009 is the Communist Party.

Crime Classification of Crimes The Criminal Code of the Republic of Moldova (CP RM) defines crime as “a prejudicial act (action or failure to act), provided by the Criminal Law committed with guilt and subjected to criminal liability.” In 2008, the Parliament adopted the new Code of Administrative Offences, which allows a more accurate specification of certain acts and the adjustment of the sanctions for a large category of offenses, which up to now were disproportionately too severe. The decision on whether an act constitutes a criminal or an administrative offense depends on the constituent elements and the seriousness of the prescribed sanction. The constituent elements of an offense must be identified by the court before they can be classified as a criminal act. Moreover,


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culpability is an essential component in the qualification of the crime. Cases without the intention to cause damages are, with some exceptions, omitted from the classifications of the crimes. According to the CP RM, offenses are classified into five categories: minor, less serious, serious, extremely serious, and exceptionally serious. Acts that can be sentenced with a jail term not exceeding two years are considered minor offenses. Among these offenses are threatening to murder or inflict gross bodily or health harm, gross or medium bodily or health harm caused by negligence, the unlawful performance of an abortion, illegal imprisonment of a person, violation of labor protection regulations, violation of the right to freedom of assembly, the illegal practice of medicine, spreading diseases, illegal circulation of narcotics and psychotropic substances or precursors, illegal public use of narcotics, smuggling, illegal access to computerized information, and slandering a judge or a person performing criminal investigation. Less serious offenses are acts prohibited by the criminal law, which can be sentenced by a jail term not exceeding five years; these are mostly the same acts as minor offenses, but perpetrated with aggravated circumstances or repeatedly. Offenses represented in this group include all acts categorized as “Crimes regarding sexual life” in Chapter 4 of the CP RM, for which sentences range from three to seven years. Other offenses include, for example, assault on the person, theft, robbery, damage through deception or abuse of trust, incest, child abuse, or luring of minors into illegal consumption of drugs. “Crimes against public health and social living,” such as contaminating with AIDS, pimping, environmental crimes, fabrication of credit cards or checks, spreading of software viruses, hooliganism, or vandalism, are also included under this heading, similarly to an important part of “crimes against the State authority and against State security.” Serious crimes are criminal acts subject to a jail term from 5 to 15 years inclusively. More than half of offenses included in the category “Crimes against property” and most “crimes against peace or security of humanity and war crimes” are considered

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serious crimes. Other offenses included are, for example, kidnapping, burglary in aggravated circumstances, rape, counterfeiting, and terrorism. Some military crimes perpetrated during a war are also included. Extremely serious crimes subject to more than 15-year jail terms are deliberate murder, trafficking of human beings, rape, misappropriation of property on an especially large scale, child trafficking, and hostage taking. Finally, exceptionally serious crimes are offenses for which the criminal law provides life detention, the most serious sentence available. These crimes include genocide; preparing, unleashing, or waging of a war; using forbidden means and methods in waging a war; deliberate murder; rape; child trafficking; terrorism; banditry; and attempt on the life of the president of the RM, of the president of Parliament, or the prime minister. In spite of continual adjustment of the CP RM, inconsistencies remain. Several categories of minor offenses are subject to excessively severe punishments and the gap between European criminal legislation and that of the RM remains considerable. Thus, the experts of the Council of Europe recommended to the Moldavian authorities to set up a device for reform of the CP RM. The project aims at the modification of more than 200 articles as well as the drafting of 5 new ones.

JUVENILES The age of criminal responsibility is 16 years old. Juveniles between 14 and 16 years of age can be punished only for some offenses of certain gravity or perpetrated repeatedly, such as, for example, deliberate murder, murder of a newborn infant by the mother, deliberate gross bodily or health harm, deliberate medium bodily harm or health harm, kidnapping, rape, violent actions with a sexual character, perversion, theft, robbery, and burglary. The age of full criminal responsibility is fixed at 18 years old. Juveniles under 18 cannot be sentenced to prison for more than 6 months; in case of plurality of crimes, the maximum sentence to be imposed is 15 years. Moreover, juveniles must be


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held in special penitentiary institutions for juvenile offenders. In particular, in cases of minor or less serious offenses, young adults (between 18 and 21 years old) may be treated as juvenile offenders and can be held in special penitentiary institutions for juveniles. On September 1, 2007, of 186 people detained in such institutions, 105 were more than 18 years old.

Organized Crime The problem of organized crime is of undeniable importance. Today, criminal organizations operating on the territory of the RM, but also abroad, are numerous and hierarchically structured. The principal activities of these organizations are auto thefts, burglaries, blackmail, trafficking of human beings, smuggling, trafficking in human organs, corruption, and drug trafficking. Closely related to the quite unstable economic situation of the country, corruption is a major concern for the state. Since the declaration of independence of the RM in 1991, and until 2006, the shadow economy has reached almost 70 percent of the economic activity of the country. The number of emigrations to Western Europe countries or large cities in Russia is estimated to exceed 500,000 people (i.e., more than 30% of the RM working population). People without an authorization of stay and with limited subsistence means are more easily recruited by criminal groups. Moldavian offenders perpetrate mainly car thefts with the goal to resell these in RM or in other adjoining countries. Since 2007 (accession of Romania, western RM’s neighbor, to the European Union), when controls of the land borders improved, the criminals intensified the use of the sea and river ways (mainly through Ukraine). Today, while the western border is better protected, an alarming problem is the eastern border of the country. The Transdniestria separatist territory, located between RM and Ukraine, a 150-kilometer- (90-mile-) length area, is not controlled by the Moldavian authorities. A great quantity of goods of smuggling passes through the territory of Transdniestria: cigarettes, alcohol, and other products. Moldavian authorities are mostly worried by the great proportions of the traffic of firearms, ammunition, and

narcotic substances through this territory. Significant amounts of money are laundered annually in Transdniestria. Sanctions for these crimes in RM are considerable, but the offenders can hide from Moldavian justice in the territory of Transdniestria. Trafficking in human beings, another aspect of organized criminality, consists in the recruiting of people in precarious financial situations for sexual exploitation or forced labor abroad. The RM is a source country of workers for the sex industry in countries that are in a state of military conflict or with a reduced policing capacity. Main destinations remain to date Turkey, the United Arab Emirates, Israel, and Afghanistan. Traffickers head also to countries with high economic levels and with a legal prohibition of prostitution, but where there exists opportunity of a criminal network. In the CP RM, trafficking in human beings is subject to a jail term that ranges from 7 to 25 years. Given that half of trafficked victims are minors, the CP RM prescribes sentences between 10–25 years of imprisonment for this specific category of trafficking. In 2006, the RM ratified the Convention of the Council of Europe on the Fight against Trafficking in Human Beings. This allowed the creation of the Centre of Fight against Trafficking in Human Beings within the Ministry of Internal Affairs. According to the ministry, in 2008 there were 531 cases of trafficking recorded by the police, of which 215 were for human trafficking; 30 cases involved the trafficking of children, 159 pimping, and 112 illegal migration. In 2007, there were 51 offenders sentenced for human trafficking; 7 offenders had been involved in the trafficking of children, 130 in pimping, 27 in organized illegal migration, and 18 in organized begging and forced labor.

Corruption In 1992, the Presidential Decrees, On the Measures of the Fight against Corruption within the State and Administrative Bodies, followed in 1996 by the Law on the Fight against Corruption and Protectionism, allowed the evaluation of the gravity of the situation regarding organized crime and corruption. The collaboration of the Moldavian authorities with the state and nongovernmental bodies of the member


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states of the European Union (EU), as well as the Council of Europe, allowed the draft of the projects of common work at the European level. In 2008 the new Law on the Prevention and Fight against Corruption came into force. The Centre for Combating Economic Crimes and Corruption of the Republic of Moldova began its activity in 2002, and has since then become the central body for the eradication of the corruption in the RM. The number of the cases of corruption recorded by the police has been on the rise for a few years. In 2002 cases related to corruption recorded by the police represented 2.11 percent of the total number of cases; in 2007 the percentage was two times higher, 4.89 percent. Problems remain very important, because the cases of corruption are often not easily detectable, and the identification of the offenses of this type is sporadic. According to information of the General Prosecutor Office, between January and November 2008, 3,494 cases comprising the constitutive elements of the corruption offenses, or those of related offenses, were recorded. Approximately 20 percent of cases were perpetrated in the field of public administration, 16 percent within the bodies of criminal prosecution, 11 percent in the education area, nearly 9 percent in the field of justice, 9 percent within the Customs, and almost 30 percent in the private sector.

Drug Offenses In June 2008, the total number of drug users recorded by Republican Narcological Dispensary was of 9,500 people, which represents approximately 230 people per 100,000 inhabitants. Most of these drug-addicted persons, 95 percent, were less than 30 years old. Even though drug use as such is punishable only administratively in the RM, the public consumption or the inducement of minors to consumption are criminal offenses. In 2006, the government approved a list of substances and identified new unit quantities for the qualification of drug offenses. Changes in the criminal legislation allowed a more accurate distinction between serious and minor drug offenses, in particular, introducing criminal responsibility for the cultivation of plants that contain drugs or psychotropic substances.

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In 2006, 11 percent (2,087) of police-recorded drug offenses were classified as serious. Most arrested offenders were males (79.7%). Thereby, over the last 10 years, the proportion of female offenders has significantly decreased from 56.2 percent in 1997 to 20.3 percent in 2006, according to the Moldova Annual Drug Report of 2007. Over the period 2004–2007, the average number of offenders sentenced for drug crimes was 1,064. The problem of drug trafficking is most important in the eastern part of the country, mostly explained by the impossibility of adequate border control between Transdniestria and the RM. Generally, narcotic substances imported to or transiting the RM are marijuana, heroin, and cocaine. Poppy and hemp precursors are frequently exported from the RM. For several years, drug offenses were particularly frequent among prisoners in penal institutions. Such offenses were subject to up to 2 years of imprisonment, or under aggravated circumstances, up to 5 years. The fight against these practices is a priority of the Ministry of Justice and the Ministry of Internal Affairs. The total amount of drug seizures in penal institutions decreased from 14.533 kg in 2005 to 3.379 kg in 2006.

Crime Statistics Crime data are recorded by the Ministry of Internal Affairs, the General Prosecutor Office, the Centre for Combating Economic Crimes and Corruption of the Republic of Moldova, the Customs Service, and the Information and Security Service. The highest rates of criminality are found in urban areas: 63.3 percent of all recorded offenses in 2007. Mostly affected are the capital of the country, Chisinau, and the “North capital,” Balti, the third-largest city of the RM. Almost 31 percent of recorded offenses in 2007 were classified as serious, of which 8 percent were extremely or exceptionally serious. Between 2004 and 2007, the total number of recorded offenses and more particularly the number of serious offenses continued to decrease. The general decrease exceeded 15 percent, and exceeded 60 percent for serious offenses. According to the Moldova Bureau


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of Statistics, the following offenses were recorded by police in 2007: Murder Deliberate serious injury Rape Theft Robbery Burglary Fraud Smuggling Counterfeiting Drug offenses Against public health

216 408 281 9,724 868 153 860 493 87 2,182 194

Offenders in the RM are mostly nonworking (78.5%), young (59% are less than 30), and males (over 85%). Of offenders known to the police, 92.8 percent are first-time offenders. The proportion of juvenile offenders has been decreasing, from 14.6 percent of offenders in 2005 to 11.9 percent in 2007.

Finding of Guilt Rights of the Accused According to the Criminal Procedure Code (CPC RM), the accused has the right to defense, which must be ensured by the prosecution body or the court, and to be presumed innocent. Some other important rights are the following: • To be told what he or she is accused of. • Upon apprehension, to be informed of his or her rights, including the right to remain silent. • Charges to be brought no later than 72 hours before a judge and to be tried within in a reasonable time. • Upon indictment, to be assisted by a defense counsel and if he or she cannot pay a lawyer, to be assisted for free by an ex officio lawyer. • To admit the accusation and to conclude a plea bargaining agreement. • To accept an abbreviated procedure for the criminal prosecution. • To have his or her close relatives informed of his or her place of arrest.

• To submit documents and other means of evidence for the purpose of investigation in the court hearing. • To formulate objections to witnesses and prosecution procedures. • To participate in the trial in the first instance and in appeal. • To reconcile with the damaged party under the conditions provided by the law. • To ask and get compensations for the damage caused as a consequence of illegal actions of the criminal prosecution body and the court.

Investigation and Prosecution As a rule, prosecutors supervise and conduct the criminal prosecution actions. The criminal prosecution bodies are subdivisions organized within the Ministry of Internal Affairs, Information and Security Service, Customs Department, and Centre for Combating Economic Crimes and Corruption of the Republic of Moldova. All subdivisions are represented by criminal prosecution officers especially assigned by these institutions. Prosecution officers are generally law graduates. The powers of the prosecution officers are still very large, but are considerably limited compared to the Soviet period. They settle on the direction of the investigation, approve proceedings, check and evaluate the pieces of evidence. Moreover, they have authority to apply constraint measures. Prosecution officers from the Ministry of Internal Affairs are in charge of investigation and prosecution of approximately 90 percent of annually recorded criminal cases.

Alternatives to Trial Mediation as an alternative to trial has been used by the Institute for Penal Reform (IRP) since 2005 though it was only officially recognized by Parliament in 2007. Mediation is suitable for cases qualified as minor or less serious and can be applied to both adult and juvenile offenders. From January 1, 2009, the mediator for criminal cases was paid by the state. The Council of Mediation is organized within the Ministry of Justice. Members of the Council of Mediation are designated for a term of


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four years. They have the prerogative to set up the Table of the Accredited Mediators, and to monitor the process of the practical implementation of the mediation. Between 2005 and October 2008, mediators from the IRP managed 282 criminal cases; in 70 percent of these cases an agreement was signed, and the criminal proceedings were stopped. The use of the alternatives is in a phase of evaluation, therefore, the greatest part of criminal cases is terminated with sentences. In 2008, decisions reported were as follows: 69 percent—convictions, 2.17 percent—verdict not guilty, 28.2 percent— proceedings dropped, and 0.63 percent—constraint measures with medical supervision. The cases of mediation were not even considered in the official statistics.

Incarceration before or Awaiting Trial Pretrial arrest is used for people who perpetrated offenses that can be sanctioned with a jail term of more than 2 years. In some cases, pretrial arrest can be ordered if the suspect may hide from the criminal investigation body or from the court, may impede the establishment of truth in the criminal proceedings, or may commit new crimes. Other circumstances for using the pretrial arrest are when the suspect does not have a permanent residence on the territory of the RM, the identity of the suspect is not known, or if the suspect violated the conditions of other preventive measures. Holding a person under remand until sending the case to the court cannot exceed 30 days. In exceptional cases, depending on the complexity of the case, on the seriousness of the crime or risk of destroying evidence, the term for the pretrial arrest can be extended up to 6 months if the crime is punished by a maximum of 15 years of imprisonment, and to up to 12 months for a crime punishable by a maximum of 25 years of imprisonment or for life. For indicted minors the pretrial arrest can be ordered only in cases of serious, extremely serious, and exceptionally serious crimes, and cannot be extended for more than 4 months. Pretrial detention facilities are under the control of the Department of Penitentiary Institutions of the Ministry of Justice. Nevertheless, there still exist

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more than 35 separate preventive custody facilities (isolators) under the Ministry of Internal Affairs. These establishments do not correspond to European criteria of the pretrial detention, and cases of torture have been recorded by the international bodies. As a result, the Moldova-European Union Action Plan makes provision for the construction of 8 new arrest houses on the territory of the RM.

Criminal Court Judges Criminal judges in the RM are part of the general category of judges. All judges have a unique status, but different assignments and competencies. Qualifications for holding a judicial office are as follows: to be citizen of the RM with permanent residence in the territory, to have a university law degree, to have no criminal record, and to know the national language. Court judges can be nominated if they are more than 30 years of age, have no less than 5 years of legal practice, and have successfully passed the qualifying exam. Court of Appeal judges may be nominated if they have more than 6 years of judicial practice, and in the Supreme Court of Justice, more than 10 years’ practice. In 2007, there were 310 judges in the RM, 47 of whom were Supreme Court judges, at the Court of Appeal—60, and in courts—250 judges. The number of criminal actions that entered the courts in 2007 was about 12,800. The annual charge of criminal and civil actions to be solved by a judge was 66.6.

Juveniles No specific juvenile justice exists in the RM. The criminal proceedings are applied in the same way to juveniles as to adults, though some mention is made in the CP RM and in the CPC RM with regard to the people up to 18 years of age. Juveniles under 14 years are not assimilated in the same category with juveniles between 16 to 18 years old. On the proceedings level separate consideration is done as much as possible in case of the mixed (juvenile and adult) commission of the offense. On the next judicial level, the participation of the defense counsel, teacher, or psychologist is mandatory. Only juveniles may be sent under supervision. Such decision


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implies the written obligation taken by one of the parents or guardian, as well as by the management of the special education institution. Among all categories of punishment existing in the RM, four can be applied to juvenile offenders: fine, depriving the right to maintain certain positions or to exercise a certain activity, nonpaid work in the benefit of the community, and jail. The types of punishment practically applied to juveniles in the RM are mostly fines, nonpaid work between 60 and 240 hours for those who are 16 years and over, and, rarely, jail terms between 6 months and 15 years.

Punishment Types of Punishment Moldavian Criminal Law provides the definition of the punishment based on a combination of repression and prevention. Execution of the punishment must not cause physical suffering or affect the convict’s dignity. Punishments are main and complementary. Only jail terms and life imprisonment can be firmly classified as main punishments. Main punishments may include jail for a specific term or life imprisonment. Since many adjustments have been done on the CP RM, a new intermediate category has emerged. Intermediate punishments include fines, depriving of right to maintain certain positions, and nonpaid community service. Complementary punishments include withdrawal of military rank, special title, or honors. Offenders receiving the different kinds of punishments in 2007 under the new Criminal Code of 2003 were as follows: 23.2 percent imprisonment, fine 23.7 percent, nonpaid community work 24.1 percent, and conditional suspension of punishment 28.2 percent. Nonpaid work for the benefit of the community is a new alternative to imprisonment. This is served outside the basic work or studies program. It can be ordered for a length between 60 and 240 hours, and calculated on the basis of 2 or 4 hours’ daily work. If the convict fails to perform the nonpaid community service, this punishment will be replaced by jail, 2 hours of nonpaid work being equivalent to one day of jail.

The Probation Office under the Department of the Execution of the Sentences of the Ministry of Justice began its service in 2007. This office and 42 probation sections manage the noncustodial sentences. Probation mainly occurs following conditional suspension of the punishment. Conditional suspension of the punishment execution is applied to the offenders who deliberately perpetrated offenses and have been sentenced to jail terms up to 5 years or who committed offenses by negligence and were sentenced to jail for less than 7 years. The probation term is set by the court between 1 and 5 years. Adults make up a large part of clients to be supervised by the Probation Service (average ratio is 10 adults for 1 juvenile). The total number of people supervised by the Probation Office at the beginning of 2008 was 8,903.

Typical Punishments All types of homicide (including euthanasia) are punished with different terms of jail. The maximum incurred for the act assessed as deliberate murder is life imprisonment. Minors who perpetrated homicide may also be sentenced to jail. Even so, juveniles less than 18 years of age cannot be sentenced to life imprisonment. They can get special jail terms and cannot serve the jail term in the prisons for adults. Rape offenses are sentenced with jail terms from 3 to 5 years. In aggravated circumstances the sentence can be life imprisonment. Only for the category of offenses of compelling to sexual intercourse (i.e., homosexuality or committing other sexual actions by use of blackmail or taking advantage of the financial dependence, related to work, or any other kind of dependence of the victim) can noncustodial sentences be pronounced. Thus, these offenders may be sentenced to a fine in the amount from 300 to 500 Moldovan lei (MDL) (US$480 to $800) or to nonpaid community work from 140 to 240 hours. Serious theft (i.e., perpetrated by two or more persons, or causing substantial damages to the victim) is punished by a fine in the amount from MDL 300 to 1,000 (US$480 to $1,600), by nonpaid community work from 180 to 240 hours, or by a jail term up to 4 years.


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Robbery is punished by a fine between MDL 200 and 500 (US$320 to $800), or by nonpaid work for the benefit of the community from 180 to 240 hours, or by a jail term up to 3 years. More serious types of robbery perpetrated in aggravated circumstances or on a large scale are punished only by jail terms. The maximum term of jail incurred is 15 years; jail terms can be complemented by fines. For burglary offenses only jail sentences are allowed. For less serious cases, the jail term ranges from 3 to 6 years, and for serious cases from 10 to 15 years. For the most serious drug offenses the CP RM provides jail sentences up to 15 years (e.g., illegal circulation of narcotic and psychotropic substances or precursors on an especially large scale). Generally custodial sentences in drug offense cases do not exceed 5 years, but are accompanied by considerable fines. Drug use is decriminalized in the RM. Nevertheless, a “security measure” may be imposed such as compulsory treatment in medical institutions. Those who have been sentenced to imprisonment are subject to compulsory treatment during the serving of the sentence, and after release may be subject to treatment in medical institutions with special treatment conditions. In 2006, 395 inmates sentenced with the compulsory measure for alcoholics and drug addicts were serving their terms in penal institutions. The total number of identified drug users incarcerated in penal institutions of the RM in 2006 was 935, representing 13.5 percent of the total number of prisoners. Death penalty was abolished and removed from the Criminal Code in 1995. In the Constitution, death penalty is allowed in exceptional circumstances (e.g., in wartime). In 2006, amendments were unanimously voted by Parliament, and the definitive abolition of the death penalty is almost finalized. It is important to note that death penalty is allowed in Transdniestria; however, a moratorium on the execution of death penalties was pronounced in January 1999.

Prison Punishment can be served in three types of institution: open, semiclosed, and closed. Open institutions

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hold inmates convicted for crimes committed by negligence; semiclosed institutions hold those sentenced for minor offenses; closed penitentiaries hold prisoners sentenced for extremely serious and heinous crimes, as well as recidivists. Special penitentiary institutions exist for juveniles less than 18 years of age and for female offenders. Since January 1, 1996, the Department of the Penitentiary Institutions, which belonged to the Ministry of Interior, was placed under the authority of the Ministry of Justice. This change produced some structural adjustments within the department and also allowed a global reform of the penitentiary system. The Department of Penitentiary Institutions manages 17 institutions, of which 5 are only for pretrial detention, 1 specially designed institution for juveniles, and 1 for female offenders. One of the largest prisons is a semiclosed institution at Cricova, located 11 kilometers (6.8 miles) from the capital. Another one is a closed institution at Soroca, situated in the northeastern part of the country. There is a big project of building one new pretrial detention facility, which will replace the highest existing one, located in the old town of Chisinau, and will be built outside the city. The total number of prisoners on September 1, 2007, was 8,130. The occupancy rate was about 77.9 per 100 places. On January 1, 2008, the distribution of the prisoners by type of penitentiary institution was as follows: closed institutions held 3,675 prisoners, in semiclosed 2,507, and in open institutions 85 inmates. There were also 186 minors in special institutions. The decrease in the number of juveniles held in penitentiary institutions between 2002 and 2008 was about 25 percent. In 2008, first-time sentenced prisoners were about 46.1 percent, sentenced twice 25.16 percent, sentenced three times 14.75 percent, and persistent offenders (four sentences and over) 14.08 percent. More than 67 percent of prisoners serving final sentences have very long lengths imposed (5 years and over); 1.32 percent are life prisoners. The rate of imprisonment per 100,000 of population in 2007 was 187.8, though this rate has steadily decreased since 2001 by about 5 percent. According


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to the Council of Europe the majority of prisoners have been sentenced for various types of theft, followed by homicide (about one-third of prisoners), robbery, and rape and drug offenses.

WORK IN PRISON Sentenced prisoners may engage in nonpaid and paid work. The paid work depends on the regime under which the prisoner is placed. Prisoners can be engaged in paid work inside or outside the prison perimeter, in the prison or prison service enterprises, and also in businesses regardless of ownership. Detainees in pretrial detention facilities (isolators) and life prisoners may be involved in paid work only in cells or in workshops specially designed for this purpose. Work times and wages are in accordance with the laws on labor in effect. The minimum wage is guaranteed only if they fulfill the employment norms in the fixed time, established by law and contract. Wages are deposited in their personal bank accounts. Withholdings from the wages of a sentenced prisoner on the basis of the administrative acts may not exceed 75 percent of monthly earnings.

EDUCATION IN PRISON Obligatory general secondary education for the sentenced prisoners is provided. Prisoners over the age of 50, disabled persons, and life prisoners may receive a general secondary education if they wish so. At the request of the prison administration and/ or the local authorities, secondary vocational or higher education may be taken. Prisoners who work may obtain leave at the time of exams in accordance with the Labor Code. Libraries exist in every prison and are designed for general use by all the categories of sentenced prisoners. Prisoners are encouraged to visit the library. The already existing libraries are mainly stocked by donations. The lack of books in Romanian and Russian languages remains important. Several district libraries organize once per week loan service directly to the penitentiary institutions. Conditions for professional training and development of related programs are implemented in the manner agreed by the Ministry of Justice, in

accordance with the Ministry of Education. Diplomas, certificates, or other acts confirming the acquirement of professional and vocational skills are recognized by the Ministry of Education and the Ministry of Economy and Trade. However, the educational work cannot be correctly performed in penal institutions because the conditions are not appropriate for individual work with the prisoner.

VISITING POLICIES The prisoner has the right to short and long visits. In particular cases ordered by the director of the institution, long visits with sentenced prisoners’ family members may take place outside the institution. Short-term visits from a spouse, relative, and in exceptional cases, with the permission of the prison administration, with another person chosen by the convict are for a period of 1 to 4 hours. Long-term visits are of 12 hours to 3 days. The sentenced prisoner is entitled to not less than one short visit per month and no less than four long visits during the year. Long-term visits are not allowed for sentenced prisoners held in initial treatment, and for life prisoners. The number of visits with a lawyer, a person entitled to provide legal assistance, or a mediator is not limited. Prisoners with tuberculosis in an active form cannot receive long visits.

TRANSFERS AND EXTRADITIONS OF PRISONERS Legal cooperation with other countries is carried out under bilateral or multilateral agreements. To unify and strengthen existing procedures for granting of international legal assistance in criminal matters, on December 1, 2006, the Law on International Legal Assistance in Criminal Matters was adopted. In 2006, the total number of prisoners transferred to the RM was 97. In 2007, the number of prisoners transferred from other countries was 34, all of them being citizens of the RM; 19 detainees were transferred from the Russian Federation, 12 from Ukraine, and 3 from Austria. Six detainees were extradited to other countries, of which 4 went to the Russian Federation, one to Ukraine, and one


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to Poland. No prisoners have been transferred from other countries. Natalia Delgrande Further Reading Blockmans, Steven, and Adam Lazowski. (2006). The European Union and Its Neighbours: A Legal Appraisal of the EU’s Policies of Stabilisation, Partnership and Integration. Cambridge: Cambridge University Press. The Drug Situation in the Republic of Moldova: Annual Report 2007: http://www.observator.med net.md. The Institute for Penal Reform: http://www.irp.md. Lewis, Ann. (2007). The EU and Moldova: On a Fault-Line of Europe. London: Federal Trust for Education and Research. The Ministry of Internal Affairs: http://www.mai.md. The Ministry of Justice: http://www.justice.gov.md. Popa, Vladimir, and Victor Zaharia. (2008). “Moldova.” In Probation in Europe, edited by Anton van Kalmthout and Ioan Durnescu, pp. 639–675. Nijmegen, the Netherlands: Wolf Legal. Note: The author is very grateful to Professor Igor Dolea (PhD Law), Director of the Institute for Penal Reform, Republic of Moldova, for his advice and assistance.

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of Monaco such as politics and economy would be comparable to France and also offered limited protection from France. Prince Albert II is the current Prince of Monaco. He gained the throne after the death of his father, Prince Rainier III. The justice system is under the power of the prince who was the absolute ruler until 1911 when Monaco’s Constitution was declared. After the 1911 Constitution was proclaimed, the minister of state serves as a representative for the prince who oversees police and executive services. The minister of state is a French citizen who is appointed to a three-year term by the prince. In 1962 the Constitution was updated to include a National Council composed of 24 members elected to fiveyear terms who vote on laws. Monaco is located on the coast of the Mediterranean Sea bordering southern France, close to Italy. It is a mere 2 square kilometers (0.77 square miles). After the Holy See, it is the smallest independent state in the world. According to the CIA World Factbook there are approximately 32,965 people living in Monaco. Life expectancy is 80.09 years. A majority of the population (47%) is French with an equal percent of the population (16%) being native to Monaco or Italian. The official language is French, but English, Italian, and Monegasque, a blend of Italian and French, are other languages common to the country.

Police

Legal System: Civil Murder: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background Monaco is a constitutional monarchy that has been under the rule of the Grimaldi family since its founding in 1287 with the exception of the period when it was under French rule from 1789 to 1814. While independent, a 1918 treaty solidified that many facets

The Direction of Public Safety, a division within the Department of the Interior, is in charge of police tasks in Monaco. There are five policing divisions: criminal, urban, administrative, administrative and training, and maritime and airport police. The criminal police division deals with criminal investigations that can include financial and economic investigations as well as research and intervention. The subdivision for criminal identity works on issues that are INTERPOL-related and there is also a resources division. The urban police division works on coordination between uniformed forces as well as special operations. The administrative division deals with civilian administrative


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Police officers wait outside a police station in Monaco where alleged bank robber Toni Musulin had given himself up, November 16, 2009. Musulin vanished with $7.4 million in cash from a bank in Lyon, France. (AP Photo/Lionel Cironneau)

issues such as visas and residency. Administrative and training is concerned with issues pertaining to the functioning, training, and maintenance of police personnel. The maritime and airport police are most concerned with issues of border control and national security. There are 519 police personnel in Monaco. The breakdown of the policing personnel is as follows: • • • •

370 uniformed personnel 93 civilian clothed personnel 50 administrative staff 6 high-ranking personnel including 1 director, 4 commissioners, and 1 senior inspector

The Prince’s Carabiniers are entrusted with the protection of the Royal Family and the Palace. In addition it serves many public service functions, including order maintenance, law enforcement, humanitarian missions, and participation in various

official ceremonies and parades. There are 112 men serving on the Prince’s Carabiniers.

Crime Classification of Crimes Monegasque justice is heavily influenced by the Napoleonic code and the nation subscribes to a civil law system, following the system in France and its various departments and dependencies. Crimes are divided into the categories of felonies, misdemeanors, and violations. Monaco has taken an active role in the fight against money laundering. Multiple laws have been passed to prevent money laundering and financing terrorism. Monaco had developed a reputation for itself as a tax haven, but in March 2009 it adopted international standards for information sharing and bank openness. Prince Albert II has committed to cleaning up the reputation of Monaco when it comes to tax evaders.


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Crime Statistics Monaco has an overall crime rate for index offenses of 1,166.76 per 100,000 according to INTERPOL. In 2001 rates per 100,000 for major crimes were as follows: Murder Rape Robbery Aggravated assault Burglary Larceny Motor vehicle theft

3.33 0.0 0.0 46.7 180.0 863.33 73.33

From 1996 to 2001 all crime rates including overall index offenses decreased with the exception of motor vehicle theft, which increased.

Finding of Guilt Judicial independence is guaranteed by the Constitution; however, the judges are appointed by the prince and they deliver justice in his name. Arrest, prosecution, and bringing to trial generally follows that of the inquisitorial or civil system of France and other European nations. A suspect cannot be detained for more than 24 hours before appearing before a judge to hear the charges being levied against him or her and his or her rights. In most instances the detainees are released without bail unless they are deemed to be a flight risk or likely to interfere with the investigation. Accused offenders are guaranteed a fair and public trial. Every defendant is entitled to legal counsel and if he or she is indigent, the state will provide counsel. The judiciary is made up entirely of French judges and is appointed by the prince. The defendant is presumed innocent and has the right to appeal a legal decision.

Punishment Types of Punishment The most severe punishment available is life imprisonment as the death penalty has been abolished. Other sentencing options include imprisonment for a particular amount of time, suspension of certain civil rights, and fines. Loss of civil rights

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is almost always accompanied by a term of imprisonment. The courts may also require compensation or restitution to the parties for whom the damage has been done. The Criminal Code has a clause that requires harsher punishment for repeat offending. Corporal punishment of children is permitted at home and in alternative care systems; however, it is unlawful in schools and the penal system. It cannot be used as a sentence for a crime and is also not meant to be used for disciplinary measures in the prison; however, it is not expressly prohibited.

Prison According to Prison Brief for Monaco provided by King’s College London, the prison population rate for 2008 was 76 per 100,000. The government of Monaco noticed a more recent shift in the offenses for which prisoners were sentenced. White-collar crime and narcotic offenses have become increasingly responsible for the prison population. There is one prison in Monaco that can hold up to 90 inmates. Women, men, and minors are housed separately within the prison. The prison is a less restrictive environment as the cells remain open for seven hours out of the day and inmates are free to visit other cells. The prisoners are allowed two daily showers and two daily walks. Each cell has a television, although it must be turned off at midnight. The philosophy of the prison is to try to maintain life as normal as possible so as not to impede an inmate’s transition back to society. Although there is some opportunity to work, the jobs are limited and restricted to a small fee for onsite work such as laundry or housekeeping. There are classes and activities offered to the inmates. Once the prisoner receives his or her definite sentence, he or she is transferred to a prison in France to carry out the duration of the sentence if it is more than four months. Raquel Moriarty Further Reading A Comparative Criminology Tour of the World: Monaco, by Robert Winslow: http://www.rohan.


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sdsu.edu/faculty/rwinslow/europe/monaco. html. Legislation: http://www.legimonaco.mc.

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

Background While Montenegro was recognized by Berlin as an independent principality in 1878, this tiny country has had a long and tumultuous road establishing itself apart from external rule. Following World War I, Montenegro was invaded and occupied by Austria. The Montenegrin king Nikola I was forced into exile. The Library of Congress Country Study on Yugoslavia (1980) notes “After World War I, political forces in Montenegro were deeply divided between the Greens, who supported an independent Montenegro, and the Whites, who advocated unification with Serbia” (http://memory.loc.gov/ frd/cs/yutoc.html). During the interwar period the Whites prevailed and Montenegrins were classified as Serbs. It should be noted that Montenegro lost nearly one-quarter of its population during World War I. By 1918, Montenegro was declared part of the Kingdom of Serbs, Croats and Slovenes and ruled by a Serbian king. A decade later, the name would be changed again to the Kingdom of Yugoslavia. The British Foreign and Commonwealth Office notes that the status of Montenegro would change again in 1945 when it became a republic, as did Croatia, Bosnia and Herzegovina, Slovenia, Serbia and Macedonia. The 1980s brought a union between Montenegro and Serbia, but that union was formally dissolved when Montenegro declared its independence on June 3, 2006.

According to the U.S. Department of State, present-day Montenegro is approximately 13,938 square kilometers (5,381 square miles). The total population is about 630,000, of which 43 percent identify as Montenegrin; Serbian (31%); Bosnian (8%); Albanian (5%); Muslim (5%); Croatian (1%); and Roma (gypsy) (0.5%). In terms of current governmental organization, Montenegro is a mixed parliamentary and presidential republic. A review of the 2009 elections by the Organization for Security and Cooperation in Europe and the Council of Europe noted that the elections met almost all the requirements for democratic elections. Despite this promising assessment of the political process, the U.S. Department of State Human Rights Report on Montenegro notes that police routinely abuse suspects, arbitrary arrests are common, and there is widespread corruption among law enforcement and the judiciary. This suggests that the road toward a fully democratic Montenegro may still be quite long.

Police According to the Policing OnLine Information System (POLIS), the principal policing agency in Montenegro is the Police Directorate. The Police Directorate employs approximately 5,209 people, 2,473 of which are uniformed officers (94 of whom are female). POLIS notes that uniformed officers undergo two types of training. Basic training, for noncollege-educated staff, includes “12 months of theory, 3 months of ‘in-field training’, and 3 additional months back at the academy.” Candidates entering police service with a college degree undergo training that is slightly shorter in duration at just 10 months. Specialized training is also available and varies both in subject matter and extent, depending on the nature of the training. Given the prevalence of organized crime in the country, a special unit within the police was created in 2003 to combat organized crime. The Chr. Michelsen Institute (CMI) report, Corruption in Montenegro 2007: Overview over Main Problems and Status of Reforms, notes that considerable training and resources have been diverted to this special unit, but there is more work to be done.


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Courts

Crime

The legal traditions of Montenegro can be traced back to the 13th and 14th centuries under the governance of Zeta rulers, Balsici and Crnojevici. In relatively modern times, a major turning point was the 1888 adoption of the General Property Law for the Principality of Montenegro, drafted by noted European legal expert Valtazar Bogisic. The judicial system of Montenegro consists of a four-level court structure. The basic courts are the lowest level, serving as courts of the first instance for crimes with a maximum penalty of 10 years’ imprisonment or less. Beyond criminal cases, basic courts also hear matters of civil, labor, and other disputes. The superior courts are the first appellate level for cases referred from basic court. Superior courts also act as courts of original jurisdiction for more serious crimes than are tried in basic court. The Montenegrin Court of Appeal decides appeals against the first instance rulings of the basic and superior courts (as well as appeals against the rulings of the commercial courts). The Court of Appeal also decides disputes relating to the conflict of jurisdiction between lower courts. The highest legal authority in Montenegro is the Supreme Court. This court, typically comprising three judges, reviews the decisions of all other courts and intervenes in disputes between departments/jurisdictions of the government. Within the Prosecutor’s Office, there exists a special unit tasked with combating organized crime. A special prosecutor heads this unit. This special prosecutor is assisted by a deputy prosecutor and three assistants who focus specifically on corruption.

Reliable criminal statistics are difficult to obtain for Montenegro, but the Overseas Security Advisory Council notes car theft and residential break-ins are among the most frequently occurring incidents. The U.S. State Department observes that violent crime tends to be quite rare. The prevalence of organized crime appears to be of greatest concern to both Montenegrin society and external international watchers. The Council of Europe’s Group of States Against Corruption (GRECO) has reported that extortion, money laundering, illegal gambling, robbery, vehicle trafficking and prostitution are all linked to organized crime in Montenegro. Since 2003, however, Montenegro has made efforts to stamp out corruption, most notably with the development of special units within the police and Prosecutor’s Office to investigate and combat organized crime. In 2007, the Montenegrin government established a working group devoted to organized crime and terrorism. This group is composed of representatives from the Police Directorate, Customs Administration, Tax Administration, and Agency for Anti-Money Laundering and Financing of Terrorism.

Human Rights Articles 28–38 of the Montenegrin Constitution provide many basic procedural safeguards for persons accused of crimes. Specifically, the accused are entitled to the following: a fair and public trial within a reasonable time frame, presumption of innocence, no double jeopardy, right to a defense, and compensation in the event of an illegal conviction.

Punishment While the Constitution of Montenegro stipulates that no degrading or inhumane punishments will be used, the U.S. State Department notes punishments tend to be quite severe relative to those available in the United States. Article 26 of the Montenegrin Constitution prohibits the use of the death penalty. Imprisonment is used as an alternative. The 2008 World Prison Population List reports Montenegro has a total prison population of just 734 (including pretrial detainees) and the per 100,000 rate of imprisonment is 108. According to the U.S. Department of State Human Rights Report 2008, Montenegrin prisons are overcrowded and in generally poor condition, a situation that appears to be exacerbated by pretrial detainees. A 2003 report of a prison hospital in Serbia and Montenegro appearing in The Lancet described


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the often brutal conditions awaiting most inmates, including overcrowding and inadequate insulation. Winters in Montenegro are frigid, often charting below-zero temperatures. This extreme cold often leads to frozen water systems in the facility, making cleaning during the winter months impossible. Summer brings relief from the cold, but also brings a host of other problems because there is little ventilation in the windowless cells. Predictably, the combination of overcrowding and minimal ventilation substantially increases the likelihood of contracting communicable diseases such as tuberculosis. It should be noted that this report appeared in The Lancet in 2003 before Montenegro’s independence. According to the U.S. Department of State Human Rights Report 2008, more recent indications suggest the situation inside some facilities does appear to have improved, particularly in some police detention facilities. Facilities in police stations in Podgorica, Budva, Bar, Herceg Novi, Niksic, Bijelo Polje, Berane, and Pljevlja have been renovated to include video surveillance and air conditioning. Additionally, funds have been made available to build a building at Bijelo Polje Prison. Laurie Gould and Matthew Pate Further Reading Bieber, Florian. (2002). Montenegro in Transition: Problems of Identity and Statehood. BadenBaden: Nomos Verlagsgesellschaft. Boehm, Christopher. (1986). Blood Revenge: The Enactment and Management of Conflict in Montenegro and Other Tribal Societies. Philadelphia: University of Pennsylvania Press. Flemming, Thomas. (1997). Montenegro: The Divided Land. Rockford, IL: Chronicles Press. Morrison, Kenneth. (2009). Montenegro: A Modern History. London: I. B. Tauris Press. Roberts, Elizabeth. (2007). Realm of the Black Mountain: A History of Montenegro. Ithaca, NY: Cornell University Press. Stevenson, Francis Seymour. (2002). A History of Montenegro. Boston, MA: Adamant Media.

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

Background The Netherlands is a Western European country and is one of the six founding members of the European Union. The capital of the Netherlands is Amsterdam, but it is not the seat of the government, which is The Hague. After having been a republic in the 17th and 18th century, the Netherlands became a constitutional monarchy after the Congress of Vienna in 1815. And it became a parliamentary democracy with the introduction of a new Constitution in 1848. The role of the monarch, at present Queen Beatrix, is mainly symbolic and ceremonial, although she does have some influence. Parliament consists of a lower house (Tweede Kamer der Staten—Generaal ) with 150 members and an upper house (Eerste Kamer der Staten—Generaal ) with 75 members. The lower house plays a more important role in controlling the government and legislation than the upper house. Traditionally, the Netherlands has many political parties and governments are always formed by a coalition, usually consisting of three parties. The Netherlands is economically a prosperous country: according to the IMF, the GDP in 2007 was $640 billion, which puts the Netherlands on the 16th place in the ranking of all countries in the world, or on the 11th place if looking at GDP per capita. The population of the Netherlands is 16.4 million (January 1, 2008). This means that it is densely populated with 486 inhabitants per square kilometer (1,259 per square mile). The proportion of residents of nonethnic Dutch origin (according to either nationality or country of birth) has


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increased from 9.2 percent in 1972 to 19.6 percent in 2008. Of those nonethnic Dutch residents that have their country of origin outside Europe, the largest groups are people with a Moroccan, Turkish, or Surinam (Dutch Guyana, a former colony of the Netherlands) background. Each of these three groups consists of about 2 percent of the total population. Until recently, the Netherlands could be seen as a tolerant and permissive society. Examples of this are same-sex marriages and the legalization of prostitution. Also euthanasia and abortion, although not legalized, are not prosecuted when certain well-defined conditions are met. Basically the same holds for the Dutch drug policy: while trafficking and using drugs is in general illegal, special legislation makes it possible to buy and use small quantities of less harmful drugs without being prosecuted. Another example could be the traditionally low sentences in the Netherlands, although this has changed dramatically since the mid-1980s. However, this tolerant and permissive attitude seems to have changed considerably in the last few years. There are some possible causes for that and the most important could well be the increase of the nonethnic Dutch population as mentioned above, in combination with the attitude toward Islamic-oriented terrorism since 9/11 and the Madrid and London bombings. Also, two dramatic assassinations—that of the charismatic but controversial leader of one of the political parties, Pim Fortuyn in 2002, and the other of moviemaker Theo van Gogh in 2004—have had a considerable impact on Dutch society. This attitude change in recent years coincided with more severe regulations and tighter control on individual citizens. The introduction of the obligation to carry an identification document for everyone above 14 years of age, the installation of closed circuit cameras in many public places, increasing the maximum statutory penalties for many crime types, the broadening of the possibilities the police have for stop and search, and extending the possibilities for the prosecution to start an investigation even before a crime has been committed (important for preventing terrorism) are examples of this. Also

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the policy for accepting asylum seekers has become more restricted, which was probably one of the reasons for the dramatic decrease of the number of people coming to the Netherlands to ask for asylum since 2000.

Criminal Justice System The Dutch criminal justice system is characterized by large discretionary powers for the police, prosecutors, and judges and by the central role the Public Prosecution Service has. Originally based upon the Napoleonic system—both the French Code Pénal and the Code d’instruction criminelle were adopted in the beginning of the 19th century—this gradually changed during the 19th century. In 1881 a new Criminal Code was introduced and in 1926 the new Code of Criminal Procedure changed the system from a mainly inquisitorial one to a more accusatorial one. Both codes are still in use today but have been changed considerably over the years.

Police The Netherlands is divided geographically into 25 police regions. In addition, there is a 26th separate police force dealing with issues at a national level, such as central criminal investigations and with international police cooperation. There is no hierarchical relation between this central police force and the 25 regional ones. The total number of employees—both police officers and civilians—in the police force is 51,000 (2006), which is about 312 per 100,000 inhabitants. The two main tasks of the police are maintaining public order and carrying out criminal investigations. While administratively the police organization as a whole falls under the responsibility of the minister of the interior, the operational management of the police reflects both the independence of each police region and the two different main tasks of the police: the mayors of the cities within each police region—with the mayor of the main city within the police region acting as formal head of the police—are responsible for maintaining public order and the prosecutor has the authority over the criminal investigations. The


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two tasks cannot be separated completely, however; therefore there is frequent consultation between the police, the mayors, and the Public Prosecution Service within each police region. The military police is a separate organization, supervised by the minister of defense. Apart from having the police task within the Dutch Army, the military police is also responsible for border control. The police is not the only organization doing criminal investigations. There are four specialized agencies for offenses like tax offenses and social security fraud. Looking at offenders that are prosecuted, about 7 percent had their case investigated by one of these special agencies and not by the police. By law the public prosecutor is in charge of the investigation in all criminal cases. But in the majority of cases the direct involvement of a prosecutor is negligible and the police will follow general guidelines from the Public Prosecution Service to investigate these cases. This could even mean not to investigate certain crimes at all if they have a low priority according to the Prosecution Service guidelines. Only in a few cases (the more serious or complicated ones) the prosecutor actually takes the lead in the investigation. For special investigative measures such as pretrial detention, telephone taps, searching of premises, and others, permission is needed from the prosecutor and/or a judge (the examining magistrate). The clear-up rate, defined as the percentage of recorded cases where at least one suspect has been found, is 10 percent for property crimes and 59 percent for violent crimes. Formally, the police is not allowed to drop a case or to impose sanctions. In practice, however, there are some possibilities for the police to do this. Although it is technically under the responsibility of the prosecutor, for some not too serious offenses the police can impose a fine (this type of fine is called a transactie), and if some conditions are met the police can let a juvenile offender do a work or learning activity (together with compensation for damage done by his or her offense). Although a formal decision to drop a case, which is somewhere registered as such, does not exist, nevertheless, the police can decide just to stop investigative activities.

The Public Prosecution Service The Public Prosecution Service is part of the judiciary. The highest authority within the service is the Board of Prosecutors General. The minister of justice has the final responsibility and political accountability for the Public Prosecution Service. The service is responsible for investigating criminal offenses, for prosecuting offenders, and for making sure that sentences are properly imposed. There are 675 prosecutors, which is about 4.1 per 100,000 inhabitants. Prosecutors are not elected but appointed by the Crown (in practice the minister of justice). The Dutch Prosecution Service plays a very central role in dealing with criminal cases. It has the monopoly on prosecution—there is no such thing as “private” prosecution in the Netherlands—and because of the expediency principle it can also decide not to prosecute. Basically there are three options for the prosecution when a suspected offender is known: the prosecutor can drop the case, both for technical reasons (not enough evidence) or for policy reasons; the prosecutor can settle the case outside the court with a transactie, which is usually a fine or a community service; or the prosecutor can issue a writ of summons for a court hearing. Plea bargaining or guilty pleas are not known in the Netherlands. In most cases a so-called police investigation to gather evidence suffices. There can be some involvement of the prosecutor, particularly when special investigatory measures are needed such as searching premises. In more serious cases the prosecutor can decide to start a “preliminary judicial investigation,” which is carried out by an examining magistrate or a “criminal financial investigation” in preparation of a court verdict where (part of) the sentence could be that the offender has to pay back his or her illegally obtained financial gain. During trial, the prosecutor presents the evidence gathered during the investigation. The judge will then examine the evidence and question the accused. If necessary he or she will also question witnesses and experts, however, since also written statements by witnesses or experts are accepted as evidence in court this will usually not happen,


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except in the most serious cases. The prosecutor (and the defense) may also ask additional questions but cross-examination is unknown. A trial in the Netherlands is not purely adversarial, but has more a “truth finding” character. Being part of the judiciary and having as main task to “administer legal order,” the prosecutor will theoretically also take the interests of the offender into account. So it is possible, and this does occasionally happen, that the prosecutor requests a nonguilty verdict.

Courts There are 19 district courts, five courts of appeal, and a Supreme Court. There are no special juvenile courts, but within the normal courts there are judges handling juvenile cases only. Court sessions with juveniles are usually closed to the public. Most cases are handled by a single judge. The maximum custodial sentence that can be given by this single judge is one year. More serious cases (and all appeals) will be done by a bench of three judges. There are no juries and—with a few exceptions—no lay judges. This way only professional judges decide on the verdict and the punishment. Judges are appointed by the Crown and the minister of justice. There are about 400 judges for criminal cases. Unlike prosecutors they are appointed for life, but usually retire at 70.

Sanctions The three main sanctions in the Netherlands are prison sentences (about one-tenth of all sanctions), fines (about half of all sanctions), and community services (about one-third of all sanctions). Although formal sanctions can only be given by a court, fines and community services can also be part of a settlement outside the court. Legally these are seen as conditional disposals by the prosecutor. Combinations of sanctions are possible. For every type of crime there is a maximum sentence defined in the Criminal Code, but no minimum sentence. Capital punishment is not known in the Netherlands; the most severe sentence is life imprisonment. General

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amnesties do not occur, but pardoning in individual cases sometimes happens. For mentally ill offenders either a psychiatric hospital order or an entrustment order can be given. A psychiatric hospital order can be given when the mental illness of the offender is of such nature that the offender cannot be held responsible for the offense he or she committed. There were 118 of those measures in 2007. When the offender, despite his or her mental illness, is held responsible for committing the offense, then usually a penalty is imposed, but besides also an entrustment order, which is a compulsory treatment in a private or state institute after the punishment has been fulfilled. An entrustment order lasts for two years with the possibility of another one or two years. For serious and violent crimes the order can be extended indefinitely, but should be regularly evaluated. The number of entrustment orders in 2007 was 247. Sanctions for juveniles are not different from those for adults, but less severe. The age of criminal responsibility is 12. Juveniles are those who, at the time the offense was committed, were at least 12 and not yet 18 years old. However, the judge can decide, depending on the severity of the offense or the personality of the offender, to apply adult criminal law for offenders aged 16 or 17. But he or she can also decide to apply juvenile law for those between 18 and 21. The maximum prison sentence for juveniles is one year (under age 16) or two years (age 16 or 17). The Netherlands had until very recently a system of automatic and unconditional early release, in general after about two-thirds of the sentence length. In 2008 this was replaced by a system of conditional release, but also after about two-thirds of the sentence length.

Crime Classification of Crimes All punishable acts (which is the literal translation of strafbare feiten, the Dutch term for offenses) can be divided into three broad categories based on the Dutch Criminal Code and procedural law. The first category consists of all those minor offenses (infractions or overtredingen) that are dealt with


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administratively, that is, without any involvement of the Public Prosecution Service or the courts, unless the offender decides to appeal. These are the majority of traffic offenses and the penalty is always a fine. The second category consists of all other minor offenses (infractions) with the exception of those that are defined as infractions under the different laws for economic, environmental—where often the offender is not a person but a company—and drugs offenses. In this second category offenses like some more serious traffic offenses (excessive speeding, driving without insurance) or “being drunk and disorderly in a public place” or “travelling in public transport without a valid ticket” can be found. Almost always the penalty will be a fine, but other penalties such as the withdrawal of the driver’s license or a (short) prison sentence are also possible. The offenses in the third category are those that are defined in the Criminal Code as a crime (in Dutch misdrijf) and also the economic, environmental, and drugs infractions. Most Dutch crime statistics—also those presented in this article— refer to this third category only and Statistics Netherlands has defined a classification for all offenses in this category. Included in this category are the following: • Violent crimes (homicide, rape, sexual assault, assault, threats, and robbery) • Property crimes (theft and fraud) • Public order crimes (vandalism, discrimination, arson) • Serious traffic offenses (drunk driving, leaving scene of an accident) • Economic and environmental crimes (shop open outside regular hours, pollution) • Drug crimes and infractions (possession of large quantities, trafficking) • Weapons crimes (illegal weapons possession) • Crimes under military law A common crime type that is missing in the classification is “burglary.” In the Netherlands, as is the case in many other continental European countries, burglary is not recognized as a separate crime in the Criminal Code. Instead a distinction is made

between “theft” and “aggravated theft.” Most (but not all) burglaries will be considered aggravated theft; on the other hand many aggravated thefts (such as theft committed by more than one person) are not burglaries. Since drugs possession and use—in small quantities and mainly for relatively harmless drugs—are not prosecuted, they will usually not be recorded by the police to begin with. This means that the statistics for drugs crimes reflect almost always drugs trafficking. The number of drugs crimes has increased considerably during the last years, reflecting the less-tolerant behavior by the authorities regarding drugs crimes. Although violent crime is relatively low in the Netherlands compared to many other European countries (as both victim surveys and recorded crime statistics show), reduction of violent crimes (also domestic violence) is one of the priorities of the Dutch government. In particular violence on the street by nonethnic Dutch juveniles gets a lot of media attention. Other priorities are trafficking in human beings, organized crime, and terrorism. The nature of organized crime in the Netherlands is somewhat different from the common conception of so-called mafia-type organizations infiltrating in governments and companies. Criminal groups in the Netherlands can better be seen as networks with no real hierarchical structure. The main criminal activities of these networks are drugs trafficking, trafficking in human beings for sexual exploitation, smuggling of illegal immigrants, and so forth.

Crime Statistics The Netherlands has a long tradition of victim surveys, the first was in 1973. According to these surveys the occurrence of crimes was stable between 1980 and 2000. After 2000 a decline in crime can be seen, mainly for property crime. The general level of crime as perceived by victims and also feelings of insecurity are the highest in the cities. Police-recorded crime is a small part of all crimes experienced by victims. For a few crime types the recorded crimes for the year 2007 per 100,000 inhabitants, according to the Ministry of Justice/WODC and Statistics Netherlands, were as follows:


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Homicide Rape Assault Violent crimes total Theft Property crimes total Drugs offenses

0.9 7.7 370.2 682.2 3,918.6 4,172.2 95.5

The number of homicides—less than 1 per 100,000—is low and has declined considerably during the last five years. This is remarkable because the general level of violent crime hardly decreased (according to victim surveys) or even increased (according to the statistics for police-recorded crime) during that period. As in all Western European countries the number of recorded theft offenses— and in general of property crimes—is high, but has decreased considerably since 2002. The most common recorded theft offenses are theft from a car, bicycle theft, and theft from a private home. Looking at victim surveys, it is bicycle theft that is by far the most common theft offense, but most victims of bicycle theft do not bother to report the crime to the police. The decrease in property crimes since 2002 can be seen in all types of theft offenses. In particular the decrease in car theft is remarkable—the number of car thefts in 2007 is only about 40 percent of the level in 2002. Most probably this is due to better technical prevention. The rise in recorded violent crime is hard to reconcile with the stability (or even decrease) found in the victim surveys. But when one looks at specific violent crime types it seems that there is indeed also a decrease in the more serious recorded violent crimes, such as homicide, rape, and robbery. The overall increase in recorded violent crime seems to be solely due to the less serious forms of violence like threats and less serious assaults. So it could well be that the police is now more inclined than it used to be to register less serious forms of violent crime. Both recorded property and violent crime are typically city crimes. And the difference between larger cities and smaller communities is even more pronounced than the difference found in the victim surveys. Remarkably, however, for public order offenses—although there were indeed somewhat

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less recorded offenses in rural areas—there was no difference found between smaller and larger cities.

Finding of Guilt Apart from a recent development that will be discussed later the only person deciding on the guilt of the accused, both in theory and in practice, is a professional judge (or a bench of three judges). Trial by jury is unknown in the Netherlands and neither is it possible for the accused to negotiate with the prosecutor on the crime type he or she will be accused of or the punishment he or she will get. Even an admittance of guilt by the accused could by itself not be enough for a guilty verdict by the judge. Also, an admittance of guilt does not influence the nature of the trial: there are no accelerated procedures. And they are not really needed: because there are no juries and written evidence is admitted at court, trials rarely last longer than a few hours. So in principle it is rather straightforward: the prosecutor— and no one else—decides if and for what crime the accused will be prosecuted, and the judge—and no one else—decides on the verdict and the punishment. However, this does not mean that only the court can make case-ending decisions: both police and prosecution can do this as well and can even impose conditions on the accused that could be seen as punishments, although in a legal sense they are not and in particular they are not seen as a legal declaration of guilt nor are they part of a criminal record. In total there were about 330,000 case-ending decisions in the year 2007. One-fourth of those decisions did not lead to any punishment at all for various reasons. Some were dropped by the police or the prosecutor, possibly for lack of evidence. For others the prosecutor decided not to prosecute for reasons of public interest; perhaps because in his or her opinion the criminal act was not serious enough, or the offender had experienced already enough negative consequences of the act himself or herself. In about 11,000 cases the judge did not give a sanction; mostly because the verdict was “not guilty,” but in some cases there was a guilty verdict but the judge apparently had reasons not to give a sanction at all.


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Both the police—although under the responsibility of and following guidelines from the Public Prosecution Service—and the prosecution can end a case conditionally. Most conditional disposals are called transacties and they can take the form of a fine or a community service (taakstraf ). Besides, the police can use a special kind of disposal for juveniles, mostly a work and/or learning activity. This is called a HALT measure. Conditional disposals are not really the result of any negotiating between police/prosecutor and the accused. It is an independent decision of the police or the prosecutor to give the accused the opportunity to avoid undergoing a court trial. The accused is free to accept this, but in doing so he or she does not formally admit guilt. If the accused does not accept the condition, or if he or she fails to meet the condition (e.g., by not paying the fine) the case will almost certainly go to court. The total number of all conditional disposals—which are essentially settlements outside court—is 132,000. This is 53 percent of all punishments. The three main sanctions for the court are prison sentences, community services, and fines. Between 2000 and 2006 the number of community services imposed by the court increased from 20,000 to 40,000, whereas the number of prison sentences decreased in the last few years. Possibly this is due to a substitution effect: more community services are given where in previous years a prison sentence would have been seen as more appropriate. Another common sanction is the withdrawal of someone’s driver’s license. Based on data (in some cases estimates) from Statistics Netherlands (Ministry of Justice/WODC ) the following case-ending decisions and resulting punishments occurred: • By police: 25,000 cases were dropped or dismissed and 58,000 cases given conditional disposal, resulting in 24,000 juvenile measures and 34,000 fines. • By prosecution: 15,000 cases were dropped or dismissed, 30,000 disposed in the public interest and 74,000 on conditional disposal, resulting in 17,000 on community service, 45,000 fines, and 12,000 miscellaneous.

• By the courts: 1,000 guilty but no sanction, 10,000 not guilty, and 117,000 found guilty, resulting in prison for 26,000, community service for 40,000, 44,000 fines, 6,000 conditional sentences, and 1,000 other. Starting in 2007 the system of transacties will be gradually replaced by a system using penal orders (strafbeschikking). Although in practice the differences are small—the accused will pay an amount of money or fulfill a community service as proposed by the prosecutor or the police—the legal differences are far-reaching. The most important difference between a transactie and a strafbeschikking is that a strafbeschikking is a formal declaration of guilt autonomously decided by the prosecutor with no court involvement at all. And the crime will be added to the criminal record of the accused. Also, if the accused does not agree with the proposed strafbeschikking, he or she has to make an appeal explicitly and within the time period where an appeal is possible. If he or she does nothing—by just not paying the fine—the case will not go to a penal court because after the appeal period, the case has become irrevocable. Instead, a civil lawsuit will follow for the amount of money due.

Rights of the Accused Suspected offenders have certain rights, the most obvious being that there is no obligation to contribute to his or her own conviction (i.e., the right not to answer any questions). Other rights are the right to be heard, to have all relevant case files at his or her disposal, to be tried within a reasonable time frame, and the right to have an interpreter if necessary. And the accused has the right to have legal counsel. If there is some form of deprivation of liberty, the accused will get a lawyer appointed by the state and free of charge automatically. But the accused can always choose (and pay for) his or her own lawyer. A “no cure—no pay” system is not known in the Netherlands. Also, the accused can ask the examining magistrate to perform specific investigating activities, for example, hearing witnesses in favor of the accused. An accused offender can be incarcerated before trial. This can be done through an arrest by the


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police, but this is only possible when the offender is caught red-handed and the deprivation of liberty can last 12 hours at most. If the offender is not caught red-handed or if further detention is needed after the 12-hour police arrest, the prosecutor has to decide on pretrial detention, but he or she can do this only for 6 days maximum. After 6 days the prosecutor has to make a request for extending the pretrial detention to the examining magistrate (for another 10 days) or to a full bench penal court (after that). Pretrial detention (apart from the 12-hour police arrest and the 6 days decided by the prosecutor) is only possible for more serious crimes. Bail, although the Code of Criminal Procedure gives some possibilities for a judge to suspend pretrial detention under certain guaranties provided by the accused—such as depositing an amount of money—is hardly ever used in the Netherlands.

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Punishment Types of Punishment In the Netherlands there is a distinction between a penalty (straf ) and a measure (maatregel ). Penalties are seen as punishments and/or retribution and are also aimed at general prevention. Measures are more aimed at individual safety and security or at restoring the state of affairs before the crime was committed. Measures can also be imposed if the offender is not criminally responsible. The sanctions already mentioned—deprivation of liberty, community services, fines, and withdrawal of someone’s driver’s license—are all penalties. But various other sanctions are also possible. Among the other penalties are deprivation of the right to hold a public office or to practice certain professions. But also closure of a company can be, for specific crimes, a penalty.

Security guards practice camera surveillance at an experimental prison with minimum security in Lelystad, the Netherlands, January 16, 2006. Inmates wear electronic wristbands that register every movement and allow them to pass from room to room when authorized. (AP Photo/Cor de Kock) © 2011 ABC-Clio. All Rights Reserved.

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Measures, except for the psychiatric hospital orders, are usually given in combination with a penalty. These measures can be entrustment orders, compulsory treatment for offenders with specific problems such as drug addicts, paying compensation for the benefit of the victim, and confiscation of illegally obtained profits. For premeditated murder with no special circumstances the typical punishment would be about 15 years’ imprisonment. But longer (until 30 years) or even life sentences are very well possible, in particular when there is more than one victim. For other crimes it is very hard to determine a typical punishment, but the average imposed prison sentence can be seen from the court statistics. For rape this is about 3 years, for qualified theft 1.5 years and for drugs offenses a little more than 1 year.

Prison To count the number of prisoners at a certain moment seems a simple exercise, but it is not. In the Netherlands 18,680 persons were held in detention on September 30, 2007. However, only about 1 in 3 of these persons were actually convicted for a criminal offense with a prison sentence as penalty. There are many other reasons—such as pretrial detention—to deprive people of their liberty. The first complication is that there are an estimated 4,400 persons who are convicted but for different reasons not (yet) imprisoned. Of those 4,400 there are about 3,500 with a (probably short) prison sentence who are waiting for a place in prison. The other 900 are mostly people not willing to pay a fine or another financial compensation and waiting for default detention. Of the 18,680 total behind bars, there are 16,250 adults, 1,800 of whom are not convicted with a prison sentence—or their prison sentence was already executed—but are held in a special institution because they were sentenced with an entrustment order as a measure. Also 1,680 adults are not convicted at all but are held because of a civil law court decision. These are almost all illegal immigrants waiting for extradition. Of the 7,010 convicted adult offenders, 1,040 have not been punished with

a prison sentence. However, they are detained because they did not pay their fine or did not fulfill their community service. Or in general did not meet the conditions imposed by the court verdict. Of the 2,430 juveniles, there are 1,360 held under civil law who are mostly problem children, but they have not necessarily committed a crime. Of the remainder of 1,070 held under criminal law, 680 have been convicted and the remainder are in pretrial detention. In total, 13,840 persons (12,770 adults and 1,070 juveniles) are in prison because of a criminal law offense. Almost half of them (6,150 persons: 5,760 adults and 390 juveniles) are not yet convicted but are in pretrial detention. According to the Ministry of Justice/WODC and Statistics Netherlands, the number of prisoners increased considerably during the last three decades, from around 20 per 100,000 population in the 1970s to more than 100 in 2005, though with an apparent decrease after that year. Why the number of prisoners decreased since 2005 is not completely clear. The decrease in recorded crime in general and the increase in the number of community services are possible causes for this. Prisons in the Netherlands are small, the largest prison has less than 400 cells. The standard prison regime consists of 26 hours’ labor per week, visits, recreation, and sports. This standard regime applies to the majority of prisoners. Labor is compulsory, except for pretrial detainees who are not obliged to work. However, usually they do, because the only way to get money to spend in prison (to buy tobacco, extra food, telephone cards, renting televisions, etc.) is to work. Convicted prisoners have the right to receive visitors. These visits are supervised, but those serving a long prison sentence could be given the opportunity to receive nonsupervised visits. Pretrial detainees are dependent on a decision by the prosecutor or the examining judge to be allowed to receive visitors, but they can always have visits from their lawyer. Since the Netherlands is part of the European Convention on the Transfer of Sentenced Persons, it is possible either for Dutch persons convicted abroad to be transferred to the Netherlands and for


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foreign persons convicted at a Dutch court to ask to serve their sentence in their home country. In 2007 there were 556 requests for transfer from abroad to the Netherlands, mainly from Germany, Spain, the United Kingdom, and France. There were 63 requests made for a transfer from the Netherlands to another country. Paul R. Smit Further Reading Bijleveld, Catrien C. J. H., and Paul R. Smit. (2005). “Crime and Punishment in the Netherlands, 1980–1999.” In Crime and Punishment in Western Countries, 1980–1999, edited by Michael Tonry and David P. Farrington, pp. 161–211. Chicago: University of Chicago Press. Blom, Martine, and Paul R. Smit. (2006). “The Prosecution Service Function within the Dutch Criminal Justice System.” In Coping with Overloaded Criminal Justice Systems, edited by JörgMartin Jehle and Marianne Wade, pp. 237–256. Berlin: Springer. Tak, Peter J. (2003). The Dutch Criminal Justice System, Organization and Operation. The Hague, the Netherlands: Boom Juridische uitgevers. Tonry, Michael, and Catrien C. J. H. Bijleveld, eds. (2007). Crime and Justice in the Netherlands. Chicago: University of Chicago Press.

Northern Ireland. See United Kingdom/ Northern Ireland Norway Legal System: Civil Murder: Low Burglary: Low Corruption: Low Human Trafficking: Low Prison Rate: Low Death Penalty: No Corporal Punishment: No

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Background Located on the Scandinavian Peninsula, with a population of approximately 4.8 million on 385,155 square kilometers (148,708 square miles) of land, the Kingdom of Norway is known for its rich Viking history, its fjords, and its snowcapped mountain ranges. The origin of its legal system and culture is similar to other Nordic countries such as Finland, Iceland, Denmark, and Sweden, which were united under a sole monarch from 1353–1412. The Norwegian legal system is a civil system that has codified criminal and procedural laws that reflect centuries-old legal principles practiced by the Althing—a quasijudicial meeting of yeomen who gathered regularly to resolve disputes within their various communities. In the 10th century, formal institutions called the Lagting were developed to perform legislative, judicial, and executive functions and they consisted of elected officials, clergy, and representatives of the king. King Magnus Lagabøte (Magnus the LawMender) played an important role in the development of the Norwegian legal system. In 1274, he revised the regional laws established by the Lagting, and compiled them as a single document of codified laws called the Landslov. Centuries later these laws were revised and codified again by King Christian V of Denmark. The circumstances surrounding the establishment of the Norwegian Constitution are important in regard to the development of Norway’s legal system. After the Napoleonic wars, Norway’s union with Denmark was dissolved and a political union with Sweden was formed. Norway’s king ceded his power to the king of Sweden who found it politically expedient to allow Norway to have its own constitution. As a result, the Norwegian Constituent Assembly at Eidsvoll successfully instituted the new Constitution on May 17, 1814; it is the oldest European constitution currently in force. Norway’s Constitution established a constitutional monarchy and parliamentary democracy with the king serving as (a largely symbolic) chief of state and a prime minister as its executive head of the government. In 1905, the union with Sweden ended with Norway


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declaring its sovereignty. This signaled an important period in Norwegian history as the country experienced a social renaissance with unprecedented cultural development.

Police Norway, like many other European countries, has a centralized national police force that is not linked to the military structure. The police employ approximately 12,000 citizens and are managed by the National Police Directorate (Politidirektoratet) under the Ministry of Justice and the Police. Structurally, the police are organized according to regional (local) and national scope of operations. There are 27 regional police districts throughout the country and several special agencies that provide assistance to police districts. Police officers are required to attend the Norwegian Police University College and complete three years of training and education. Some main areas of study include criminology, criminal law and criminal procedures, legal research methods, communication and conflict management, and forensic science. The Constitution and the Criminal Procedure Act govern the police power of arrest. According to article 99 of the Norwegian Constitution, police can only take persons into custody in cases determined by law and only in a manner that is prescribed by law. Therefore, if there are any breaches of these rules, the officer concerned will be accountable to the person imprisoned. Additionally, article 102 states that police can only conduct searches of private homes within the context of criminal cases. The Criminal Procedure Act provides a further breakdown of rules governing traffic stops, arrests, and searches. These may be carried out only when certain prerequisites and special conditions are present. Another noteworthy characteristic of the Norwegian police is that they do not carry guns and provide prosecuting services for minor crimes.

Courts Norwegian courts have a three-tier structure consisting of lower courts, appellate courts, and a court

of last resort. District courts are courts of first instance where questions of guilt in criminal cases are determined. Norway is currently divided into 66 judicial districts, with a lower court assigned to each district. The appellate court system, divided into six circuits throughout the country, hears cases where a judgment made by the district court is contested. Prosecutors and defendants can appeal their cases if they believe the sentence is unjust (too lenient or severe) or when there are problems with the determination of guilt. Finally, the highest court in Norway is the Supreme Court, which is located in Oslo. The chief justice chairs the Supreme Court and works alongside 18 judges, even though a panel of 5 judges decides most cases. Additionally, there is a committee of 3 judges that decides what cases will be heard in the Supreme Court. Respecting criminal matters, court procedure generally involves the use of juries and also allows people without legal qualifications (lay judges) to sit with professional judges in the hearing of cases. Additionally, it is evident that judicial precedent (stare decisis) does not hold the same clout in the lower Norwegian courts as is the practice in common law countries, and generally the courts are not restricted by special rules regarding the admissibility of evidence. However, the rulings of the Supreme Court have a substantial effect on the lower courts and often deal with fundamental questions of law.

Prisons Norway’s correctional system embraces a philosophy of rehabilitation that is reinforced by initiatives instituted by the Ministry of Justice and the Norwegian Advisory Panel. An important goal of the correctional system is to equip offenders with tools that will allow them to become productive members of society upon their release. Two types of prisons exist in Norway—highor low-security facilities. High-security facilities, also known as closed prisons, have physical barriers such as barbed wire fences and are normally reserved for inmates who have been sentenced to more than two years’ confinement. Inmates in high-security facilities can be considered for


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transfer to a lower-security facility, also known as open prisons, once they have served a portion of their prison sentence. In 2009, there were 47 prisons in operation. Currently, there are more than 4,500 employees of the Correctional Service of Norway, with most working either in prison or probation. Employees must attend a two-year basic training program at the Prison Officer College where, for example, officers are trained in ethics, social work, human rights, criminology, psychology, and penal law.

Crime Classification of Crimes The General Civil Penal Code (hereinafter Penal Code) classifies crimes as either felonies (Part II) or misdemeanors (Part III) and only those who are 15 years of age or older, at the moment the crime was committed, are criminally liable for their actions. As a general rule, crimes that are punishable by more than three months’ imprisonment are considered felonies. Felonies include violent and property offenses such as burglary, embezzlement, counterfeiting money, robbery, rape, and murder. Other felonies include narcotics offenses and discriminatory or hateful expression. Misdemeanors are crimes that are punishable by up to three months’ imprisonment, although there are several exceptions. For example, pilfering carries a maximum penalty of six months’ imprisonment. Norway’s drug laws are considered some of the strictest in Europe and are outlined in the Penal Code and the Act on Medicinal Products. Possession of small quantities and use of drugs, in violation of the act, is punishable by up to six months of imprisonment. Section 162 of the Penal Code prohibits the manufacture, storage, and trafficking of drugs and the penalties vary from fines to prison sentences up to 21 years. Judgments about the seriousness of the offense are based on the type and quantity of drugs as well as the nature of the crime. Norwegian law does not explicitly classify drugs in any systematic fashion (by harmfulness, for example) and, therefore, treats cannabis the same as cocaine, heroin, and LSD.

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Crime Statistics Statistics were drawn from two data sources: (1) Statistics Norway provided data on crimes reported to the police in 2008, and (2) the International Crime Victims Survey (ICVS, 2004/2005 sweep) furnished data on criminal victimizations for 2003. To facilitate meaningful comparisons between countries, the authors have computed standardized crime rates per 100,000 residents using population totals reported by Statistics Norway (as of January 1, 2008, there were 4,737,171 people living in Norway). In 2008, there were a total of 386,251 offenses (8,153.62 per 100,000) reported to the police, of which 264,199 were felonies (5,577.14 per 100,000) and 122,052 were misdemeanors (2,576.47 per 100,000). In terms of total offenses reported to the police, the 2008 figures are at their lowest since 1996. Focusing on select crimes, Statistics Norway reported 34 murders (0.71 per 100,000), 944 rapes (19.92 per 100,000), 1,229 robberies (25.94 per 100,000), 3,362 housebreaking and burglaries (70.97 per 100,000), and 6,942 automobile thefts (146.54 per 100,000) in 2008. In terms of crime trends, total murders have stabilized since peaking at 51 in 2003; rapes have increased almost threefold since 1993; robberies are at the highest levels since 1993; housebreaking/burglaries have decreased substantially since peaking in 2000; and automobile thefts are at their lowest levels since 1993. As for drug offenses in violation of the Penal Code, there were 16,475 (347.78 per 100,000) offenses labeled as “crime of narcotics” and 1,072 (22.62 per 100,000) considered “serious crime of narcotics,” while narcotic offenses in violation of the Act on Medicinal Goods totaled 19,191 (405.11 per 100,000). Among the offenses in violation of the act, 60 percent were for use of narcotics, 36.5 percent were reported as possession of narcotics, and 3.5 percent were listed as other. With respect to trends in reported drug offenses, all categories of narcotic offenses have increased since 1993. In particular, “crime of narcotics,” “serious crime of narcotics,” and “use of narcotics” has nearly tripled.


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Additionally, there has been a sixfold increase in “possession of narcotics” offenses since 1995. Since not all crimes are reported to and recorded by the authorities, it is particularly useful to examine victimization surveys to tap into the dark figure of crime. In terms of criminal victimizations, the ICVS program reported that 27 percent of participants were victimized in 2003 for a selection of common crimes: car theft, theft from a car, car vandalism, theft of a motorcycle, theft of a bicycle, burglary, attempted burglary, robbery, personal property theft, sexual incidents, and assault/threat. The prevalence of criminal victimization is higher as compared to the 1989 ICVS sweep (21.3%). Finally, there are geographic variations in criminal offending in Norway that correspond to population density. Oslo, for example, has the highest reported felony rate (11,440 per 100,000) as compared to any other county with 2,000 inhabitants or more. Further analyses reveal that the mean felony rate for counties that have fewer than 75 percent of their population living in urban settlements is significantly lower (37.42 per 100,000) than as compared to counties with more than 75 percent of their population residing in urban settlements (59.16 per 100,000). As for variations in types of crimes by level of population density, there are no significant differences for violent and property crime rates. However, narcotic offending rates are higher for counties that have more than 75 percent of their population residing in urban settlements (918 per 100,000) than as compared to counties with less than 75 percent residing in urban settlements (660 per 100,000).

Finding of Guilt Rights of the Accused Due to the results of a referendum in 1996, Norway is not yet a member of the European Union. However, it is a founding member of the Council of Europe and therefore legally bound by the European Convention of Human Rights (ECHR). The ECHR has binding authority over all member states and grants European citizens the right

to seek redress against human rights violations via the European Court of Human Rights located in Strasbourg, France. This is the general authority under which the fundamental rights and freedoms of Norwegians are enshrined. Therefore, the interpretation of Constitutional provisions and the actions of the state cannot contradict the ECHR. However, the Constitution and the Criminal Procedure Act (CPA 1981) still speak directly to the rights of the accused and the finding of guilt in criminal proceedings in Norway. Article 96 of the Constitution deals with the presumption of innocence and the prohibition of torture. This provision makes three statements. First, convictions can only take place if there is proper adherence to the process of law. Second, the accused must not be punished until the completion of a court judgment. Third, the provision strictly prohibits the use of torture during interrogations. The CPA 1981, last amended in 2006, gives a detailed description of the rights described above as well as the process of finding of guilt. It is stipulated in Section 90 that the accused must be informed of the nature of the charge and must be made aware of the fact that he or she has a right not to testify when attending court for the first time. Furthermore, according to Section 92, the person charged must be given the opportunity to refute the criminal allegations made against him or her. Despite the provision that the person charged has the right to summon witnesses, he or she may be asked to leave the courtroom while a witness is being examined in special situations where it is likely that the testimony may be affected by the presence of the accused (Section 245). However, the accused must be subsequently informed of the proceedings that occurred in his or her absence. Finally, Section 135 states that the person charged can be excluded from court proceedings if the content of the proceedings pose a national security risk. However, it is also stipulated that the accused must be made aware of the verdict, and there must be full disclosure of the defendant’s right to an appeal. The reasons for the decision and the conclusion of the judgment must also be communicated


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to the accused (Section 39), and the court is bound by the decision after the verdict has been delivered (Section 42).

RIGHT TO APPEAL Regarding the right to an appeal, the accused can generally lodge appeals against court judgments based on questions of fact and law. However, appeals to the Supreme Court can only be based on errors of law and cannot proceed without the consent of the court’s Appeal Committee. The Appeal Committee ultimately decides whether the substance of the appeal pertains to issues that have far-reaching consequences beyond the current case (Section 323).

TRIAL BY JURY It is noteworthy that the CPA 1981 does not grant the accused the right to a trial by jury. However, juries will be present to decide on questions of guilt in felony cases tried in the High Court that attract a sentence of more than six years.

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prosecution of all criminal cases but the majority of offenses, mostly minor crimes ranging from property crimes to falsification of documents, are handled by the police prosecuting authority. Prosecution of more serious offenses, such as murder, is handled by the DPP and public prosecutors.

Alternatives to Trial There are many instances where a formal trial can be avoided and Norway relies heavily on this process. According to Section 248, the district court may decide on a matter summarily in the absence of an indictment or a hearing. This provision applies to cases that can be settled by arbitration, criminal acts that are not punishable by a sentence that exceeds 10 years, and traffic offenses in which the accused pleads guilty. These matters can also be resolved when a judicial official or a police officer serves a penalty writ to the accused that will only require the payment of a fine, and after the fine is paid, there are no further judicial proceedings (Section 255).

Pretrial Incarceration RIGHT TO CHOOSE AN ATTORNEY Section 94 highlights the general rule that at every stage of a criminal case, and at every stage of the judicial process, the person charged has a right to defense counsel of his or her choosing. Exceptions and limitations to this rule arise in the district court with respect to minor offenses such as traffic violations, or in cases where the person charged is fully aware of his or her rights and makes a confession that is corroborated by evidence. Furthermore, if the accused does not choose defense counsel, the court will appoint a permanent defense counsel in proceedings where it is warranted (Section 103).

Prosecution The prosecuting authority consists of three levels. The director of public prosecutions (DPP), public prosecutors, and the police prosecuting authority are all responsible for handling prosecutions. The DPP is ultimately responsible for directing the

After a person has been arrested he or she will appear before a court of first instance with summary jurisdiction. At this stage it is decided whether or not the person should be remanded in custody. The CPA 1981 stipulates that pretrial incarceration must not exceed four weeks, and it insists that persons who are remanded in custody must be held for as short a time as possible (Sections 184 and 185). Additionally, persons cannot be held without charge unless it is legally justified and it is within a reasonable time period.

Juveniles The juvenile justice system in Norway is still in the stages of development. Despite the fact that juvenile offenders charged with murder can be tried in ordinary courts, the overwhelming majority of cases are handled and determined by municipal juvenile welfare boards. The juvenile welfare boards comprise five members who are each elected by the


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municipal council to serve a four-year term. Standard procedure for a juvenile case is that the parents’ right to custody is suspended, and the juvenile offender is placed in a youth center or a psychiatric institution pending further recommendations from the child welfare office. This office functions in an advisory role to the welfare board and is responsible for communicating all of the facts of the case prior to a quasijudicial hearing. Some critics have contended, however, that juvenile justice in Norway is too harsh and does not provide opportunities for an appeal and bemoan the fact that juveniles seldom appear before the board with an attorney. Additionally, some have suggested that there needs to be more oversight in regard to how long juveniles must be “detained” in youth facilities before it is determined that treatment was successful.

1980s. Prison capacity is about 3,600 and the total prison population, on any given day in 2009, was approximately 3,400 inmates. Recent data show that the vast majority of those sentenced to an unconditional prison term are there for driving under the influence of alcohol (22%), a drug offense (14%), larceny or motor vehicle theft (13%), or a crime of violence such as an assault or homicide (12%). It is also interesting to note that the average amount of time spent in custody is about 70 days and that more than half of new entrances to prison are shorter than 60 days. Currently, female prisoners represent about 6 percent of the prison population, less than 1 percent of inmates are juveniles under the age of 18, and approximately 28 percent are foreign nationals.

Prison

Punishment Types of Punishment Norway abolished the death penalty in 1905. The harshest penalty currently allowed for the most serious of crimes, such as premeditated homicide, is 21 years of confinement. Other crimes that are eligible for the maximum prison sentence include rape and narcotic offenses deemed to be very serious. Criminal penalties, other than imprisonment, include payment of fines, community sentences, imprisonment, and suspended prison sentences. According to Statistics Norway, in 2007, fines and unconditional prison sentences were the most prevalent forms of punishment for felony convictions. Suspended sentences (with or without a fine imposed) are the next most common disposition, followed by community sentences. Offenders who receive community sentences are expected to perform 30–340 hours of unpaid service that is beneficial to the community. In the event offenders do not fulfill their service commitments, they may be sent to prison to serve a subsidiary sentence.

IMPRISONMENT Norway’s incarceration rate in 2009 is approximately 70 per 100,000 and has increased steadily since the

As described by the Norwegian Correctional Services, each prison presents many opportunities for paid work, education, training, and rehabilitative programs to all inmates. Prisoners are required to either work or attend school. Treatment programs are offered individually or in groups and provide the knowledge, techniques, and motivation for changing lives by, for example, improving coping skills, confronting substance abuse, and managing anger or stress. Additionally, guards are expected to be actively involved in the rehabilitation process via a personal officer scheme. Under this system, correctional officers may personally supervise and motivate inmates by serving as role models and advisors through daily contact, personal conversations, and follow-up. Prisons also offer inmates an assortment of physical, recreational, religious, and cultural activities. For example, Oslo Prison, a high-security facility, publicizes events that inmates have involved themselves with recently, including a televised preelection political debate that centered upon crime policy and a Christmas concert with the crown princess of Norway in attendance. Other privileges afforded to inmates include access to electronic devices, such as televisions and radios, and other forms of entertainment, such as magazines, in their prison cells.


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Inmates also have a right to make phone calls (up to 20 minutes per week) and written correspondence (mail), and receive personal visitations from family and friends. Normally these activities are carefully monitored by correctional staff unless the correspondence or meeting is with an attorney. Prisoners are also granted the right to file complaints that are heard by the prison board first, then, if necessary, the prison governor, and finally, the regional director. Additionally, inmates have the right to be outdoors for a minimum of one hour a day. Finally, it is interesting to note that inmate opinions matter to correctional authorities. Surveys have been administered to inmates to elicit feedback about their confinement experiences as well as to identify ways in which to improve correctional services.

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make a gradual transition from full custody to complete independence. However, the transfer may be denied if there is reason to believe the inmate will commit a criminal act, attempt an escape, or disrupt the peace of the institution. Transfers to more restrictive facilities are discouraged unless that it is determined to be absolutely necessary. Prisoners may also request a transfer to execute their sentences at home after serving at least half of their original sentence. This type of transfer is permitted if the prisoner has a permanent residence and is employed or being trained. Transfers of this kind typically require additional conditions that must be met. For example, the inmate may be asked to continue pursuing a course of mental health treatment or participate in correctional programs.

EXTRADITION LEAVE OF ABSENCE The Execution of Sentences Act allows prisoners the opportunity for both day releases and short leaves of absences. Day release permits inmates to work, train, or otherwise participate in correctional programs off prison property. Short leaves of absences are permitted for up to 24 hours if justified while compassionate leave requests, to visit an ailing relative, for example, can be granted for longer periods of time.

RELEASE Inmates are normally released from confinement after serving two-thirds or at least 60 days of their sentence. If there is reason to believe that the prisoner will commit another crime while on probation, then consideration for early release can be revoked. Should an inmate breach the conditions of probation, he or she may be sent back to prison to serve the remainder of the sentence.

TRANSFER Inmates who begin their confinement in highsecurity facilities are normally transferred to lowersecurity prisons a year before they are expected to be placed on probationary release to allow them to

Norway has extradition agreements with many countries. In particular, Norway has firm extradition agreements with other Nordic countries. Norwegian nationals are able to serve their sentence in Norwegian correctional institutions if they have been convicted of a crime in Denmark, Finland, Iceland, or Sweden. The same applies to nationals of these countries who are convicted of a crime in Norway. Norwegian nationals cannot be extradited. While Norway does cooperate with many foreign countries with extradition requests, Norwegian authorities reject petitions if the person is at risk of being tortured, sentenced to death, or other humanitarian concerns arise. For example, the Norwegian Supreme Court unanimously refused to extradite a drug trafficker, accused of smuggling 50 tons of hashish to the United States, because it argued that prison conditions in America were inhumane. Tony R. Smith, Vaughn Crichlow, and Steven DeStefano Further Reading Bertnes, Pål A. Legal Information in Norway and the Faculty of Law Library at the University of Oslo: http://www.ub.uio.no/ujur/publikasjoner/ skriftserie/13/index.html.


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Bygrave, Lee. (1994). “Overview of Norway’s Criminal Justice System.” In The World Factbook of Criminal Justice Systems. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Courts of Norway, Domstol Administrasjonen: http://www.domstol.no/upload/DA/Internett/ da.no/Publikasjoner/Domstolene%20i%20 Norge_ENG_OPPSL.pdf. Criminal Procedure Act with Subsequent Amendments: http://www.ub.uio.no/ujur/ulovdata/lov19810522-025-eng.pdf. Norwegian Correctional Services: http://www. kriminalomsorgen.no. Statistics Norway: http://www.ssb.no.

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

Background Contemporary Poland is a country of 312,685 square kilometers (120,727 square miles) territory and population of 38,115,000 in 2007. Poland’s history in the past 200 years has been quite turbulent. It was only in 1918 that Poland was able to regain independence, as a consequence of World War I, the collapse of all three partitioning powers, and the Versailles Treaty. One of the most serious tasks facing the so-called Second Republic (1918–1939) was to reestablish the national legal system. In the case of criminal law this happened relatively quickly, as the new Code of Criminal Procedure was adopted in 1928 and the new Criminal Code in 1932. The former was influenced by the French example, although Prussian and Austrian

influences were noticeable. The latter, considered a very modern and original piece of legislation, remained within the framework of German legal concepts, and in particular of the so-called sociological school of criminal law. These developments were interrupted again in 1939 by Nazi Germany’s aggression, followed immediately by that of the Soviet Union, and yet another partition of the country between the two totalitarian regimes. The aftermath of World War II had profound consequences for the legal system, especially for criminal law and the criminal justice system, as both became mainly tools of oppression used to protect interests of the Communist Party and ruling elites. This changed somewhat after 1956. Liberalization of the system meant abandonment of outright terror as a method of government and rejection of most vivid excesses. Nevertheless, the political system remained authoritarian in its essence, and socialist criminal law was used in Poland until the end of the 1980s for the purpose of political repression. This could be seen not only in the wide use of the death penalty, but also in the large prison population and lack of effective alternatives to imprisonment. In the area of criminal procedure it meant lack of judicial independence, weak mechanisms to protect the rights of the accused, and crucial influence exerted by the police and public prosecutor. Despite an unquestionable “sovietization” of the criminal law and criminal justice system, this process in Poland was probably still less farreaching than in some other neighboring countries. For instance, prewar criminal codes remained in force until the year 1969. This was unusual, as in other countries so-called capitalist criminal legislation was usually almost immediately replaced by a new, “progressive” one. Of course, communist authorities supplemented the old codes with various additional and special legislations. But the codes themselves remained in force, which for many years prevented direct introduction of various legal concepts of Soviet provenance. The prewar codes were replaced only in 1970. But even the new codes were not completely isolated from their prewar predecessors.


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Carrying a banner that reads, “We want the reinstatement of the death penalty,” taxi drivers demonstrate in the northwestern city of Szczecin, Poland, November 21, 1998. The taxi drivers, who are protesting a series of murders of their colleagues, demand reinstatement of capital punishment, which was abolished by Poland’s new penal code in September 1998. (AP Photo/PAP, Jerzy Undro)

Political and Social Context of the Criminal Justice System Since the fall of the communist regime in 1989, a process of political, social, and economic change, building democratic institutions, moving to an open society and market economy was started in Poland. This constituted, first of all, an attempt to cast off the Soviet inheritance, and to join, or as some prefer to say, to rejoin in every respect the Western world. Certainly this process culminated in Poland becoming in 1997 a NATO member, and in 2005, a member of the European Union. All this applied equally to the specific areas of crime and criminal justice. As a result of the communist rule, Poland had no chance to undergo a specific “civilizing process” of penal policy that took place in Western Europe after World War II. During the 1990s, Poland was confronted with completely new challenges, namely, serious

quantitative and qualitative changes in the phenomenon of crime. Like other countries of the region, Poland experienced an almost constant substantial growth of crime. Crime changed also in qualitative terms, as organized and serious economic crime started to flourish amid economic transformation and privatization. Also street crime changed significantly. Violence, including its serious forms involving firearms—something unheard of before 1989— became much more common. Juvenile delinquency, traditionally dominated by petty property offenses, started to be more violent, and to grow in its volume. Also, drug problems, although not completely unknown earlier, established themselves in a pattern fairly similar to that of the Western world with all its consequences: from illegal drug trafficking and dealing to public health and public order problems. This took place amid radical economic reforms, which brought originally an economic slowdown, a drop of real income, huge unemployment, and


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“deindustrialization” in the areas of heavy industry, coal mining, and similar industries. All this had significant influence on crime and the criminal justice system during the 1990s. Crime became a matter of serious concern for politicians, media, and the public, and Poland became a country characterized by a very high level of fear of crime. This influenced public perception of crime and punishment, meaning growing punitive attitudes, including widespread public support for the death penalty. During the first half of the 1990s reforms went on relatively undisturbed; at that time crime control policies were dominated by experts and were not subject to intensive political debate. However, at the end of the 1990s reform efforts started to encounter serious obstacles, as political parties began to indulge increasingly in “law and order politics” and “law and order rhetoric.” Experts started to lose their influence and crime control policies became more populist. One can speak about two contradictory tendencies in the area of crime control since 1989. On the one hand, there was a visible tendency for liberal criminal law reforms, resulting first of all from the need to overcome the communist past in this area and to catch up with the tendencies in the Western part of the continent. This tendency culminated in the adopting in 1997 of a completely new penal legislation package consisting of three codes: Criminal Code (further on CC), Code of Criminal Procedure (CCP), and Code of the Execution of Punishments (CEP), all entered into force on September 1, 1998. They represented a modern, liberal, and human rights–oriented approach to crime control. On the other hand, the growth of crime and public concern with it resulted in pressure to return to punitive policies. The last tendency brought about in recent years several amendments to the penal legislation and attempts to change it even more thoroughly in a more punitive way (although the most radical of them were so far unsuccessful).

Court System, Public Prosecution, and the Police The court system in Poland consists of several types of courts dealing with various types of cases. Generally there are courts of three types, namely

the general courts, special courts, and the Supreme Court, which has a distinct character. To the category of special courts belong military courts (having jurisdiction over offenses committed by the members of the military) and administrative courts. Public prosecution in Poland is the task of the special public prosecution agency called prokuratura. It is a hierarchical four-tier system parallel to the court system: regional, district, appellate, and country prokuratura offices. The minister of justice is at the same time prokurator generalny, general public prosecutor, having broad powers of supervising and directing activities of all prokurators or public prosecutors in the country, including direct interference in any ongoing investigation or prosecution. The last has been strongly criticized in recent years, as it makes the system extremely prone to political interference in investigating cases. Because of this, legislation to separate prokuratura from the Office of the Minister of Justice is pending currently in Parliament. Police in Poland are a national, centralized force organized as a hierarchical structure. Police units are organized according to the administrative structure of the country. This means there is the main police headquarters in Warsaw, 16 woiwodship police headquarters plus a separate police headquarters for Warsaw, and 321 county police headquarters (bigger cities have separate city police headquarters, and on their territory there are additionally several police precincts). On December 31, 2007, there were 98,102 police officers in Poland, which means that there were 5,207 vacancies, as 103,309 police officers posts existed officially. The above numbers mean 257 police officers per 100,000 inhabitants. Despite the centralized character of the Polish police force since the beginning of the 1990s, efforts continue to give it a more local character. So far these attempts have not been very successful. They are limited to separate forces, created in all major cities as well as in many towns, called municipal guards (they have no right to call themselves police). Municipal guards constitute primarily public order police. They enforce local laws, impose fines, and have the right to investigate and bring charges


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in cases of petty offenses. They have limited powers compared with the “regular” police. There are about 9,000 municipal guards in 500 Polish cities and towns.

Crime Classification of Crimes The Polish legal system differentiates between several categories of acts prohibited under the threat of punishment, depending on their gravity, or— under the existing legal terminology—degree of social harm resulting from them. Criminal offenses and contraventions—or petty offenses—are, in a legal sense, two absolutely separate categories, the latter constituting a separate category that is not considered to constitute “real” offenses. Both are regulated in separate codes. Being convicted for a contravention does not result in a criminal record. Contraventions are not included in criminal records or in police statistics. Therefore, the overall statistical picture of crime in Poland is always a little bit misleading, as it does not include contraventions. Drug offenses are dealt with separately in the Drug Abuse Counteraction Act of 2005. It is a comprehensive act dealing with practically all aspects of substance control, prevention of drug abuse, and fighting drug trafficking. This act has mainly administrative character and includes provisions on legal turnover with drugs for medical and scientific purposes, cultivation of some plants (like poppy or hemp), as well as education, prevention, and treatment of drug abuse. It contains also a separate chapter with penal provisions, that is, definitions of drug offenses connected to illicit drug trafficking and use. The criminalization of the possession of small quantities of drugs for a person’s own use has been widely discussed over the years in conjunction with the development of the black market of illicit drugs around 1989. In 1997, the Drug Abuse Counteraction Act made possession of drugs to constitute in principle a criminal offense. But it provided also that persons possessing illegal substances in small quantities for their own use should be generally

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exempted from punishment, and proceedings in such cases should be dismissed practically automatically. This solution lasted for only three years, as in 2000 the law has been amended again to the effect that the punishment exemption clause was deleted. The Polish legal system provides for separate responsibility of juveniles. Children under 15 are not held criminally responsible and offenses committed by juveniles (persons between 15 and 18) are regulated by the Proceedings in Cases of Juveniles Act of 1982 based on the welfare model of juvenile justice and covering both substantive and procedural aspects of juvenile justice. Juveniles may be held criminally responsible only exceptionally in cases of the most serious offenses (e.g., homicide, rape, armed robbery), if the public prosecutor decides to use such possibility.

Crime Statistics Crime trends and patterns in Poland, like in other postcommunist societies, changed in a significant way over the past 20 years. Before 1989, Poland was considered a “low crime country.” Among the many factors contributing to the low official crime rate, two can be mentioned here. First was the differences in the structures of opportunity compared to developed market economies. Second was the “underregistration” of crime under communism, as the police and other state agencies indulged in various techniques aimed at limiting input to the criminal justice system. The real volume of crime was probably substantially higher than official statistics were showing. Since 1989, Poland underwent a real explosion of the registered offenses rate. Alone in 1990, the first year of political, economic, and social transformation, the registered offenses rate grew by more than 60 percent (from 1,140 in 1989 to 2,314 per 100,000 inhabitants). After a stable period, it started to grow again during the second half of the 1990s, in an even more substantial way, with the crime rate reaching its peak in 2003 (3,840). Since that year crime trends seem to have reversed, and Poland entered a phase of crime drop (3,354 in 2006). The crime rate in Poland is still rather low compared to other European countries. Paradoxically,


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and compared to other countries, Poland experiences a high level of fear of crime. Results of the International Crime Victims Survey conducted in Poland suggest that the proportion of unreported offenses is higher in Poland and in other countries of Central and Eastern Europe. Despite an increasing willingness of citizens to report victimizations, only about 30 percent of all offenses are reported to the police, while in many Western countries this proportion exceeds 50 percent. Despite significant changes since the fall of the communist regime in the numbers of registered offenses and their patterns, the overall structure of registered offenses remained fairly stable, and was dominated by property offenses. In recent years, they constituted on average 62 percent of all registered offenses. Offenses against life and health represent 2.2 percent of all registered offenses. Adding robbery and rape to this group increase the proportion to 5.4 percent (2006). Two changes are noticeable in recent years. First, the proportion of drug offenses has grown from insignificance to approximately 5.8 percent in 2006. Reasons for this increase include the criminalization of the possession of small quantities of drugs for personal use and a more proactive approach by the police. Second, the proportion of traffic offenses also increased up to 14.4 percent of all criminal offenses in 2006 (not counting minor traffic violations). Moreover, a single offense constitutes 12.9 percent of all offenses, namely drunk driving. In 2000, drunk driving was reclassified as a misdemeanor (earlier it constituted a contravention only), which resulted in an increase of crime statistics. As these do not register contraventions, the sudden inclusion of drunk driving significantly affected the overall structure of registered offenses.

Finding of Guilt Polish criminal procedure belongs to civil law or a continental system often referred to in AngloAmerican literature as an inquisitorial one. Preparatory proceedings may take two different forms, namely investigation and inquiry, the second one being more common. Investigation is conducted

by the public prosecutor (prokurator), yet it can be partially or totally delegated to the police. The investigation often relies on the police, with the exception of some serious cases (e.g., white-collar crimes, organized crime). However, major decisions are always the responsibility of the prosecutor. The inquiry is a simplified form of preparatory proceedings that is used in the vast majority of cases (i.e., those decided by regional courts and others involving custodial sentences up to five years). Inquiries are always independently conducted by the police, whereas some decisions have to be formally approved by the prosecutor. Preparatory proceedings may end in various ways, namely discontinuation of the case or decision to prosecute. Polish criminal procedure is governed by the principle of mandatory prosecution, and the public prosecutor has very little discretionary powers not to prosecute. Such possibilities exist only, but in a very limited way, in cases of petty offenses. There is no jury trial in Polish criminal procedure, but citizens may participate in the administration of justice as lay assessors. Cases are adjudicated either by a professional judge(s) or mixed panels of professional judges and lay assessors. Most cases are adjudicated by a single professional judge, except cases of felonies that are adjudicated by one professional judge and two lay assessors. The court’s president may always set a panel of three professional judges when the case is difficult. Cases involving life imprisonment have to be adjudicated by two professional judges and three lay assessors. Professional judges and lay assessors are completely equal members of a judicial panel. Trials are in principle public. The new CCP has recently introduced the possibility of “conviction without trial,” a concept similar to the Anglo-American plea bargaining. Indeed, a motion for a sentence without trial can be included in the bill of indictment. There should be no doubt regarding the circumstances of the case, and the attitude of the defendant should suggest that the sentence will be enforced. Interestingly, relevant provisions do not explicitly refer to an accused pleading guilty and courts are not bound by such agreements. Such convictions without trial are


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possible only for misdemeanors carrying a custodial sentence not exceeding 10 years. Parties are not in charge during the trial and the cross-examination of witnesses does not exist. The trial is led by the presiding judge who conducts most of the examinations using relevant information included in preparatory proceedings files. Despite the introduction, in the new CCP, of some elements borrowed from the adversarial trial (e.g., the order of interventions), the Polish criminal trial remains highly inquisitorial. Polish criminal procedure does not know separate decisions on guilt and punishment and final decisions always include the verdict and, when guilty, the sentence. Appeals can be filed against every court decision on the verdict and/or the sentence by the public prosecutor and the accused. Courts of appeals rule on facts and laws. Depending on the circumstances, they may change decisions of courts of original jurisdiction on merits or reverse these judgments and send cases for retrial under the original jurisdiction. Several rights of the accused have already been mentioned; most of them have a constitutional character (e.g., freedom and integrity, defense, legal assistance, prohibition of torture, compensation for unlawful deprivation of liberty). Provisions of the CCP also guarantee several rights to the accused (e.g., remaining silent, not testifying against himself or herself, and not telling the truth). The accused has the right to know charges against him or her from the beginning of the procedure and to be informed of all evidence collected against him or her. The accused has a constitutional right to defense and the right to be assisted by a counsel during both preparatory proceedings and trial, as well as during the execution of a possible sentence. The representation by a counsel is mandatory when the accused is a juvenile, physically handicapped (e.g., blind, deaf) or when his or her sanity is questionable. In such situations, the accused may always hire an attorney of his or her choice. If he or she doesn’t, the court has the duty to appoint an attorney who will be paid by the state. There is no general right to bail pending trial, and courts may use various “protective measures” (like

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pretrial detention, bail, or police supervision) to secure the presence of the accused during investigation or trial. But their application is not mandatory, and in a substantial proportion of cases no such measures are applied. The most serious protective measure constitutes pretrial detention and may be imposed by the court only, upon request of a public prosecutor. Pretrial detention is permissible, if the identity of the accused is unknown, he or she has no permanent residence, or there are good grounds to suspect that he or she may escape or try to influence witnesses or destroy or distort other evidence. It is possible to apply it if the accused is charged with an especially serious offense, but it is also prohibited to apply it in cases of offenses carrying punishment of no more than one year of imprisonment. The uses and abuses of pretrial detention are subject to constant debate in Poland. It is a common complaint that courts are too ready to accept prosecutors’ requests regarding preliminary detention, and prosecutors are too eager to have suspects in detention in the hope this may make them eventually confess. Consequently, about 25 percent of the Polish prison population consists in pretrial detainees. This is aggravated by the fact that Poland has serious problems with guaranties of speedy trial. In principle, first decision on preliminary detention may not exceed 3 months. But it may be prolonged by courts for up to 2 years, and under certain specified circumstances it is possible to prolong it even beyond that period (for a specified period of time), on the decision of an appropriate court of appeal. Such situations are by no means exceptional, and there are known cases of people spending in preliminary detention several years before investigation is finished, not to mention final judicial verdict. Generally, inefficiency and slowness (usually in very serious and complicated cases involving many accused, but sometimes also in very petty ones) constitute one of the gravest problems of the Polish criminal justice system. Both the long periods spent in preliminary detention and the enormously long time (in record cases up to 10 years) necessary to reach a final verdict constitute the most common ground for Poland being quite often convicted by the European Court of Human Rights. Despite


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various attempts to change this, both by legislative and organizational measures, the situation remains still rather unsatisfactory.

Punishment Under current Polish law, there are four basic kinds of punishment, namely, deprivation of liberty or imprisonment, deprivation of liberty with conditional suspension of execution or suspended sentence, limitation of liberty, and fine. The death penalty was abolished in the 1998 CC. Yet, in practice, it was no longer used. After 1988, an informal moratorium was introduced; this lasted till 1995 when a formal moratorium was introduced by Parliament. Deprivation of liberty or imprisonment may be imposed in principle for the duration from 1 month up to 15 years (lower and upper limits may be different by particular kinds of offenses, but cannot be lower than 1 month and higher than 15 years). Apart from this, in cases of some felonies (e.g., homicide), it is possible to impose either imprisonment for 25 years or life imprisonment. Imprisonment is imposed always in years and/or months. Execution of imprisonment sentences of up to 2 years may be conditionally suspended. Such suspended sentence is always accompanied by a trial period from 2 up to 5 years. Suspension of sentence may be accompanied by supervision by a probation officer, although in most cases it is not mandatory. It means that in a certain proportion of suspended sentences there is only the trial period without supervision. Suspended sentence may be also accompanied by various kinds of obligations for the convicted person, as well as—in cases specified by the law—by supplementary fine. Limitation of liberty constitutes an equivalent of community service known in many legal systems of the world. It may be imposed in cases of offenses carrying possibility of such a sanction, for a period from 1 month to up to 12 months. This sanction consists of the duty to perform unpaid work for the community (in a hospital, institution providing social services, or in a charitable organization). The work is to be performed for 20 to 40 hours per month (exact number is to be fixed in a sentence).

The code provides also for another form of this sanction, namely, deduction of 10 to 25 percent of monthly wages for the state treasury or community purposes. This form, amounting in fact to a special type of fine, may be imposed only if a person is employed. Finally, fines are imposed according to the dayfine system introduced by the new CC. It requires from the judge a two-step evaluation during the sentencing process. First, the number of (fine) days is to be established, within the limits of 10 (lowest) and 360 (highest). Then, the daily amount is to be established, again between 10 zlotys (US$5) and 2,000 zlotys (US$900). It is assumed that this system makes it easier to adjust the fine to the financial means of a convicted person. The day-fine system does not apply to supplementary fines accompanying suspended sentences, and—also possible in specified cases—accompanying immediate imprisonment. In such cases fines are always imposed as a concrete amount of money to be paid. Apart from the above-mentioned kinds of punishments CC provides for various additional penal measures, like, for example, deprivation of public rights, prohibition to perform a profession or occupy certain positions, withdrawal of driving license, confiscation of property, obligation to repair the damage resulting from an offense, making the sentence public in a special way, and so forth. These measures may be imposed parallel to punishment or also as sole sanctions, depending on specific circumstances ascertained in the law. They may be imposed for a specific period of time, from 1 to 10 or from 1 to 15 years. Under the communist regime imprisonment constituted no doubt the most common sanction. During the 1950s and 1960s, it amounted to more than 40 percent of all imposed sanctions. During the 1970s and 1980s, the proportion of prison sentences dropped somewhat, but still constituted well above 30 percent of all sanctions imposed by the courts. One of the consequences of this situation, that is, frequent use of imprisonment for relatively long periods of time, was an extremely high imprisonment rate (incomparable with any country of Western Europe at that time). This changed


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since 1989, as the proportion of imprisonment sentences started to drop. In recent years it amounts to about 10 percent of all sentences, or even less. This may be considered to constitute significant progress. However, it did not result in the expected drop of the imprisonment rate to the European average. Moreover, it contributed to the—often criticized— change in the role played by other kinds of punishment. The huge proportion of suspended sentences, which—as mentioned earlier—often mean simple suspended sentence with trial period only, but without any meaningful supervision by a probation officer (more often such sentences are accompanied by supplementary fines), was always considered to be somehow problematic. In recent years suspended sentences amount to about 60–65 percent of all sanctions. At the same time there are problems with broader application of such alternatives to imprisonment as fines and community service. Use of community service dropped significantly after 1989, mainly due to various problems with the organization of the execution of such sentences. Only in recent years have courts started to impose this sanction a little bit more often (in about 15% of all convictions), which marks a significant progress. The proportion of fines during the early 1990s was growing steadily. Paradoxically, after introduction in 1998 of the day-fine system, intended to stimulate use of this sanction, just the opposite happened, as the proportion of fines dropped sharply after that date. Only in recent years has it started to grow again somewhat, but it is still lower than in 1997. It is usually assumed that there were two reasons for this. First, judges may have been somehow reluctant to accept the new system of imposing fines, finding it to be too complicated. Second, introduction of the new system coincided with a sharp increase of the unemployment rate, which meant that courts were facing higher numbers of accused with very low or no income and because of this presumably were unable to pay fines (in such circumstances CC prohibits imposing a fine, to avoid fine defaulters being sent to prison). Nevertheless, broad use of suspended sentence is strongly criticized by some experts. It is claimed that simple suspended sentences have a very negative

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impact on the public perception of the criminal justice system in Poland. The public gets the impression that most of the offenders “get away” with the consequences of their acts, as suspended sentence is no “real” punishment. Of course, this is not completely correct, but it seems that Polish criminal law and its criminal justice system were unable so far to establish a firm pattern of using other alternatives to imprisonment such as fines and community service. In the judges’ mentality imprisonment remains still the sanction, even if suspended. In case they face offenders who do not necessarily deserve to be sent to prison (and this is probably the majority of those accused of offenses, especially petty ones), they use predominantly the suspended sentence. It is such conservative attitudes that should be changed first of all, although changes in legal regulation of the sentencing process and development of a meaningful probation system may be of even greater significance. In recent years many politicians, and media, but also some experts, complain about the alleged leniency of the Polish criminal justice system. It is generally true that since 1990 the enormous punitiveness of Polish criminal law has been reduced somewhat. Unfortunately, the absolutely necessary reductions in the severity of penal sanctions were accompanied by a significant growth of crime. In consequence some claim that the policy of liberalizing criminal law and the criminal justice system initiated after 1989 was completely unjustified, even irresponsible, and contributed significantly to the growth of crime. American-style crime control policies, mass imprisonment, the “three strikes and you are out” rule, and similar ideas are portrayed as examples of “good practice,” which resulted in significant reduction of crime and are presented as a panacea also for Polish problems. Although such views are opposed by the majority of experts, in recent years there were several attempts to change sentencing rules and patterns, to increase significantly the severity of sanctions in the Criminal Code and to introduce even draconian punishments. So far none of these attempts was successful, but penal populism plays an increasing role in the area of crime control in Poland.


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Such attempts to increase the level of repression are hardly justified as the Polish criminal justice system is still quite punitive, especially by the standards of Western Europe. Problems result mainly from the fact that a substantial proportion of petty offenders and perpetrators of medium-weight crimes are sent to serve prison sentences, instead of being treated with alternatives to imprisonment. This results in one of the highest imprisonment rates in Europe (372 per 100,000 inhabitants in the peak year 1973). There are several interesting features of the long-term trends in imprisonment in Poland. First, enormous dimensions of the prison population under the communist regime were accompanied by frequent, violent shifts of the curve. This was due to the fact that prisons suffered at that time under the consequences of permanent, severe overcrowding. This forced authorities to use quite often general amnesties as a means of dealing with this problem. However, the criminal justice system was usually able to fill in the consequences of every amnesty within 3–4 years, and soon new amnesty was necessary. In the years 1989–1990 the prison population dropped significantly (to 106 in 1990), mainly due to yet another amnesty act adopted in the fall of 1989 (this was the last general amnesty in recent Polish history, adopted after the fall of communism). During the 1990s the imprisonment rate remained much lower than during the communist time, although it was still quite high by European standards. Despite some efforts it was not possible to reduce the prison population further, and at the end of the 1990s the reverse trend occurred. Mainly due to more restrictive policies on granting conditional release or parole (possible in principle after serving half of a sentence), initiated at the turn of the century, the average length of time served started to grow, and with it, the imprisonment rate. Since the beginning of the present decade, the imprisonment rate went up significantly, and now belongs to the highest not only in EU, but also in Central and Eastern Europe (220 in 2005). As a consequence prisons are facing again a serious overcrowding problem. According to data of the Polish prison administration on December 31, 2007, in all prisons there were 78,883 places

but 87,462 inmates, which means that prisons functioned almost 11 percent over their maximum capacity (it is necessary to stress that during that year this indicator was much higher, and reached usually about 20%). Despite this every government for the past 10 years actually did very little to deal in a serious way with the problem of prison overcrowding by means of introducing necessary sentencing and other reforms. In December 2007 there were altogether 187 penitentiary institutions in Poland. Of that number 85 were prisons where convicts were serving their sentences, 70 were detention centers accommodating persons in preliminary detention pending investigation and trial, and 32 were “external units,” or institutions of special, usually open, character. The communist prison system was notorious for its severity, stiff regime, and very poor conditions in every respect, aggravated by overcrowding. This resulted in various negative consequences, including widespread existence of gangs within prisons referred to in Polish literature as the “second life” phenomenon. It meant inmates with long prison experience, belonging to gangs dominating other inmates, and prison life in general, and being able to strike various “deals” with the guards. It resulted also in problems with prison violence, which escalated during the 1980s into several serious prison riots with loss of lives and serious damage to property. Because of this prison reform constituted a very important task after 1989. Necessary reforms were introduced very quickly immediately after the fall of the communist regime. As the amnesty of 1989 reduced significantly the prison population, it was possible to close some of the oldest prisons with the worst conditions and all local jails administered by the police. Subsequently broad prison reform has been introduced. Rules and regulations were relaxed significantly, and inmates obtained first of all much broader possibilities of contacts with the outside world. During the communist time there were very stiff limitations on the number of visits, letters, packages, and other forms of contacts per month, as well as purchases in prison canteens (depending on the type of regime). Most of them were lifted after 1990. Also—quite controversial among


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the public—the policy of generous granting of furloughs has been introduced (much restricted in recent years). Broad changes also occurred in prison administration. Some older officers and guards had to leave the service, and relations between inmates and guards became quite different with the stress on human rights and dignity of inmates. This changed prison conditions significantly, eased tensions, and reduced the phenomenon of “second life.” Generally speaking prison reform of the early 1990s is considered to be one of the most successful reforms in postcommunist Poland, which changed deeply the realities of the prison system. These changes are reflected in the CEP of 1997, which stresses issues of prisoners’ rights, prisoners’ dignity, and imposes broader judicial control over penitentiaries. Unfortunately, over the last 10 years the prison system has faced several new challenges. Due to growing numbers of convicts and detainees, overcrowding has become the problem again. Prisons are filled beyond their capacity, which means that security-related issues start to dominate over treatment and rehabilitation of offenders. There are growing numbers of inmates considered to be dangerous. There are some serious violent offenders, but foremost among them are members of organized crime groups serving usually long sentences. This particular group of convicts seems to have changed in a very significant way the functioning of Polish prisons. Polish penitentiaries face also the growing problem of drug use and abuse, as it is practically impossible to control effectively the smuggling of illicit drugs if inmates are to maintain contacts with the outside world. Krzysztof Krajewski Further Reading Frankowski, Stanislaw, and Andrzej Wasek. (1993). “Evolution of the Polish Criminal Justice System after World War Two: An Overview.” European Journal of Crime, Criminal Law and Criminal Justice 1(2): 143–166. Krajewski, Krzysztof. (2004). “Crime and Criminal Justice in Poland.” European Journal of Criminology 1(3): 377–407.

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Krajewski, Krzysztof. (2004). “Polish Drug Policies: Between ‘Hard’ and ‘Soft’ Prohibition.” Journal of Drug Issues 34(3): 587–622. Krajewski, Krzysztof. (2006). “The Juvenile Justice System in Poland.” In Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems, edited by Eric L. Jensen and Jorgen Jepsen, pp. 155–186. Portland, OR: Hart.

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

Background For more than 30 years Portugal has been a democratic republic based on the rule of law with a clear separation between legislative, executive, and judicial powers. It has been a member of the European Union (EU) since 1986. After the military dictatorship of Salazar ended in 1974, free and multiparty elections forged a new Constitution in 1976, replacing the preceding one of 1933. Under this new constitutional framework, a new Criminal Code (CC) emerged in 1982. A new Criminal Procedure Code (CPC) was also introduced in 1988. It represented a transition to a model of accusatorial legal system with certain judicial investigative powers. In spite of three profound amendments in 1995, 1998, and 2007, the modular structure of the CPC has been retained: the public organism charging the defendant is separated from the one trialing the case, thus ensuring impartiality and independence in the process of assessing criminal responsibility. The Public Prosecution Service, the Ministério Público (MP), conducts pretrial investigations, representing the state, and is regulated


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in accordance with the Constitution and the CPC. However, the Portuguese system is not a pure accusatorial model such as in common law. Judges are expected not only to base their decisions on the proofs furnished by the parties, but also themselves to gather other evidence as relevant.

Crime Classification of Crimes Apart from criminal offenses expressly described in the CC and other criminal legislation, there are also violations that are regulated by “administrative penal law,” which punishes offenses through monetary coercive measures and accessory penalties regulated by various administrative agencies. Criminal procedure law identifies “public,” “semipublic,” or “private” offenses. “Public crimes” are the ones in which major “legal interests” are violated, such as life or legal state goods, insofar as punishment is deemed necessary, even against the victim’s will. “Semipublic crimes” are those that demand a concrete act from the offended person showing he or she wants criminal action against the offender. Only after pressing charges can the MP carry out investigations. “Private offenses” are those in which the MP’s legitimacy to continue penal action depends on the previous criteria, to which is added the need to present a private accusation in the end of the investigative phase. In these crimes, victims must constitute themselves as assistentes. The status of assistant to the public prosecutor entails the right to intervene during the two pretrial phases by offering evidence or petitioning other investigative measures or to appeal from a decision even if MP does not. Victims in this particular role have to be represented by lawyers. One should underline that in all types of crime, investigative powers are exercised by public prosecutors (and police) and not by private citizens. Note that there is no real burden of proof in Portuguese criminal procedure law. The MP supports its version of the facts written in the accusation and the defendant, suspect, or “person of interest” points out contrary elements. However, in a state of

judicial doubt, magistrates have to decide according to the principle of the presumption of innocence, if prosecution cannot convince judges of the fact that the defendant has committed the offense. The CC is divided into two parts: a general and a special one. The first contains not only the “general doctrine of the crime” (i.e., the elements that constitute the violation of the criminal law: its description, the illicit behavior, and guilt), but also legal consequences—penalties and “security measures.” Specific types of criminal offenses are described in the Special Part of the CC and in other statutes (from such diverse areas as the national economy’s protection, public health, environment, driving, enterprises, and stock exchange markets). The CC defines five main types of crimes: • Crimes against persons involving life protection (e.g., murder) and, in defined conditions, intra-uterine life. In 2007, after a disputed referendum, the law was changed to permit women to interrupt pregnancy by their option, in an appropriate medical facility, during the first 10 weeks. Assaults, domestic violence, and crimes against personal freedom (e.g., threat, coercion, kidnapping, slavery, human trafficking) are examples of other crimes against persons. Crimes against honor (e.g., defamation, offenses to a deceased person’s honor), against privacy (e.g., house trespassing, mail and telecommunications’ violation, secrecy violation), and other personal legal interests (e.g., illegal recording and photography) complete the catalog of crimes against persons. • Patrimony wrongdoings include crimes against property (e.g., theft, robbery, damage, embezzlement) and crimes against patrimony in general. The latter are connected to frauds (false pretenses). • Crimes against peace, cultural identity, and personal integrity. Offenses violating international humanitarian law are not subjected to any statute of limitations (e.g., genocide, crimes against humanity—slavery, deportation—and war crimes).


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• Crimes against life in society that include offenses against family (e.g., bigamy, parental kidnapping), religious beliefs, and violation of respect of the dead (e.g., corpse profanation), forgeries, fake coin, arson, crimes against nature (e.g., pollution), crimes against the security in using means of transportation, reckless driving, and driving under alcohol or other drugs’ influence. • Crimes against the state. These include offenses against national sovereignty, such as treason, violation of state’s secret, espionage, unlawful exercise of diplomatic office. Also within the range of crimes against the state, there are those against rule of law’s enforcement and electoral crimes. Closely connected to these are offenses committed during the exercise of public office or activities, such as corruption, abuse of authority, and mail and telecommunication secrecy violation. “Intentional crimes” have graduations in terms of offense seriousness concerning the personal and individual blame for the concrete action (or omission) performed. Guilt cannot be ascribed if the criminal lacks responsibility (in terms of age and mental condition) or if the offender had acted under mistaken knowledge. Negligent crimes are those in which the defendant has violated an “objective duty,” that is, all citizens are expected to perform their behaviors in such a manner that they do not constitute special dangers to others. Negligence can only be affirmed in situations in which the offender acts contrary to how others could reasonably be expected to behave. The criminal justice system and law administration in general are considered one of the less developed areas in Portuguese democracy. Law cases are generally longer than what would be a “reasonable time” (as the Portuguese Constitution proclaims, repeating the European Convention on Human Rights), not only due to material conditions of scarcity, insufficient number of judges and prosecutors (in the present years there has been an increase in public recruitment), but also owing to a burdensome judicial tradition, many times favored

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by complex legislation. Most recently, controversy has arisen on the considerable increase of judicial costs. Particular challenges placed to Portuguese criminal law include money laundering, corruption, drug offenses, and gun control. Although being a country with strict regulations on the use of guns, recent years have shown they are more widespread than originally thought, moving the legislator toward enacting a new law with more severe penalties.

Age of Criminal Responsibility and Juveniles in the Justice System Portugal enacted the Child Protection Law in 1911, which provided a different legal framework in dealing with juvenile offenders. The age of criminal responsibility was set at 16 years and the first juvenile courts were created together with the correctional institutions for juveniles. The essence of the legislation was that a juvenile delinquent under 16 should not be treated as an adult offender in need of punishment but as a child who needs to be protected and educated by the state. This system of “paternal” justice was subsequently reformed in 1962 and 1978, accentuating the main features of the protection model. This model emphasized individualized sentencing (systematic consideration of the minor’s living conditions and personality), reliance on child care experts and youth workers and informality of handling. All the measures were indistinctly applied both to children simply in need of protection and to deviant or delinquent youngsters. Their duration was indeterminate. As the intervention was intended to protect instead of punish the minor, the rights and guarantees before the law were not provided. The most recent juvenile justice reform was introduced in 1999 with the Lei Tutelar Educativa (LTE, Law nr. 66/99, September 14), which dealt with juvenile delinquents between the ages of 12 and 16. The provisions of the LTE regime can be enforced until the age of 18 for deeds committed before the age of 16 and that can be executed until 21. Minors under the age of 12 who have committed an offense punishable by criminal law cannot be held responsible before LTE. Those cases evaluated as


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endangered minors are referred to administrative agencies and social welfare authorities. This new legislation, which came into force in 2001, reinforced the role of the public prosecutor. Under certain conditions the prosecutor can dismiss the case or he or she can refer the case to the juvenile judge if he or she assesses the need of a judicial measure. The cases referred to the judge can be handled in an informal session, which happens in most cases, or in a formal one. The aims of the 1999 reform were to ensure the basic principles of due process (legality, legal assistance, proportionality, determinate sanctions) and to react to the “leniency” of the protection model. Nevertheless the primacy of educational aims over punishment was maintained. The educative measures are ranged by gravity from admonition to detention order in appropriate facilities for minors. The detention order of less than three months and up to two years (three years in exceptional cases) provides for three types of regimes (open, semi-open, and closed), the most common being the semi-open regime. The situation of young adults (from the age of 16 to less than 21) falls within the penal jurisdiction. In 1982 an intermediate regime was created regulating the sanctioning of young adults. Guided by a concern to put minors over the age of 16 under the sway of criminal law but wishing to spare them the hardships of prison, the statutory order provides for reduced prison sentences and gives the judge the possibility of replacing prison sentences of less than two years with the placement in a detention center. This regime has not truly been applied since the detention centers were never built. That means that young people under civil majority age (18 years) continue to serve their prison sentences in common prisons, without any true distinction between their conditions and those for adults.

Drug Offenses Trafficking and criminal organizations connected with illicit substances trade are considered one of the most serious offenses in Portugal, especially because of the country’s geographical location, as a

gateway to Europe of drugs coming from, among other locations, South America. If trafficking occurs in jails (a major concern in Portugal) or if it is carried out by medical doctors or other professionals, punishments are much more severe. In contrast “trafficker-consumers,” that is, persons who traffic drugs mainly to have money to buy them for their own consumption, have less harsh penalties. Since 2001, Portugal decriminalized, through the law (not through guidelines), drug use and possession of all drugs (defined as the average individual quantity for 10 days’ usage for one person) for personal use, including cocaine and heroin (Law nr. 30/2000, of November 29). The behavior remains illegal but it is completely removed from criminal realm. The violations of those prohibitions are subjected to the application of administrative sanctions. However, drug trafficking is still a criminal offense. Decriminalization occurred in a moment when Portugal presented one of the highest rates of heroin consumption in Europe. Contrary to what might have been expectable, its effects do not support an increased drug usage. In fact, a general decrease in the consumption of heroin and cocaine was observed, alongside with an increase in the consumption of cannabis and methamphetamines. In terms of the justice system, after the law, the level of drug trafficking (convictions) has declined. The sanitary conditions, using deaths related to AIDS and those related to drugs as indicators, have considerably improved. For an in-depth analysis of the Portuguese drug decriminalization, see Agra 2009.

Crime Statistics The type of crimes most frequently recorded by the police in 2007 were theft (161,150, or 1,590 crimes per 100,000 population), of this theft from vehicle (39,781), theft of vehicle (23,986), and burglary (22,343) are the most common. In addition, road crimes such as driving without legal permission (21,313) and driving under the influence of alcohol (20,612) were also very frequent. According to the Portuguese Directorate-General for Justice Policy–Ministry of Justice, the following number of crimes were reported by police in 2007:


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Crimes Reported Rate per 100,000 Inhabitants

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Murder

Aggravated Assault

Rape

Robbery

Drug Dealing

133 1.31

665 6.57

305 3.01

13,008 128.45

3,281 32.40

Finding of Guilt The MP conducts crime investigations once having received any victim complaint or report from police agencies. This first investigation phase aims to gather evidence to determine whether a crime has occurred or not and who have been its perpetrators. The Public Prosecution Office is in charge with the support of police agencies. Judicial Police is responsible for the investigation of the most serious crimes such as murder, robbery, assault, sexual offenses, corruption, money laundering, drugs trafficking. Other illicit behaviors are investigated, always under the MP’s supervision, by other police agencies, namely, Public Security Police, National Republican Guard (a military organization similar to Italian Carabinieri or French Gendarmerie) and the Borders Service. The MP generally delegates investigative authority to the police. When the investigation requires a particular fundamental rights’ restriction (e.g., wiretapping, certain searches and seizures), permission of a judge is obligatory. The public prosecutor analyzes proof and decides whether or not there is sufficient evidence to support a public accusation. This sufficiency is defined as a strong suspicion that the person has committed the crime, but not yet a proof “beyond any reasonable doubt.” When evidence could not be gathered, the MP drops charges. If the sanction is mild (imprisonment up to six months or fine up to 120 days), a judge may determine a sentence but, if there are no preventive concerns, the actual penalty may not be carried out. “Provisional suspension” applies to offenses punishable with imprisonment up to five years or with a sanction other than prison, provided the judge, MP, and victim agree. In this case, the defendant has to fulfill one or more requirements (e.g., paying compensation or apologizing to the victim, living in a certain place, not having certain jobs, not being in

certain places or accompanying certain persons). In most cases, these demands can be imposed for up to two years. If the defendant complies with all conditions, the case is closed and cannot be reopened. Most recently, through law in compliance with an EU’s Council Framework Decision, a system of mediation in criminal matters has been introduced. Mediation is limited to “private” and “semipublic” crimes that protect people or patrimony and punished with up to five years’ imprisonment. If there is an agreement with the victim on the way the defendant will repair the consequences of his or her actions, and if the MP does not have any formal objections to it, the agreement is equivalent to dropping charges. After ending the investigation, a new phase may be opened that is directed by a judge. Its function is to ascertain whether the investigation’s final decision was correctly based. At least one accusatory debate between the MP, the defendant, and eventually the victim is held, in which all of them expound their case, drawing the judge’s attention to whether there is sufficient evidence to subject the defendant to a public trial. Apart from this debate, new investigations may be carried out when instructed by the judge or required by any of the “parties” involved. This phase ends by means of a decision to send the case to trial or not. If not sent to trial and if no appeals are presented or if they are denied, the case is closed. After this pretrial procedure, a trial phase is opened by another judge’s decision to accept accusation. The defendant may present a written statement on the facts opposed to him or her and may offer other evidence. A trial date is scheduled and if the defendant is not yet represented by a lawyer, the court nominates one. When the defendant does not appear in court, a judgment in absence can be held. Depending on the seriousness of the offense (generally, if the crime is punishable by imprisonment from five years up), the case is judged by a single judge or by three judges. Jury trials are rare in the


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Portuguese legal system. It is only reserved for very serious offenses (normally punishable with imprisonment of more than eight years) and upon specific request of the MP, the defendant, or the victim. Its intervention having been requested, a jury court is formed by four citizens randomly selected within electoral registers and three career judges. The jurors intervene in determining guilt and penalty. Judges conduct the hearing or hearings, interrogating the defendant, witnesses, experts and allowing or refusing other means of proof presented by the defense, the MP, or the victim. In the Portuguese system judges do not have a passive role as they have in common law tradition countries. After closing the hearings the court issues a decision of guilt or innocence. Except in special procedures (e.g., “summary procedure” applied to arrest in the course of the illicit behavior), sentences are issued on another date after the trial. At the sentencing hearing, the court determines, based on the specific statute, whether imprisonment or a fine (“main penalties”) are to be imposed or if a “substitution penalty” should be established. Most of the cases end by trial or dropping of charges. As mentioned before, consensual ways of dealing with crime are not ignored of the Portuguese CPC, but they are not yet so widely used. There is a specific system of appeals. Apart from special cases in which a “jurisdiction privilege” is prescribed to the highest state office holders (e.g., president of the republic, government member, Parliament member, judges of the highest courts), all criminal procedures start in a “first jurisdiction” court. Only by means of appeal are higher courts called upon to judge them. Roughly, if the appeal is based on factual issues, the appeals court is a “second jurisdiction” one. In case the appeal is solely restricted to law interpretation issues, the appeal is judged by the highest judicial court in Portugal, the Supreme Court of Justice.

Rights of the Accused Accordingly to the CPC, the defendant’s rights include the following: • Being present in all procedure acts. • Being informed of the facts before making any statement to any authorities.

• Not answering any questions. • Being assisted by a lawyer during all procedure acts and hearings. • Offering proofs and demanding any procedure actions. • Being informed of his or her rights. • Appealing unfavorable decisions. Incarceration before or awaiting trial is allowed under strict conditions. Pretrial arrest (possible even without a formal accusation being issued) can be determined if other measures are inappropriate, provided there are grave suspicions that the suspect has committed an intentional crime punishable with more than five years’ imprisonment, if there are strong suspicions of terrorism, organized criminality or risk of escape, danger to the public, or destruction of evidence.

Courts Except for very particular cases (already mentioned), all criminal matters are judged by the lowest courts within the jurisdictional order. Those courts are competent to trial offenses committed within their territorial jurisdiction. Depending on the number of cases usually processed by a particular jurisdiction, those first-degree courts may be of “generic competence” (judging all areas of the law) or “specialized competence” (trialing certain phases within the criminal procedure law). There are also “specific competence courts,” which are organized according to penalties’ severity and that only exist in jurisdictions with higher case volume (major Portuguese cities such as Lisbon and Porto and the surrounding metropolitan areas). The most serious offenses are tried by courts composed of three judges who assess proofs and dictate sentences. The less serious crimes are judged by lower criminal courts and many of those are special procedures characterized by a “speed trial.” A second degree of jurisdiction, hierarchically superior only in terms of appeal, is constituted by one or more higher courts in each jurisdiction. Normally they judge appeals from lower courts, not only in terms of ascertaining facts, but also the law’s


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interpretation. Finally, at the top there is a Supreme Court. It judges appeals coming from the high courts and, in certain cases, from first jurisdiction courts. Generally, the Supreme Court only deals with matters of the law’s interpretation. In Portugal, one can find two different magistrates’ bodies: judges and the MP’s magistrates. The first ones are independent from legislative and executive powers and cannot be transferred, expelled, or sanctioned except after a specific process ruled by an agency constituted by other elected judges and members appointed by the president of the republic and Parliament. This Superior Council of Magistrates, presided by the president of the Supreme Court, applies disciplinary action over judges and evaluates them for career progression purposes. The MP’s magistrates, whose competencies are, in the field of criminal law, to conduct investigations (helped by police agencies) and to represent the state’s interest in pursuing and sanctioning offenders, are a body whose head is the republic’s attorney general, nominated by the president of the republic and the government. In 2008, there was a profound change in selection of judges to the profession. Candidates are now required to have a master’s degree or a PhD. The selection procedure involves written exams on several areas of the law, oral exams, and psychological tests. Those having at least five years of experience in a law-related job can also apply by performing a written exam on Civil or Penal Law and an interview to defend their qualifications and experience. Succeeding this phase and after choosing between a judge career or a MP’s magistrate career, they undergo training to prepare themselves for the practical aspects of the profession, followed by some months working in a court under the supervision of a judge or a MP’s magistrate.

Punishment Types of Punishment There are two major sanctions: penalties and “security measures” (the latter sanctions are applied to defendants that technically cannot commit “crimes” due to their severe psychological condition or their

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age under 16, therefore lacking “guilt” as a necessary element of “crime”). Portugal completely abolished the death penalty in 1870. The main penalties are prison and fines. Prison has a length varying from 1 month to 25 years’ maximum, even in case of several perpetrated crimes. There is no imprisonment for life in Portugal. Fines are defined in days according to a daily rate from €5 to €500 (US$6 to $628). Fines can be transformed into prison in lieu of payment. There is a wide range of “substitution penalties” applied instead of imprisonment or monetary sanctions. Some of them are suspended sentence (in certain aspects of its regime a similar institute to probation), community work, house arrest with electronic surveillance, and professional activities interdiction. The most common punishment is fine, representing 73 percent of the measures. Around 6 percent of all the convictions result in effective prison. Based on 2006 data on court sentencing from the Bureau of Justice Statistics (DGPJ), the typical punishment for those convicted of violent offenses such as murder or rape is incarceration, 86 percent and 75 percent of the convictions, respectively. The remaining cases were given suspended prison. Of those convicted of robbery, 39 percent were sentenced to incarceration and 57.4 percent to suspended prison. In the case of serious theft, from the 2,284 convictions, 32.8 percent were sentenced to prison and 50.6 percent to suspended prison. In drug trafficking offenses, 70.7 percent of the cases tried were sentenced to prison and 28.7 percent to suspended prison. Parole is generally granted, preceded by a favorable appreciation from a panel composed by a judge, prison’s administration and other officers, at the middle of imprisonment’s length, provided the inmate has served at least six months in jail. Whenever the criteria are not fulfilled, parole may be also granted when two-thirds or five-sixths of imprisonment length are accomplished. In the latter case, parole is mandatory if the convict was punished with prison of more than six years, even when there is no favorable judgment in terms of general and special prevention. In any case, parole demands the


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inmate’s consent and it cannot last for more than the remaining imprisonment time, up to a five years’ maximum. Judicial decisions concerning crimes against honor may be published in newspapers whenever required by the victim. In 2007, the CPC’s amendment has introduced the possibility of the MP communicating to the victim of sexual crimes the date (and never the place) in which the offender is released on parole or after having served his or her time in jail. CC’s 2007 amendment has introduced a wider liability in what concerns corporate crime.

Prison The prison facilities are classified as regional prisons (for preventive custody and prison sentences up to 6 months); central prisons (for sentences greater than 6 months), and special prisons, for prisoners with special needs (women, young adults, and inmates with special health needs). The law states that the penitentiary staff should elaborate for sentenced inmates a reintegration plan to attend their needs and to prepare the release of the offenders. In spite of legal reforms, there are several problems that have persisted over the years and have been aggravated by the increase of custody use during the 1980s. This fact, partially due to the expansion of offenses related to drugs, had a major impact on the penitentiary system, particularly in overcrowding. In the late 1980s and during the 1990s, an important effort was made to improve living conditions inside prisons. Beyond the improvement of sanitary conditions of the facilities, a focused attention was given to health care, education, professional training, and working conditions. The implementation of programs oriented to special needs is very recent (e.g., programs for sexual offenders and driving offenders). The creation of the National Probation Service in 1983 made it possible for probation officers to work on a full-time basis, including inside prisons.

TYPES OF PRISONS At present, Portugal has a total of 49 prisons, classified as central prisons (17 facilities), regional prisons (28 facilities), and special prisons (4 facilities).

Two of them are exclusively for women, 8 are mixed, and the remaining 39 for men. There is one highsecurity prison and the others can have maximum security annexes. All of them are regulated by the Directorate-General for Prison Services.

PRISON POPULATION AND OVERCROWDING According to the last Prison Services (DGSP) official statistics from the end of 2008, Portuguese inmate population is constituted by 10,807 inmates (101.7 per 100,000 inhabitants), of those 10,160 (94%) being male. The most represented age group in inmate population (52.7%) is between 25 and 39 years, 30.7 percent are aged between 40 and 59 years, 12.6 percent between 19 and 24 years, 3.3 percent are more than 60 years old and, finally, 0.7 percent between 16 and 18. Most, 79.7 percent, have Portuguese nationality with the remaining 20.3 percent being foreign nationals. Regarding penal situation, 19.5 percent (2,108 inmates) are in preventive custody, 78.1 percent (8,443 inmates) have been convicted, and 2.4 percent (256 inmates) serve a custodial “security measure.” For the convicted inmates, 99.3 percent (8,387) of them are serving a determined sentence and 0.7 percent (56 inmates) an undetermined sentence. In terms of the length of the sentence, 5.4 percent are convicted to a sentence up to six months, 17.2 percent to sentences between six months and three years, 53.9 percent to sentences between three and nine years, and 23.5 percent to sentences more than nine years. In 2007, roughly 1,189 inmates were serving time for murder, 377 for aggravated assault, 194 for rape, 1,284 for robbery, and 2,459 for drug dealing. The total capacity of the penitentiary system is 12,294 inmates according to the last statistical data from December 31, 2008. The prison of Lisbon (Central prison) has the greatest capacity (887 inmates) with the total number of inmates being 929. The prison of Porto (also a Central prison) possesses the biggest discrepancy between its capacity (686 inmates) and the number of current inmates (823 inmates), showing the highest overcrowding rate in the Portuguese prison system (corresponding to 120%).


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LABOR Prison work is not mandatory; the inmates can serve their sentence without undertaking any labor activity. Statistics from December 31, 2008, indicate that 45.7 percent of the inmates are engaged in work in the prisons. Regarding academic education and professional training, the proportion of inmates attending such activities is, respectively, 14.7 percent and 8.9 percent. The labor is assured in the prison industries and in some prisons there is also agriculture-based labor. Many of the industries inside prison are functioning through contracts with outside businesses. To promote the social reintegration of inmates, there are two kinds of open regime, inside and outside the prison, and the temporary licenses. In the first, open regime inside prison allows circulation inside the perimeter of the prison under mitigated surveillance. According to the DGSP, about 2,000 inmates are in this regime. The other kind of open regime allows work or education experience outside the prison. However, the inmates can only have this possibility after a substantial portion of the prison sentence has been served. Temporary licenses may serve different purposes: there are special licenses up to 12 hours for exceptional personal reasons such as to visit dying relatives, attend funerals, to receive medical treatment, and to attend court, tribunal, or inquiry proceedings. These visits are made under custody and are authorized by the prison’s warden. The other licenses are focused in promoting the social reintegration of inmates, namely through the restoration of family and community ties. After having served a quarter of the sentence, inmates may be allowed temporary licenses up to 16 days per year. The management of family and friend visits is regulated by each prison administration. Some prisons allow “intimate partner visits” provided certain criteria are fulfilled. Inmates also have rights to correspondence, to telephone calls, and telegrams.

EXTRADITION The Portuguese Constitution prohibits extradition for political offenses or to countries where the crime is punishable with death penalty. Whenever

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the specific crime is punishable with imprisonment for life, extradition can only be authorized by a court order provided there is reciprocal agreement between nations. Portuguese citizens can only be extradited in cases of terrorism or highly organized criminality, if there are reciprocity conditions stated in an international convention. There are also special rules regarding extradition within the EU. André Lamas Leite, Josefina Castro, Carla Cardoso, Miriam Pina, and Cândido da Agra Further Reading Agra, Cândido da (2009). “Requiem pour la guerre à la drogue: L’expérimentation portugaise de décriminalisation” [Requiem for the Fight against Drugs: The Portuguese Experiment of Decriminalization] Déviance et Société 33(1): 27–49. Agra, Cândido da, and Josefina Castro. (2007). “La justice pénale des mineurs au Portugal: Risque, responsabilité et réseau” [Juvenile Justice in Portugal: Risk, Responsibility and Network]. In La justice pénale des mineurs en Europe: Entre modèle ‘Welfare’ et inflexions néolibérales, edited by Francis Bailleau and Yves Cartuyvels, pp. 229–246. Paris: L’Harmattan. Figueiredo Dias, Jorge de. (2007). Direito Penal. Parte Geral. [Criminal Law: General Part] Vol. I. 2nd ed. Coimbra: Coimbra Editora. Jurisprudence of Portuguese Superior Courts: http://www.dgsi.pt. Ministério da Justiça. Relatório Final da Comissão de Estudo e Debate da Reforma do Sistema Prisional [Ministry of Justice: Final report of the Commission Relative to the Study and Debate of the Reform of the Correctional System]: http://www.dgpj.mj.pt. Portuguese Ministry of Justice and Other State Departments: http://www.mj.gov.pt. Portuguese Official Journal—Diário da República (for legislation): http://www.dre.pt. Prison Services Directorate-General: http://www. dgsp.mj.pt.


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Silva, Germano Marques da. (2008). Curso de Processo Penal [Course of Criminal Proceedings]. Lisbon: Verbo. Statistical Data: http://www.dgpj.mj.pt.

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

Background The origins of the contemporary Romanian legal system can be traced to the mid-19th century, when the independent principalities of Moldavia and Wallachia were united to form the first incarnation of the present-day Romanian state. Soon after declaring statehood, Romanian authorities laid the groundwork for a modern legal system by adopting the first Romanian codes of criminal law and criminal procedure in 1864. These early codes borrowed heavily from the French model, with only minor adaptations to fit the Romanian context. However, Romanian criminal law and procedure was not fully unified until the adoption of the 1936 Criminal Code and Code of Criminal Procedure. Until that time, the territories of Transylvania and Bucovina, which were incorporated into the Romanian state at the end of World War I, operated according to separate legal regulations. With the advent of communist rule in the post– World War II period, Romanian law was modified several times according to a quick succession of communist-era constitutions in 1948, 1952, and 1965. These constitutions had many superficial commonalities with the constitutions of Western liberal democracies. However, a tremendous gap existed between the rights and procedures stipulated by Romanian law and the actual practices of the

communist authorities. During the communist period, Romanian courts and prosecutorial offices were politicized and co-opted as instruments of the Communist Party, political dissidents were intimidated and imprisoned, and Romanian police and security forces curtailed the basic liberties of association and expression in one of the most repressive regimes in all of Eastern Europe. Immediately following the revolutionary overthrow of communist dictator Nicolae Ceau¸sescu in December 1989, a number of important pieces of legislation were passed to bring Romania’s criminal justice system in line with international standards. Two of the most important changes to the Romanian Criminal Code were Law No. 104/1992, which updated existing methods of criminal punishment, and Law No. 140/1996, introducing new offenses and aggravated penalties. A number of notable new laws were also passed to combat specific types of criminal activity, including laws on money laundering (21/1998), official corruption (78/2000), drug trafficking (143/2000), and human trafficking (678/2001). In addition, several reform packages in the early and mid-1990s brought important changes to the Code of Criminal Procedure, which provided more guarantees for the accused, increased the competency of the courts vis-à-vis state prosecutors, and refined regulations related to the collection of evidence. To be sure, many of the most important legal and institutional changes in the postcommunist period have come (often begrudgingly) at the behest of the European Union, which Romania joined as a full Member State in January 2007. Yet, as the EU’s influence over the transition process has waned, many problems remain. Notwithstanding the previously mentioned reforms, the 1969 communist-era Criminal Code and Code of Criminal Procedure are still in force in Romania, as lawmakers have yet to pass a comprehensive legislative reform bill. Thus, while new criminal and procedural codes have been in development for several years, the justice system currently operates according to a confusing patchwork of revised and amended codes. Moreover, the justice system continues to be dogged by corruption scandals and poor conditions in courts and prisons, which are chronically underfunded and poorly


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managed. Further, nearly 20 years after the revolution, very little has been done to prosecute or even censure the perpetrators of communist-era crimes, or to compensate the victims of communist oppression.

Courts The court system in Romania follows a unitary four-tier structure, according to Law No. 92/1992 and Law No. 304/2004 on the organization of the judiciary. This structure includes several local courts and at least one regional court in each of Romania’s 41 counties, as well as 15 courts of appeal in major municipalities around the country and a Supreme Court in Bucharest. In addition, Romania has a separate system of military courts (five regional courts and one appellate court), as well as a Constitutional Court, which reviews the constitutionality of laws passed by the Romanian Parliament and supervises national elections and referendums. Local courts (judecˇatorii), of which there are currently 178, act as the first instance for most criminal and civil matters. Cases are decided by a single judge, who may specialize in a particular type of law in high-volume courts. However, many local courts have only a handful of judges who must handle all types of cases. Currently, approximately 2,155 judges (about half of all judges) work in local courts throughout Romania. Regional courts or tribunals (tribunale), presently 46 in number, handle intermediate appeals of local court decisions. They also act as courts of first instance for administrative and commercial law cases, as well as more serious civil and criminal cases, including homicide, rape, robbery, and fraud. Tribunal judges are organized into specialized sections (civil, criminal, commercial, administrative, minors, and family). Cases are tried before a single judge when acting as a court of first instance, while appeals are heard by panels of two or three judges. At present, there are approximately 1,430 judges working at tribunals in Romania. Courts of appeal (cur¸ti de apel ), which currently number 15, handle intermediate appeals for cases begun in tribunals, as well as final appeals for local

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court cases. They also act as the first instance for very serious cases, including offenses against state security and offenses committed by judges and prosecutors in the lower courts. As in the tribunals, judges are organized into specialized sections and usually sit in panels of three. According to the most recent figures, there are approximately 755 appeals court judges in Romania. The High Court of Cassation and Justice (Înalta Curtea de Casa¸tie s¸ i Justi¸tie a României), located in Bucharest, acts as Romania’s supreme court. As the court of last instance, it hears appeals from the appellate courts and military courts. It also acts as the court of first instance under unusual circumstances, such as cases in which high public officials are charged with serious crimes. The High Court of Cassation and Justice is divided into specialized sections, where judges sit in panels of nine. As in many modern justice systems, criminal investigations and trials in Romania exhibit characteristics of both the inquisitorial and accusatorial models. Reflecting the inquisitorial nature of the system, investigations and court proceedings are still regulated by the communist-era Code of Criminal Procedure, which assigns prosecutors and judges (both enjoying the same official status as magistrates) an active role in securing evidence with the ultimate goal of ascertaining the “truth” in criminal cases.

Police Despite some initial reform measures immediately following the revolution of 1989, the most important steps toward restructuring and modernizing Romania’s law enforcement sector came in 2002 with the passage of two major reform laws—Law No. 218/2002 on the organization and functioning of the police, and Law No. 360/2002 on the status of the police. In accordance with the new laws, Romania’s National Police became the first fully demilitarized professional police force in Eastern Europe. The reform legislation also laid out new codes dictating the rights and responsibilities of police personnel and establishing new career guidelines and disciplinary sanctions in an attempt to professionalize the police corps.


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At present, Romania is policed by three major law enforcement bodies—the National Police, the Border Police, and the Romanian Gendarmerie— all organized under the authority of the Ministry of Administration and Interior. The National Police (Poli¸tia Românˇa), the largest of the three, is primarily responsible for law enforcement activities in Romania. The National Police is headed by a General Inspectorate of Romanian Police, who is aided by a number of administrative directorates in Bucharest. However, most of the day-to-day work of the National Police is carried out by officers working in territorial units in each of Romania’s 41 counties. Each territorial unit is headed by a county inspectorate, who commands the county’s general officer corps, as well as an emergency rapid reaction unit.

The National Police organization also includes several specialized central command units, including the Organized Crime and Narcotics Directorate, the Public Order Directorate, and the Traffic Police Directorate. According to the most recent statistics available, the total police personnel in Romania in 2004 was 45,777, or approximately 209 per 100,000 inhabitants. The second major police body, the Romanian Border Police (Poli¸tia de Frontierˇa Românˇa), is charged with monitoring borders and regulating the movement of people and goods across approximately 3,100 kilometers (1,926 miles) of national boundary lines. In 2005, the Border Police launched an initiative to ramp up border security, increasing the number of guards, officers, and staff by some 1,400

Members of the Romanian SWAT team prepare for a public demonstration. (Pepine/Dreamstime) © 2011 ABC-Clio. All Rights Reserved.

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positions. Corruption and bribe-taking among border guards is also reported to be a significant problem, given the high rate of cross-border smuggling of drugs and other goods. The Romanian Gendarmerie (Jandarmerie Românaˇ ), the third major law enforcement body in Romania, is a national paramilitary police force responsible for maintaining public order and security among the country’s civilian population. Though distinct from the National Police in terms of its specialized military training and status, the Romanian Gendarmerie is subordinate to the Ministry of Administration and Interior and acts as an exclusively domestic security force, specifically created to handle disturbances and security operations within the national borders of Romania. Among its major duties, the Gendarmerie is charged with maintaining and restoring order during public events and demonstrations, including crowd and riot control. It is also responsible for securing important public buildings and institutions and is actively involved in the country’s counterterrorism efforts. The Gendarmerie is headed by the General Inspectorate of the Romanian Gendarmerie, appointed by the Minister of Administration and Interior, who manages 41 territorial inspectorates, 8 Gendarmerie Mobile Groups, and a national Special Intervention Brigade. In addition to the three main law enforcement bodies, national police forces in Romania are assisted by Local Police (Poli¸tia Comunitarˇa) in towns and municipalities throughout the country. Created in 2004 according to Law No. 371/2004, each community police force is subordinated to the mayor of its respective locality. The main duties of the Local Police are to enforce local ordinances and assist the National Police and the Gendarmerie in maintaining and restoring the public order. Romania has also witnessed an explosion of private security firms in the years immediately following the communist collapse. As of 2005, approximately 1,000 private security firms were registered in Romania, employing more than 37,000 private security personnel—an average of 1 private security guard for every 1.2 National Police officers. While the private security industry is relatively well regulated by Law No. 333/2003, which requires all companies to

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obtain an operating license from the National Police and mandates police-issued background checks for all private security firm employees, some concerns remain. In particular, employees of private security firms are authorized to carry lethal firearms in Romania, despite widespread concerns about inadequate training and several high-profile cases of private security firms using excessive force against members of the public. Moreover, as elsewhere in the region, allegations have surfaced linking certain private security firms with organized crime groups in Romania.

Crime Classification of Crimes The Romanian Criminal Code does not distinguish between felonies and misdemeanors or indictable versus nonindictable offenses. Rather, the code refers to all violations as “offenses” (infraçtiune), categorizing them according to the general type of crime. Among the major categories of crime included in this classification system are crimes against state security (espionage, treason, political assassination), crimes against the individual (homicide, rape, assault), crimes against property (theft, robbery, vandalism), forgery (of money, documents, etc.), and crimes against peace and mankind (incitement to violence, genocide, torture). The age of criminal responsibility in Romania varies depending on the circumstances of the crime. Offenders under the age of 14 are not subject to criminal liability under any conditions. However, between the ages of 14 and 16, offenders are held criminally responsible only if it can be proven that the offense was committed intentionally, while offenders 16 and older are subject to criminal liability in all cases. Regardless of the circumstances, persons under 18 are treated as juvenile offenders, entailing certain rights detailed later in this article. While the use of illegal narcotics is not explicitly prohibited in Romania, the possession, cultivation, production, transportation, and sale of such substances is expressly forbidden. In recent years, Romanian authorities have amended the country’s outdated drug laws with several pieces of new


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legislation that specify more severe sanctions for offenders involved in drug trafficking, as opposed to those charged with possession of drugs for personal consumption. The new legislation also distinguishes between different categories of illegal substances.

Crime Statistics As in much of the postcommunist region, violent crime in Romania increased significantly in the 1990s, following the collapse of communism and the tumultuous transition period thereafter. However, as the situation has normalized over the last decade, crime rates have by and large subsided to pretransition levels or below. For example, Romania saw a significant increase in the homicide rate in the early 1990s, from 3.87 homicides per 100,000 inhabitants during the late 1980s to 4.70 in the first half of the 1990s. More recent statistics show a dramatic decline, however, averaging a rate of 2.20 homicides per 100,000 during the five-year period from 2003 to 2007—well below pretransition levels. Similarly, the 1990s witnessed a sharp rise in the number of reported rapes in Romania, jumping from 947 in 1990 to a high of 1,687 in 1997—an increase of nearly 80 percent. However, rape rates also declined to near pretransition levels during the last decade, hovering around 1,000 per year from 2003 onward. Unfortunately, as traditional crime rates have subsided, Romania has seen a recent increase in both drug trafficking and human trafficking activities. Romania is mainly involved in the illegal drug trade as a transit country along the “Northern Balkan Route,” linking heroin and opium suppliers in Afghanistan and Pakistan with consumers in Central and Western Europe. In recent years, it has also emerged as a developing route for synthetic drugs from Western and Northern Europe to destinations in the east, as well as a transit hub for South American cocaine destined for Western Europe. Though Romania is not a major source country for illegal narcotics, a small amount of domestic amphetamine production has been reported in recent years. In terms of domestic drug consumption, marijuana and heroin are the primary drugs of choice in Romania, while synthetic drugs such as Ecstasy

are on the rise among certain segments of the youth population. Huffing of glue, paint thinner, and other common solvents is also a serious problem among the country’s substantial street population. However, Romania remains primarily a transit country rather than a destination for drug traffickers, with more than 80 percent of the illegal drugs entering Romania continuing on to destinations in Western Europe, according to police estimates. In response to the recent increase in drugrelated crime, the Romanian government established a National Anti-Drug Agency in 2002, following Government Decision No. 1489/2002. Among its responsibilities, the agency is charged with monitoring and assessing illegal drug use in Romania, developing a National Anti-Drug Strategy, and coordinating the antidrug trafficking activities of Romanian law enforcement bodies. According to the most recent statistics available, Romanian authorities reported 1,449 drug possession offenses and 1,223 drug trafficking offenses in 2006. Romania has also witnessed a startling rise in human trafficking activity in recent years, as a major country of origin for victims of trafficking to Western Europe. In 2005, when the problem appears to have reached its peak, Romanian authorities estimate that 2,551 men, women, and children in Romania fell victim to trafficking, primarily for the purposes of forced labor and commercial sexual exploitation. While the numbers have steadily declined in subsequent years, with 2,285 reported victims in 2006 and 1,780 confirmed trafficking cases in 2007, official statistics only scratch the surface of what is clearly a very serious problem. According to government statistics, of the 1,780 reported trafficking victims in 2007, 54 percent were female (compared to 74% in 2006). More than half of those women were aged 14 to 25, and well over half were trafficked for the purpose of sexual exploitation. Of the male trafficking victims, the vast majority (85%) were used for forced labor, while a small minority were used in forced street begging operations. The primary destinations for trafficking victims were Italy and Spain, where approximately half of all Romanian trafficking victims were sent in both 2006 and 2007. Illustrating the magnitude


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of the problem, official statistics from the Italian government reveal that Romanians accounted for one-third (34%) of all reported trafficking victims in Italy between 2003 and 2006. In 2001, the Romanian government passed Law No. 678/2001 to allow for the prosecution of suspects believed to be involved in the trafficking of persons. That law was later amended by Government Decision No. 1584/2005, establishing the National Agency against Trafficking in Persons, which is charged with monitoring and preventing human trafficking offenses in Romania.

Finding of Guilt According to the Romanian Constitution, individuals accused of a criminal offense are guaranteed the right to a “fair and speedy hearing.” Upon arrest or detention, any person held in police custody must be promptly informed of the grounds of the arrest, as well as the charges against that person, which must be presented in the presence of a lawyer chosen by the suspect or appointed by the court. The accused is also guaranteed the right to remain silent at all phases of the investigation and trial, according the Romanian Code of Criminal Procedure. However, this right does not apply to the provision of personal data used to identify the suspect. The presumption of innocence is guaranteed by article 23 of the Constitution, which places the burden of proof on the prosecution in criminal cases. During the investigatory phase of a case, prosecutors and police are forbidden from procuring evidence through the use of violence, threats, constraints, promises, or encouragement. Criminal investigations are run by the local prosecutors’ office, which works in permanent cooperation with the police. In general, police carry out much of the investigatory work, while the prosecutor in charge coordinates and supervises the activities of the police, ensuring that the investigation is conducted according to the law. If necessary, the prosecutor can step in at any point to help out or take over an ongoing investigation. If a prosecutor decides to detain or arrest a suspect, article 23 of the Constitution stipulates that

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police custody cannot exceed 24 hours without an arrest warrant. Until recently, arrest warrants could be issued directly by prosecutors, who hold the official title of magistrates in Romania. However, a recent amendment requires that all arrest warrants must henceforth be issued by a court of justice, in line with the European Convention on Human Rights, to which Romania is a signatory. Once an arrest warrant is issued, police can hold a suspect up to 30 days. This period can be extended as necessary, but it must be reconfirmed by the court every 30 days. After being arrested, detainees are typically held in lockups (jails) until they are charged or released. If formal charges are issued at the conclusion of the prosecutor’s investigation, the suspect is transferred to a prison, where defendants awaiting trial are held in separate facilities from convicts. Article 24 of the Romanian Constitution guarantees the right of defense and the right to legal counsel for the accused during all phases of a criminal investigation and trial. Moreover, the Code of Criminal Procedure lays out specific circumstances under which legal counsel is compulsory, including when the accused is a minor, a student, an inmate in a correctional or pretrial detention facility, or when the penalty associated with the charges may exceed five years’ imprisonment. If the judge or prosecutor in a case decides that the defendant cannot secure his or her own defense, the accused is entitled to a court-appointed attorney. In cases where legal assistance is provided by a court-appointed attorney, the court instructs the local bar association to appoint a lawyer to assist the defendant, who is paid from the budget of the Ministry of Justice. Though all licensed attorneys are required by law to provided legal counsel in the case of a court-issued appointment, in practice, legal aid cases are typically assigned to apprentice lawyers, as the financial compensation is rather small and does not account for the number of hearings or length of the trial in a given case. Romania does not currently have a separate juvenile justice system for underage offenders, though a specialized court system for minors has been under discussion since 2006. For the time being, most juvenile cases are tried in regular courtrooms before


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judges who may or may not specialize in juvenile or family law. Trials involving underage offenders are required by law to be held in closed-door private hearings, and in most cases, the parents or guardians of the accused are called to participate on behalf of the child.

Punishment Types of Punishment Though the death penalty was abolished in Romania in 1990, the country’s criminal justice system is quite strict in terms of the severity of punishments dealt to convicted criminal offenders. According to statistics maintained by the Council of Europe, detainees in Romanian penitentiaries serve some of the harshest prison sentences in all of Europe—both in terms of the length of initial sentences and the average number of days spent behind bars. Moreover, while the number of detainees in Romanian prisons has been decreasing steadily since 2002, Romania maintains a comparatively high prison population rate of 166.8 prisoners per 100,000 inhabitants— well above the European average of 142.1 per 100,000. In part, these statistics reflect a long-standing pattern in the Romanian justice system of applying strict sanctions for relatively minor crimes. Illustrating the point, in 2005, more than 35 percent of all prison inmates in Romania were serving sentences for nonviolent theft offenses. That number was nearly 50 percent as recently as 2001, when Romanian prisons held more than 18,500 convicted “thieves”—second only to Ukraine in terms of the total number of prisoners held for nonviolent theft. Prison sentences have actually became more punitive during the 1990s and early 2000s, as authorities attempted to deter rising crime rates. Though statistics regarding the average length of prison sentences are not readily available, the Romanian Criminal Code provides some guidance as to the standard sentences for various types of contraventions. According to the law, intentional homicide is punishable by 10 to 15 years’ imprisonment, and aggravated intentional homicide (including premeditated homicide, multiple homicide, and homicide against a magistrate, policeman, or

armed service person) garners 15 to 25 years’ imprisonment. Forcible rape is punishable with imprisonment of 3 to 10 years, or 10 to 20 years if the victim is under 14 years old. Robbery is punishable by 3 to 18 years’ imprisonment, while offenders convicted of nonviolent theft are subject to 1 to 12 years’ imprisonment. There is no specified punishment for drug use. However, unlawful possession, cultivation, or production of illegal substances for personal use is punishable by 6 months to 2 years’ incarceration for drugs in the “risk” category, and 2 to 5 years’ imprisonment for drugs classified as “high risk.” Drug trafficking offenses carry more severe penalties: 3 to 15 years’ imprisonment for “risk” drugs, and 10 to 20 years’ imprisonment for “high risk” substances.

Prison At the present time, there are 44 penal institutions in Romania, including 32 prisons, 1 women’s penitentiary (Târg¸sor), 2 juvenile detention centers (Craiova and Tichile¸sti), 3 juvenile reeducation facilities (Buzia¸s, Gae¸sti, and Târgu Ocna), and 6 prison hospitals (Bucure¸sti-Jilava, Bucure¸sti-Rahova, Coliba¸si, Dej, Poarta Alba, ˇ and Târgu Ocna). The largest of these facilities is the Poarta Albaˇ Prison near the Black Sea port city of Constan¸ta, with a capacity of approximately 2,360 inmates. However, Romania has several large prisons housing between 1,000 and 2,000 inmates each. For much of the 1990s and early 2000s, international observers criticized the conditions in Romania’s overcrowded, understaffed prisons, denouncing them as inhumane at worst and unfit for a modern European nation at best. In 2002, when the Romanian prison population reached its peak, the country had a detention rate of nearly 230 prisoners per 100,000 inhabitants—one of the highest in all of Europe. Prisons were filled well over capacity, while a shortage of prison staff meant that detainees were afforded few opportunities to venture outside their overcrowded cells. In recent years, Romania has witnessed a sea change in prison conditions around the country, as the total prison population has been drastically reduced—dropping by more 30 percent from 2002


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to 2006. As a result, as of September 1, 2006, Romania’s penitentiaries were running below capacity with an official prison population of 35,910 inmates, including pretrial detainees and juvenile offenders. Inmates in good physical condition may take advantage of opportunities to work in many of Romania’s prisons. For example, nearly all of the country’s penitentiaries have farms on which inmates can find employment. However, prisoners are paid at the minimum national wage and are only allowed to keep a portion of their earnings, with the rest going to the penitentiary. Not surprisingly, despite recent improvements in prison conditions, many challenges remain. Cultural and educational programs remain limited and job training programs are frequently out of date with current labor market conditions. Medical staff are overloaded and in many cases do not have access to the necessary equipment or facilities to provide comprehensive treatment. Basic living conditions in many of the country’s prisons are poor and in some cases unsanitary. Moreover, numerous incidents of prisoner abuse have been reported by prison watchdog organizations—including at least one death resulting from violence suffered at the hands of prison staff. Despite the relatively harsh sentencing guidelines stipulated by Romanian law, detainees serving prison sentences are often eligible for parole, which is used to regulate prison overcrowding and provide an incentive for good behavior among inmates. According to estimates published in 2004, approximately 70 percent of those released from Romanian prisons each year are discharged on parole. Daniel J. Beers Further Reading Association for the Defense of Human Rights in Romania—The Helsinki Committee. (2005). The Penitentiary System in Romania: 1995–2004. Bucharest: APADOR-CH. Küpper, Herbert. (2003). “Romania’s Legal System: Transition Halfway on Its Road to Modernity.” In Consolidating Legal Reform in Central and Eastern Europe: An Anthology, edited by

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Anders Fogelklou and Fredrik Sterzel, pp. 103– 144. Uppsala, Sweden: Rättsfonden. Romanian National Agency against Trafficking in Persons: http://anitp.mai.gov.ro.

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

Background The Russian Federation came into existence in 1991 when the Union of Soviet Socialist Republics (USSR), of which the Russian Soviet Federative Socialist Republic (RSFSR) was the largest constituent part, was formally dissolved. The collapse of the Soviet Union brought to an end more than 70 years of authoritarian rule, during which dictate and decree had prevailed over the rule of law. On December 12, 1993, Russia adopted a new Constitution, according to which justice is based on the equality of all citizens. However, the rights enshrined in Russia’s Constitution and other legislative documents are not always translated into practice, particularly with regard to the various component parts of its criminal justice system.

Geography and Demography There are around 142 million people living in Russia—the world’s largest country—which spans 11 time zones across two continents, Europe and Asia, and has borders with 14 countries. Its largest cities are Moscow—the capital—which has a population of around 10.5 million people, and St. Petersburg, which has a population of around 4.5 million. A key issue for the state in recent years has been steeply declining birth rates, coupled with higher death rates, partly caused by a catastrophic fall in


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Russian militia officers and a secret service collaborator in civilian clothing detain political protesters in downtown Moscow on October 2, 2006. (Kojoku/Dreamstime)

the life expectancy of men in particular, leading to an overall reduction in population figures. This trend has slowed somewhat in recent years.

THE STRUCTURE OF THE STATE In Russia executive power lies with the president, who is directly elected by the population for a period of four years for a maximum of two terms (to be increased to six years from the next presidential elections due in 2012). The current president is Dmitriy Medvedev, who was elected in May 2008 for the first time with 70 percent of the popular vote. The government is headed by the prime minister, currently Vladimir Putin, who was appointed in May 2008, having previously served two terms as president. The legislature comprises the upper and lower houses of the Federal Assembly. The upper house— the Federation Council—is made up of delegates

from all of Russia’s 83 federal subjects, which (as of December 2009) include 2 federal cities (Moscow and St. Petersburg), 46 provinces (oblast), 21 republics (respublika), 9 territories (krai), 4 autonomous districts (okrug), and 1 autonomous province, and each benefits from the same representation at federal level. The lower house—the State Duma (Parliament)—has 450 seats that are allocated in proportion to the percentage of votes obtained by each party. The political scene in Russia is dominated by the United Russia Party, which won 64 percent of the popular vote (compared to 11% for the Communist Party) in the last election. Questions have been raised about the fairness of elections given the party/government’s influence over, for example, the media. The judiciary in Russia consists of the Constitutional Court (which interprets the Constitution and tests the constitutionality of laws and normative


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acts of the president and Council of Ministers, as well as the constitutions and laws of the federal subjects), the Supreme Court, and the Supreme Court of Arbitration (which deals with commercial disputes). All higher court judges are appointed for life by the Federation Council on the recommendation of the president. Most other judges are appointed by the president after they have passed a qualifying exam and been through a formal or informal vetting procedure. The minimum requirement for new judges is five years of relevant government work (for example, as a court secretary, police officer, judicial assistant, investigator, or assistant procurator). Justices of the peace, who preside over small claims courts, are appointed for five-year terms. According to the Ministry of Justice as of 2007 there were 30,539 professional judges (23,172 judges and 7,367 justices of the peace) working in around 9,800 courts as well as an additional number of specialized courts of first instance, military and other courts. Although independent in theory, in practice judges presiding over certain cases may find themselves under pressure from the authorities at various levels to return a particular verdict (so-called telephone justice). Bribery and other forms of corruption have also been the focus of media reports and complaints. Against this background, it is interesting to note that Russian citizens are increasingly turning to the European Court of Human Rights when they feel their cases have not been heard fairly in domestic courts.

RECENT HISTORY Following the collapse of the Soviet Union, the Russian Federation underwent a period of extreme economic crisis during the early to mid-1990s. This was caused inter alia by the collapse of the state sector, the implementation of rapid privatization, and trade and price liberalization, which led both directly and indirectly to high levels of unemployment, huge delays in the payment of wages/salaries—particularly, but not exclusively among state employees—and a concomitant increase in poverty rates. This proved catastrophic for the country’s social services, which

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struggled to cope but were eventually reconfigured to provide a social safety net of sorts. Crime rates also increased steeply during the early to mid-1990s as organized crime and corruption took hold in what was described as a state verging on lawlessness. In particular violent crime, including murders, increased significantly and the Ministry of Internal Affairs was seen to be somewhat powerless in terms of dealing with the onslaught of criminal behavior. In effect the Ministry of Internal Affairs went through its own period of crisis, one that continues, in spite of several years of attempts to reform various aspects of its work. The Ministry of Internal Affairs (MVD) is headed by the minister of interior, currently Rashid Nurgaliyev (since 2004). Traditionally the minister is an experienced functionary who has come up through the ranks of the MVD or a related organization. Only one exception to this rule has occurred in recent years: prior to Nurgaliyev being appointed MVD chief, it was headed by Boris Gryzlov (the current speaker in the lower house, the State Duma, and deputy head of the United Russia Party), an “outsider” from industry appointed by President Putin to reform the MVD, with mixed results. The heads of regional police departments are also appointed—and dismissed—by the president. The minister of interior is assisted in his or her work by a first deputy minister, a state secretary/ deputy minister, and five other deputy ministers. The ministry is located in Moscow and houses the main directorates (offices) of its various support and operational departments. Support departments include the Administrative Department, Human Resources, the Legal Department, Finance, and Logistics. The main operational directorates located here include the Department of Public Security, the Criminal Investigations Department, the Federal Migration Service, and other independent services. The Department for the Protection of Public Security includes the main office for the maintenance of public order (the uniformed officers who patrol communities on foot and by car), the main office of the State Inspection of Road Traffic Safety (the Traffic Police), and the Interdepartmental Guard Service (a semi-independent police service that


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provides security services to individuals, households, schools, businesses, etc., on a commercial basis). The Criminal Investigations Department includes the Main Office for Criminal Investigations, the Main Office for Combating Economic and Tax Crimes, and previously (until 2008) the Main Office for Combating Organized Crime, which has undergone a change of name and remit and is now the Department for Counteracting Extremism. (Although it was announced at the time that organized crime was no longer a problem in Russia and combating extremism was seen to be a much more pressing issue, this is not necessarily borne out by official statistics—see below.) The Federal Migration Service includes the Passport and Visa Office, which regulates the system of internal passports, which all Russian citizens have, and of residence permits. Independent services regulated from Moscow include the Internal Troops (a military/paramilitary branch of the Russian police used to support the regular forces in dealing with large-scale incidences of public disorder, such as riots); the Special Designation Police Units (Otryad Militsii Osobogo Naznacheniya, OMON), the Office of Internal Affairs, and the National Central Bureau for INTERPOL. These offices also exist at other levels (regional/ district/local) throughout the Russian Federation. Various sources put the number of personnel employed by the ministry at around 2 million, which includes just under 1 million police personnel. However, it is unlikely that the police are operating at full strength: conditions in the force mean that turnover remains high and some areas encounter particular difficulties in recruiting and maintaining staff.

The Russian Police—The Militia Owing to their historical development (organizations created in the wake of the Russian Revolution on the basis of worker and other militia groups), in Russia the police are still known formally as the Militia (Militsiya). Their work is regulated by the 1991 Law on the Militia, which defined the role of the police as protecting the state and individuals from

crime and guaranteeing the safety of every Russian citizen. It also established the militia’s guiding values as legitimacy, humanism, social justice, political neutrality, impartiality, and respect for, and observance of, human rights. Most significantly from the perspective of establishing democratic values, the law states that militia personnel must themselves uphold the law, and thus provides the legal framework for the development of democratic policing in Russia. However, laws can be rendered meaningless if they are not effectively monitored and enforced, which is a systemic problem in Russia. Research conducted on the process of reform suggests that while there has been a lot of change to militia structures and procedures, the legacy of the Soviet system and its czarist predecessor continues to influence both what the militia do and how they do it. Consequently, the militia still lack legitimacy in the eyes of the public, as witnessed by the fact that opinion polls routinely suggest that they are the agency least trusted by them. This is partly the result of well-documented police corruption, both smallerscale, including routine abuse of power by the notoriously corrupt traffic police, and larger-scale corruption by so-called werewolves in epaulettes. Added to this, during 2009 some well-publicized cases of criminal behavior, including several murders of civilians by serving (both off and on duty) police officers, have brought the need for reform back to the fore. Indeed calls were made in late 2009 to eliminate the police force as a whole and start again. While this is clearly impossible, it seems likely that the training and education system will now be subject to systematic review. In the meantime new initiatives introduced in 2009 to try to tackle elements of police corruption include making officers wear name badges (for ease of identification) and fitting cameras to police vehicles to record interactions between officers and members of the public.

The Legal System The Russian legal system is based on civil law and the judicial review of legislative acts. Under Soviet rule, the legal system relied on an inquisitorial approach, but this changed with the introduction of


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the 2001 Criminal Procedure Code, which aimed to provide for more adversarial principles at every stage of the criminal process. Research suggests that Russia now has a mixed legal system that encompasses principles of both adversarial and inquisitorial systems, not necessarily to good effect. The main codes that regulate deviant and criminal behavior in Russia are the Code of Administrative Offences (nonindictable) and the Criminal Code of the Russian Federation (indictable offenses). The Code of Administrative Offences (2001) deals with violations of the law rather than criminal acts, for example, traffic violations and environmental breaches and provides for such penalties as warnings and administrative fines, among others. The Criminal Code was adopted in 1996 and came into force in 1997. It replaced the Soviet Criminal Code of 1960 and as such introduced various amendments relating to criminal offenses not previously covered, for example, economic and property crime.

Crime Classification of Crimes The Criminal Code distinguishes four different categories of crime: less serious crimes, crimes of medium severity, serious, and very serious crimes, which attract the following range of possible punishments/ sentences: • Less serious crimes are those committed unintentionally or through carelessness and for which the maximum sentence is 2 years of imprisonment. • Crimes of medium severity are those for which the maximum sentence is 5 years of imprisonment, and also those committed through careless acts for which the punishment exceeds 2 years. • Serious crimes are intentional acts where the maximum penalty does not exceed 10 years of deprivation of liberty. • Very serious crimes are those for which the maximum penalty either exceeds 10 years of imprisonment or takes the form of a more severe punishment.

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Crime Issues Key crime issues worthy of note are violent crime, trafficking, corruption, terrorism, and drugs, although these are not necessarily reflected in crime or trial statistics. During the 1990s violent crime, including murder, increased significantly in Russia. Much of the increase was the result of contract shootings among/between organized crime fraternities, but also of more legitimate entrepreneurs and businessmen, bankers, and of opponents of the government/regime, including politicians, human rights’ activists, and journalists. Murder rates are still very high. Given its size and geography, it is not surprising that Russia is believed to be a major player in human trafficking—as both a source and destination, but also as a transit country—and that organized crime is likely to be heavily involved in this area. In this regard both organized crime and corruption have been endemic in Russia for many years, with the fight against both being the focus of successive government policies. The change of focus of the main department responsible for organized crime (mentioned above) suggests that the battle against the former is over, although the struggle with the latter goes on: in fact President Medvedev has made rooting out corruption the focus of his presidency. Russia also faces terrorism problems—mainly linked to the separatist movement fighting for independence for the Chechen Republic. Events such as the apartment bombings in 1999, the Moscow Theatre siege in 2002, and the Beslan School siege in 2004 resulted in more than 750 deaths and many more casualties. More recently in November 2009 a passenger train traveling between Moscow and St. Petersburg was partially derailed as a result of an explosion on the line—for which Chechen separatists subsequently claimed responsibility. Drugs have become more of a problem in recent years. For several decades Russia has served as a transit country for drugs moving from their place of production in Afghanistan to Europe, as a consequence of which Russia has developed its own drug “habit.” Most drug offenses involve the acquisition, storage, and sale of narcotics or psychotropic


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substances. As in many countries, however, it is alcohol, rather than drugs, that is often a mitigating factor in criminal behavior: according to crime data for 2008 from the Ministry of Internal Affairs, 16 percent of detected offenses were committed by people under the influence of alcohol, compared with only 1 percent under the influence of drugs.

Crime Statistics As with all official sources of crime data, Russian criminal statistics must be viewed with caution as they are unlikely to provide a full picture of crime for all the usual reasons, but also because of the way police bonuses are largely based on performance indicators. This makes it an attractive option for the police not to register crimes they know they are unlikely to be able to solve. Moreover, recent media reports have suggested that they may also invent fake crimes to solve to meet targets, further obscuring the picture of crime obtained from statistics. The data available from the Ministry of Internal Affairs does not distinguish between actual crimes and attempts, so the figures given below include both. According to MVD data during 2008 the police recorded a total of 3,209,862 criminal offenses, of which 851,392 (27%) were deemed “serious” or “very serious.” One-half of all registered crimes were property-related, including 1,326,342 thefts, 243,957 robberies, and 35,366 aggravated robberies. Domestic burglary accounted for around 5 percent of all crimes recorded by the police, which was a reduction of 18 percent on the previous year. Violent crimes included 20,056 murders and attempted murders, 45,436 cases of grievous bodily harm, and 6,208 rapes and attempted rapes. Drug-related crime accounted for around 232,600 crimes, only 0.6 percent higher than in 2007. Vehicle-related crime included 24,326 traffic infringements and 50,313 cases of illegally driving cars without the aim of stealing them. It is interesting to note that only 642 acts of a “terrorist nature” were recorded, along with 460 of an “extremist character.” These figures only offer a snapshot of recorded crime statistics in Russia: perhaps more revealing (of recording practices if nothing else) are the

trends revealed by overall crime figures, which increased by 5 percent between 2003–2004 (from around 2.8 to 2.9 million), 23 percent in 2004–2005 (to 3.6 million), and 8 percent in 2005–2006 (to 3.8 million), but decreased by 7 percent in 2006– 2007 (to 3.6 million) and fell by a further 10 percent (to 3.2 million) in 2007–2008. In addition to changes to recording practices, these fluctuations are also likely to reflect in part changes to legislation in terms of how certain crimes are defined and punished, as Russia seeks to “humanize” the law (see below) via measures of decriminalization.

OFFENDER STATISTICS In terms of the socio-demographic and economic characteristics of detected offenders, according to MVD figures for 2008, 16 percent of offenders were female and 9 percent under the age of 18. A further 61 percent had no regular income, including 5 percent who were registered unemployed and 30 percent who had previous convictions; 16 percent committed offenses in groups, but only 1 percent of offenders were identified as committing their offenses as part of organized criminal groups.

Finding of Guilt Upon being detained for questioning about an offense, in Russia a suspect can be held for up to 5 days without being charged. According to the new Criminal Procedure Code (2001), they are entitled to legal counsel within 24 hours of being detained. Where deemed necessary, a suspect can be held on remand in pretrial detention, but since the introduction of the Criminal Procedure Code, this can only be done upon application to a judge. This and other changes introduced as a result of the code reduced the number of suspects held in pretrial detention, which was a positive development given routine overcrowding in such facilities (see below).

Investigating Crime When a crime is reported or discovered and recorded by the police, a case may be formally opened


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and be subject to an inquiry (doznanie) by a detective. Previously the police could open a criminal case on their own initiative, but they now require the agreement of the Prosecutor’s Office. Since 1990 all suspects have had the right to legal counsel, but only since 2002 has it been mandatory for the police/ courts to inform suspects of this right, and research suggests this is still not always enacted according to the law. In a criminal case any individual without sufficient financial resources can request legal aid (which is partly means tested, but also automatically available to certain categories of citizens, such as war veterans), which covers legal advice and representation in court in both criminal and other cases. According to the Ministry of Justice, in 2007 more than 57,000 cases were granted legal aid, although it is likely that many more would have been provided with a court-appointed advocate for the trial phase.

Trials During the Soviet era trials were often held in front of a judicial panel of one judge and two lay assessors rather than a jury. However, jury trials began to be reintroduced to Russia at the end of 1993, and at the defendant’s request a jury of 12 people may now consider certain types of cases—usually for more serious offenses (e.g., murder and rape) tried at regional court level. According to the Ministry of Justice in 2007, 18,450 people served as jurors in trials across Russia, but this represented only around 1 percent of all criminal cases. Data from the Legal Department of the Supreme Court show that during the first nine months of 2009 only 421 jury trials took place, involving 748 accused persons, resulting in 168 acquittals (i.e., a 22% acquittal rate). It is possible that the number of jury trials will decline in the future as proposals have been put forward to remove this right for certain serious offenses, including terrorism and treason. For serious cases the right to trial by jury exists alongside the old system of judicial panel of one judge and two lay assessors or a bar of three professional judges. Minor cases are most likely to be heard before a justice of the peace.

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PLEA BARGAINING Russian legal codes allow for simplified proceedings to take place for certain offenses—if the defendant does not contest the charge against him or her. Termed “special trial procedures” and first introduced in 2002 for “less serious crimes” and crimes of “medium severity,” they allow a person accused of such offenses to plead guilty in exchange for some leniency in sentencing (the upper third of the sentencing range is excluded). These special procedures were extended to cover serious crimes in 2005, and in 2009 such “plea bargaining” was extended to all offenses—even serious crimes that may result in life sentences. It is estimated that special trial procedures now account for around 45 percent of all cases (which nonetheless still go to trial).

MEDIATION Mediation as a form of alternative dispute resolution is also provided for by the Russian legal system: private or court-annexed mediation is possible in civil and commercial cases, family law cases (e.g., divorce), and in criminal cases. Public authorities can also organize mediation in criminal cases, and prosecutors can be involved in the organization of mediation in family law cases and criminal cases. Reconciliation and mediation are recommended for all less serious crimes and crimes of medium severity and therefore it is almost standard practice for justices of the peace to attempt to resolve cases in this way.

Court Cases and Outcomes According to data for the first nine months of 2009 from the Supreme Court Legal Department, theft accounts for around 24 percent of all criminal trial proceedings, drugs for 9 percent, robbery and aggravated robbery for 8 percent, grievous bodily harm for 5 percent, and homicide, rape, extortion, bribe-taking/giving and arms-related offenses for less than 1 percent each. First-degree murder represents just over 1 percent of all criminal trials. According to data published in the Russian media, of those cases that went to trial in 2007 45 percent


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resulted in a suspended sentence, 33 percent in imprisonment, 13 percent in a fine, and 4 percent in corrective labor without imprisonment (i.e., community service). Data from the Legal Department of the Supreme Court show that for the first nine months of 2009 fewer than 1 percent of those accused at (nonjury) trial were acquitted, while around 30 percent had the cases against them stopped, and 32 percent were imprisoned, including 55 people for life.

Juveniles The age of criminal responsibility in Russia is 16, but for many serious crimes such as murder, rape, grievous bodily harm, and robbery, it is 14 and children of this age are held criminally responsible for their offenses. As there is no separate court system for juveniles, they are processed through the regular criminal justice system, although trials involving minors are usually held in camera and are handled by experienced judges, increasingly with the help of social workers. Those found guilty of a crime and sentenced to deprivation of liberty may be sent to a juvenile penal colony (or corrective educational facilities), of which there are 64 in Russia, including 3 for girls. They may remain there till the age of 18 and sometimes until the age of 20.

Punishment Types of Punishment The Criminal Code of the Russian Federation provides for a range of punishments commonly found in other countries. There are three types of penalties: basic, additional, and those that can serve as either/both: • Basic penalties include compulsory work, corrective labor, restrictions in military service or service in a disciplinary military unit (for serving military personnel), restricted liberty, arrest, deprivation of liberty for a specific period, deprivation of liberty for life, and capital punishment (but see below). • Additional penalties include confiscation of property, and deprivation of special military

ranks or honor titles, class ranks, or government decorations. • Penalties that can be either “basic” or “additional” include fines and deprivation of the right to hold a specified office or to engage in specific activities.

CAPITAL PUNISHMENT Although Russia has had a moratorium on the death penalty since 1996, when it joined the Council of Europe, this provision remains on the statutes. The moratorium was originally in place until such a time as all of the country’s federal subjects had introduced the possibility of trial by jury: as the final subject—the Chechen Republic—introduced jury trials in January 2010, which fulfils the abovementioned condition, this raised the possibility of a return to the use of the death penalty. However, as the Constitutional Court ruled in November 2009 that Russia’s international obligations take precedence over domestic legislation, even after the moratorium expires the death penalty will not be an option.

Typical Punishments For most types of crime the punishment depends on both the nature of the offense and of the victim, as a result of which there is not necessarily a “typical punishment,” but rather a range that varies accordingly. Some examples of offenses and punishments are given below: • Murder is defined as the intentional taking of another person’s life and is punishable by deprivation of liberty for a period of between 6 and 15 years. In special circumstances, including the murder of two or more people, of someone acting in the course of his or her official duty (e.g., a police officer), a pregnant woman, or when committed with particular cruelty or maliciousness, murder is punishable by longer periods of incarceration—between 8 and 20 years, or for life, or can (in theory) attract the death penalty. • Rape is defined as sexual relations with the use/threat of violence against the victim or


Russia

other persons or taking advantage of a victim’s helpless condition. It is punishable by deprivation of liberty of between 3 and 6 years, 4 and 10 years, or 8 and 15 years, depending upon the nature of the offense, offender, and victim of the crime. • Robbery is defined as the open theft of other people’s property and is punishable by corrective labor for between 1 and 2 years; by arrest for 4–6 months; or by deprivation of liberty for a term of up to 4 years. More serious cases (e.g., large-scale robberies, committed by groups of organized criminals, or by repeat offenders) are punishable by deprivation of liberty of between 6 and 12 years, with or without confiscation of property. • The illegal acquisition or storage of narcotic drugs and psychotropic substances on a large scale is punishable by up to 3 years of deprivation of liberty in cases without the purpose of sale and by 3–7 years for cases with the purpose of sale.

Prison Previously under the control of the Ministry of Internal Affairs, in 1998 the Federal Service for the Implementation of Punishment was transferred to the Ministry of Justice. According to the Ministry of Justice, on October 1, 2009, there were 877,595 persons in all types of penal institutions in Russia, including pretrial detainees and those on remand. Russia therefore has one of the biggest prison populations in the world, both in absolute terms (second only to the United States) and per 100,000 of the population (620). However, it should be noted that numbers have fallen in recent years: according to the International Centre for Prison Studies (ICPS), 2009, they fell from a high of more than a million in the late 1990s to the present-day figures, as a result of which they now suggest an occupancy level of around 91.6 percent, based on an official capacity of the prison system of 955,421. While occupancy levels are a quantitative indicator, they do not allow for any qualitative evaluation of space in penal institutions. Reports from Russia

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speak overwhelmingly of serious overcrowding in prison institutions, and particularly in pretrial detention centers (SIZOs), where prisoners may be allocated one square meter of space or less and may find themselves sitting and/or sleeping in shifts owing to a shortage of beds. High infection rates for contagious diseases such as tuberculosis and HIV have also been reported, partly owing to the sheer numbers of people living in extremely close proximity to each other. Of the total number stated above, around 15.6 percent were pretrial or remand prisoners, including 4.7 percent who were untried, 5.2 percent who had been convicted but were awaiting sentencing, and 5.6 percent who had been sentenced but were awaiting confirmation of their sentences. According to the ICPS’s World Prison Brief, 2009, around 8 percent of the total prison population were females, 1.8 percent were juveniles (under the age of 18), and 2.8 percent were foreign nationals. There are more than 1,000 penal establishments in Russia, including around 225 pretrial detention centers (SIZOs), 755 correctional “colonies” (including 45 for women and 62 for juveniles), and 7 prisons. Pretrial detention centers (SIZOs) hold people on remand who are awaiting trial and investigation. Reports suggest the worst conditions exist in such establishments, mainly because of overcrowding. Upon sentencing, inmates can be sent to one of several types of penal institution, depending on the nature of the offense for which they have been found guilty, the length of their sentence, and the ruling of the court. Prisons are penitentiary-type institutions reserved for those who have been found guilty of committing serious or very serious crimes and sentenced to at least five years. Other inmates of prisons include those who have been transferred for persistently breaching the rules and regulations of other penal establishments, who can be sentenced to prison for a maximum of three years. Prisons house inmates serving time at various security levels: minimum, medium, and maximum. A relatively low percentage of the country’s penal population are held in prisons. One of the country’s oldest and largest prisons is located in the historic city of Vladimir,


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around 100 miles from Moscow. It opened in 1783 and currently houses more than 1,000 “dangerous” criminals. Correctional colonies can be either open or closed facilities. Correctional colony settlements are similar to open prison establishments, where there are few guards and uniforms do not have to be worn by inmates, who live in dormitories or in rented accommodation within the boundaries of the open settlement. Inmates’ relatives are permitted to live with them within settlements. Such open institutions only house low-risk inmates, including first-time offenders convicted of certain types of crime and sentenced to no more than five years. In contrast correctional colonies are closed institutions guarded by armed officers and where inmates have to wear uniforms. There are three different categories of closed correctional institutions: general, strict, and special regime: (1) the general regime is a minimum security regime for most male and female prisoners not sentenced to higher regimes; (2) the strict regime involves medium to maximum security; and (3) the special regime is a maximum security regime for inmates convicted of the repeated commission of serious crimes and sentenced to life imprisonment. There are separate general regime colonies for women with children under the age of 3 and also separate colonies for inmates who previously worked in the area of law enforcement and criminal justice (for their own protection it is assumed).

WORK IN PRISON According to Laura Piacentini (2004), the aim of the Soviet penal system was to both correct and punish deviant behavior (considered to be “antiSoviet”) through enforced hard labor, which had the added benefit of simultaneously contributing to the Soviet economy. After the collapse of the Soviet Union certain practices continued in terms of prison labor; however, this was perhaps more a function of financial necessity on the part of the woefully underfunded penal institutions than of punishment, rehabilitation, or national economic needs. Many different approaches have been recorded across

Russia’s penal institutions, where prison labor remains a necessity in many areas, but opportunities tend to be dictated by available natural resources, competition, and supply and demand.

POLICIES ON VISITORS AND PRIVILEGES In the Russian penal system convicted prisoners are entitled to six family visits per year—more if governors allow them as a reward, for good behavior, for example. Each visit—for close relatives only—can last up to 72 hours, during which time visitors live in specially provided subsidized accommodation with the prisoner. The aim of such visits is to allow for family links to be preserved—which is seen to have short- as well as long-term benefits in terms of rehabilitation and reintegration at the end of a prisoner’s sentence. However, owing to the geography of Russia’s penal system, which means that prisoners can be sent to institutions far from their homes and families, as well as financial issues associated with traveling long distances, taking time off work and other schedules, and paying for the special accommodation, making the most of these permitted visits may be problematic for many prisoners and their families. Prisoners are also entitled to receive letters and parcels—but this is restricted to a certain number each year. Annette Robertson Further Reading Piacentini, Laura. (2004). Surviving Russian Prisons: Punishment, Politics, and Economy in Transition. Devon, UK: Willan. Pridemore, William A., ed. (2005). Ruling Russia: Law, Crime and Justice in a Changing Society. New York: Rowman and Littlefield. Roudik, Peter. (2008). “Policing the Russian Federation.” In Comparative Policing: The Struggle for Democratization, edited by Mika Haberfield, pp. 139–167. London: Sage. Russian Ministry of the Interior: http://www. mvdrf.ru. Solomon, Peter H., and Todd S. Foglesong. (2000). Courts and Transition in Russia: The Challenge of Judicial Reform. Boulder, CO: Westview.


San Marino

Note: The author would like to thank Professor Peter H. Solomon, Jr., Professor of Political Science, Law and Criminology at the University of Toronto, Canada, for his very helpful comments on the first draft of this essay.

San Marino Legal System: Civil Corruption: Medium Death Penalty: No Corporal Punishment: No

Background The Republic of San Marino is a landlocked country in central Italy of roughly 61 square kilometers (24 square miles) and claims to be the world’s oldest republic. The CIA World Factbook estimates the population at 30,324 as of July 2009, with 94 percent urbanization. Roughly, two-thirds of the population is between the ages of 15 and 64. There is a migration rate of 10.32 per 1,000 people and tourism adds about 3 million visitors a year. San Marino is a parliamentary democracy. The republican form of government and the protection of civil and political rights are constant features in the history of San Marino. Though it does not have an official written constitution, there is legislation and statues, dating from the initial formation on October 8, 1600, that serve a similar purpose. The 1974 Declaration of Human Rights Law No. 59 clarified the Citizens’ Rights and of the Fundamental Principles of the San Marinese Legal Order and formalized certain constitutional matters. Article 5 of the Declaration of Rights declares human rights as inviolable and articles 6–11 enumerate the most important of these rights. The San Marino legal system is a mixture of the old and new. The country has preserved the traditional system of jus commune in noncriminal matters and civil procedure. Jus commune is commonly thought of as a combination of Canon law and Roman law and remained in force in Italy and Europe before the development of the Napoleonic

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code. Private law, which is noncriminal law, is based on a combination of leges statutae, customary law, and the Justinian Code. Private law in San Marino is not codified. However, there are a number of legislative instruments that explicate the law in San Marino, the most significant being the Statutes of 1600, known as Statutae Leges Republicae Sancti Marini. The Statutes of 1600 is written in Latin and contained in six books, the third of which is known as the maleficiorum. The maleficiorum includes 74 articles and covers the criminal law of San Marino. Criminal matters of law are dealt with under a penal code adopted in 1974 and a Code of Penal Procedure that dates from 1878. This code was amended in the late 20th century.

Police Law enforcement in San Marino is divided among the centralized Civil Police, the Corps of Gendarmerie, and the Guardie di Rocca or Guardians of the Rock. The Civil Police are a nonmilitary police force that works with the Gendarmerie when necessary. They deal with civil, commercial, and tax/ revenue matters along with traffic control issues. The Gendarmerie was instituted in 1824 and addresses problems concerning public safety, criminal investigation, and drug enforcement activity. The Gendarmerie is primarily responsible for the reduction of crime, the safety of citizens, the respect of the laws, and emergency relief. The Guardians of the Rock protect important state institutional buildings, control and police customs, escort valuable goods and securities, verify any administrative infringements, and help with border control. There is no regular military force, only a voluntary military force known as Corpi Militari Voluntar. The voluntary military performs ceremonial duties and limited police support functions. The San Marino police forces are trained by the Italian police and have a mutual agreement for cooperation and aid when needed. Italy’s armed forces are responsible for defense during hostile or aggressive conflicts. San Marino defense is the responsibility of Italy. The Financial Intelligence Unit (FIU) under Law 92 of June 17, 2008, works under the Central Bank


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of San Marino. The responsibilities tasked include preventing and fighting money laundering and terrorism. The FIU cooperates with the other San Marino police forces and international agencies.

private violence, housebreaking, slander, libel, public defamation of religion, arbitrary arrest and failure to release from jail, and arbitrary treatment of detainees.

Crime

Crime Statistics

Classification of Crimes

According to European Committee on Crime Problems, in 2002 the most serious crimes in San Marino were fraud (36 cases), counterfeiting (11 cases), possession of drugs (12 cases), smuggling (1 case), extortion (3 cases), and bankruptcy (1 case). The committee also reported that San Marino has not experienced drugs or arms trafficking, kidnapping, robbery, or bag snatching for 2003. On October 18, 2007, the media reported that 60 cases of violence against women occurred in the first eight months of the year, according to the U.S. Department of State, Bureau of Democracy, Human Rights, and Labor. According to the Central Bank Services, the headquarters of the Financial Intelligence Unit, for 2006 there were 55 reports received of money laundering, the increase attributed to heightened awareness of money laundering. The Financial Intelligence Unit investigated 1 money laundering, 1 robbery, 9 thefts, and 2 drug-related crimes for the first half of 2009. The Gendarmerie between January 1, 2008 and July 31, 2009, arrested 11 people for theft, 2 for robbery, and none for narcotic-related offenses. According to the International Labour Standards Department for 2004, there were no problems with human trafficking and in 2006, no cases of child labor. San Marino’s Minors’ Service, formed in 1977, is responsible for formal child protective systems; it reports that cases of abuse and neglect are rare, and most of its funds are directed toward disabled minors.

The San Marino Criminal Code, enacted on January 1, 1975, includes all criminal offenses; however, the only clear classification is based on the punishment rather than the crime. A misdemeanor is any crime that does not require imprisonment. Although not officially categorized, the major criminal offenses include the following: • Murder, manslaughter, reckless homicide. • Intentional and unintentional personal injuries, instigating and/or assisting with suicide, personal violence, fraud in marriage. • Enslaving, trafficking and trade in slaves, abduction, violation of sexual freedom. • Housebreaking. • Disclosure of correspondence, defamation, slander, libel, public defamation of religion, violation of religious freedom, interference with religious rites. • Attack on the free exercise of the right to vote, violation of secret ballot, violation of political rights. The minimum age of criminal responsibility in San Marino is 12 years of age. Minors over the age of 12 but under 18 who have had their mental capacity ascertained may receive a penalty reduced by one or two degrees. The mental capacity of a minor is established through a bio-physical examination. Human rights are protected under San Marino law and all behaviors that constitute violations of these rights are subject to punishment by criminal regulations. Under the San Marino Criminal Code criminal offenses include murder, manslaughter, reckless homicide, intentional and unintentional personal injuries, instigating and assisting the commission of suicide, enslaving, trafficking and trade in slaves, abduction, violation of sexual freedom,

MONEY LAUNDERING AND TAX EVASION The biggest challenge to the San Marino government is money laundering, mainly due to the open borders with Italy and the lax banking regulations, banking secrecy, and a developed financial system that is very attractive to the business sector.


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Offshore crackdown of institutes that conduct tax dodging initially began with the international fight against organized crime. The crackdown especially affected the local market when the largest bank in San Marino, Cassa di Risparmio Della Repubblica di San Marino (CRSM), lost its top five executives when they were arrested for money laundering by Italian prosecutors. CRSM’s consumer finance group Delta was placed under bankruptcy proceedings by the Italians, which placed more tension on the banking system of San Marino consisting of 12 banks and 55 financial groups. San Marino responded by creating the Financial Intelligence Unit in 2008; this specialized unit is devoted to the challenges raised by money laundering. San Marino’s policy of offering tax clients anonymity and secrecy is approaching its end. With pressures mounting from the European Union and Italian government, the San Marino government has taken steps to alleviate money laundering problems, including the ratification of the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime, and the adoption of corresponding domestic legislation in the area of criminal procedural law. In 2002 the country signed a treaty with the Organization for Economic Cooperation and Development (OECD) in an effort to provide greater transparency in banking and taxation. This treaty removed San Marino from the OECD’s blacklist of tax havens and placed the country on the grey list. The grey list consists of countries who have pledged to comply with the rules on sharing tax information but have not yet taken action. Recently, the OECD has established the Global Forum on Transparency and Exchange of Information for Tax Purposes. The global forum accomplishes its mission through in-depth monitoring and peer review, and San Marino is listed as a participating member country.

Finding of Guilt The Declaration of Citizens’ Rights and of the Fundamental Principles of the San Marinese Legal Order effective on July 8, 1974, under Law No. 59 provides the rights of all citizens including accused

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persons. The declaration prohibits arbitrary arrest and detention. Communication to relatives is compulsory for any police stop or arrest and if the accused is a minor, this is immediate. Any arrested or detained person is entitled to defend himself or herself during the entire proceedings. An accused is afforded an advocate of his or her choice, allowed private communications with the advocate, and is accompanied by the advocate during all interrogations. The judicial system provides an advocate free of charge for an accused that requires legal assistance. Innocence is presumed until convicted. Trials are public and with the exception of the Council of Twelve, all courts function with a single judge making decisions. If the offense involves violence, including domestic violence, the victim is afforded confidentiality and privacy including protection for the victim’s children. The guardianship judge assigns a minor representative to all juvenile cases involving maltreatment from the parent, guardian, relative, or parties with significant relationship to the family to protect the minor’s rights. The declaration guarantees a fair, speedy, and cost-effective trial including an independent judiciary. The accused is allowed to conduct his or her own investigation through access to all government-held evidence and question witnesses. Trials are public and presided by a single judge with no jury trial. Regulations require police officers to record the stop and/or arrest. All interested parties, including the advocate, can freely access this report. The investigation and prosecution are assigned to the prosecutor, while the judge supervises the entire investigation to guarantee certainty of the law and protection for the defense.

Prosecution and Investigation San Marino’s legal system is basically inquisitorial in nature and judicial authority is responsible for inquiring about criminal activities by way of an investigation to uncover the truth. Any person whose rights have been violated can go to the criminal court to prosecute the offender. Judicial authority is obligated to provide an investigation into criminal


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activity in the absence of a complaint in instances where a notitia criminis is received. A notitia criminis is a notice conveyed to a judicial authority that a crime has allegedly transpired. The law commissioner is responsible for criminal investigations and has a duty to begin a diligent search upon receipt of a notitia criminis. The accused may be interrogated as soon as possible and retains the right to have an advocate of his or her choosing or a public defender present during the questioning. After all evidence is collected the investigating judge determines if there is an adequate amount of evidence for an arraignment. If there is not sufficient evidence then the case is dismissed after a second opinion from the procuratore del fisco. With sufficient evidence the investigating judge shall issue a summons describing the nature and cause of the charge. At this time the defendant will be informed of his or her right to counsel. The defendant then has 30 days from notification of the summons to appear in court. The summons issued by the investigating judge terminates the inquiry stage. The defendant is then given a full hearing, which is public and oral. The judgment shall be delivered by a law commissioner different from the one responsible for the initial inquiry.

Deprivations of Liberty Deprivations of liberty prior to conviction include preventative detention in prison or a treatment facility, house arrest, the obligation to stay on the territory of the republic or part of it, and the prohibition to expatriate. The deprivation of personal liberty prior to a final judgment is regarded as an extraordinary measure in San Marino. This measure may be adopted only under special circumstances. A judge will order a deprivation of liberty only if it is determined that the defendant may harm the community or there is a risk of withholding evidence of the defendant’s escape. The judge bases the decision by evaluating the regulatory measures that least affect the accused and his or her family, provided it proves to be effective. Preventative detention can also be ordered in cases where an individual is accused of a crime punishable by first-degree or second-degree imprisonment.

Courts There are at least four levels of courts within San Marino. At the bottom of the hierarchy are the conciliatory judges. The conciliatory judges handle only civil cases that do not exceed €12,000 (US$15,000). Noncriminal cases can go to the conciliatory judge or a law commissioner depending on the amount of money in controversy. Appeals from the conciliatory judges go to a law commissioner and can further advance to a civil appeals judge. The Council of Twelve sits at the top of the legal institution and may choose between the two lower court opinions. The final court of review is the College of Guarantors, appointed from the members of the Great and General Council, each serving four-year terms. The College of Guarantors was institutionalized in 2002 under Law No. 36, replacing the original Council of Twelve, which was composed of 12 judges. The college is composed of 6 judges and decides on constitutional rules and procedures, considers conflicts of competency, determines if a referendum is admissible by law, and intervenes with the Regents as needed. In criminal matters, a case can be decided either by a law commissioner or by a criminal appeals judge. The criminal appeals judge handles all cases where a prison sentence of more than three years is possible. An appeal from a law commissioner to a criminal appeals judge is possible; however, there is no appeal available for a sentence imposed by a criminal appeals judge. The Great and General Council deal with constitutional matters. There is a separate judicial hierarchy that deals with administrative matters. There is a juvenile court in San Marino, known as the tribunal dei minori.

Judges Up until 2004, the judicial system required judges to be noncitizens for the lower courts to assure impartiality due to the size of the population. Reform legislation in 2004 reversed that decision; however, most judges are generally Italian citizens and serve under contract through the government. Justices of the peace are the only judgeships that have ever been solely open to San Marino citizens since the justice system formed. All judges are appointed


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by two-thirds majority ruling from the Great and General Council. Judges of appeal and the judge of administrative appeal are typically chosen from among magistrates, tenured professors of law, or attorneys with at least 15 years’ experience in the practice of law. Law commissioners and administrators who have served for at least 10 years may also be appointed. Conciliating judges, who can be San Marino citizens, are selected from the attorneys having experience of at least 5 years, or from clerks having served for at least 2 years.

Punishment Types of Punishment Punishment in San Marino takes the following forms, according to the Criminal Code, from most severe to least: • Imprisonment not to exceed 35 years, ranging from 1st degree (3 months–6 months) to 8th degree (25 years) punishments. • Disqualification from public offices, political rights, or a profession/trade not to exceed 5 years. • House arrest is permitted depending on special circumstances, including family or work needs and required for women who are pregnant, breastfeeding, or responsible for the care of children under 3 years old, physically or mentally handicapped persons, or semi-invalid or invalid persons more than 65 years of age. • Fines between €103.81 (US$130) to a maximum of €1,549.37 (US$1,947). • Fine by day depending on the judge’s discretion. • Reprimand in a public hearing. Probation is under the discretion of the judge for a two- or three-year imprisonment sentence. The criminal is placed in either house arrest or under the supervision of Social Services. Drug or alcohol addicts are permitted to serve a portion of their sentence in rehabilitative probation under the supervision of Social Services or in a public institute for treatment and assistance.

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Penalties are to be humane and rehabilitative, considered only through the discretion of the court. A pardon or mercy application can be submitted to the Great and General Council. A pardon completely or partially terminates the remaining portion of the punishment or transfers the punishment to another form. Mercy allows the convict to receive a reprieve from his or her punishment. Typically, juveniles are assigned probation or to the care of the Minors’ Service rather than minor detentions. Sentences are provided by the Criminal Code, which prohibits life imprisonment and restricts the maximum sentence of imprisonment to 35 years. The following are the penalties set by the Criminal Code for major crimes. The typical punishment for murder is 20–25 years’ imprisonment, a seventh- or eighth-degree punishment. Other penalties can change the imprisonment based on aggravating and mitigating circumstances. Rape, including spousal rape, is punished by 2 to 6 years’ imprisonment, second- or third-degree punishments. If the circumstance is aggravating, the punishment is increased to 4 to 10 years. Theft is typically punished based on the weight of the stolen goods; under 25 pounds, 1–3 months’ imprisonment; between 25–250 pounds, 3 months–1 year; and more than 250 pounds, 1–3 years. According to Law No. 139, enacted in 1997, drug offenses are entitled to a second-degree imprisonment, especially if the accused produces narcotics or is in possession of drugs. If the accused has large quantities of the drugs, has the sole intention of profit, or a youth is involved, the punishment increases by one to three degrees. The death penalty was abolished in 1848 for ordinary crimes and completely in 1865. The last recorded execution in San Marino was in 1468.

Prison The secretary of state for justice is responsible for the only prison, San Marino Prison, which has an official capacity of 12 and includes one visiting room. The San Marino Prison meets all international standards, including separate cells for males, females, and juveniles. An agreement with Italy


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allows San Marino prisoners to serve their sentences in Italy, where most of the criminals serve. According to the ICPS World Prison Brief as of January 2007, the San Marino Prison had one prisoner, including pretrial detainees, and no female, juvenile, foreign, or political prisoners and an 8.3 percent official occupancy level. By agreement with the Italian government, institutions in Italy are used to hold most persons imprisoned by San Marino. An imposed prison sentence can be served in the prison of San Marino, though the Criminal Code provides for the execution of a prison sentence of more than six months in a foreign prison on the basis of international conventions. A convicted person serving a term of imprisonment for a maximum of two or three years who also suffers from drug or alcohol addiction may request to undergo a rehabilitation program. The person would then be placed on probation and under the supervision of social services to start an agreedupon treatment program. A judge may also authorize the leave of a convicted person from the place of detention during the day for an amount of time necessary to perform a working activity essential for his or her personal and family maintenance. The Criminal Code prohibits forced labor. Inmates are allowed regular exercise and visits. All measures involving inmates, including restraints, are only allowed through written permission from the council. San Marino has bilateral extradition treaties with the United States, Italy, France, Belgium, the Netherlands, and the United Kingdom. Any other countries requesting extraditions are granted solely on necessary political authority. In general, San Marino citizens are prohibited from extradition except with countries connected by the bilateral extradition treaties. According to the Third Compliance Report for MONEYVAL between January 1, 2009, and August 15, 2009, two extraditions were granted for the Italian government for money laundering and human trafficking. Nazmia E. Alqadi and Jessica Gentile Further Reading Astuti, Guido. (1987). “San Marino.” In International Encyclopedia of Comparative Law. Vol. 1,

edited by Viktor Knapp, pp. S13-S15. Dordrecht, the Netherlands: Martinus Nijhoff. Duursma, Jorri. (1996). Fragmentation and the International Relations of Micro-States: SelfDetermination and Statehood. Cambridge: Cambridge University Press. Giannini, Torquato C., and Menetto Bonelli. (1900). Raccolta delle leggi e descreti della Republica di San Marino [Collection of Laws and Decrees of the Republic of San Marino]. San Marino: Città Di Castello S. Lapi Tipografo. San Marino official Web site: http://www.sanma rinosite.com.

Scotland. See United Kingdom/Scotland Serbia Legal System: Civil Murder: Medium Burglary: Medium Corruption: Medium Human Trafficking: Medium Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background Serbian current criminal legislation is compatible with democratization and in compliance with international standards. Important legislative changes have occurred over the years, especially in the 1990s. Several political crimes were decriminalized in 1990; the death penalty was abolished in 1993, as well as the prohibition of public speech. In addition, important legal changes were initiated after the collapse of Milosevic’s regime in 2000, and particularly with the adoption of a new Criminal Code and other laws related to prosecution in 2005. In 2005, the Serbian criminal legislation was reformed in compliance with European criminal laws and traditions, but also to gather criminal law provisions scattered in different acts. The new modern


Serbia

Criminal Code of the Republic of Serbia entered into force on January 1, 2006. As for procedural provisions, the Serbian Criminal Code of Procedure of 2001 has been amended several times over the years until a new Criminal Code of Procedure was adopted in 2005. However, the so-called new Code has never been applied, and the latest amendments to the Criminal Code of Procedure adopted on August 31, 2009, nullified it definitely. Recent reforms of criminal legislation are certainly placing Serbia more in line with contemporary civilized democratic countries. Nevertheless, one should note that, throughout history, the Serbian criminal legislation almost always used criminal and other relevant codes of Western European countries as a model (Austrian, German, French, and Swiss codes, in particular). Due to that, it is disputable whether we can speak of just the current criminal justice system as a democratic and modern one, or we may assume that it was rather “contemporary and modern” throughout its development. The Serbian legal system shares the characteristics of the European (Continental) model. It is based exclusively on written laws (the core texts are the Criminal Code and the Criminal Procedure Code). Criminal court decisions (i.e., the outcome of a particular case) are not considered a source of law. The criminal procedural system is mixed; a combination of accusatorial and inquisitorial principles regulate the position of the main participants in the criminal justice process. The main accusatorial characteristic of the proceedings is the complete seclusion of the procedural functions and subjects, which is the guarantee of fair trial. Inquisitorial elements are mostly present at the investigation stage (e.g., limited publicity, investigation that can be undertaken before the official start of criminal proceeding). A major inquisitorial characteristic of the Serbian proceedings relates to the obligation for the court to establish all facts necessary to the rendering of a truthfully and completely lawful decision. Thus, relevant facts can be investigated by court ex officio, that is apart from the initiative of the party litigants.

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The number of criminal offenses included in the Criminal Code is constantly increasing and the Serbian criminal justice system is still rather repressive. A constant strengthening of criminal protection in the normative field can be an obstacle for an efficient and effective work of the judiciary, which is facing a lack of both human and technical resources. However, during recent years some changes toward implementing elements of restorative justice into the criminal justice system are also visible, suggesting that recent reforms are taking a progressive direction.

Police The Serbian police are a service organized within the Ministry of Interior and independent from the military or other relevant institutions. The Police Directorate, a division of the Ministry of Interior, is responsible for the organization of police work. The Police Directorate is organized at a state level and comprises several departments, for example, a Department of Criminal Investigation, a Security Department, a Border Police Department, a Department of Information Technology, a Special AntiTerrorist Division, and the Gendarmerie. Police units are organized on a territorial basis, for either one or more municipalities, and/or on the city level. There is a strong hierarchy between police units and officers from different levels. According to the Law on the Police (2005), the Serbian police forces are to protect the life, rights, and freedom of citizens; to prevent, discover, and investigate criminal offenses; and to apprehend offenders. The police are bound to protect public order and provide assistance whenever needed. In 2007, the Serbian police took over the protection of the state border from the military, which resulted in a demilitarization of the Serbian borders after 94 years of military control. The police now control some 2,100 kilometers (1,304 miles) of borders that separate Serbia from Bosnia and Herzegovina, Croatia, Romania, Hungary, Bulgaria, and Macedonia. Unfortunately, no data on the number of officers working in the different police structures are available.


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Crime

AGE OF CRIMINAL RESPONSIBILITY

Classification of Crimes

The age of criminal responsibility set forth in the Serbian criminal justice system is 14, whereas juveniles from 14 to 18 years old are considered minors. Minors are divided into two groups: juniors and seniors. The latter distinction relates to the types of sanctions that can be imposed. Namely, educative measures are the only sanctions that can be pronounced against junior juvenile offenders, while senior juvenile offenders can be sentenced to both educative measures and juvenile imprisonment.

According to the Serbian legislation, illicit acts can be divided into three groups: criminal offenses, economic violations, and misdemeanors. The term “criminal offense” is defined in the 2005 Criminal Code as comprising the following elements: the prescription of a certain behavior by the law as a criminal offense, an act that is against the law, and the dimension of guilt. The first two elements are objective and formal components of the law, while the last one is subjective. In comparison to previous legislations, the definition of a criminal offense in the 2005 Criminal Code does not include the notion of social danger of a certain behavior anymore. Most criminal offenses are defined in the Criminal Code, although they might be foreseen in some other laws regulating certain specific fields. The Serbian criminal legislation is characterized by the constant increase of the number of behaviors that are considered criminal offenses by either the Criminal Code or other laws. In the current Criminal Code, there are more than 1,000 different criminal offenses proscribed either in their basic or qualified forms. Nevertheless, in the Serbian criminal jurisdiction, there is no formal or terminology distinction between serious and less serious crimes. In practice, a crime is considered more or less serious depending on the prescribed sentence, which then determines the court jurisdiction or a form of prosecution. Beside some exceptions, municipal prosecution offices and courts will be authorized to prosecute criminal offenses punishable with a fine or a custodial sentence of less than 10 years. Other cases are settled by courts of higher jurisdiction. On the other hand, most criminal offenses are prosecuted ex officio by the public prosecutor. However, there are some explicitly determined criminal offenses for which the prosecution can be undertaken by a private prosecutor (i.e., the injured party or another authorized person). Finally, for some also explicitly determined criminal offenses, the injured party’s consent to prosecution is a condition to the undertaking of a prosecution by a public prosecutor.

Crime Statistics According to the latest available data of the Serbian Statistical Office, in 2005, 112 persons (103 adults and 9 minors) were convicted for murder, 61 (57 adults and 4 minors) for rape, 683 (561 adults and 122 minors) for robbery, and 1,850 (1,790 adults and 60 minors) for unauthorized production, possession, and sale of narcotics. While urban areas tend to have higher crime rates, the most typical offenses in both rural and urban areas are property offenses—mainly thefts. Burglaries and robberies are more common in urban areas, as well as economic crime and crime against public order and legal transactions. Finally, arsons are the typical rural crimes.

TRAFFICKING IN PERSONS At the end of the 20th century, trafficking in persons became a growing problem in southeastern Europe, equally affecting countries of origin, transit, and destination. During the past two decades, trafficking in human beings, primarily in women and children, developed in two main directions. At the beginning of the 1990s, due to political factors, there was an opening of Eastern and Central European borders that translated into waves of trafficked victims entering the West. At the same time, human trafficking benefited from restrictive immigration policies of Western countries that prevented legal immigration. Consequently, trafficking markets changed and moved from Asia to Central, Eastern, and southeastern Europe. On the other hand, the Balkans, once predominantly a transit


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zone, increasingly became a destination for numerous victims of trafficking. The geographical position of Serbia, as a part of the Balkans, makes it an important route for various forms of illegal trafficking, including human trafficking. Main trafficking routes go from East to West, positioning Serbia as mostly a transit country and a country of temporary destination. However, with a worsening of the economic situation, Serbia became a country of origin for either transnational or internal trafficking as well. The first survey on the prevalence, structure, and characteristics of trafficking in human beings, conducted in 2003 by the Victimology Society of Serbia, identified 1,134 victims of trafficking (940 women, 100 men, and 94 children) on the territory of Serbia during 2002 and the first six months of 2003. Consequently, social visibility and social response to human trafficking in Serbia has improved over recent years. Trafficking in human beings was included in the Criminal Code as a separate criminal offense in 2003. According to data of the Serbian Statistics Office, in 2003, there were 10 criminal reports of human trafficking, yet no indictment nor conviction. Comparatively, in 2006, 50 criminal reports were filed; there were 18 indictments and 13 convictions. Data on victims of human trafficking are not available in the Statistics Office but can be gathered from other sources. The Ministry of Interior identified 35 victims of human trafficking in 2004, 26 in 2005, 56 in 2006, 96 in 2007, and 55 in 2008. Most of these victims were females, although in 2007 twothirds of the victims were males. The Agency for Coordination of Protection of Victims of Human Trafficking identified 38 victims of human trafficking in 2004, 53 in 2005, 62 in 2006, 60 in 2007, and 55 in 2008. Over 90 percent of the victims identified by the latter institution were adult women or girls. However, it is estimated that the number of victims is 10 times higher than the number of officially recognized victims.

DRUG OFFENSES The Serbian Criminal Code foresees two drugrelated criminal offenses: the unauthorized produc-

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tion, possession, or trafficking in narcotics and the enabling of drug use (inducing and aiding consumption of narcotics). Possession of narcotics for personal use is not prosecuted to avoid punishing actual drug addiction.

Finding of Guilt The right to defense is the basic right of the defendant that generates all of the other rights. The right to defense includes, for example, the right to be heard in the presence of the chosen defense counsel, the right not to be interfered/impeded in communication with a defense counsel, the right to be informed of criminal charges at the first interrogation, and the right to refuse to answer questions, including those related to identification. The right to fair trial is a complex concept encompassing several principles and rights envisaged by the Constitution, the Criminal Procedure Code, and other acts. It includes, among others, the principle of publicity, the presumption of innocence, the principle not to be tried twice for the same crime, the principle no crime without law, the principle of due process, the right to appeal, and the right to compensation in case of wrongful conviction. The right to a trial by jury, as known in common law systems, does not exist as such in the Serbian criminal legislation. However, the principle is that, in criminal proceedings, the courts of law adjudicate a council. Thus, councils in first instance courts are composed of two judges and three lay judges to decide on sanctions exceeding 15 years of imprisonment, and one judge and two lay judges in less serious cases. A single judge adjudicates in the first instance court when special provisions on summary proceedings are applicable. This is the case for criminal offenses punishable by a fine or custodial sentence not exceeding three years and, exceptionally, upon request of an authorized prosecutor and with the defendant’s explicit consent. Consequently, the judge may issue a penal order event without holding a trial. The defendant can object to the order, thus forcing the judge to schedule a trial.


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A Serbian police officer stands guard in front of the Special Court in Belgrade, October 2, 2007, during reading of the verdicts to three suspects in Japan’s biggest ever jewelry heist after they were convicted in their native Serbia and sentenced to up to seven years in prison. (AP Photo/Srdjan Ilic)

The defendant has the right to defend himself or herself or to be assisted by a defense counsel member of the Bar Association of Serbia. During the interrogation, the defendant has the right to be assisted by a defense counsel; the defendant shall be informed of this right. If the defendant does not retain a defense counsel by himself or herself, the court shall appoint a defense counsel. The defendant must be offered adequate time and facilities to prepare the defense. Criminal offenses subject to official prosecution are prosecuted by the public prosecutor and cases subject to a private claim are prosecuted by a private prosecutor. If the public prosecutor determines

that there is no ground for prosecution, the injured party may act as a subsidiary prosecutor according to the provisions of the Criminal Procedure Code. The public prosecutor is bound to institute the prosecution when there is a reasonable suspicion that a certain person has committed a criminal offense subject to official prosecution. The public prosecutor shall be competent to do the following: • Conduct a preinvestigation procedure. • Request that an investigation be carried out and direct a pretrial procedure. • Prefer an indictment before the court having jurisdiction.


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• File an appeal against a decision of the court of first instance or contest final decisions by an extraordinary legal remedy. • Perform any other functions defined by the code.

Investigation Requests for investigations are sent to the investigating judge who shall examine the request and render a ruling whenever agreeing with the request. The ruling shall be delivered to the state prosecutor, the defendant, and the defense counsel. If clarification is needed or if a preliminary hearing seems appropriate, the investigating judge may summon the state prosecutor and the suspect before the court. Preliminary hearings are conducted orally. The state prosecutor can use this opportunity to alter or complete his or her request; he or she may also suggest the request be conducted upon an indictment without investigation. Party litigants may appeal against the ruling of the investigating judge. In such cases, the judge shall refer to the council without further delay. The appeal does not stay the execution of the ruling. If the investigating judge does not agree with the state prosecutor’s request for investigation, he or she shall, upon questioning of the suspect, request the council to make a disposition. The council shall dismiss the request for investigation if there are circumstances that temporarily prevent the prosecution and shall reject the request for investigation if there is no sufficient evidence. The defendant, the state prosecutor, and the injured party may appeal against the ruling of the council, which does not stay its execution. Most criminal cases in Serbian jurisdiction are closed after trial. According to the latest available official statistics, in 2005, 43.4 percent of criminal reports filed against an adult were prosecuted, while the largest part resulted in a court trial. The same year, offenders were pronounced guilty in 77.1 percent of the cases brought to court.

Alternatives to Trial In 2002, the Criminal Code of Procedure introduced the principle of opportunity in the criminal prosecution of adult offenders. The public prosecutor may

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decide to delay prosecution in certain cases. Such possibility exists only for criminal offenses subject to a fine or a custodial sentence not exceeding three years, and just exceptionally for the criminal offenses for which a custodial sentence of more than three and less than five years could be imposed. The defendant must, however, agree to fulfill one of the following conditions set by the law: • To remove harmful consequences resulting from the criminal offense. • To pay a financial compensation to a humanitarian organization, fund, or a public institution. • To carry out community or humanitarian work. • To fulfill the obligations of paying alimony. • To treat an alcohol or drug addiction problem. • To undertake a psychosocial therapy. • To fulfill the duty set forth by the irrevocable judgment. • To get a driver’s license, go for additional driving lessons, or to finish other appropriate course. Imposing conditions such as a donation to a humanitarian organization or a public institution, or ordering community work, are dependent on the consent of the victim. The time frame for carrying out imposed conditions cannot exceed six months. If the defendant fulfils the commitment within the set time period, the public prosecutor will drop criminal charges. The possibility of lifting criminal charges is foreseen even in the case when the defendant, truly remorseful, has prevented the damage from occurring or has already fully compensated for the damage, and the public prosecutor has in accordance with the circumstances evaluated that setting a criminal sanction would not be just. However, one should note that the principle of opportunity is very rarely applied in practice, as public prosecutors are not interested in the application of these regulations. They consider these too complicated and, above all, are afraid that not pressing charges might be considered corruption. The juvenile justice system also provides alternatives to criminal procedure: the principle of


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opportunity in prosecuting juvenile offenders, and educative (diversion) orders. In case of criminal offenses subject to a fine or a custodial sentence not exceeding 5 years, the prosecutor can decide not to press charges if considering it not suitable. To assess the situation, the prosecutor can ask the juvenile’s parents or guardians, other persons or institutions, particularly social welfare services, to provide the necessary information. If the juvenile’s personal conditions need to be examined, he or she may be placed in an institution for children and youths or in another educative institution for a maximum of 30 days. Educative (diversion) orders are also an alternative to criminal procedure. Educative orders are foreseen as special measures. The juvenile public prosecutor or the juvenile judge may impose one or more educative orders to a juvenile who committed a crime subject to a fine or a custodial sentence not exceeding five years. Whether this measure will ever be applied depends, among other things, on whether the juvenile admitted to a criminal offense and on the person’s regard toward the criminal offense and the injured party. The basic purpose of these orders is not to bring criminal charges against a juvenile or its suspension, but they aim at improving the development of the juvenile and strengthening his or her personal responsibility. The legislator has foreseen the following diversion orders: settlement with the injured party (i.e., financial compensation of damage), apologies, mandatory attendance of classes, voluntary humanitarian or community work (e.g., welfare, local or environmental), mandatory alcohol or drug treatment program, or individual/group counseling. Diversion orders can last up to six months; during that time, orders can be replaced by another measure or suspended.

Pretrial Detention In the Serbian criminal justice system, incarceration before or awaiting trial is possible. Pretrial detention is regulated by the Criminal Code of Procedure and can be used only as a last resort. Therefore, pretrial detention is used in two different types of situation: first, when the criminal offense is really serious, second, to guarantee undisturbed criminal proceedings.

The investigating judge can pronounce pretrial detention for a period no longer than one month after the arrest. The prolongation of the incarceration is dependent upon a formal decision of the council and limited to a period of two months. Finally, the Supreme Court Council can extend the incarceration for three additional months for cases subject to a custodial sentence of at least five years.

Judiciary The latest official data from the Statistics Office of the Republic, in 2005, reports that there were 138 municipal courts, 30 district courts, and one Supreme Court in Serbia. There were 2,698 judges, including both criminal and civil suit judges, and 7,374 judge assessors. Besides, there were 17 economic courts where worked 268 judges and 780 judge assessors. However, there are no precise data on the number of criminal court judges. In practice, judges often change affiliation; so that civil judges become criminal judges and inversely. According to the Law on Judges (2002), any Serbian citizen can become a judge as long as he or she fulfills the following criteria: meets the conditions to work within a state agency, has obtained a law degree, has passed the judiciary exam, and is capable to accomplish the duties of judge. In addition, a certain work experience is necessary as well: after the judicial exam, the candidate will need 2 years of experience in legal affairs to be appointed at a municipal court; 4 years to be appointed at an economic court; 6 years to be appointed at a district court; 8 years at the Court of Appeal, Higher Economic Court, or the Administrative Court; and 12 years to be appointed at the Supreme Court of Serbia. At the prosecution stage, in 2005, there were 109 municipal public prosecutor’s offices, 30 district offices, and 1 republic office. Altogether, 767 public prosecutors and deputies were working during that year.

Juveniles The juvenile justice system in Serbia is regulated by a separate code, the Law on Juvenile Offenders and


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the Criminal Protection of Juveniles, which entered into force in 2006. Although juvenile offenders have always been treated differently from adults, with the adoption of that law, juvenile justice was for the first time regulated as a completely separate system. The legal text contains provisions on both the position of juvenile offenders in the criminal procedure and the position of juveniles injured by a set of explicitly defined criminal offenses. The law on juveniles envisages diversion orders and criminal sanctions for juveniles, including educational measures and juvenile prison. In cases involving juvenile offenders, the criminal procedure at first instance is run by either a juvenile court judge or a council, but proceedings are always conducted in a district court. When the hearing is run by a council, it is composed of one juvenile court judge and two lay judges of different sexes. The jurisdiction of the Supreme Court is set as second instance; the proceedings are conducted by a council consisting of three professional judges. A criminal procedure against a juvenile may only be initiated by a juvenile prosecutor. It cannot be initiated upon the sole request of an injured party, although in some cases the consent of the injured party is required. All persons involved in juvenile criminal justice are specifically trained. Police officers, lawyers, prosecutors, investigating judges, and court judges have attended training on children’s rights, juvenile delinquency, and issues related to the protection of juveniles. As mentioned previously, a section of the Law on Juvenile Offenders and the Criminal Protection of Juveniles is devoted to the protection of juvenile victims. Legal provisions are applicable for a list of criminal offenses explicitly defined in the law (including rape and other forms of sexual offenses, domestic violence, human trafficking, trafficking for the purpose of adoption, murder, kidnapping, child abuse and neglect, incest, burglary, arson, and enabling the use of narcotics). In these cases, victimized juveniles must have a legal representative from the very beginning of the procedure (i.e., the first time a suspect is questioned). The law additionally envisages special rules to be applied for the questioning of a juvenile offender

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to avoid any negative impact on the juvenile’s personality and development. These rules and guidelines include the following: questionings of juvenile offenders are conducted in presence of an expert; juvenile offenders cannot be questioned more than twice; questionings are recorded and can later be used in courts; and questionings conducted outside the courtroom (e.g., parents’ house, institution) are authorized.

Punishment Types of Punishment Criminal sanctions foreseen in the Criminal Code include punishments, warning measures (i.e., suspended sentence and judicial admonition), and security measures. Educational measures and juvenile custodial sentences are envisaged in the Law on Juvenile Offenders and the Criminal Protection of Juveniles. According to available data of the Serbian Statistics Office (for the period 2002–2006), the most typical form of punishment is imprisonment, and short-term sentences (i.e., less than six months) are the most frequent custodial sentences. However, the sentences are suspended most of the time (51.9% of all pronounced sentences in 2006). Custodial sentences range from 30 days to 20 years. A convict can be released on parole at the halfway point of the sentence if one can reasonably expect that he or she will behave well and especially that he or she will not reoffend. According to conviction data, in 2005, the following punishments can be considered typical. The typical punishment for murder was imprisonment, mostly for a period of 5 to 10 years. Rape offenders were usually sentenced to 1 or 2 years of imprisonment. Typical punishments for the perpetration of aggravated theft or robbery were custodial sentences, ranging from 6 to 12 months for aggravated theft and from 1 to 2 years for robbery. The perpetration of drug offenses was most of the time accompanied by a prison sentence ranging from 6 to 12 months. Suspension can be pronounced for any custodial sentence not exceeding two years. Suspended sentences are pronounced by the court and the sentence


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is not carried out unless the convict commits a new criminal offense over the period of probation decided by the court. The probation period ranges from one to five years.

Prison Data provided by the Ministry of Justice indicate that 9,068 persons (i.e., 8,768 males and 300 females) were detained in Serbian penal institutions at the end of August 2008. Among the male adults, 6,199 convicted offenders were serving a sentence, 2,148 were held in pretrial detention, 183 were held in misdemeanor proceedings, and the remainder are unclassified. Similarly, the female detainees were mostly convicted offenders, 211 were females serving a sentence, and 89 were held in pretrial detention. In addition, 219 juveniles were held in a juvenile correctional facility, and 19 were held in pretrial detention. Prisons in Serbia consist of 9 penal-correctional facilities, among which there is 1 facility for female offenders and 1 correctional facility for juvenile offenders. Beside these, the Republic of Serbia also counts a special prison hospital and 17 district prisons. The largest Serbian prison is the penal-correctional facility of Požarevac-Zabela, an institution for male adult offenders that can accommodate up to 2,400 convicts. Rights of convicted offenders are numerous. For example, convicted offenders have, as a rule, the right to work. Unfortunately, work and occupation opportunities for convicted offenders in Serbian prisons have decreased drastically in recent years, resulting in an increase of the problems associated with the issue of spare time in prison. A convict who behaves particularly well, or makes particular effort at work, should be awarded special privileges, inside or outside the institution by the governor of the penal institution. Convicts also have the right to primary and secondary education, and penal institutions may also organize additional forms of education. Convicted offenders have the right to be visited by their spouse, children, parents, or any other relative. Obviously, they have the right to see a defense

attorney or legal counsel; such visits may be supervised only visually, discussions are private. Any foreign citizen detained in a Serbian correctional facility has, under conditions of reciprocity, the right to be visited by a diplomatic-consular representative of his or her own country. The governor of the penal institution may allow a convict to be visited by other persons as well. Sanja Copic, Biljana Simeunovic-Patic, and Sladjana Jovanovic Further Reading Grubac, Momcilo. (2006). Krivicno procesno pravo [Criminal Procedure Law]. Beograd: Pravni fakultet Univerziteta Union i Sluzbeni glasnik. Ignjatovic, Djordje, ed. (2007). Stanje kriminaliteta u Srbiji i pravna sredstva reagovanja, Deo I, II i III [Crime in Serbia and Legal Means of Reaction, Parts I–III]. Beograd: Pravni fakultet Univerziteta u Beogradu. Mrvic-Petrovic, Natasa. (2006). Krivicno pravo [Criminal Law]. Beograd: Pravni fakultet Univerziteta Union i Sluzbeni glasnik. Nikolic-Ristanovic, Vesna, Sanja Copic, Sanja Milivojevic, Biljana Simeunovic-Patic, and Biljana Mihic. (2004). Trafficking in People in Serbia. Belgrade: Organization for Security and Co-operation in Europe. Sokovic, Snezana. (2008). Izvrsenje krivicnih sankcija [Execution of Penal Sanctions]. Kragujevac: Pravni fakultet Univerziteta u Kragujevcu and JP Sluzbeni glasnik.

Shetland Legal System: Civil/Common Prison Rate: Medium Death Penalty: No

Background Shetland is an archipelago in Scotland that is 80 kilometers (50 miles) north of the Orkney Islands. It divides the Atlantic Ocean on its west shore and


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the North Sea on its east shore. Shetland’s territory stretches 1,247 square kilometers (551 square miles) over more than 100 islands. Archaeological sites such as at Jarlshof, Mousa, and Clickhimin are rich in prehistoric and Scandinavian relics. The dialect and names of places reflect a strong Norse influence. The 2007 mid-year estimates from General Register Office for Scotland estimated the population at 21,950–11,037 males and 10,913 females. The most populous five-year age group is 40- to 44-year-olds at 1,726. Shetland has suffered from volatile population levels in the last several decades, a fact that is attributed to changes in oil-related employment off the North Sea. The population plummeted for several decades before plateauing under 17,000 in the mid-1960s. Demand for oil workers caused a 31 percent spike in population from 1971 to 1981. Oil construction halted in the early 1980s, causing a migration and overall waning population. The population stabilized during the mid-1980s to the early 1990s. Mainland is the most populous of the 16 inhabited islands and had a population of 17,575 according to the 2001 Census. Shetland is one of Scotland’s 32 unitary authorities, which are also referred to as local councils. Located in Mainland, the burg of Lerwick is a hub for oil extraction activities and serves as Shetland’s capital. Administrative functions for the Shetland Local Council are executed from Lerwick. It has a population of 6,830. The Shetland Council area is divided into seven wards that are represented by 22 elected members. Each ward has 3 elected members, except for Ward 7, Lerwick South, which has 4 elected members. The chief executive of Shetland is Morgan Goodlad. The major sources of employment in Shetland include oil, agriculture, fishing, and knitwear. Efforts to extract oil from the North Sea rely on pipelines that cross the Brent and Ninian fields and extend to the largest terminal of its type in the continent, which is at Sullom Voe. Much of the farming involves crofting and is aided by large herds of sheep. Fair Isle and Unst have traditionally been involved with handknitting. Mechanization of these services

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to produce garment items is more common today, however. Fish-processing factories are also a major source of employment.

Legal System Shetland uses the Scottish legal system, which has major differences from English common law in terms of the law, judiciary, and courts. All prosecution in Scotland is directed by the lord advocate, who is responsible for prosecutions in the High Court, sheriff courts, and district courts. He or she acts without influence from the police, who do not have authority in the decision to prosecute. The lord advocate serves through the Crown Office in Edinburgh. There are six full-time sheriff principals in Scotland and they each head one of Scotland’s six sheriffdoms. These sheriffdoms are divided into sheriff court districts. Legally qualified resident sheriff or sheriffs are a part of each sheriff court district and serve as judges. Shetland is part of the sheriffdom known as Grampian, Highland, and Islands.

Police The secretary of state is responsible for police power and law enforcement in Scotland. This position is accountable to Parliament. The terms of the Police Act 1967 created Her Majesty’s Inspectors of Constabulary (HMIC), a statutory agency with the paramount goal of improving efficiency and cooperation among Scotland’s various police organizations. Under the auspices of the secretary of state, HMIC visits police forces and assesses their progress. HMIC publish its findings on an annual basis in a report directed to the secretary of state. In 1857, the General Police Act mandated each county and burgh to establish a police force, or to join with an adjacent county for policing. In 1883 the County of Zetland created its own County Force, as did the Burgh of Lerwiock in 1892. These two forces coalesced in 1892 to form the Zetland Constabulary, extending the 1857 act to the county. County Forces of Caithness, Orkney, and Zetland were blended into the first Northern Constabulary, founded in 1940 and headquartered in Wick, Caithness. The present Northern Constabulary force


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traces its beginnings to the restructuring of local government that merged Northern (CaithnessOrkney-Shetland) Constabulary, Ross and Sutherland Constabulary, and Inverness Constabulary on May 16, 1975. Today, Scotland comprises eight police forces. In all but two of these forces, their jurisdiction is the same as government regional boundaries in the main. Lothian and Borders Police and Northern Constabulary are the two exceptions. Northern Constabulary polices Shetland in addition to Highland Region, Western Isles, and Orkney. The small town nature of Northern Constabulary drives a responsive, localized strategy to policing that keeps the force attuned to the needs of its communities. It serves a population of 300,000 scattered across the region’s 10,000 square miles. As of September 30, 2009, there were 17,217 police officers (full-time equivalent) in Scotland. This dwarfs the 400 support staff and slightly more than 700 police officers that combine to make up about Northern Constabulary’s 1,100 law enforcement employees. The Northern Force made up 5.5 percent of the police officers in Scotland and had a rate of 25.0 police officers per 10,000 population. The challenge of policing the small towns in the 10,000 square miles that span Northern Highlands from the Outer Hebrides in the west, Glencoe and Newtonmore in the south, and the northern range of the Orkney and Shetland islands, requires a policy grounded in the needs of the various communities. Northern Constabulary’s headquarters are located in Inverness, an urban hub with a population of 76,000. Lerwick is Northern Constabulary’s designated urban center for Shetland. The force review program created three geographic divisions, North, Central, and East, in an effort to emphasize an overall structure without hindering local police control. The communities of Caithness, Sutherland and East Ross, Shetland, and Orkney constitute the North Division. Each division is headed by a superintendent and composed of eight area commands. A chief inspector and inspector teams are responsible for policing the area commands, which are supported by local police units to provide continuous policing coverage. An

area commander is assigned to each of the eight area commands. The Shetland Area Command of the Northern Constabulary is headed by the Northern Joint Police Board, which is spearheaded by Highland Council. The Shetland Islands Council demanded £2,034,671 (US$2,296,498) in 2007–2008 toward the budget.

Crime The Scottish government relies on a framework of 350 codes in classifying crimes and offenses. Crimes are matched with a specific classification code using seven major groupings. These groupings include the following: • Nonsexual crimes of violence—homicide, serious assault, attempted murder. • Crimes of indecency—rape and indecent assault. • Crimes involving dishonesty—theft, housebreaking, fraud. • Fire-raising, vandalism, etc.—malicious mischief, vandalism, reckless conduct with firearms. • Other crimes—crimes against public justice, handling an offensive weapon, drugs, other. • Miscellaneous offenses—common assault, breach on the peace, drunkenness, other. • Motor vehicle offenses—dangerous and careless driving, driving drunk, speeding, etc.

Crime Statistics For 2008–2009 police in the Shetland Islands Council Area recorded a total of 887 crimes across all categories except miscellaneous and motor vehicle offenses, which were unavailable for this year. The 2007 data include all categories and indicate 2,022 crimes were reported to police. Crimes of dishonesty made up separate statistics for crimes and included 4 serious assault, 20 offensive weapon, 15 domestic housebreaking, and 321 vandalism. The rate per 100,000 population was recorded for those crimes at 2 for serious assault, 9 for offensive weapons, 7 for domestic housebreaking, 146 for vandalism, and 404 for all crimes. The index of rate per


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100,000 population was recorded at 16 for serious assault, 52 for offensive weapons, 20 for domestic housebreaking, 75 for vandalism, and 55 for all crimes. The Shetland Islands Council recorded among the least crimes and lowest rate of crimes of all the councils for 2008–2009. The Northern Police Force Area includes the Shetland Islands and had 561 crimes reported per 10,000 population in 2008–2009. The 76 percent crime clear-up rate experienced by the Shetland Islands in 2008–2009 was higher than every other local authority in Scotland. Police recorded seven crimes of domestic housebreaking per population of 10,000 for the Shetland Islands in 2008–2009. Eilean Siar had five and was the only local council with a lower rate than the Shetland Islands. Shetland was the home area of 12 (10 males and 2 females) out of the 6,681 adult offenders and 3 (all males) out of 1,080 young offenders. Twenty-two individuals with the home address of the Shetland Islands were remanded in 2008–2009.

Punishment The punishment regime in Shetland is the same as that for all of Scotland. (See the United Kingdom/ Scotland.) A brief summary of punishment features that apply to Shetland is as follows.

Custodial Sentences There were 16,700 convictions that led to a custodial sentence in 2007–2008, about the same as the previous year and the second highest year for this sentence in the 10 years prior. Crimes of violence and crimes of indecency were the two categories that most likely resulted in a custodial sentence. Males constituted 85 percent of convictions, yet represented 92 percent of the custodial sentences for 2007–2008 in Scotland. In 2007–2008, 244 days marked the average custodial sentence. The average custodial sentence in the decade prior ranged from 7½ to 8½ months, and 2007–2008 represented a 7 percent increase in average custodial sentence from the previous year. In March 2008, the Scottish government approved the Northern Community Justice Authority’s Area

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Plan for 2008–2011. The Shetland Islands Council’s Criminal Justice Social Work Service Local Plan for 2008–2009 revolves around priorities of improving public safety and reducing recidivism. The Management of Offenders Act 2005 created Community Justice Authorities (CJAs) in a cooperative effort to aid offender management across criminal justice systems. Eight CJAs were established and the Northern CJA represented the Shetland Islands as well as other areas.

Alternatives to Imprisonment Courts in Scotland are afforded wide discretion in their choice of sentence. These may include the following: • Absolute discharge. The accused is not convicted and is discharged from the court without any offense recorded. • Admonition. The accused is convicted but dismissed and may receive a verbal warning. • Compensation order. Introduced in Part IV of the Criminal Justice Act 1980, compensation orders mandate a compensation for loss, damage, or personal injury caused by the convicted offender. The average compensation order imposed by courts either as main or secondary penalty was £331 (US$476) in 2007–2008, representing a decrease of 4 percent from the 2006–2007 average of £344. • Community service orders and probation orders. Community sentences were imposed as the result of 16,700 convictions, with probation (9,000) and community service (5,600) making up the bulk of this number. Other formats used by the courts included restriction of liberty orders (1,151 sentences), drug treatment and testing orders (817 sentences), and supervised attendance orders of first instance (129 sentences).

Fines The most common punishment for individuals convicted of a criminal offense in Scotland for the years 1998–1999 through 2008–2009 was financial


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penalty. Financial penalty was the outcome of 83,100 (or 62%) convictions in 2007–2008. Excluding companies, the average fine leveled was £220 (US$316). Of the 16,700 custodial sentences for 2007–2008, 76 percent were for six months or less. Motor vehicle offenses (92%), “other” miscellaneous offenses (77%), drunkenness (70%), drugs offenses (60%), and breach of the peace (56%) were the most likely convictions to result in a fine.

Prison For the year reported as 2008–2009 the Shetland rate of imprisonment was 85 per 100,000, markedly lower than the rate of 109 per 100,000 for the Northern Community Justice Authority. In 2008 there were 15 penal establishments in Scotland. The penal establishment in Inverness, a city that is part of Northern Constabulary’s jurisdiction, had an average daily prison population of 148 men and 3 women in 2008–2009, for a total of 151. The maximum number of prisoners for any day in 2008–2009 was 173 men and 14 women and a total of 180 in 2008–2009. Prisoners liberated after serving sentence included 8 within six months, 8 between six months and less than one year, 11 between one year and less than four years, and 1 from four years of more. Additionally, one individual was recalled from supervision/license. The 51 prisoners who came from the Shetland Islands and were liberated into the community make up a tiny fraction of Scotland’s total of 21,994 for this category. Nathaniel Kip Arnold Further Reading Prison Statistics Scotland, 2007–2008 (Statistical Bulletin—Crime and Justice Series). Published August 29, 2008: http://www.scotland.gov.uk/ Resource/Doc/235546/0064616.pdf. Shetland in Statistics 2008. Published by Shetland Islands Council: http://www.shetland.gov.uk/ documents/sins2008.pdf. Shetland Islands Criminal Justice Social Work Service Local Plan for 2008–2009. Published by Shetland Islands Council: http://www.shetland. gov.uk/performance/documents/CriminalJus ticeServicePlan1.pdf.

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

Background The Slovak Republic became an independent state in 1993, following the dissolution of the Czech and Slovak Federal Republic, a successor of the former Czechoslovak Republic created after the breakdown of the Austria-Hungary kingdom in 1918. On May 1, 2004, the Slovak Republic became a member of the European Union. It is likewise a member state of the Council of Europe and many other international organizations, such as North Atlantic Treaty Organization, United Nations, Organization for Economic Co-operation and Development, or World Trade Organization.

Legal System The Slovak legal system is a civil law system. Its main characteristics are the following: (1) principal areas of law and procedure are codified (Civil and Criminal Codes, Codes of Criminal, Civil and Administrative Procedure, etc.); (2) the system of legal sources is hierarchical, forming a pyramidal structure of legal force within the legal system with the Constitution of the Slovak Republic (hereafter the “Constitution”) being on the top; and finally (3) only written law (legislation) is, at least in theory, recognized as source of law. The Constitution adopted by the Slovak National Council on September 1, 1992, defines the Slovak Republic as a sovereign, democratic state governed by the rule of law. The political system of the Slovak Republic is a parliamentary democracy


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where the legislative power is vested with the National Council of the Slovak Republic, the executive power with the government (as the highest body of the executive power) and the head of state (president of the Slovak Republic), and the judicial power with the courts of general jurisdiction and the Constitutional Court.

COURTS The system of general courts comprises (1) the Supreme Court of the Slovak Republic (hereafter the “Supreme Court”) with its seat in Bratislava, (2) 8 regional courts, and (3) 54 district courts. In general, district courts conduct proceedings at first instance in all civil, criminal, commercial, and administrative cases. Regional courts hear these cases as appellate courts. The Supreme Court has the function of an appellate review court. Being the supreme judicial body, it never acts as a first instance court. The Specialized Court with its seat in Pezinok likewise falls within the general courts system and deals with organized crime and corruption cases. Judges of the general courts are appointed by the president of the Slovak Republic for an indefinite period of time on the basis of a proposal of the Judiciary Council of the Slovak Republic. Every citizen of the Slovak Republic who is eligible for election to the National Council of the Slovak Republic, has attained the age of 30 years, and who has a university education in law may be appointed as a judge. The Constitutional Court is composed of 13 judges who are appointed by the president of the Slovak Republic for a 12-year term on a proposal of the National Council of the Slovak Republic. A judge of the Constitutional Court must be a citizen of the Slovak Republic, eligible to be elected to the National Council of the Slovak Republic, not younger than 40 years, and a law-school graduate with 15 years of experience in the legal profession.

CRIMINAL LAW The Criminal Code and the Code of Criminal Procedure are the primary legal sources of the criminal law in the Slovak Republic. Until 2005, the Slovak Criminal Code and the Code of Criminal Procedure

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were based on the Acts No. 140/1961 Coll. and No. 141/1961 Coll., which had been adopted during the communist period and amended several times since then. Notwithstanding the numerous amendments, however, a completely new recodification of the Slovak criminal law had to be initiated in 2000 to adequately reflect the process of transformation and democratization of the Slovak society after 1989 (need for the removal of the residue of the criminal system of the communist regime, impact of the EU accession, etc.). In 2005, this new recodification resulted in the adoption of new criminal codes—the Criminal Code (Act No. 300/2005 Coll.) (hereafter the “CC”) and the Code of Criminal Procedure (Act No. 301/2005 Coll.) (hereafter the “CCP”). Both codes came into effect on January 1, 2006. The basic principles on which these codes are based include, inter alia, no crime without law, no punishment without law; proportionality, publicity, and legality of the criminal proceedings; protection against double jeopardy; presumption of innocence; or accusatorial nature of the criminal proceedings. In this respect, it should be noted that the Slovak law distinguishes between criminal offenses and wrongful acts (the so-called administrative delicts). The administrative delicts are considered less dangerous for the society than the criminal offenses and are governed by the Minor Offences Act No. 372/1990 Coll. or by other, more specific acts, rather than the criminal codes. The administrative delicts fall within the competence of the administrative authorities and wrongdoers are liable to fines. Decisions taken by administrative authorities are reviewable by the courts.

Police The main law enforcement body in the Slovak Republic is the National Police. The National Police is subordinated to the Ministry of Interior of the Slovak Republic with several special police units reporting to other authorities, such as the Local Police (reporting to local governments), the Railway Police (reporting to the Ministry of Transport, Posts and Telecommunications of the Slovak Republic), the Military Police (reporting to the Ministry of


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Defense of the Slovak Republic), the Customs Authority (reporting to the Ministry of Finance of the Slovak Republic), or Corps of Prison and Court Guard (reporting to the Ministry of Justice of the Slovak Republic). The organization of the Slovak National Police follows the administrative division of the country into eight regions and 79 districts. According to the relevant law, the National Police is an armed security corps with duties in the field of internal order, security, and fight against crime, including organized and international crime. It also has other tasks in coherence with international affairs. The activities of the National Police are controlled by the National Council of the Slovak Republic and the Slovak government.

Crime Classification of Crimes A criminal offense is an unlawful act that meets the elements set out in the CC. The CC defines two forms of criminal offense—minor offense and crime. A minor offense involves either a criminal offense committed by negligence or an intentional criminal act liable to a sentence of deprivation of liberty for a term not exceeding five years. A minor offense is not regarded as a criminal offense provided it was committed by a minor under the age of 18 and its seriousness (gravity) of the act was small. A crime is an intentional criminal act that is liable to a sentence of deprivation of liberty for period exceeding five years. In this context, it should be noted that the CC specifically defines a so-called aggravated crime, which is an intentional criminal act liable to a sentence of deprivation of liberty for a period of no less than eight years. Pursuant to the relevant provisions of the CC, nobody can be held criminally responsible for an act committed before reaching the age of 14. In the case of a crime of sexual abuse a person must be at least 15 years old to be held responsible for the crime. Moreover, a person under 15 years of age cannot be held responsible for his or her actions if his or her intellectual or moral state of mind would not allow him or her to recognize the illegality of a criminal act.

Regarding drug offenses, pursuant to the relevant provisions of the CC, criminal sanctions can be imposed for the possession of a narcotic drug, psychotropic substance, poison, or precursor for own consumption. Here, the CC defines two offenses: possession for own consumption (defined as no more than three times one single dose), which has a maximum 3-year sentence; and possession of a larger amount for own consumption (defined as no more than 10 times one single dose), which has a maximum 5-year sentence. Two other penalties can also be given to those charged with possession for personal use: monitored home imprisonment for up to 1 year, or community service of 40 to 300 hours. Unauthorized possession of a greater amount of drug, that is, more than 10 times the usual single dose, will not be considered as possession of such substance for own consumption but as an offense of unlawfully manufacturing, importing, exporting, transporting or causing to be transported, purchasing, selling, exchanging, procuring, or possessing a narcotic drug, a psychotropic substance, poison, or precursor, or brokering such activity (i.e., drug trafficking). In such cases, an offender can be held liable to sanction of 4 to 10 years of imprisonment. The penalty increases if the offender is a repeat offender or if other aggravating circumstances are present (see below). The Act No. 139/1998 Coll. on Narcotic Drugs, Psychotropic Matters and Substances defines the types of drugs for which it is criminal either to sell or use. The objective of this law is to strictly define conditions for cultivation, producing, control, stockpiling, distribution, application for scientific purposes and research, export and import, and transit of controlled substances. The cultivation of poppy seeds is allowed under legally defined conditions, and cultivation of cocaine and cannabis is prohibited with the exception of their cultivation for industrial purposes. The Act No. 219/2003 Coll. on the Chemical Substances Misused for Illicit Production of Narcotic Drugs and Psychotropic Substances sets out the requirements governing the production, market introduction, and use of chemical substances that may be diverted for illicit production of narcotic drugs and psychotropic substances, including their


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import, export, transit, and transportation with a view to prevent their misuse for illicit production of narcotic drugs, psychotropic substances, and preparations containing such substances.

Crime Statistics According to the statistical data of the Office of the General Prosecutor of the Slovak Republic, the most numerous criminal offenses committed in 2008 were of a violent nature, such as illegal infliction of bodily harm, illegal intrusion into private homes, and assault (threatening). In comparison with preceding years, there has been a growth in the number of persons prosecuted for maltreatment of a close and entrusted person, murder of a newborn baby, sexual abuse, kidnapping, and gross coercion. Since the accession of the Slovak Republic to the European Union in 2004, there has also been a moderate growth of drug criminality. In 2008, there were 43 persons convicted of murder, 59 persons convicted of rape, 489 persons convicted of robbery, and 979 persons convicted of drug offenses. According to the statistics collected by the Statistical Office of the Slovak Republic, a great majority of criminal offenses of 2008 were recorded in the capital city region.

Finding of Guilt Pursuant to the Slovak Constitution, only courts can decide about the guilt and punishment for criminal offenses in the criminal proceedings. Pursuant to the relevant provisions of the CCP, there are two stages of criminal proceedings: pretrial and trial. The pretrial stage includes criminal investigation by police and prosecutor. The police work on their own initiative so that all important facts of the case are clarified as soon as possible, including the identification of the perpetrator (accused) and consequences of the criminal act. Transparency and legality of individual investigative operations and the overall investigative procedure is controlled by the prosecutor. Upon completion of the investigation, unless agreed otherwise, the police authority submits the outcomes of investigation to a district

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prosecutor who has to decide whether there is sufficient evidence to bring an accused to court charging him or her with a specific crime (the indictment). In certain cases, the prosecutor may decide to end the prosecution by approving the out-of-court settlement (only with respect to less serious crimes and subject to strict conditions). Alternatively, the prosecutor may ask the court to approve the so-called agreement on guilt and penalty. The purpose of this agreement is to speed up the criminal proceeding provided that the accused individual recognizes his or her guilt and consents to the proposed penalty (in some other jurisdictions, commonly referred to as a “plea bargain”). Following a court decision approving any such agreement on guilt and penalty, this agreement has the nature of an enforceable judgment. The trial stage begins with the court reviewing the indictment submitted by the prosecutor and, in principle, scheduling a hearing. In general, the courts hold their hearings in public. The public may only be excluded subject to special circumstances listed in the CCP (e.g., need to preserve the confidentiality of the facts, etc.). The judgment must always be pronounced publicly. In the judgment, an individual can either be acquitted or found guilty. Alternatively, the courts may decide to discontinue the prosecution, transfer the case to a different authority, or to cease the prosecution by approving an out-of-court settlement.

Pretrial Detention A person suspected of a criminal offense may be detained subject to conditions provided by law. These are listed in the CCP. Pursuant to the relevant provisions of the CCP, a police officer may detain a person suspected of having committed a crime (even before any charges have been brought) provided there are reasonable grounds to believe that the person would (1) escape or go into hiding to avoid persecution or punishment, (2) try to influence witnesses, or (3) continue his or her criminal activities. The police officer who detained a person or to whom a person caught while committing a crime was handed over shall notify the prosecutor of the


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detention and draw up a report containing the detailed description of all circumstances, information on the place and time of detention, grounds for detention, and so forth. A detained person must be informed of the grounds for detention immediately. The detained person shall have the right choose a legal representative and consult him or her from the very moment of detention. After interrogation, within 48 hours at the latest, the detainee must be either released or brought before a court. The pretrial judge has then 48 hours (72 hours in the case of especially serious criminal offenses carrying a penalty of more than 10 years’ imprisonment) to hear the detainee and decide on his or her release or remand. The court can also decide on alternatives to pretrial detention. Alternatives are monetary bail, guarantee, written promise by the accused, or probation. Whenever the judge decides about an alternative to pretrial detention, he or she can, in addition, impose one or more duties and/or restrictions on the person concerned. These may include a duty to maintain regular contacts with certain authorities or ban to travel abroad, visit certain places, leave the place of residence, drive a car, contact certain people, carry a gun, among others.

Juveniles There are some specific procedural rules that apply to juveniles in the criminal proceedings. Besides the aforementioned rules on criminal responsibility (i.e., a juvenile may be held criminally liable at the age of 14 unless he or she has been held criminally liable for sexual abuse), the CCP sets out that in the criminal proceedings against a juvenile, parents or other individuals who have the legal responsibility for the child are entitled to lodge an appeal against the decision that involves the juvenile, to attend the trial at the court, to present a speech in the course of the proceedings in the court, among others. A juvenile may only be taken into custody when the purpose for deprivation of liberty cannot be reached in another (i.e., noncustodial) way. However, there are no specific (additional) alternatives to custody for juveniles, and there also no specific grounds that have to be met to take a juvenile offender into custody.

Thus, rules applicable to the criminal proceedings in general likewise apply to the proceedings involving juveniles.

Rights of the Accused In general, the Slovak Constitution as well as the relevant provisions of the CCP set out, inter alia, that only law shall lay down which conduct is a criminal offense and which punishment; only courts shall decide about the guilt and punishment for criminal offenses; and the jurisdiction of courts shall be laid down by the law. Everyone has the right to have his or her case tried publicly without undue delay, to be present at the proceedings, and to comment on any evidence given in the course of such proceedings. Everyone shall be presumed innocent until proved guilty by a final judgment of the court. Everyone charged with a criminal offense shall be entitled to have time and facilities for the preparation of his or her defense and to defend himself or herself in person or through legal assistance. Everyone shall have the right to legal advice from the commencement of proceedings before courts, other public authorities, or bodies of public administration, under the conditions laid down by the law. Everyone charged with a criminal offense shall have the right to refuse to give testimony. No one may be prosecuted for the same criminal offense again. A law adopted after the commission of the criminal offense shall be used if it is more beneficial to the offender. Pursuant to the CCP, an accused has the right to free legal aid once his or her case enters the trial stage (i.e., once an indictment in which the prosecutor charges the accused with a specific crime is submitted to the court) and he or she proves an inability (complete or partial) to pay the costs of legal representation. In such event, the state will cover the costs (in full or partially). However, this applies only to cases where legal representation is compulsory under the CCP (e.g., in the proceedings against juveniles, fugitives, or individuals with no legal capacity, etc.). In all other cases, the state will not bear the costs of legal representation of the accused.


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Punishment Types of Punishment Once found guilty of an offense, an individual may be subjected to the following types of punishment: imprisonment, home arrest, community service, fine, property forfeiture, forfeiture of a thing, ban on engaging in professional activity, residence ban, loss of military rank, loss of honorary titles and, finally, expulsion. Along with these punishments, the court may decide to impose other restrictions and obligations, as appropriate (obligation to undergo a drug treatment, etc.). Imprisonment is regarded as the most severe form of punishment and is considered only if all other types of punishments enforced outside prison are considered insufficient for the purpose of punishment. Imprisonment may have either the form of imprisonment for a fixed term not exceeding 25 years or the form of life imprisonment. Provided the term of imprisonment does not exceed 2 years, its execution may be suspended for a probationary period (from 1 to 5 years) during which the sentenced person must lead a law-abiding life and fulfill the conditions that the court may decide to prescribe (i.e., obligation to participate in reeducation program, etc.). The sanction of imprisonment between 15 and 20 years will be imposed on an offender convicted of murder. The offense of a predetermined murder is punishable by 20 to 25 years of imprisonment. An intentional murder of a newborn baby by the mother in distress is liable to 4 to 8 years of imprisonment. A person who was found guilty of rape will be sentenced to 5 to 10 years in prison. The punishment for theft or robbery increases with the amount of damage caused by the offense. For the most aggravated offense, the punishment is imprisonment of up to 12 years, a fine between €130 and €130,000 (US$163 and $163,384), and confiscation. The punishment for fraud is the same, but the court may also impose a ban on engaging in professional activity for up to 10 years. Serious drug offenses may incur 10 to 15 years of imprisonment for a repeat offender; 15 to 20 years if it causes grievous bodily harm or death, or if committed against a person under the age of 15 or on a large scale; 20 to 25 years or life

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imprisonment if grievous bodily harm occurs to several persons or the death of several persons thereby or when he or she commits it as a member of a dangerous group.

Prison According to the data collected by the International Centre for Prison Studies (ICPS) and the Ministry of Justice of the Slovak Republic, the total prison population in the Slovak Republic was 8,166 on December 31, 2008. The prison population rate per 100,000 of national population in the Slovak Republic was thus 151 (based on Eurostat’s estimated number of national population, which was 5.41 million at the end of 2008). The ICPS’s data furthermore state that on September 1, 2007, the number of female prisoners was 4.6 percent and juveniles 0.6 percent of total prison population in the Slovak Republic. There are 18 prisons in the Slovak Republic. According to the ICPS, on December 31, 2007, the total prisons’ official capacity was 10,588 and about 75.4 percent of such capacity was used. The biggest and oldest Slovak prison is situated in Leopoldov. The Leopoldov prison is a highsecurity prison situated some hundred miles northeast of the capital city Bratislava. It is built on a site that had been used as a military fortress since the 17th century. It is made up of two establishments: a pretrial section with a capacity of 341 places and a section for sentenced prisoners with 1,053 places. Pursuant to the Act No. 475/2005 Coll. on Execution of Punishment of Imprisonment, which sets out basic rights and obligations of the prisoners, the accommodation space in a cell or room should be at least 37.6 square feet (3.5 square meters) for a sentenced man and 43 square feet (4 square meters) for a sentenced woman or adolescent. Prisoners are provided with regular meals three times a day and consideration is given to the state of their health, age, type of work they carry out and, if possible, also to their cultural traditions and religious customs. Prisoners are entitled to 8 hours of an uninterrupted sleep a day. Prisoners are provided with the prison clothes suitable for the actual weather conditions and sufficient to protect their health. They are


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entitled to free medical care and treatment. Prisoners are entitled to receive and send correspondence at their own expense without any restrictions unless stated otherwise. The prison service officer is entitled to check and read the correspondence but is banned from doing so with respect to the correspondence between a prisoner and his or her legal representative, state authorities, international institutions, and others. Prisoners have the right to call their relatives or other close persons twice a month for the duration of 15 minutes and are entitled to a monthly visit of at least 2 hours. Prisoners who have the required aptitude are enabled to undertake studies in the primary or secondary school as well as attend various courses to master their skills. Prisoners are required to work subject to their health, working skills, and other conditions. In this respect, the provisions of the Labour Code governing working hours and rest periods, overtime work, occupational safety and health, and employers’ accountability for damages caused by occupational accidents and diseases are applicable to the prisoners at work. Prisoners are entitled to a wage depending on the kind of work carried out, the time worked, or the labor consumption standard. Deductions from such wages are made to cover the costs of imprisonment and pay child maintenance or debts (if applicable). In 2008, the rate of employment in the Slovak prisons was 76.58 percent. Prisoners are entitled to file various complaints with the authorities to ensure a proper exercise of their human rights. Jana Gajdošová Further Reading Bahtiyar, Z., P. S. Lambertina, W.A.M. van der Linden, and M. Roze. (2009). “Slovakia.” In Pre-Trial Detention in the European Union, edited by A. M. van Kalmthout, M. M. Knapen, and C. Morgenstern, pp. 817–839. Nijmegen, the Netherlands: Wolf Legal. Ministry of Justice of the Slovak Republic: http:// www.justice.sk. Office of the General Prosecutor of the Slovak Republic: http://www.genpro.gov.sk. Statistical Office of the Slovak Republic: http:// portal.statistics.sk.

Trnkócyová, Vladimíra. (2005). “Criminal Investigation in the Slovak Republic.” In Judicial Reform: The Prosecution Office and Investigation Authorities in the Context of EU Membership, edited by Maria Yordanova and Dimitar Markov, pp. 124–129. Sofia, Bulgaria: The Center for the Study of Democracy.

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

Background Slovenia underwent the path from being a constituent part of the Federal Socialist Republic of Yugoslavia, a semi-authoritarian one-party state, to becoming an independent country (1991) governed by the rule of law and a member of the European Community (2004). Dramatic changes during the transitional period and the proximity of armed conflicts in the Balkans resulted in uncertainty in many fields of social and economic life as well as in crime control policies, strategies, and operations. The first Slovenian Penal Code was incorporated in September 1941 under the auspices of the Slovenian Liberation Committee. It included some provisions on criminal offenses, criminal sanctions, and criminal procedure but did not have its own criminal legislation until 1977 when the Federal Penal Code and Slovenian Penal Code were introduced. In 1989 an amendment to the Yugoslavian Constitution (1974) was passed that abolished the death penalty in Slovenia in spite of the fact that the Federal Penal Code still sustained it. In fact, from the beginning, the Federal Penal Code was in discord with the values and legal system of the


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Three Slovenian police officers hide in a wooden bus shelter, while aiming a laser radar device at speeding drivers on the road to Kocevje, Slovenia, March 1, 2005. (AP Photo/Denis Sarkic)

Republic of Slovenia. With establishment of the Slovenian Constitution, the right of secession from Yugoslavia was established and, in 1994, the Penal Code of Slovenia was adopted and came into force on January 1, 1995. Recently a new Penal Code was adopted and came into force in November 2008. The first Code of Criminal Procedure, adopted in 1953, was similar to that of the Soviet Union. In particular, the public prosecutors had a very broad and relatively unchecked jurisdiction. The amendment of 1967 imported the Western-based adversarial process: the rights of the victim were broadened and criminal prosecution was led by the principle of legality, and conditions for detention became more restrictive. Four years after Slovenian independence (in 1994), a new Code of Criminal Procedure was adopted and came into force in 1995. Since then 11 amendments were adopted. The new Code of Criminal Procedure is still under discussion in the academic and legal community.

Police Through the Police Act that came into force July 18, 1998, the police service became a body within the Ministry of Interior of the Republic of Slovenia but was given more autonomy than it had in the past. The police perform their tasks at three levels: state, regional, and local. Organizationally, it is composed of General Police Directorate, Police Directorates, and Police Stations. The national police headquarters are in Ljubljana. The police service is headed by the director general of the police, who also conducts the work of the General Police Directorate. The Criminal Police is a specialized division for fighting crime. It is headed by the Criminal Police Directorate, which coordinates, monitors, analyzes, and evaluates situations in the area of criminal offenses. In cooperation with judicial and other state bodies (such as Ministry of Defense) as well


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as foreign competent authorities, it ensures effective and lawful implementation of activities against various forms of crime. The Criminal Police are composed of several divisions including Organized Crime Division, General Crime Division, Economic Crime Division and Special Task Division, International Police Cooperation Division, and Criminal Analysis Division. The criminal police cooperate with uniformed police officers in uncovering criminal offenses and perpetrators. The Uniformed Police Division is responsible for the areas of public order and the safeguarding of lives, personal safety and the property of people. It is composed of the Public Order Section, the General Safety Section, the Traffic Police Division, and the Border Police Division. The Public Order Section analyzes and evaluates security situations and the success and effectiveness of police work in the areas of public order and peace, safeguarding of lives, personal safety, and the property of people. The General Safety Section analyzes and evaluates the security situation, successfulness and effectiveness of police work in the field of public order and safeguarding lives, personal safety, property of people and personal security, and detective activities. The Traffic Police Division comprises road traffic safety and the regulation of traffic. The Border Police Division performs tasks in the field of state border security, illegal migrations and foreigners, and Section for the Security of People.

Crime Classification of Crimes Criminal offenses are classified in chapters within the Penal Code (2008) in accordance with generally recognized social values. Categorization regarding the age of offender (juvenile or adult) is used for some offenses, but it is useful only for cleared criminal offenses. Children (under age 14) are not subject to criminal liability. Those aged 14 to 17 come under the juvenile justice provisions, and a less strict approach is given to adolescents from 18 to 21 years old. In 2008, adjustments to the Penal Code introduced additional changes in divisions of the

criminal offenses indictable by official duty and criminal offenses indictable by civil lawsuit of victims. More forms of less serious criminal offenses (chiefly against property) are indictable by civil law than before. The lowest limit of the harm is set at €200 (US$251) for offenses against property. For extremely severe criminal offenses, life sentence has been introduced.

Crime Statistics Trends The main sources of official (police) statistical data are articles (shortened and interpreted version of the official report to the Slovenian Parliament), which appear yearly beginning in 1959 in the Slovenian Journal of Criminalistics and Criminology. With the exception of a brief decline toward the middle of the 1990s, general crime has increased steadily from a low of 37,173 in 1997 to a high of 90,354 in 2006, leveling off to 88,192 in 2007. The fluctuations are a consequence of changes in criminal activity, changes of perceptions and reactions to crime, and changes of activities of political and law enforcement agencies. The greatest increase occurs in the category of criminal offenses against property. Economic crime also increased from 2,222 crimes in 1990 to 8,471 in 2006, leveling off to 7,962 in 2007. Organized crime, when first recorded in 1995, revealed 735 crimes, peaking at 1,116 in 1999, dropping to 225 in 2004, peaking again at 499 in 2006, dropping again to 293 in 2007. These fluctuations probably reflect changes of definitions of “organization” of the criminal activity. General crime includes offenses against private property and against life and limb. Economic crime includes offenses against the social ownership of the means of production and public property. Newer categories of economic and organized crime are not always explicitly and clearly defined, so data should be interpreted carefully. The reported crimes for 2007, according to particular crime categories defined by the Penal Code (1995), is as follows (compiled from the police Web site and various journal articles):


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Life and limb Human rights Sexual integrity Property Public order Safety of traffic Other

2,776 4,656 216 63,158 1,366 342 13,783

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that the number of convicted persons more than doubled in the period from 1995 to 2007, after the introduction of the Penal Code (1995): from 3,462 convicted adults to 8,685 convicted adults.

Finding of Guilt

For the period 1990 to 2007, offenses against property increased from 30,787 to 63,158; offenses against human rights and liberties increased from 586 to 4,656; offenses against legal transactions increased from 820 to 2,111; and offenses against life and limb increased from 1,718 to 2,776. Looking more closely at offenses against life and limb, murders have decreased from 37 in 1990 to 24 in 2007 but serious grievous bodily harms have increased from 389 to 2,803 for the same period. The Slovenian Penal Code treats sexual integrity (women, children, and other vulnerable groups) as an important social value. The number of offenses against sexual integrity grew until 2002, and then decreased. However, the decrease in number does not give a complete picture, because the “dark figure” of crime is probably the greatest with respect to this type of crime. There were 62 rapes in 1990, increasing to 85 in 2007, and 100 offenses of sexual violence, assault, and abuse, increasing to 279 in 2007. In 2001 there were 1,140 offenses of unlawful manufacture and trade of narcotic drugs, increasing to 1,429 in 2007, and there were 397 offenses enabling opportunities for consumption of narcotic drugs, decreasing to 183 in 2007. More than half of criminal offenses (50.7%) occurred in the Ljubljana area (which has approximately one-quarter of the population of the country). Such results are generally confirmed by victimization studies conducted in Ljubljana. In regard to offenders, there were 27,559 suspects apprehended in 1990, of which 22.1 percent were juveniles. This compares to 17,478 suspects in 2007, of which 8.6 percent were juveniles. The clearance rate for all cases in 1990 was 61.7 percent, compared to 38.2 percent in 2007. Data from the Statistical Yearbook of Republic of Slovenia (2008) show

The Slovenian Code of Criminal Procedure is composed of three main parts. The first includes general provisions, the second consists of typical ordinary criminal procedure, and the third contains special procedures. Human rights and fundamental freedoms of the accused are described in the Slovenian Constitution and more precisely in the general principles of the Code of Criminal Procedure. The right to a fair trial is prescribed in articles 6 and 13 of the European Convention on Human Rights. Articles 2–4 of Protocol 7 are not emphasized in the Code of Criminal Procedure but evident from other provisions.

Rights of the Accused Only an independent, impartial, and lawful court can judge a criminal case. In those settings, defendants whose rights, freedoms, and legal interests are the substance of legal procedure have the opportunity to confront evidence and produce evidence in their own behalf. In addition, Slovenian criminal defendants are entitled to the following rights: • To be acquainted with circumstances, facts, and evidence that incriminate them. • To know their rights and use them in their language. • To remain silent and are not obligated to plead guilty. • To have adequate time and facilities to prepare defense as provided by law. • To conduct their own defense or to be defended by a defense counsel. • To know that no one may be deprived of their freedom except in such cases and pursuant to such procedures as are provided by law. • To an independent, impartial court constituted by law.


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• To be physically present at their trial. • To exclude illegally obtained evidence. • To appeal against conviction. Article 23 of the Slovenian Constitution requires that a main hearing must take place “within a reasonable time.” The accused may spend a long period of time in detention in both the pretrial and trial phase. Bail and other mechanisms that may replace the use of detention are possible. Even with a confession by the accused during the process of pretrial investigation, the investigating magistrate and the state prosecutor must still collect evidence. During the trial (a main hearing) the state prosecutor (or private prosecutor) has the primary responsibility to produce the evidence. The court has a discretionary power by virtue of which the judge may, in honor and good conscience, take any measures (e.g., examination of the witnesses) that can be useful to enable the truth to be discovered. Both the offender and the prosecutor have the right to produce evidence, and the judge has the right to produce evidence as well (the latter is the exception from the usual adversary procedure). The accused have the right to counsel and to have legal aid. In the police proceedings (before the criminal procedure), the suspect cannot be interrogated without the presence of a defense counsel.

Prosecution and Investigation Criminal procedure is started on the demand of the prosecutor or on the proposal of the victim. This can be either a state prosecutor or private prosecutor. If the state prosecutor realizes that there is no reason to start or continue the criminal procedure, the victim can step in as the prosecutor under provisions by law. In contrast to the former inquisitorial procedure, all three basic functions of criminal procedure are divided: prosecution, defense, and trial.

Alternatives to Trial After the reception of criminal complaint, the state prosecutor must drop the complaint if the act is not a criminal act, if the prosecution for the act is under

limitation or under amnesty or pardon or there are other circumstances that exclude prosecution, or there is no probable cause that the accused committed a crime. Successful alternatives to trials can result in avoiding one or more phases of criminal procedure. Mediation between the victim and accused is possible in the presence of an independent mediator appointed by a state prosecutor. According to substantive law the sentence can or has to be dropped if the prosecutor estimates that the sanction is unnecessary. The case can also be dropped if the criminal act is punishable by fine or imprisonment of up to one year and the accused, with remorse, prevents harm or fully compensates the damage.

Incarceration before and during Trial The Slovenian Code of Criminal Procedure distinguishes between police custody, pretrial detention, and detention during the trial. Detailed provisions allow the suspect to be held by the police for up to 48 hours. The police can authorize this detention by issuing a warrant. It must fully identify the suspect and provide details of the offense, statutory basis and the facts upon which both these and the need for urgency are based. Immediately after these grounds no longer exist, the suspect must be released or be brought without a delay before an investigating magistrate. However, pretrial detention may be deemed necessary for identification, for the checking of an alibi, for the collecting of information and items of evidence for the criminal offense in question, if there is good reason to fear that the person might destroy traces of the crime, and if reasons provided by law for detention during the trial exist as well (e.g., of defendant). Police can arrest the suspect with a warrant. Without the warrant they can make an arrest under conditions provided by law. The suspects have to be read their rights when they are to be placed in detention or brought to an investigating magistrate. The suspects must be advised immediately of the reasons for their loss of freedom. They have the right to know that they may remain silent and that they are entitled to the legal assistance of a lawyer


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of their own choice. Upon request of the suspect, the competent body (the police) is bound to inform the suspect’s family of the arrest. If suspects cannot afford to hire a defense counsel, one shall be appointed to represent them before any questioning. The police must have probable cause that the suspect committed a crime, and there are reasons for detention before arresting the suspect and bringing him or her to an investigating magistrate. The police detention is only for a short time period. It is not meant to elicit a confession of the crime by the suspect or to gather evidence but to take him or her to the court that issued the warrant. The accused detained under the ruling of the investigating magistrate may be remanded in custody for a maximum of one month from the day they were arrested. After that, they may be kept in custody only under a ruling ordering the extension of remand in custody. Remand in custody may be extended under a ruling of the judicial panel by two months at the longest, and the Supreme Court may extend it for another three months as well.

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law. State prosecutors are the only authorized prosecutors in juvenile procedures. If state prosecutors do not want to begin with the criminal procedure and the victim disagrees, the victim may demand from the court (judicial panel) a commencement of prosecution against the juvenile in question. The juvenile cannot be judged by the court in his or her absence. The social welfare agency collects data on the social behavior of the offender, and a criminological evaluation may also be conducted. During the criminal procedure, the defendant is entitled to formal defense counsel, if he or she committed a crime punishable by imprisonment for more than three years. Juveniles may be detained up to three months in a facility where separation from adult convicts is possible. The alternative to detention is removal from their social environment. After the main hearing or after the judicial panel session, they may be sentenced by educational measure, imprisonment, or fine.

Punishment

Judges

Prisoners

For appointment, a judge must fulfill the following general criteria:

The Slovenian Prison Administration has faced an increase in the prison population in the last 10 years and overcrowding has recently occurred for the first time in the history of Slovenian prisons. However, the imprisonment rate is still quite low with a rate of 66 per 100,000. The current prison population of 1,339 exceeds the design capacity of 1,094 by nearly 22 percent in 2007, according to the National Prison Administration. The majority of persons deprived of liberty are classified as sentenced prisoners (70%), followed by detainees (25%), persons imprisoned for a misdemeanor (3%), and juveniles in the correctional home (2%). Less than 4 percent of inmates are female, about 40 percent of inmates have not finished elementary school, and 44 percent of prisoners were sentenced for offenses against property.

• To be a citizen of Republic of Slovenia and actively speak the Slovenian language. • To have business capacity and is in a general healthy condition. • To be more than 30 years old. • To have acquired the title of a lawyer in Slovenia or an equivalent abroad recognized by the law. • To have passed special state juridical exams.

Juveniles The Slovenian Code of Criminal Procedure defines a special procedure for juvenile offenders. Differences between juvenile criminal procedure and ordinary criminal procedure are numerous. First, only district courts handle criminal offenses by juveniles in a procedure that is a part of the code using the juvenile criminal law as a part of substantive criminal

Prison The Prison Administration of the Republic of Slovenia is administratively housed within the Ministry


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of Justice, which has been responsible for the prison system since 1968. The current Prison Administration was established in 1995 by joining eight authorities into a single, central entity. Certain tasks previously carried out by the Ministry of Justice were also taken over by the Prison Administration. The main mission of Prison Administration is the implementation of various penal sanctions and pretrial detention. The Prison Administration also works for the benefit of the community as an alternative to prison and educational measures implemented within a correctional institution. It makes every effort to ensure that the prisons are safe for society, inmates, and employees; and provides the possibility of resocialization. This means that the treatment of inmates must be organized in such manner as to provide them with training for their return to life in society, and to particularly dissuade them from future criminal offenses. The Prison Administration has a prison staff of more than 800 people. Three basic services exist within prisons in Slovenia: prison officers, treatment staff, and labor instructors. Approximately half of the staff is prison officers. The organizational structure is nearly the same in all prisons. The Treatment Department employs pedagogues, psychologists, social workers, medical staff, leisure activities staff, educators, and other professionals carrying out treatment programs. The Penal Sanction Enforcement Act states that prisons must prepare prisoners for normal life after prison using programs of individual, group, and community treatment. These programs are established on a case-by-case basis and include a written agreement between prisoners and the prison. Prison sentences are executed in 6 prisons, at 13 locations, 2 of which are open departments. The largest prison is at Dob, where male prisoners serve prison sentences from 1.5 to 30 years. The central institution for women prisoners is at Ig. In Celje there is an institution for juveniles and young adults, and a juvenile correctional institution is located at Radecˇe. In the regional prisons of Koper, Maribor, and Ljubljana, sentenced persons serve their prison terms of up to 1.5 years. Every institution has an open, half-open, and a closed unit that are

distinguished according to their security level and the restriction of freedom of movement. Detention departments are organized within particular institutions at 9 locations. Slovenia prisons are smaller than those in other European countries. Out of the 13 prisons, only 3 have the capacity of more than 100 inmates (233 at the most). Most prisons are located in old buildings built before and after World War II, and the buildings only partially meet the current demands for penal institutions. The central prison for men at Dob was built in 1963. A program for developing the capacities of the prisons was adopted in 2003. During the last 10 years, more than 40 percent of all present-day accommodation facilities for prisoners have been built or refurbished. The most important completed project is the new prison in Koper, which meets regulatory standards. A new open department at Slovenska Vas at Dob is among the most modern in Europe. There are nine jails or regional prisons that also house pretrial detainees. Out of the nine pretrial detention facilities, five are for men, one for women, and three are mixed facilities. The average daily number of pretrial detainees in 2004 was 280, equivalent to 14 detainees per 100,000 inhabitants. The country’s total pretrial detention capacity had been exceeded by 9 percent. About 80 percent of pretrial facilities had been renovated or newly built over the previous 10 years (National Prison Administration, 2005; CCPR, 2005). The most significant characteristic of the Slovenian pretrial detention is that there is no classification of prisoners (CCPR, 2005). Slovenian courts may hand down a maximum prison sentence of 30 years; general minimum prison sentences are 15 days. There is no death penalty, but life sentence for the most extreme cases was introduced in November 2008.

LIFE IN PRISON Prisoners in Slovenia serve their prison sentence in different prisons according to different criteria: • Sex—as a rule there are separate prisons for men and women; in some cases they are only separated within a prison.


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• Duration of the sentence—prisons for serving long and short prison sentences. • Age of the convict—prisons for adult prisoners and prisons for juveniles and young adults. • Degree of security—closed, semi-open, and open institutions or departments. Those convicted of serious criminal offenses are separated from detainees, persons sentenced to prison in misdemeanors procedures, and juvenile prisoners. There are no separate institutions for repeat or first-time offenders. In all Slovenian prisons there is a vertical classification into closed, semi-open, and open units. The regime in individual units differs according to the degree of restriction of freedom of prisoners. Prisoners are not classified by category of criminal offense, but there are drugfree units where differentiated treatment of drug addicts in the sense of separated residence is carried out. If a prisoner is given a prison sentence of up to 3 years, the court can order the sentence to be served in an open institution. If the imposed prison sentence is up to 5 years, the court can order the sentence to be served in a semi-open institution. The court can decide to replace a prison sentence of less than 3 months with performing community work for humanitarian organizations or for the local community (community service order). The offender is ordered to perform unpaid work from 80 to 240 hours in 6 months. Transfer between individual prisons is within the jurisdiction of the director general of the Prison Administration. Most transfers are the result of requests by prisoners or their relatives, but they also can happen ex-officio (for security reasons, overcrowding, etc.). The director general may allow prisoners sentenced for a criminal act committed out of negligence to a prison term of up to six months. If they are orderly and have regular employment or attend school and are serving a prison sentence for the first time, they may be allowed to continue working while serving the sentence and to reside at home, except on nonwork days, as a rule at the weekend, when they must reside in prison.

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The prison in which the convicted person begins the sentence shall, with written consent, notify the responsible center for social work in the area of the prisoner’s residence at the start of the sentence. The centers for social work, together with other services in the field and in cooperation with the prison, must prepare a program of necessary measures at least three months prior to the prisoner’s release. This process starts at the beginning of the sentence. They set up the social network in the local community and plan the resolution of problems of the prisoner’s family (child protection, material situation, interpersonal relationships, etc.). Various programs are conducted in prisons in the area of education, work, leisure activities, health care, special programs concentrating on providing help to inmates addicted to drugs or alcohol, programs of social learning, preparations for release, and special programs connected with inmates’ specific needs, but there are no programs for pretrial detainees. Each individual treatment program includes decisions on allocation of the prisoner in question to a particular unit and cell, methods of managing the prisoner, the prisoner’s health, and the prisoner’s work. Integral parts of the individual treatment program are the social programs and the postpenal plans. They are prepared by the social workers and pedagogues employed in prisons, in cooperation with the prisoner and the external service providers. Group treatment programs are carried out in small therapeutic groups. They are heterogeneous and open. Groups include prisoners who differ with regard to age, previous sentences, and the type of offense they had committed, recidivism, personality structure, and social status. They may involve elements of reality therapy, transaction analysis, family therapy, painting therapy, and other therapies. Prisoners have an opportunity to acquire education while in prison, especially for the completion of obligatory primary education and to train for a profession. Prisoners are motivated to participate in educational processes from their first day in prison. Prisoners are allowed to attend lectures and participate in other educational activities outside of the prison without accompaniment if they meet the


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conditions for award of out-of-prison privileges. Prisoners who complete their schooling are issued a certificate that must not indicate that it was acquired in prison. A prisoner who attends schooling may be granted the right to a part-time job. Prisons organize sports and recreational activities, cultural-educational activities, concerts, special volunteer work projects, and so on. Prisoners can regularly borrow books from prison libraries as well as from local and traveling libraries. Prisons publish their own newsletters, and daily and weekly newspapers are available to prisoners.

Apart from the regular working hours (eight hours per day), the prisoner may be employed for no more than two hours in maintaining cleanliness and order in the prison. The basis for payment of salary is 25 percent of the basic salary of civil servants. The commercial units of the prisons sell their projects to the market, having long-term contracts with various external partners for whom they manufacture products or parts. They provide work in metal, carpentry, timber, plastic and wood-turning factories, agricultural work, electrical engineering, and a variety of other occupations.

MEDICAL CARE

SPIRITUAL/RELIGIOUS SERVICES

Prisoners are guaranteed the right to health care. Every prison provides basic health and dental care and has separate rooms for those who suffer from long-term illness. A pregnant woman prisoner or woman who has given birth during imprisonment is guaranteed suitable medical care and conditions to care for the child. The child may stay with the mother until it is one year old, and on special grounds, the child can stay until two years of age. Prisoners must be provided confidential testing for HIV and hepatitis infections, and receive special health consultations. They are also provided with disability insurance. The treatment of alcohol and drug addiction is carried out in all prisons according to the national program based on expert positions, similar to medical and psychosocial programs of treatment provided by the centers for the treatment of alcohol and drug addicts outside the prison. These programs are carried out in drug-free units. Counseling is provided for all prisoners with psychological problems and especially to those who have committed certain criminal offenses (sex crimes, violent crimes, etc.).

Inmates are entitled to spiritual/religious services of the main religions in Central and Eastern Europe. A priest is employed by the Slovenian Prison Administration and provides prisoners with spiritual services as well as counseling.

WORK Employment of prisoners may be within the prison’s commercial units, on tasks required in the prison, or on contractual work outside the prison. Prisoners who are fully employed during the serving of their sentence are entitled to all of the rights deriving from employment (salary, annual leave).

RELEASE PROCEDURES Slovenia does not have an organized parole administration. Aftercare must be provided by prisons (preparation for the release) and by centers for social work, which are organized as local community public services in the field of social assistance and whose operation is supervised by the Ministry of Labor, family, and social affairs. Prisoners may be released conditionally after serving half of their sentence. In exceptional cases, a prisoner may be conditionally released after serving one-third of their sentence. A prisoner sentenced to more than 15 years may be conditionally released after serving three-quarters of the sentence. Older young offenders in juvenile prisons may be conditionally released after serving one-third of their sentences, though not until they have served at least six months. The court may order the juvenile to be supervised by a center for social work during the conditional release period. The release decision for each individual case is made by the Commission for Conditional Releases at the Ministry of Justice on the request of the prisoner or their family members, or on the proposal of the governor. The commission meets every three months in each institution. A formal complaint


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against the decision of the commission is not allowed, but an administrative appeal is possible. The prison governor is authorized to release prisoners up to one month before the completion of their sentence if they have served at least threequarters of the period of the imposed imprisonment. The terms are appropriate behavior, striving at work, and active participation in the prisonsponsored programs. If the conditionally released prisoner commits at least one criminal offense for which a prison sentence of more than one year may be imposed, or if he or she is convicted for the same type of criminal offense for which he or she had been convicted and imprisoned, the court may revoke the conditional release. Gorazd Meško, Miran Mitar, and Sonja Kotnik Further Reading Meško, Gorazd, Bojan Dobovšek, and Milan Pagon. (2004). Policing in Central and Eastern Europe: Dilemmas of Contemporary Criminal Justice. Maribor, Slovenia: Faculty of Criminal Justice, University of Maribor. Ministry of Interior, Police of the Republic of Slovenia: http://www.policija.si. Mitar, Miran, and Gorazd Meško. (2008). “Reported Crime. Indications from Crime Victims Surveys and Fear of Crime Studies: An Attempt to Make a Clearer Picture of the Extent and Nature of Crime in Slovenia.” In Forecasting Crime and Control of Crime in Central and Eastern European Countries: Proceedings of the International Conference, Bratislava, November 14–16, 2007, edited by Daniela Košecka, pp. 45–64. Bratislava, Slovak Republic: School of Law. The Pipeline Project: http://www.pipeline-project. org. The Statistical Yearbook of Republic of Slovenia: http://www.stat.si/eng/pub_letopis_prva.asp. Šugman, Katja, Matjaž Jager, Nina Peršak, and Katja Filipcˇicˇ. (2004). Criminal Justice Systems in Europe and North America: Slovenia. Helsinki: The European Institute for Crime Prevention and Control (HEUNI).

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Note: The authors wish to thank Colby Eisenhart and Chris Eskridge of the University of Nebraska for their assistance in preparing this essay.

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

Background Spain is a constitutional kingdom situated in Western Europe on the Iberian Peninsula. It extends over 504,782 square kilometers (194,896 square miles). The Spanish Constitution is the highest legal authority, to which all others must accommodate. The most recent constitution dates from 1978, although the history of constitutional Spain goes as far back as 1812. The legal system is Continental, written laws and codes being the most important sources of rights and justice. The monarchy follows an hereditary model, and Juan Carlos I has been the king and head of the state since 1975. In that year, Spain experienced a very important political and social change that brought democracy to its citizens. The political administration of Spain is made up of the Central Government and 17 autonomous regions (Comunidades Autónomas), plus 2 autonomous cities (Ceuta and Melilla, on the north African coast). There are three branches of the government: the executive, legislative, and judicial. The executive branch is organized around the Consejo de Ministros (Council of Ministers). The legislative branch is organized around the Cortes Generales (General Courts), and consists of two chambers, the Congreso de Diputados (Deputies Congress) and the Senado (Senate). Judges are governed by the Consejo General del Poder Judicial (General Council of the Judicial Power). Political parties play a key role


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in the designation of the members of these institutions, including the General Council of the Judicial Power. Political life is strongly influenced by the two large national parties—the Partido Socialista Obrero Español (Spanish Socialist Party, ruling at the moment in the national government) and the Partido Popular (Popular Party)—and by a number of so-called nationalist parties. The population of Spain has recently reached 46 million. Immigration has played a very important role in this achievement, especially in the last decade. According to different sources, there were between 4.5 and 5 million foreign residents in Spain in 2008. There are many reasons for this immigrant phenomenon. For many Europeans, Spain’s weather and the relatively affordable prices make it a nice place for retirement. The Spanish language is an advantage for Latin Americans considering emigration, not to mention the traditional bonds with Spain. Finally, Spain’s proximity to North Africa has led to a sizable number of immigrants entering illegally by sea. Moroccans and Ecuadorians represent around 10 percent each of the foreign population. Other sizeable communities include Romanians, Peruvians, Colombians, British, and Germans.

Crime Classification of Crimes From the early 1980s to the mid-1990s, an important item on the Spanish agenda had been to provide a new code to replace the 1973 Texto Refundido (Unified Text), associated with the Franco regime. The current Spanish Criminal Code dates from 1995. Although the 1995 code was entitled the Código Penal de la Democracia (Democracy’s Code), there is strong debate regarding its necessity and its character. In general, it was probably necessary to have a new criminal code even though the important reforms of 1983 and 1989 had cleared most of the technical and material inconsistencies of the former legal body. At the same time, however, it is difficult to see anything new in the 1995 code since its structure can easily be traced to the original 1848 code. The Criminal Code is the main Spanish body of criminal law, with the exception of a few Leyes

Penales Especiales (Special Criminal Laws). These latter laws are criminal dispositions to be found outside the Criminal Code. They include the Military Criminal Code, the Ley Penal del Menor (Juveniles Criminal Law), and a few other laws that include crimes and criminal punishments. The Criminal Code is organized in three books. The first includes the so-called General Part and the second and third, the so-called Special Part. Crimes are classified in three categories: delitos graves, menos graves, and faltas (serious offenses, less serious offenses, and misdemeanors). This classification, however, is much more procedural in nature than it is substantive. Liberal criminal law has developed strongly in Spain over the last few decades. As a result, a system respectful of suspected and convicted criminals has grown. In the last few years, nevertheless, this system seems to be in a deep crisis, and some commentators suggest that Spain no longer has a liberal criminal law and that, at the same time, it does not seem to be coming back in the future. Three principles apply to Spain’s Criminal Law: the principles of legality, culpability, and proportionality. To be considered a crime, the principle of legality dictates that a behavior should be defined as “criminal” in a written Organic Law. The same applies to penalties—there can be no punishment without crime. And without culpability, there is no criminal responsibility. This principle has many important consequences, including the exclusion of objective responsibility, as in other branches of the law. The Spanish Criminal Law is in a process of expansion, and the principle of proportionality has probably been abandoned. As is the case in many European countries, a process of increasing punitivity at the level of the state can be observed in Spain. Scholars have studied these developments and tied them to changes in late-modern societies. For example, in recent years, there has been an increasing inclusion in the Criminal Code of so-called risk crimes, that is, behavior causing risk but not actual damage. This is part of the process of expansion of criminal law and includes cases in which there is no effect upon any person or object, but the probability that damage can take place.


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Police inspect the scene of a car bomb explosion near a trade fair center on Madrid’s outskirts, February 9, 2009. The armed Basque group ETA is believed to have planted the bomb, which blew a three-foot hole in the ground, destroyed some 30 cars, and blew out windows at nearby offices, though no one was hurt. (AP Photo/Arturo Rodriguez)

The Spanish Criminal Code includes, among the offenses against individuals (homicide, murder, bodily harm), sexual offenses including forcible rape, offenses against honor, offenses against personal security, property offenses, including many examples of reckless offenses, offenses against the state security, offenses against the administration of justice, drug offenses, terrorism, and so forth. Drug offenses, as in many other countries, play an important role in explaining the large inmate populations in prisons. According to the Spanish Criminal Code, the acts of growing, processing, trafficking, promoting, and facilitating the consumption of illegal drugs are punishable. In certain cases, a higher penalty can be imposed. Such is the case for members of permanent or temporary organizations involved in trafficking of drugs. Personal consumption of drugs is not punishable according to the Criminal Law.

Crimes of terrorism are also important for the Spanish Criminal Law, due to the traditional problems faced by Spain. The legal regulation is complex and includes cases of the individual terrorist. Penalties include prison sentences lasting up to 40 years (though this penalty can be imposed in very exceptional cases), fine, suspension of public office, revocation of driving license, and suspension of other rights. The Criminal Code provides maximum and minimum limits on penalties, and a catalog of circumstances that may mitigate or exacerbate the exact amount of penalty to be imposed. Capital punishment was abolished by the Spanish Constitution in 1978, although before that date executions were very rare. The age of criminal responsibility in Spain is 8 years. Cases involving individuals between 14 and 18 can be adjudicated in the juvenile courts according to the Juvenile Criminal Law. Delinquents


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between 18 and 21 years old can as well be judged according to this law (Criminal Code, article 19). Since 1995, the Criminal Code has experienced no less than 20 reforms, some of them very extensive. This is especially the case of changes made in 2003. An example will be helpful here. The 1995 Spanish Criminal Code increased the punishment in cases of recidivism. By comparison, the 1983 reform did not include recidivism as a special qualification. Punishment in the case of recidivism was increased again in the 2003 reform.

Crime Statistics There seems to be some agreement that crime trends have not increased in Spain in any significant way in the last several years. However, it must first be stated that there is an important problem regarding the sources of data on crime in Spain. Social sciences, and especially criminology, are not well developed in Spain. The causes usually mentioned in the literature have to do with traditional anti-empirical bias and the imperialism of certain disciplines as is the case of criminal law. At the same time, since corruption is rampant in the field of human sciences and the university, criminology as a positivist science has not had a chance to develop. As a result, there is little sound scientific research on the extent and evolution of crime in Spain. The best approach, in any case, is to collect as many sources of information regarding the evolution of crime, and then compare them. In general, the state of Spanish criminal statistics is quite confusing. For many years, statistics were not published in any systematic way. Some scientific journals tried to fill this gap by gathering data through informal means. The best examples are the Revista de Derecho Penal y Criminología (Review of Criminal Law and Criminology), a well-known journal edited by the Criminal Law and Criminology Department of the Universidad Nacional de Educación a Distancia (National University of Distance Education) in Madrid. One may find data in its section on statistics since the early 1990s. In the last few years, the Spanish Ministerio del Interior (Ministry of Interior) has tried to improve Spanish

statistics. Regular information is now available in a few sources, including its Web page. It is hoped that in a few years the process of official data collection will improve. Regarding the validity and reliability of official statistics, some Spanish criminologists express little confidence. Some seem to suggest that statistics are occasionally made up. In fact, official data from the police are compiled and reported by a small working group that in a certain way is dependent upon the Ministry of Interior. At any rate, without viable alternatives, it seems that there is not much of a choice but to rely on official data. Criminologists in Spain have generally relied on two sources of official data to measure crime: crimes known to the police—just mentioned—and Diligencias previas incoadas por presuntos delitos (Previous measures taken for suspected offenses). These previous measures refer to the actuation of the Fiscalías (Prosecutors) when a would-be crime comes to their knowledge, to prosecute it or not (actually it is a judge—the Juez Instructor (Examining Magistrate)—who decides whether to prosecute or not, and this for historical and political reasons). Crimes known to the police fall under the competence of the Spanish Ministry of Interior, and previous measures under that of the Fiscalía General del Estado (General Prosecution Services of the State). It is probably true that both sources of information regarding the extent of crime have their own strengths and weaknesses. Criminologists have demonstrated the problems that account for the differences between previous measures and crimes known to the police (mainly, that some crimes are counted more than once in the case of previous measures). As can be seen in the following table, the two different measures reveal quite different trend patterns in crime. Previous measures displays a clear bulge in incidence in the late 1990s, but by 2005 falls back to the level of the early 1990s. In contrast, offenses known to police have remained stable, and misdemeanors known to police have gradually increased over the same period. Whether these statistics represent actual changes in crime as against changes in workload of judges or recording practices by police remains unknown.


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Offenses and Misdemeanors Known to the Police and Previous Measures Taken by the Prosecution Services, 1991–2005 (per 100,000 pop.) YEAR

OFFENSES KNOWN TO THE POLICE

MISDEMEANORS KNOWN TO THE POLICE

PROSECUTION SERVICES

1991

2,547

1,388

6,525

1992

2,386

1,398

6,988

1993

2,359

1,524

7,478

1994

2,241

1,641

7,675

1995

2,245

1,717

7,978

1996

2,346

1,927

8,764

1997

2,325

2,017

8,866

1998

2,424

2,150

10,129

1999

2,392

2,191

10,110

2000

2,280

2,140

9,817

2001

2,470

2,337

9,622

2002

2,480

2,480

9,791

2003

2,237

2,442

5,938

2004

2,168

2,427

6,331

2005

2,110

2,503

6,746

Source: Fernández Villazala, T. 2008. La medición del delito en la seguridad pública. Madrid: Dykinson; Fiscalía General del Estado (Prosecution Services of the State).

Finding of Guilt According to the Spanish Procedure Law, the investigation of crimes in the criminal process is carried out by a judge (Juez de instrucción, examining magistrate), though critical voices suggest that this role should be played by a prosecutor. Actually, there is an important debate on the issue in Spain. Some authors insist on the technical benefits of an investigation by a prosecutor, while others fear the influence of politicians since prosecutors are not independent and must follow the direction of their chiefs—needless to say, usually with strong political bonds. Suspects are protected by procedural guarantees and rights. Any accused has the right to be defended by a public attorney. Arrested individuals have the right to remain silent, to be informed in a clear and understandable way of charges against them, to provide and ask for evidence, to a speedy trial, to legal assistance including public assistance when they do not have means, that relatives or acquaintances are informed of the detention, and so

forth. Judicial warrants are required for entrance to search and seize evidence. There are multiple police agencies in Spain. The Guardia Civil (Civil Guard) and Policía Nacional (National Police) are national forces and represent the largest of all agencies. There are other police corps in some autonomous regions such as the Mossos d’Esquadra in Catalonia and Ertzaintza in the Basque Country. There are also local police in many cities. Brief legal information about two forms of detention will be provided here: detención (arrest) and prisión preventiva (pretrial detention), both regulated by the Spanish Law of Criminal Procedure (Ley de Enjuiciamiento Criminal, LECrim). It is the duty of the police to arrest suspects of crimes of certain severity, as well as cases where the suspect is unlikely to appear in court when required (art. 494 LECrim). In these cases, the police are to bring the suspect to the judge within 72 hours of arrest. There exists the possibility of extending this time by 48 hours in the case of terrorism (LECrim, article 520bis). Pretrial detention (prisión provisional) can only apply to crimes with punishments


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of 2 or more years imprisonment, except in the case of suspects with records that have not been cancelled or cannot be cancelled; only when there is “enough reason” (motivos bastantes) to believe the suspect is responsible for the crime; and only when pretrial detention is a means to avoid escape; the concealment, destruction, or alteration of evidence; or the commission of further crimes against the victim. In general, pretrial detention will only take place when there are no other measures to meet the same ends (LECrim, Art. 503 y 520). In practice, judges have no obligation to make use of pretrial detention. They tend not to apply this measure because they understand suspects often are unlikely to commit any other crime, hide evidence, and will appear in court when required to do so.

Punishment We have seen that, according to the Criminal Code (art. 33), there are many different types of punishment. At the same time, imprisonment is the bestknown form, and the one citizens have in their minds when they think about punishing criminals. With the exception of Catalonia, the prison system depends on the central government. Prison conditions are in general acceptable in Spain in comparison with other countries, although there is a problem of overpopulation. The government has announced new prisons. Whether this will reduce overpopulation remains to be seen. There are two important ways for a convicted criminal to avoid imprisonment. In cases of firsttime offenders, with prison sentences not exceeding two years, the penalty can be suspended. Another requirement is payment of civil responsibilities (Criminal Code, art. 80 ff.). The idea is that a prison term shorter than two years might have a negative impact on the individual, for example, cutting his or her social bonds or losing his or her job. This impact is not compatible with the potential general deterrent effect of the punishment. It is a clear example of a punishment philosophy that places retribution at the center of the system, but gives a role to deterrence too. In practice, judges apply this rule in an automatic way. In similar cases, when suspension of

a prison sentence cannot be applied, a substitution may be in order. Fines or community service are potential substitutes for imprisonment here (Criminal Code, art. 808 ff.). Finally, another important institution for tempering the effects of imprisonment is libertad condicional (conditional release). It is possible for prisoners to be released after a certain portion of the sentence has been served, usually three-fourths (Criminal Code, art. 90 ff.). Work in prisons is very common for inmates, although since the 1995 Code, it does not translate automatically in a reduction of time in prison in the traditional form of one day for every two of work (known as redención de penas por el trabajo, “redemption of sanctions through work”). Empirical evidence suggests that levels of punitivity have steadily increased, at least in many Western countries, in the last few years, possibly as a result of citizens being worried, fearful, and insecure of a loss of quality in their lives. Indeed, the 1995 Spanish Criminal Code was more punitive than the previous, which paradoxically dated from 1973, still in the Franco era. Since 1995, most of the reforms of the Criminal Code followed a punitive trend. Whatever the reason, the mean number of persons incarcerated in Spanish prisons has increased from 36.5 in 1991 to 68.9 as of July 2008, according to the director general of penitentiary institutions. In regard to the death penalty, forbidden in Spain since the 1978 Constitution, surveys conducted by the Centro de Investigaciones Sociológicas have shown that consistently over 70 percent of respondents are against it. This would lend credence to the claim that increases in punishments as measured by incarceration are not the result of a general punitivity of citizens but to either political or legislative changes in criminal law and its administration. Alfonso Serrano Maíllo Further Reading Aebi, Marcelo F., and Marc Balcells. (2008). “The Prosecution Service Function within the Spanish Criminal Justice System.” European Journal on Criminal Policy and Research 14(2–3): 311–331.



Aebi, Marcelo F., and Gonzalo Jar-Couselo. (2006). “Spain.” In World Police Encyclopedia, edited by Dillip K. Das, pp. 773–780. New York: Routledge Barberet, Rosemary. (2005). “Spain.” European Journal of Criminology 2(3): 341–368. Mendoza Buergo, Blanca. (2001). El Derecho penal en la sociedad del riesgo [Criminal Law in the Risk Society]. Madrid: Civitas. Serrano Gómez, Algonso. (2006). “Prólogo” [Prologue]. In Derecho penal. Parte especial, edited by Alfonso Serrano Gómez and Alfonso Serrano Maíllo, 11th ed. Madrid: Dykinson. Serrano Maíllo, Alfonso. (2006). “Punitivität und Gesetzgebung: Die Situation in Spanien” [Punitivity and Legislation: The Situation in Spain]. In Kriminalität und Kriminalprävention in Ländern des Umbruchs, edited by Helmut Kury and Elmar Karimov, pp. 721–745. Bochum, Germany: Brockmeyer. Stangeland, Per. (1995). “La delincuencia en España: Un análisis crítico de las estadísticas judiciales y policiales” [Delinquency in Spain: A Critical Analysis of Crime and Criminal Justice Statistics]. Revista de Derecho Penal y Criminología 5: 803–839.

Svalbard and Jan Mayen Islands Legal System: Civil/Common Murder: Low Corruption: Low Human Trafficking: Low Prison Rate: Low Death Penalty: No Corporal Punishment: No

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English and the Dutch. A conference between the three states was arranged in Oslo in 1910, but nothing came out of it. At a closed meeting in November 1918, the Standing Committee of Foreign Affairs announced that Norway should acquire sovereignty over Svalbard. The Norwegian Svalbard Act was enacted in 1925. Section 2 of the act set out that even though Svalbard has some legislative power, Norwegian civil law, criminal law, and the Norwegian regulations concerning legal procedure applied to Svalbard. Until 1994, Jan Mayen and Svalbard were governed by the governor of Svalbard, an officer known as the sysselmannen. From August 1994 the administration of Jan Mayen was taken over by a county governor of Nordland, an office called flykesmann. Svalbard was home to 2,321 inhabitants in 2007, whereas the only inhabitants on Jan Mayen are personnel working for the Norwegian military or the Norwegian Meteorological Institute. They all work on the LORAN-C base, which is a radio navigation center. The sysselmann on Svalbard has both administrative and police authority. He or she may even function as a judge. Svalbard has no ordinary local democracy, but different governmental bodies are, however, represented; for instance, the Svalbard Council in Longyearbyen, whose representatives are elected by the Norwegian population. Svalbard is demilitarized and has no army of its own. Svalbard has, on the other hand, Norway’s biggest coast guard ships that serve the seas in the north and operate closely with the police force, that handles the entire archipelago to the territorial limits of 12 nautical miles outside of Svalbard.

Crime Classification of Crimes

Background Both Svalbard (Spitzbergen) and Jan Mayen Islands are nowadays two distinct dependencies of the Kingdom of Norway, but there are different theories about their discovery. The Danish-Norwegian Kingdom claimed its sovereignty during the 16th, 17th, and 18th centuries, finding resistance from both the

Norwegian criminal law is applicable on crimes committed in the realm, on any Norwegian vessel or aircraft, by any member of its crew or by any person traveling on it or abroad by a Norwegian citizen or any other person with domicile in Norway, if it is a felony or misdemeanor against the state and punishable in the country committed. Criminal law defines most of the offenses that are


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against the law. It also defines a number of other regulations, which are not necessarily a crime but which still lead to a penalty. Norwegian legislators are trying to reflect society’s morals through the Penal Code and the code is therefore changing with the society. At the moment a criminal act is defined as an act carried out against the current Norwegian law and which is followed by a penalty. Offenses can include a number of different acts, with various motives for the offender. A person has to have reached the age of 15 to be held criminally responsible. The Norwegian Penal Code groups criminal offenses into felonies, forbrytelser, and misdemeanors, forseelser. Felonies are, with some exceptions, offenses with a maximum penalty of three months’ imprisonment or more. The majority of felonies are defined and listed in the Penal Code, where one can find, for example, perjury, arson, racial discrimination, rape, slander and libel, larceny, embezzlement, damaging information and communication systems, murder, blackmail and robbery, fraud, breach of trust, and so forth. Misdemeanors are generally minor offenses carrying a maximum penalty of three months’ imprisonment. Examples of these types of offenses can also be found in the Penal Code. All breaches of the Road Traffic Act are defined as misdemeanors irrespective of whether or not they carry a maximum penalty of more than three months’ imprisonment. The Penal Code and the Medicine Goods Act cover drug offenses. It is illegal to use, sell, manufacture, store (as opposed to possess), and to transport narcotics. Drug offenses are usually punished by a fine or by imprisonment up to 2 years. For a serious drug offense the offender can be given a sentence up to 10 years. The degree of seriousness depends on the type of drug involved. If the quantity is seen as very significant, imprisonment can be imposed for as long as 3 to 15 years. Under “particularly aggravating circumstances,” the punishment can be as much as 21 years. Illegal drugs are listed in the Narcotic Regulations by the Ministry of Social Affairs and cover approximately 250 substances. Even some kind of salts and derivatives are categorized as narcotics.

Crime Statistics According to Statistisk sentralbyrå, Oslo, during 2005 the total number of crimes reported to the police in Norway was 394,301. Svalbard only had 88 crimes reported during 2005. Of all crimes reported, 62 percent were classified as crimes and 38 percent as misdemeanors. The breakdown was as follows: 40 percent of the crimes were property offenses, 17 percent traffic offenses, 15 percent vandalism and environment-related offenses, and only a few were crimes of violence and other sexual crimes. The prosecution authority, the district court, or the Lower Court of Appeal punished as few as 31 of the offenders, of which 2 were female offenders, 23 were sentenced with a fine, 2 with a probation sentence; 6 offenders were sent to prison. According to Statistics Norway, most of the crimes in Norway are committed by male offenders, surprisingly enough, by offenders who are between 30 and 60 years old. The majority of prison inmates, on the other hand, around 65 percent, are men aged 25–44. Around 100–150 criminal cases are charged in Svalbard every year. Although most of them are minor cases of theft or vandalism, occasional incidents of serious violence or workrelated accidents occur quite often. Special attention has lately been devoted to environmental crime. As the situation is now, about every 5 to 10 cases of environmental crime are investigated and punished with a fine.

Finding of Guilt According to the General Civil Penal Code, no person can be criminally responsible before reaching the age of 15. No person may either be punished for committing an act in self-defense or for saving a person or property from otherwise unavoidable danger. No one who acts unintentionally is liable under Norwegian criminal law, unless it is expressly or unambiguously provided that also negligent acts are punishable. If the offender is intoxicated by alcohol or any other means, the court will not take this into consideration when judging the willfulness of the act. Also a misdemeanor consisting of failure to act is punishable under the law. A person



acting in a state of ignorance, concerning the circumstances in the case, is always liable for the consequences. If the offender has a mental disturbance, like psychosis or another mental illness, he or she is not criminally responsible. The rights of the accused are described in the Criminal Procedure Act. The most basic right is to have one’s case tried in front of a judge. The offender has also the right to attend the court proceedings, if there are not any special circumstances. Further, the suspect has the right to know what charges are being brought against him or her and has to be given a chance to refute the grounds of which the charges are being based. As a general rule, the suspect is always entitled to legal assistance during all stages of the process. During the main hearing the court shall provide free assistance to the suspect, if the case is complicated. Finally, the suspect has the right to bring appeals against court verdicts, both on questions concerning facts and questions of law. The time limit for an appeal is two weeks from the judgment. There are, however, several limitations on the exercise of this right. For example, appeals to the Supreme Court, which is the highest judicial body, can only take place if the appeal is permitted by the court’s Appeals Selection Committee. A criminal case in the district court is being solved with one professional judge and two lay judges. In particularly complex cases or if for some other reason it is necessary, the court can decide to sit with two professional judges and three lay judges. All lay judges shall be experts in their fields. Criminal investigation is instituted and carried out by the police. Examination and investigation of suspects under the age of 18 can be carried out, but the guardian shall be informed and given opportunity to participate. If the case is trivial, the police shall inform the child welfare services.

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in addition to or instead of other penalties. A sentence of imprisonment is always a limited time, from 14 days to 15 years, and in special cases 20 or 21 years. A prisoner can be released on probation in accordance with the provision of a special act. An offender can be sentenced to detention from 14 days up to 20 years. Detention can be converted to imprisonment, where 2 days of detention are equivalent to 1 day of prison. Under certain conditions community service can be given as a sentence by the court instead of imprisonment. First, a more severe sentence than 1 year of imprisonment would not have been given. Second, the purpose of the sentence cannot contradict a noncustodial sanction, and finally, the offender has to be resident in Norway. Community service can be given for a maximum 420 hours and cannot exceed 120 days. When a fine is imposed, consideration must be given not only to the nature of the offense but also especially to the financial position of the offender and to what he or she could presumably afford to pay under the circumstances.

Prison Norway is divided into six prison districts. Inmates in Norwegian prisons are usually in a bad situation already before imprisonment. According to a survey done by Statistics Norway, inmates reported that they had difficult and complex living conditions outside prison. Many of them were unemployed and had no permanent accommodation. The education level among inmates is poor. Most of them have only lower secondary school; as a consequence these people are not attractive on the labor market, since they have little to offer, compared with an average Norwegian citizen. Norwegian prisons held around 3,250 prisoners in 2006, and the number keeps increasing. There have been two prisons, one on Svalbard and one on Jan Mayen Island, but they are just tourist attractions nowadays. Anna Gustafson

Types of Punishment The general punishments, according to the Norwegian Penal Code, are imprisonment, preventive detention, detention, community service, and fines. In special cases loss of civil rights can be imposed

Further Reading Domstoladministrasjonen, the National Court Administration: http://www.domstol.no.


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Intro, a Web site on the Norwegian society: http:// www.introengelsk.cappelen.no. Ministry of Justice and the Norwegian Police: http://www.regjeringen.no/en/dep.

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

Background Sweden is a small country with about 9.2 million inhabitants located on the outskirts of Northern Europe. Sweden has until recently been regarded as the welfare state par excellence, exhibiting high employment rates and social expenditure but weak family ties, lower poverty rates, and lower income inequality. The political wing of the labor movement, the Social Democratic Party, has long dominated Swedish politics. The Social Democrats have governed since the 1930s, with the exception of the periods 1976–1982, 1991–1994, and from 2006, when center-right blocs were elected into office. Modern Swedish criminal law is based on written rules and is rooted in a European civil law tradition. Some written local codification already existed prior to 1350; major “modern” codifications originate from 1736, 1865, and 1965, when the present Penal Code came into force. The rules of the European Convention on Human Rights (ECHR) have constituted part of the Swedish law since 1995.

Police The police service is one of the largest public employers in Sweden. However, in a European perspective, the number of police per inhabitants is low. In 2007, there were a total of 18,000 sworn police officers. The first policewoman was employed in 1957.

Today, 22 percent of all sworn police officers and 14 percent of the commanding police officers are women. The police have been state-financed since 1965. Municipal police, city guards, border police, gendarmerie, fiscal, or court police do not exist in Sweden. The police budget amounts presently to about €1.7 billion (US$2.14 billion). Each of the 21 counties in Sweden constitutes a police district. In each district, there is a police authority responsible for the policing of the district. A police authority is led by a Police Board made up of the county police commissioner and a number of politically appointed members. Each police authority decides how its work is to be organized. The National Audit Office has repeatedly criticized the complicated structures of the Swedish police. The style of policing is civilian; there is no barracked police force, and the existing military police has no civilian functions. The powers of the police are regulated by written laws. There is no empirical evidence of systematic police brutality or police corruption. According to a Danish investigation regarding the years 1996–2006, the annual average of civilians killed or wounded by Swedish police officers using a firearm has been one and five persons, respectively. It is difficult to get into the National Police Academies: only about 5 to 10 percent of applicants can be offered a place. Efforts are being made to increase the proportion of women and ethnic minority officers. The Police Training Program comprises two years of full-time studies and six months of field training at a police authority.

Crime Classification of Crimes The Swedish system makes no formal distinction between serious and minor offenses (e.g., felonies and misdemeanors). Both are classified as “crime.” However, the Penal Code usually divides offenses of major importance into three categories: minor, normal, and serious infractions of the law. Since the year 2000 all findings of guilt are registered in a central register and held for a period of 5 to 10 years. Prior to 2000, only more serious infractions were registered. It is possible to grade offenses according to their (abstract) sanctioning scale, because certain


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coercive procedural measures only apply in the case of more serious infractions; the pretrial detention of a suspect in principle presupposes an offense that is punishable by imprisonment, for example. The exact number of punishable offenses in Sweden is not known. A study conducted in the early 1990s counted more than 400 laws—in addition to the Penal Code—that contained punishment clauses. The Penal Code itself specifies some 150 different criminal offenses. Thus, it is clear that the authorities have to set priorities. Violence against women, juvenile offending, serious economic criminality, and other forms of crime deemed to present a threat to the nation’s economic and political infrastructure are currently prioritized. A national strategy to meet the threat of terrorism has been formulated.

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In practice, property offenses, major traffic offenses, drug offenses and violence are the most frequent offenses for which people are punished. At least every fourth adjudicated offense is directly connected to narcotics. As of 2006, 55 percent of the daily prison population was considered by the prison authorities to have a history of drug use. Swedish drug policy is based on the principle of total prohibition. All nonmedical handling of drugs is a punishable offense. The unrelenting view on drugs, which is shared by both politicians and the public, may be seen as partly being a consequence of the strong temperance tradition in Swedish history, dating back to the mid-1800s. The drug policy has been one of the core reasons for the recent shift in Swedish criminal justice policy toward

Christine Schuerrer, right, is handcuffed at the end of a hearing in the Svea Court of Appeal in Vasteras, Sweden, January 19, 2009. Schuerrer, a German citizen, has been sentenced to life in prison for killing two toddlers in Arboga, Sweden, in March 2008. (AP Photo/Jessica Gow) © 2011 ABC-Clio. All Rights Reserved.

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a more punitive approach. Regrettably, Sweden scores high when it comes to drug-related deaths.

Crime Statistics Sweden has a well-developed system of criminal justice statistics. Yearly data on homicide can be traced back as far as to the 1750s. Today, homicide rates lie at about the same level (at about 1 per 100,000 population) as in the 1870s, the 1830s, and the 1750s. Court statistics have been published annually since the 1830s, following the French model. National data on police-recorded offenses are available since the early 1950s. Nationwide victim surveys have been conducted on a regular basis since the late 1970s, and regular nationwide self-report studies among pupils started in 1995. Sweden has also participated in the International Crime Victims Surveys (ICVS) since 1992. The most recent sweep (2004–2005) showed that crime peaked around 2000 and is now at a level similar to that of the early 1990s. In the European Union (EU) context the level of crime in Sweden is medium high. Public exposure to drugs-related problems is relatively rare. The prevalence of hate crimes is just above the EU average. Sweden is known for its comprehensive way of counting offenses in police statistics, which makes it appear to be a high-crime country. Comparisons with victim surveys do not corroborate this picture. Therefore, no detailed information is provided here about offenses reported to the police, which conforms to Jan van Dijk’s recent criticism against the use of police statistics in an international comparative frame of reference. However, it is meaningful to describe the structure of police-recorded criminality. Thus, in 2007, 65 percent of all recorded crimes comprised crimes against property (including fraud, criminal damage, etc.), 16 percent comprised crimes against the person (violent offenses and sex offenses), 6 percent comprised drug crimes or serious traffic offenses. The high proportion of property offenses is partly related to the fact that almost all Swedish households have a home insurance that covers incidents of crime. To receive compensation, the insurance companies require that the crime is first reported to the police.

Since living conditions in modern Sweden are much the same in the cities and in rural areas, the crime profiles are not very different between geographical regions. According to recent victim surveys, crime is less than twice as frequent in densely populated areas in comparison to less densely populated areas. The ICVS project as well as the Eurobarometer surveys not only monitor events of criminal victimization but also other related matters such as levels of fear, crime-preventive measures, and attitudes toward and experiences of the police. Asked whether they felt they were at risk of being burgled during the following year, respondents from Sweden ranked low or average in an international perspective. Feelings of insecurity were consistently low among Swedish respondents, when asked how safe they felt outside in their own neighborhood after dark. In response to the question of whether they had installed various kinds of anti-break-in devices (such as burglar alarms, special locks, or bars on windows and doors), Swedish respondents scored in the middle. According to the Spring 2008 Eurobarometer, Swedish respondents ranked, somewhat surprisingly, the health care system and crime as the two most important issues facing Sweden at the moment (while the average EU citizen was most concerned about rising prices and unemployment).

Finding of Guilt According to article 6(2) ECHR, a person suspected of a crime is legally considered innocent until proven otherwise. The burden of proof lies with the state (prosecution and courts). However, a suspected person can—under circumstances qualified by law—be placed in pretrial detention. Other coercive measures are also lawful. Inter alia, the following measures are applicable according to Swedish law: • • • • • •

Capture, arrest, and detention Travel bans and a duty to report to the police Sequestration Seizure Searches of premises and body searches Public camera surveillance


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• Secret camera surveillance, wiretapping, etc. • Concealed microphones, bugging, etc. • Blood tests, breath tests, saliva tests for DNA analysis Sweden has often been criticized for its practice of imposing unnecessary isolation and other restrictions on pretrial detainees. In its report of 2008, the UN Committee against Torture (CAT) expressed concern regarding information that still between 40 and 50 percent of remand prisoners are subjected to restrictions and that remand prisoners are currently unable to effectively challenge and appeal decisions to impose or to maintain specific restrictions. The committee also complained of the lack of official statistics on the use of such restrictions. The actual time spent in pretrial detention amounts on average to 45 days and is regularly deducted from the final prison sentence. According to article 5(5) ECHR, everyone who has been the victim of arrest or detention in contravention of the provisions of article 5 ECHR shall have an enforceable right to compensation. In 2007, about 1,200 persons were compensated for unlawful arrest or detention. Usually, the state pays between €50–70 per day as compensation. According to official statistics for 2006, about 30,000 persons (gross number) had been taken into custody by the police, and 11,500 persons (gross number) had been placed in pretrial detention by the courts. Despite the presumed innocence of crime suspects, there is a growing trend in the Swedish media to name them, sooner or later, and to publish their pictures.

Crime Investigation As a rule, crimes are investigated by the police. In more serious cases, a prosecutor can lead the investigation. There are about 850 prosecutors in Sweden assisted by 400 staff. Fifty-two percent of prosecutors are women (2007). A prosecutor in Sweden is not elected but is rather a civil servant. Becoming a trainee public prosecutor requires a law degree and formal court practice as a law clerk. The Prosecution Authority’s budget amounts presently to about €90 million.

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Once a criminal investigation has been finalized, the prosecutor decides whether the case should be brought before the court or settled in another way. However, police have in minor cases the legal power to decide not to open a case for investigation or to close an investigation without the consent of the prosecutor. The right of the crime victim to prosecute a case as an individual remains only in rare cases. If the prosecutor considers a person guilty of an offense, there are three possibilities to proceed, depending on the circumstances of the case: the prosecutor can (1) issue a waiver of prosecution, (2) fine the guilty suspect, or (3) go to court. Waivers and fines require the suspect to consent to being guilty. If the person does not consent, the case goes to court. Plea bargaining is not known in Sweden. In 2002, mediation (restorative justice) was introduced into the Swedish system. However, it does not replace a criminal sanction, and it is only used in connection with juveniles and only for nonserious offenses. In 2007, a total of 416,000 persons (gross number) were found guilty of a criminal offense (minor traffic offense included). The distribution was as follows (rounded numbers): • Summary fines (by police; Swedish customs): 292,000 • Waivers of prosecution (by prosecutor): 21,000 • Day-fines (by prosecutor): 41,000 • Sentences (by court): 62,000 Court sentences are relatively rare. This is because the crime picture is dominated by less serious mass criminality (“volume crime”), which for practical and economic reasons should not burden the courts. The first rules regarding summary fines were introduced in the late 1940s and their area of application has been consistently broadened since that time. The police were given the right to issue summary fines in the late 1960s. Today the majority of people found guilty of a criminal offense in Sweden are found guilty outside the courts. Due process had to make way for economic considerations.


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From a European perspective, Sweden ranks high among countries punishing people found guilty of a criminal offense. A study of a Swedish birth cohort showed that as much as 37 percent of the males and 10 percent of the females were registered for at least one nontrivial criminal offense up to age 37. Most frequent were registrations for theft, major traffic offense, drug crime, criminal assault, inflicting damage, public order disturbances, fraud, and violence against a public servant.

Courts There are 53 judicial districts in Sweden, each one with a district court and six courts of appeal. The Supreme Court is located in Stockholm. The courts hear both criminal and civil cases. In 2008, there were a total of 527 permanent judges, 137 trainee judges, and 660 law clerks. The corresponding numbers at appeal courts were 197 judges and 280 trainee judges. Unfortunately, their distribution according to gender is not easily available. At the levels of the district and appeal courts, Sweden uses a mix of permanent and lay judges. In district courts, the criminal court consists of three lay judges and one permanent judge. In appeal courts, the criminal court consists of three permanent and two lay judges. The lay judges are elected by the local government on a political party basis and serve a term of four years. Permanent judges must have a law degree and are appointed by the government. In principle, a permanent judge cannot be dismissed other than in specific cases set out in the Instrument of Government. Lay judges have the same functions as permanent judges, although they cannot chair a court session. The courts decide according to a oneperson-one-vote rule. The basic provisions on proceedings in criminal (and civil) cases are to be found in the Swedish Code of Judicial Procedure. This means that the court rules on cases after a main hearing attended by both parties who orally state their claims and other circumstances relating to the case. During the main hearing any witnesses and experts are heard and other evidence is presented. There are no particular rules on the assessment of evidence. Hearsay

testimony is principally admissible and so is evidence gathered unlawfully. Seventy-five percent of criminal cases are generally settled within 6 months at the district courts and within another 10 months at the courts of appeal. Cases where the defendant is detained or is young have priority and are settled in a shorter period of time. Bail is not known in Sweden. On average, a district court case costs €1,300 as compared with €3,450 in courts of appeal. The typical court session lasts for 1.5 hours. In 5 percent of cases the court session exceeds 6 hours. In about 12 percent of cases, the defendant is on pretrial remand. Thirteen percent of cases are usually dismissed by the courts. Another 12 percent of cases are appealed to the Court of Appeal. The appeal sessions last about 2.3 hours on average. The defendant appeals more often than the public prosecutor. The verdict is changed in roughly one-third of the cases. The odds are higher for the public prosecutor to get the verdict changed than they are for the defendant. Only very few cases (about 2%) are finally decided by the Supreme Court. The Supreme Court reviews only legal and procedural questions, never the facts of the case. In cases of a simple nature, the court normally delivers its judgment immediately. If the defendant is detained, the court must pronounce its judgment no later than one week after the completion of the hearing. Special rules apply to young offenders; for instance, such cases are to be dealt with promptly.

Defense Counsel and Legal Aid Private defense counsels are always admissible. The police are not legally obligated to inform the suspect of the right to have a lawyer present. According to a recent study in Gothenburg, a lawyer was present in 7 percent of police interrogations. However, anyone suspected of a serious crime or taken into custody is always entitled to a public defense counsel. In the case of minor offenses, it is up to the court to determine whether or not the suspect needs a defense counsel. Suspects who are sentenced for a crime are obliged to cover the state’s costs for their defense counsel, although the sum may not exceed


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the equivalent costs for legal aid (explained below). Those who are acquitted do not have to pay the costs of their defense counsel.

Legal Aid In Sweden legal aid constitutes a form of statutory social protection legislation that aims to help an individual who cannot obtain legal support in any other way. The right to legal aid is governed by the Legal Aid Act. In practice, legal aid is financial support provided by the state to those who are unable to pay for a legal representative. Legal aid covers part of the costs for the legal representative and also costs relating to evidence and other expenditure. Being granted legal aid does not automatically mean that the state pays all the costs for the legal representative. The basic idea is that one should contribute to the cost to the extent one can afford. One can receive legal aid for the whole or part of the cost of a legal representative for up to 100 hours. In special cases the court can extend legal aid.

Crime Victims As a rule, victims of serious crimes are entitled to free counsel and support services in connection with the preliminary investigation and trial. If it is suspected that a child is the victim of an offense by one of its guardians, the child may receive more extensive support from a special representative for children. Special support to witnesses has also been introduced at most district courts and at all courts of appeal to make proceedings easier for injured parties and witnesses.

Juveniles The age of criminal responsibility has long been 15 years in Sweden. According to the Penal Code, persons under 15 who have committed an offense cannot be sentenced to any criminal sanction. If the underage offender is in need of corrective measures as a result of the crime, it is the responsibility of the local social welfare board to take appropriate action, for example, by ordering that he or she

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be placed in a family home or a home with special supervision. Full criminal responsibility is not reached until the age of 21. Offenders between 15 and 21 are subject to special provisions with regard to choice of sanctions and measures. Only under very exceptional circumstances can a person under 18 years be sentenced to imprisonment. Restrictions are also applicable to sentence young adults (18– 20 years) to imprisonment. Furthermore, persons under 21 may never be sentenced to life imprisonment. In 2007, four persons aged 15–20 years and 721 persons aged 18–20 years were sentenced to imprisonment. A new custodial sanction called youth custody was introduced in 1999. The Youth Custody Act reintroduced the juvenile prison sentence that had been abolished in the early 1980s. The purpose of this new sanction is to keep the youngest offenders (15–17 years old) out of prison. The sentence is served in special youth homes under the responsibility of the National Board of Institutional Care. The sanction is time-limited (maximum 4 years; no conditional release) and is applied by the court in accordance with the seriousness of the crime. Youth custody is part of a larger reform that aims to make the response to youth crime more consistent and firm. In 2007, 89 young, mostly male persons were sentenced to youth custody by the courts. The average daily number of inmates in such institutions was 60. The average length of the sentence added up to 8 to 9 months. Offenders aged between 15 and 17 (at the time of the offense) can also be subject to sanctions under the Care of Young Persons (Special Provisions) Act. Thus, Sweden applies a dual system regarding those offenders. Which sanction or measure is applied in the individual case depends to a large extent on whether the prosecutor decides to start criminal proceedings or not. If this step is not taken, it is the responsibility of the local social welfare board to see that appropriate measures are taken. The prosecutor can decide against initiating criminal proceedings if the offender was under 18 at the time of the offense and measures are taken according to the Care of Young


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Persons Act, if he or she receives other help and support, or if the offense was committed in haste or ignorance. If the prosecutor decides on legal proceedings, the court can, as mentioned above, place the offender in care in accordance with the Care of Young Persons Act under certain circumstances, but criminal sanctions may also be applied. If criminal sanctions are chosen, the penalty applied is—in accordance with the law—milder than normally stipulated. Sweden does not operate a separate juvenile court system. In 2007, the majority of cases involving juveniles 15–17 years of age ended with a fine (37%), a waiver of prosecution (36%), or measures in accordance with the Care of Young Persons (Special Provisions) Act (26%). Correspondingly, cases involving young persons 18–20 years of age ended usually with a fine (53%), a waiver of prosecution (12%), a suspended sentence (12%), or probation (11%).

Punishment Types of Punishment The most common penalties are fines—monetary fines or “day-fines” determined on the basis of the defendant’s daily income. A prison sentence for nonpayment of fines (between 14 days and 3 months) is only awarded if the debtor evades his or her obligations to pay with intent to deceive. The imprisonment of fine defaulters has become practically obsolete after the mid-1980s. For more serious crimes or in the case of reoffending, the penalty prescribed may be imprisonment. The shortest prison sentence is 14 days, the longest 10 years (in exceptional cases 18 years) or life imprisonment. Instead of prison, the court may also prescribe a conditional sentence (i.e., a court warning) if the person convicted has no previous record, or probation, for example, if the individual has an abuse problem and needs supervision. The court can also commit a person to special care. Individuals who are mentally ill can receive forensic psychiatric care, while young offenders may be sentenced to institu-

tional youth care or to community service for young offenders. Both conditional sentences and probation can be combined with fines or an order to perform unpaid work—community service. Probation can also be combined with different orders for special care, such as treatment for alcohol or drug addiction. This rich variety of sanctions and combinations of sanctions is the result of the treatment ideology that characterized Swedish criminal policy throughout most of the 20th century. Aside from the penalties listed above, and in accordance with appropriate statutory provisions, the crime may also incur forfeiture of property, corporate fines, a trading ban, deportation (of a foreign citizen), the rescinding of a driver’s license, and liability for the payment of damages. Such damages may, for example, be compensation for destroyed clothing, medical costs, pain and suffering, or personal violation. The issue of damages can be considered in conjunction with the criminal trial. In certain cases, the prosecutor is under an obligation to represent the victim. The amount of the damages is determined by the court. A person who has been awarded damages receives a written offer from the enforcement services to assist with collection of the debt. If the perpetrator is not able to pay, or if a perpetrator has not been found, and there is no insurance that can cover all the damages, the crime victim may receive compensation from the state in the form of criminal injury compensation. This compensation is intended primarily for personal injury and violation. The Crime Victim Compensation and Support Authority reviews cases involving criminal injuries compensation. It also administers the Fund for the Victims of Crime. This is funded by means of special payments charged to convicted perpetrators (€50 each). The resources of the fund are distributed to different types of projects and activities directed at victims of crime under the auspices both of nonprofit organizations and public agencies. Money from the fund also goes to research on crime victims. In the budget for 2008, roughly €12 million were allocated for criminal injury compensation.


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Typical Punishments MURDER Until the 1980s, the typical sentence in a normal murder case was residential psychiatric care. By the early 2000s, the typical sentence had changed to life imprisonment. The actual time served by those serving a life sentence has varied greatly during the last 50 years or so. It decreased from 10–15 years in the 1950s to about 8 years in the 1980s. Today conditional release is granted after about 17 years.

RAPE In nonaggravated rape cases the average sentence length of imprisonment amounts to 27 months, in aggravated cases to 59 months. Offenders are only rarely sentenced to forensic psychiatric care.

SERIOUS THEFT AND ROBBERY The typical punishment for serious theft (including burglary)—in contrast to violent offenses— has decreased over the decades. Today, only about one-half of all serious theft cases result in a prison sentence. The average sentence length is about 11 months. The typical punishment for robbery is imprisonment. Simple robbery renders usually 16 months of imprisonment, while aggravated robbery renders 48 months.

SERIOUS DRUG OFFENSE The typical punishment for a serious drug offense is 57 months of imprisonment. Drug offenses have been the principal force behind the increasing prison population in Sweden. Drug offenses are also one reason for the increasing numbers of women in Swedish prisons. It should be noted that all prisoners who have served at least 1 month in prison are, in principle, entitled to early release after having served two-thirds of their sentence.

Prison There are presently 55 correctional institutions. Swedish prisons remain small, usually with less

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than 100 inmates. The largest prison—Kumla— holds 231 places. Single cells of 64.5 square feet (6 square miles) are the rule. Open prisons, where security is minimal, account for about a quarter of all prison places. Closed institutions have a high degree of security to prevent inmates from escaping. Some of them house special high-security units. Inmates are placed in accordance with risk assessments. In 2007, 10 escapes were recorded from closed prisons and 64 from open prisons. Swedish prisons are not guarded by armed guards, and escape from prison is not a criminal offense, but can lead to a prolongation of the sentence. On June 1, 2008, the number of prison inmates stood at approximately 5,050 sentenced offenders (55 per 100,000 of population) and 1,870 pretrial detainees (20 per 100,000 of population). However, up to 10 percent of prison inmates are usually absent due to periods of leave, work outside the prison during the day, treatment programs, and so forth. Between 1997 and 2004, the number of inmates rose by 40 percent. Overcrowding occurred for a short period. Presently, Sweden is said to have the most ambitious prison-building program in Europe.

ORGANIZATION AND EMPLOYEES The Prison and Probation Service is organized into a headquarters, six regional offices, and a Transport Service. Each region has remand prisons, prisons, and probation units. In terms of administration, the National Prison and Probation Service is also the supreme authority for the National Parole Board and the 30 probation committees. In the Prison and Probation Service there are some 50 different professions including prison officers, inspectors, transport staff, nurses, kitchen staff, cleaning staff, and office workers. The majority are prison officers, whose work also entails planning leave or organizing treatment of the inmates, in cooperation with other authorities. Almost 9,000 staff are employed in the prisons and remand prisons; 45 percent are women. The staff/prisoner ratio is high. Prison and Probation Service staff undergo paid basic training of between 20 and 28 weeks’ duration.


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THE INMATES Ninety-three percent of all inmates are men, of whom 46 percent have previously been in prison. Foreign citizens account for 28 percent of the prison population. Eight percent of inmates are 55 years of age or older; 6 percent are under the age of 20. The median age is 35 years. Research on the backgrounds of prison inmates reveals that as a group the inmates may still be described as marginalized and/or socially excluded. Prisoners are obliged to engage in some form of activity, which may include usual work, training, or treatment. The Prison and Probation Service has treatment programs for drug abusers, sex offenders, and men using violence against their partners. The programs are often imported from the Englishspeaking world, especially Canada. Presently, the Prison and Probation Service lists 14 different programs in use (such as cognitive skills, enhanced thinking skills, aggression replacement training, 12step program, and programs for reducing individual substance abuse). According to official data, between 2005 and 2007, the annual number of prison inmates who have completed such programs has doubled from about 1,000 to 2,000 inmates. Other top priority areas are security and keeping the prison free from drugs. Drug testing is mandatory. On average, each inmate is tested every third week, but samples are taken much more often in treatment wings for drug abusers. Over the course of a year, the Prison and Probation Service conducts approximately 100,000 drug tests. Twenty-one sniffing dogs are employed. Since April 1, 2008, the Prison and Probation Service can use additional, but less intrusive, methods for drug testing such as taking saliva, sweat, and hair samples. On September 1, 2008, the Prison and Probation Service introduced also a smoke-free working environment. It is not allowed to smoke within the confines of the prison/remand center.

the telephone call is believed to jeopardize prison security or counteract the prisoner’s adjustment in society. All prisoners have, as a rule, opportunities to follow events in the outside world through newspapers, magazines and other publications, radio, and television. According to a law from 2008, the possession of publications may be prevented if they may be viewed as having a negative effect on any treatment that the inmate is undergoing or if they represent a threat to order or security at the institution in question. Conjugal visits have been allowed for many decades. The rights of the inmates’ children have become a focal concern in recent years to adhere to the UN Convention on the Rights of the Child (CRC). In 2007, the Prison and Probation Service granted 36,000 applications for visits and 16,000 applications for the use of a telephone. A total of just more than 35,000 instances of prison leave were granted, with leave conditions being breached in 770 cases. Inmates in Swedish prisons have the right, guaranteed by law, to meet and discuss grievances and other issues of mutual interest and to present their views to the warden of the prison. Prisoners who are Swedish citizens have the right to participate in parliamentary elections. The complaints procedures are laid down in the Prison Treatment Act and the Prison Treatment Ordinance. Decisions in individual cases decided by the Prison and Probation Service can be sent on appeal to the administrative court. Like every other citizen, prisoners also have the option to complain to the parliamentary ombudsman. The number of complaints has increased in recent years, but almost all cases are dismissed without any action being taken. According to the law, there are only two formal disciplinary measures applicable: a written warning and the postponement of early release. In 2006, about 2,500 warnings were filed and early release was postponed in about 1,800 cases (for eight days on average).

PRISONERS’ RIGHTS Prisoners have the conditional right to send and receive mail from persons outside of the prison. Prisoners are also allowed the use of a telephone unless

RELEASE There are several possibilities available for gradual release from prison. These include extended day


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release, electronic monitoring (see below), and halfway houses with special support and supervision. Nevertheless, Swedish data on reconviction have consistently shown that institutional treatment does not produce lower reconviction rates than noninstitutional treatment—controlling for other factors. For prisoners serving more than two months and up to two years of imprisonment, the probability of a reconviction for a nontrivial offense is presently about 70–75 percent within a three-year follow-up period.

EXCHANGE OF PRISONERS Prison sentences awarded in Sweden can be transferred in accordance with the Nordic law on the implementation of sentences, the Convention on the Transfer of Sentenced Persons, and the additional protocol to this convention. In 2007, 153 prison sentences were transferred to other Nordic countries. Another 37 were transferred to other European countries and Morocco, following an application from the sentenced person. An additional 43 convicted persons were transferred against their will, largely to Poland and Lithuania.

SUICIDE The number of suicides in remand prisons amounts to 5 to 6 suicides per year and in common prisons, 1 or 2. Between 20 and 30 attempted suicides are recorded annually. The latest case known that a prisoner was killed by another prisoner occurred in the mid-1990s.

Noninstitutional Treatment Noninstitutional treatment is provided at 35 noninstitutional treatment agencies with a staff of about 1,000 executing officers (the majority of them being women). There are also about 6,000 lay supervisors. Together, they monitor an average of 13,500 clients every day. The agencies’ task is to monitor clients sentenced to sanctions other than prison (probation with or without contract care/community service and conditional sentences to community service), and also to monitor offenders who have

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been released on parole. The period of probation is three years and monitoring by noninstitutional treatment agencies is normally carried out for one year. In the case of release on parole, the probation period is equivalent to the remainder of the prison sentence, but not less than one year. Those who are placed under supervision are assigned a probation officer who offers support and helps to facilitate the convicted person’s adaptation to society. Contract care is primarily intended for drug or alcohol abusers, if they committed the crime in relation to their substance abuse. Instead of prison, the court sentences the individual to probation with treatment at a treatment center. Community service is another alternative to prison and is a supplement to conditional sentences or probation. Community service means that the convicted person carries out unpaid work during his or her spare time. The court decides on the number of hours, between a minimum of 40 hours and a maximum of 240 hours, that the convicted person is to work. A further alternative to prison is electronic monitoring. A person sentenced up to 6 months in prison (and early release up to, as a rule, 18 months) can apply to serve his or her sentence at home fitted with an electronic ankle bracelet. The transmitter on the bracelet is connected to a computer, which checks that the client follows an established timetable. If the client does not follow the timetable, the responsible noninstitutional treatment agency is alerted. The convicted person is monitored 24 hours a day. The freedom of movement of clients is strictly regulated and noninstitutional treatment agencies regularly check that the clients are drug- and alcohol-free. However, Swedish legislation has been very clear that electronic monitoring may not take the form of house arrest. One of the groups that often serve its prison sentences via electronic monitoring comprises those convicted of drunk driving. This punishment is then combined with treatment.

Costs According to official calculations, the average cost per client per day adds up to €20 in noninstitutional treatment, €160 in an open prison, €230 in a closed


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prison, and €240 in a remand prison. The Prison and Probation Service’s budget amounts to approximately €650 million per year. Hanns von Hofer Further Reading Crime Victim Compensation and Support Authority: http://www.brottsoffermyndigheten.se. Ministry of Justice. (2007). The Swedish Judicial System: A Brief Presentation. Stockholm: Ministry of Justice. Pratt, John. (2008). “Scandinavian Exceptionalism in an Era of Penal Excess: The Nature and Roots of Scandinavian Exceptionalism.” British Journal of Criminology 48: 119–137. Swedish Prison and Probation Service publishes different documents, such as the Basic Facts of the Swedish Prison and Probation Service or The Swedish System of Sanctions: http://www.krimi nalvarden.se. Note: Changes of the law after December 31, 2008, are not incorporated in this essay. The exchange rate has been set to 10 SEK = €1 (US$1.26).

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

Background Switzerland is a small European country of 7.5 million people sharing a mountainous land of 41,288 square kilometers (15,941 square miles), of which 25.5 percent are nonproductive. In 2008, 21.7 percent of the Swiss resident population were foreign nationals, a relatively high proportion compared to other European countries, a situation explained

by the strict rules that apply to the obtaining of Swiss citizenship. Foreign nationals come principally from the 27 European Union (EU) countries (62.1%); the most represented nationalities are Italians (17.5%), Germans (14.1%), and Portuguese nationals (11.8%). Besides, almost 25 percent of foreign nationals come from European countries outside the EU, mostly from former Yugoslavian republics, less than 4 percent come from the African continent, and less than 6 percent from Asia. The political organization of the country is characterized by its federalism—a direct democracy highly decentralized—as it is divided into 26 autonomous cantons and half-cantons, each with its own constitution. Switzerland has four national languages: German, French, Italian, and Romansh. Most cantons have one official language, with German being predominant in the eastern cantons (63.7%), French in the west (20.4%), and Italian (6.4%) in the canton of Ticino, in the south; Romansh is spoken by less than 1 percent of the population. As a result of the large degree of political autonomy of the cantons, the Swiss criminal justice system is probably the most highly fragmented system in Europe, which makes it, to some extent, a comparative lawyer’s dream. The structure of police forces in Switzerland reflects the organization of the country in three levels: federal, cantonal, and municipal. Thus, Switzerland has no national police force, but a Federal Police, 26 cantonal police forces, and more than 100 municipal police forces. Cantonal and municipal police forces are responsible for law and order, while the Federal Police (with only 870 employees) is responsible for national security as well as for the most serious cases of organized and economic criminality, such as international drug trafficking, trafficking of human beings, or money laundering. On December 31, 2007, cantonal police forces had 12,147 sworn officers, and municipal forces 4,311. Thus, there were 219 police sworn officers per 100,000 inhabitants, which represents a low rate compared to other European countries. Likewise, prison administration and noncustodial sanctions are run by the cantons. On September 3, 2008, Switzerland counted 124 penal institutions;


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most of these are small local institutions for pretrial detention or people serving short sentences. The majority of these institutions have less than 100 places and only two prisons offer a capacity of more than 300 prisoners.

History of the Legal System Swiss criminal laws and sentencing practices have been influenced by different legal traditions, including French and German legislations. The first approximation of a criminal code in Switzerland was written in 1799, mostly inspired by the French Code of 1791. After 1830, many cantons passed their own criminal code, even though some did maintain the use of the Code pénal helvétique for some time. French-speaking cantons generally followed the French tradition, whereas German-speaking cantons were more inspired by the German criminal legislation. The idea to codify criminal law at the national level emerged in 1898 with the introduction of a new article in the Constitution that instituted the competence of legislation in the field of criminal law to the Confederation. As a result, the Confederation had the competence to pass legislation regarding substantive law; yet courts organization, criminal procedures, and criminal justice administration were left to the cantons. However, as will be seen in the next paragraphs, all this is about to change.

The Swiss Criminal Code and Other Criminal Laws Offenses definitions are contained in the Swiss Criminal Code (CP), which recently underwent a major revision. The new code is depicted as “modern,” mainly because it accords a special attention to the rehabilitative dimension of the sentence and favors—some—alternative sanctions (e.g., community work orders). Indeed, the new code no longer considers prison sentences as central to the system of sanctions, but as a last choice in an era emphasizing alternative sanctions. Sentencing practices are modified: fines are calculated with the new concept of day-fines up to 360 days. The amount of day-fines is computed according to the economic situation of

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the person sentenced, with the maximum amount being 3,000 Swiss francs (CHF) per day (approximately US$2,636). Community work orders up to 720 hours were introduced in replacement of short custodial sentences (i.e., less than 6 months) or sentences up to 180 day-fines. Indeed, short custodial sentences are basically suppressed unless particular cases properly motivated. Finally, suspended sentences are applicable to fines, community work orders, and custodial sentences between 1 and 3 years. In addition to its CP, Switzerland counts a Military Criminal Code—dealing with military-related offenses as well as common offenses perpetrated by a person on duty. The three major federal laws contributing to criminal convictions are the Road Traffic Act, the Federal Act on Narcotics and Psychotropic Substances, and the Federal Act on Foreign Nationals regulating offenses related to immigration and residence of aliens and asylum seekers. In addition, many administrative laws, at both the cantonal and federal levels, contain dispositions related to criminal offenses. Cantonal criminal laws usually regulate police contraventions, contraventions to the administrative or procedural cantonal prescriptions, and contraventions to fiscal legislations.

The Future Swiss Code of Criminal Procedure Switzerland currently has a typical continental system, one criminal code at the federal level and 26 autonomous procedural systems, one in each canton. Whereas offenders can easily circulate across cantons, judicial authority stops at the borders. In March 2000, Switzerland extended the federal competence to legislation to include the criminal procedure and, after a long legislative process, usual in Switzerland, a unified Swiss Code of Criminal Procedure (CPP) should become effective at the earliest in January 2011. One can note, among other interesting changes, the extension of the principle of opportunity, which allows the law enforcement authorities to waive prosecution under certain circumstances. The rights of the accused will be reinforced as well, with the admission of the “attorney of the first hour” and the right to call a defender at any


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stage of the proceedings. On the Public Prosecution Service (PPS) side, the monitoring of bank accounts will constitute a new compulsory measure.

Crime Classification of Crimes Based on the seriousness of the sanction associated with an offense, the CP defines three categories of offenses: felonies (i.e., crimes in French, Verbrechen in German, and crimini in Italian), misdemeanors (i.e., délits, Vergehen, delitti), and contraventions (i.e., contraventions, Übertretungen, contravvenzioni). The first category encompasses offenses liable to imprisonment of more than three years, whereas the sanction for the misdemeanors is up to three years of imprisonment or a fine. Contraventions are only liable to a fine, while petty offenses can be dealt with by administrative proceedings with the police institutions, as long as the fine does not exceed CHF 300 (approximately US$264).

Crime Trends According to Police Crime Statistics The Swiss police crime statistics system was initiated in 1982. Until recently, statistics were managed by police authorities of each of the 26 cantons on behalf of the Swiss Federal Office of Police, who was in charge of compiling the data; therefore, these statistics have always been limited as they consist of a statistical aggregation of data based on police crime reports. This statistic was based on a selection of offenses (36) from the CP; not all offenses were considered and many offenses were aggregated, because the distinction between them was not consistent across police authorities. Furthermore, there was no standardization of data collection procedures or written guidelines on how to record and count offenses. For example, it was shown that some departments were counting offenses when they were reported to the police (input) while others were counting them at the end of the police intervention (output). Because of several shortcomings, the crime statistics system underwent a major revision that started at the end of the 1990s. The main goal of the revision was to achieve a centralized database recording all

criminal offenses through the use of standardized evaluation principles and data captures rules. The new statistical system was gradually implemented in each canton and the first national-level crime data, covering the year 2009, were published in March 2010. Besides the crime statistics related to offenses defined in the CP, data on police-recorded offenses under the Federal Act on Narcotics and Psychotropic Substances are collected, as well as data on traffic offenses recorded by the police. These have been incorporated into the new national statistic with the addition of police-recorded offenses under the Federal Act on Foreign Nationals. Because of the aggregate nature of policerecorded crime data, as well as its shortcomings, looking at overall trends is not of any interest. Trends for specific offenses are more informative. For example, the rate of vehicle theft, mostly theft of scooters and motorbikes, has fallen over time. Improved security devices are largely responsible for the drop of car thefts, whereas the introduction of compulsory helmet legislation has played a role in the drop of scooters and motorbikes thefts. Other forms of theft show less consistent trends over time, with a significant rise in 2004. This inconsistency may be a methodological artifact related to changes in recording practices of minor theft (i.e., theft of value of less than CHF 300). Burglary rate almost doubled between 1985 and 1997, and then decreased up to 1999. The fact that burglary, motor vehicle theft, and personal crime differ in trends is not surprising as these differ in situational characteristics as well. The trends for police-recorded violent offenses are different. The intentional homicide rate is stable over time, whereas assault rates have been going up since the mid-1990s and two important increases arose in 2004 and 2006, respectively. Assault rates according to surveys have also increased around 1995, and later after 1999. The existence of large open drug scenes was among the main factors for the increase of street crime in Swiss major cities between 1989 and 1995. In urban areas with high concentration of activities related to drugs or prostitution, offenders are more likely to find potential victims; hence, these areas were more attractive to offenders than more wealthy neighborhoods. In 1994, the adoption


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of a new drug policy that included harm reduction (through exchange of needles as well as methadone and heroin prescription) led to the closing of open drug scenes and to a drastic reduction of street crime as well as deaths by overdose. The number of rapes recorded by the police decreased between the 1980s up to the mid-1990s (from 6.6 per 100,000 inhabitants in 1982 to 3.9 in 1994); however, it has been increasing since then (up to 8.5 per 100,000 inhabitants in 2007). Over time, the pattern is similar for other sexual offenses.

DRUG OFFENSES AND DRUG-RELATED PROBLEMS The rates of drug-related offenses are increasing. Obviously police-recorded data on drug offenses reflect underlying changes in drug use and trafficking only to a limited degree. Since the beginning of the 1990s, the number of offenses related to drug consumption has been going up: from 189 offenses per 100,000 inhabitants in 1990 to 484.3 in 2007. In addition, the trends for trafficking offenses are also going up. According to the most recent data published by the Swiss Institute for the Prevention of Alcoholism and Other Drug Problems (ISPA), more than one out of three men, and one out of five women, had ever used an illegal drug. Between 1992 and 2002, drug use remained stable in Switzerland, with the exception of the use of cannabis, which increased. Indeed, as in many countries, cannabis is today the most widely used illegal drug in Switzerland; according to ISPA data, about one-fifth of the Swiss population aged 15 to 74 has ever used cannabis. In 2006, 34 percent of the male students aged 15, and 27 percent of the female students of the same age group, had ever used cannabis.

HEROIN PRESCRIPTION PROGRAM AND OFFENDING BEHAVIOR In 1994, the federal government introduced a new drug policy based on a four-pillar strategy (prevention, treatment, harm reduction, and enforcement). As mentioned before, harm reduction included heroin prescription programs. A few weeks later, open drug scenes in Zurich and other cities were closed.

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Between 1995 and 1996, more than 800 drug addicts started programs based on heroin prescription, whereas, simultaneously, methadone substitution was extended to approximately 15,000 drug addicts. These programs had several consequences, including a major decrease of deaths by overdose (from 419 in 1992 to 152 in 2007) and, from a criminal policy point of view, a drastic drop in criminal involvement among beneficiaries of the heroin prescription program and, to a lesser extent, among those enrolled in the methadone substitution program, as well as an immediate reduction in the concentration of drug addicts in urban centers. All this led to a reduction of crime. In 1999, a referendum against heroin prescription programs was rejected by the population. In 2008, almost 70 percent of the voters approved the new law on drugs that consolidates the four-pillar strategy. The law entered into force in January 2010. Heroin prescription is currently a recognized form of treatment followed by 1,300 persons, while 17,500 others participate in methadone substitution programs.

Juvenile Delinquency According to Official and Self-reported Data According to a compilation of data by the Federal Statistical Office, 12,920 youths were suspected by the police of having committed an offense in 2007, 27 percent of them for a violent offense. These juveniles account for approximately 3 percent of the age group 13–17 in the population. During the same year, juvenile judges issued more than 14,000 court orders involving minors; over 90 percent of orders involved criminal sanctions and about 15 percent involved educational measures. Less than 12 percent of court orders involved female juveniles; over 75 percent of youths were aged 15 or older. At the same time, 4,825 juveniles attended a consultation at a victim’s crisis center, approximately half of the consultations concerned violent offenses. Suspected offenders were known to the victim in 80 percent of the cases; in half of the cases, there was even a family relationship between the victim and the suspected offender. Switzerland participated in the first and the second International Self-Reported Delinquency Survey (ISRD-1 and ISRD-2), conducting national


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surveys on juvenile delinquency in 1992 and 2006. The Swiss ISRD-2 was administered to a national random sample of more than 3,600 juveniles attending the seventh, eighth, and ninth grade (i.e., juveniles aged 13 to 16). Lifetime and 12-month prevalence rates were computed for a range of problematic behaviors and offenses, including questions on alcohol and drug consumption, property offenses (e.g., shoplifting, burglary, robbery/ extortion), drug-related offenses (i.e., selling drugs), and personal offenses (e.g., assault, group fight). The most common offense committed is theft, as over 23 percent of youths have ever perpetrated a theft. The study reveals that 9.1 percent of juveniles have stolen from a shop in the last 12 months, whereas 7.8 percent have been involved in vandalism, and 3.7 in bicycle/motorbike theft. More serious property offenses concerns 0.9 percent of juveniles who have completed a burglary in the past year. Juveniles have also been involved in violent offenses: 8.4 percent have engaged in a group fight, whereas around 2 percent of them have assaulted someone (1.2%), snatched a purse (1.1%), or robbed someone (0.9%). Altogether, 15.5 percent of youths have been involved in a group fight. Only 2.8 percent of the sample have been dealing drugs in the past year. During the last month, 39 percent of students have drunk wine or beer—a percentage that is not unusual in a wine-producer country—and 16 percent strong spirits. In fact, almost all students who consumed strong spirits during that period have also been drinking wine or beer. Lifetime hard drug use (i.e., Ecstasy/speed, LSD, heroin, and cocaine) concern only 2 percent of the sample. Victimization is relatively common, with almost a quarter of juveniles having had something stolen from them in the last 12 months, and 12.4 percent reporting they have been victims of bullying. Robbery and assault were experienced by 2.3 percent and 2.4 percent of the students, respectively.

Victimization Surveys in Switzerland NATIONAL CRIME VICTIMIZATION SURVEYS The first national crime victimization survey conducted in Switzerland was administered in two

waves in 1984 (French-speaking cantons) and in 1987 (German- and Italian-speaking cantons). It was one of the first major crime surveys to use computer-assisted telephone interviews (CATI). Similar national surveys were conducted in 1996, 1998, 2000, and 2005, usually as a part of the International Crime Victims Survey (ICVS) and using the ICVS core questionnaire with a few additional questions. A recent comprehensive analysis of all sweeps of the Swiss crime victim surveys yielded interesting findings, especially with respect to putting crime trends into a wider perspective. Overall, survey trends and trends for police-recorded offenses are congruent, yet the magnitude of crime is different according to both indicators. Burglary, a crime that became transnational after the fall of the Berlin Wall in 1989, doubled from the late 1980s to 1997, decreased in 1999, and remained stable in 2004. Motorcycle theft decreased for the reasons explained before. Violent offenses like robbery/mugging and assault increased until the mid-1990s, decreased at that time—reflecting the changes in drug policy that have already been explained—and increased since then. The latter trend appears to be due to an increase of youth violence, reflected also in the data from self-reported delinquency surveys. Reporting to the police has been decreasing for most offenses, including violent ones.

SWISS COMPONENT OF THE INTERNATIONAL VIOLENCE AGAINST WOMEN SURVEY In 2003, Switzerland took part in the International Violence against Women Survey (IVAWS), an international project coordinated by the European Institute for Crime Prevention and Control. Between April and August, 1,975 women aged 18 or older took part in the survey and answered questions about their lifetime experiences of partner and nonpartner victimization as well as their feelings of personal safety. This study was the first national-level report on violence against women. According to these victimization data, 4 out of 10 women report having ever experienced threats, physical, and/or sexual violence since the age of 16. Prevalence rates for the last 12 months ranged from 0.5 percent for completed and attempted rape to


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1.9 percent for physical violence and threats. As for victim-offender relationship, the Swiss study reveals that 32 percent of women have been assaulted by a nonpartner, namely, a friend or an acquaintance (18.9%), a stranger (14.4%), or a relative (4.3%), whereas 10.5 percent of victims were assaulted by a partner. Intimate partner violence consists mostly of assaults by ex-partners; most common types of assault include slapping and hitting, then pushing and grabbing one’s spouse. Other analyses reveal that most cases are not reported to the police: only 23 percent of women victimized in the preceding five years reported the incident to the police. Female victims are more likely to contact the police when physically assaulted than when sexually assaulted. Official complaints were filed in less than 15 percent of the cases; women are more likely to file a complaint against a stranger (complaint was filed in 29% of the cases) or an acquaintance (18%) than against a partner (7%). However, when victimized, women were very likely to disclose the abuse to someone. Violence incidents are principally disclosed to different family members (60%) or friends (25%); this is also the case for intimate partner violence. Victim’s crisis centers or shelters were contacted by approximately 20 percent of the victims. Multivariate analyses revealed that the strongest predictors of partner violence were the partner’s characteristics, among which are a violent and aggressive behavior outside the family and excessive drinking.

Finding of Guilt Criminal Proceedings under the Future Swiss Code of Criminal Procedure The Swiss Code of Criminal Procedure (CPP) follows an inquiry model that gives extended powers to the Public Prosecution Services (PPS), a system that also exists in Germany, Italy, and the United States. Cases are carried out by the same person throughout the criminal procedure that comprises two phases: police investigation and case instruction. A criminal procedure can be decided by the police, the PPS, or the competent penal authorities for the sanctioning of contraventions. Usually,

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the police investigate an affair and inform the PPS about the findings; the PPS then decides whether to conduct an investigation. The police do have some autonomy during the preliminary investigations, but always act under the surveillance of the PPS. The PPS can also order the police to start an investigation. Petty offenses (i.e., contraventions) are prosecuted by specific administrative authorities designated by each canton. Whenever a formal instruction is opened by the PPS, it must be conducted against and in defense of the accused (i.e., exonerating facts and circumstances that incriminate the defendant). The instruction follows the inquisitorial model of procedure, which means it is secret—without the participation of the public— written, and noncontradictory. During this process, the rights of the defendant include the right to read his or her case file, the right to be assisted by an attorney, the right to take part in criminal proceedings, and obviously the right to oppose any PPS decision. The PPS is granted different judicial powers during the distinct phases of the criminal procedure. During the instruction phase, the PPS can resort to all legal means of investigation to establish the truth. The PPS can summon the parties, a witness, or an expert, and can go to the crime scene or request an official report. In addition, the PPS can also pronounce different measures of constraint, such as police search, DNA analyses, or monetary impoundment. However, the PPS is not allowed to send the defendant in pretrial detention; to avoid the concentration of powers in the hand of a single entity, a special court—the Court of Coercive Measures—has been instituted, whose powers include sending a defended in pretrial detention. Police are allowed to keep a suspect under arrest for 24 hours, but they must inform the PPS within this period. The PPS then has 48 hours to ask the court to order pretrial detention. The court has 48 hours to rule; without a decision within the deadline, the suspect must be released. The instruction ends with the PPS dropping the charges, with the PPS wording a penal order, or with the case being transferred to court accompanied by an act of indictment. Once the case is transferred to court, the PPS becomes one of the parties. He or she then


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represents the state as he or she is prosecuting the case and calling the sentence. At this stage, the PPS is only acting against the defendant.

PARTY LITIGANTS AND RIGHTS Any party litigant has several rights, among which are the right to be heard, the right to read his or her case file, and the right to be assisted by an attorney. Swiss criminal law recognizes the defendant and the victim as parties in the criminal procedure. The PPS is considered a party litigant only during the trial. In addition, each canton is allowed to give the right to some authorities to act as a party litigant; this could include social welfare services, child protection services, or even authorities protecting the environment. The rights of the accused—among which the right to be heard, the right to read his or her case file, and the right to be legally assisted—exist right from the beginning of the criminal procedure. Indeed, a person is considered the accused as soon as he or she is suspected of having committed an offense. The suspicion can arise from an official complaint, a denunciation, or be the result of an official procedure. The injured party becomes a party litigant as soon as he or she expresses the desire to enter the criminal procedure, then becoming a plaintiff. Only the plaintiff can intervene in the criminal procedure and join a civil claim to the criminal proceedings. The status of victim refers to the definition encompassed in the Swiss Victim Aid Act. In Switzerland, this act has existed since 1995, but was recently entirely revised; the updated legislation entered into force in January 2009. The injured party is defined a direct victim whenever there is a criminal offense as defined by the CP. Abuses against the physical, sexual, or psychological integrity must reach a certain level of seriousness and be in direct causal relation with the offense committed. The aid includes advice provided by staff of victim crisis centers, protection, and the preservation of victim’s rights during criminal proceedings. The act also regulates claims for reparation and compensation. The victim can contact a victim crisis center whether he or she reports the

incident to the police or not. The advice is free of charge and anonymous. Beside other rights, the victim may be accompanied by a person during the criminal proceedings, the right not to be confronted with the offender, the right to be informed about the state of the proceedings, the right to be heard by a person of the same gender, and the right to have a trial in camera. The help given by the centers covers three dimensions. First they include socio-psychological advice, including listening to the victim, giving information on how to file a complaint, or the organization of a criminal proceeding. The centers can also address the victim to health care specialists or psychologists whenever the trauma of the attack requires it; the psychological assistance is financed by the centers up to 10 sessions. The staff can also provide the victim with other immediate financial help, such as emergency accommodation, medical or transportation costs that arose directly from the offense. Legal advice is also part of the center’s tasks, although victims are likely to be addressed to an attorney for serious cases. Here also, the Swiss Victim Aid Act allows the centers to offer a free legal consultation with a registered attorney, up to six hours total. The last part of this legislation contains dispositions related to compensation claims. The victim is indeed allowed to claim, first, for a compensation of the costs consecutive to the offense and, second, for reparations of the prejudice. Financial help is subsidiary, which means it will be paid by the state only if neither the accused nor insurance bear the costs.

COURTS AND JUDICIAL AUTHORITIES Judicial organization is one of the tasks devoted to the cantons; therefore, the courts are organized in a different way from one canton to another and often named differently. However, the CPP enumerates four entities intervening in criminal proceedings. The PPS refer a case to a court of first instance. There are two distinct appeal jurisdictions depending on the object of the appeal, that can be generally described as follows. The autorité de recours (Beschwerdeinstanz in German, and Giurisdizione di reclamo in Italian) gives a ruling on any appeal


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against decisions and procedural acts of the police, the PPS, or the authorities dealing with contraventions (art. 20 and 393 CPP). The juridiction d’appel (Berufungsgericht, Tribunale d’appello) reviews first instance closing decisions that are contested in matters of law or of fact (art. 21 and 398 CPP). Finally, a court of coercive measures, the tribunal des mesures de contrainte (Zwangsmassnahmengericht, Giudice dei provvedimenti coercitivi) regulates cases of pretrial detention or involving measures such as hospitalization of the accused person, DNA sampling in major investigations, or peace bond; attacks on fundamental rights of the accused are usually also ruled by the court of coercive measures (art. 18 CPP). As the judicial organization will remain, the competence of the cantons, names, and internal organization are likely to differ across cantons. The structure of judicial authorities differs not only across cantons but also within the different legal domains (e.g., criminal, civil, or administrative). In Swiss criminal proceedings, judicial authorities can consist of one single person (single judge for criminal matters) or multiple individuals (collegiate body). Most often the judge who sits alone in a court of first instance is competent to try contraventions, and minor felonies and misdemeanors, whereas a collegiate body tries more serious cases. Appeals are almost always tried by a collegiate body. In Switzerland judges are not always jurists (i.e., law graduates). For example, many cantons possess a justice of the peace in which works a peace commissioner, a magistrate who has the jurisdiction to judge small claims actions, and which is also an arbitration court to which parties bring their cases for conciliation purposes before being referred to the higher court with appropriate jurisdiction. However, the actual complexity of law, as well as the facilitated access to law studies, has increased the presence of lawyers with judicial authorities. Judges do not always work full-time, especially in the courts of higher instances and especially when they are not jurists. The number of female judges has increased over time, yet only 27 percent of criminal judges are women. Federal law requires that, for criminal

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proceedings concerning sexual offenses, the victim can request to be heard by a person of the same gender. Similarly, during the trial, at least one of the judges has to be of the same gender as the victim.

PRETRIAL DETENTION The CPP distinguishes between pretrial detention (i.e., up to the end of the instruction phase) and preventive detention (i.e., during the trial). The first aims at safeguarding the goals of the investigation process; the latter is used to ensure the availability of the accused and the execution of possible custodial sanctions. Pretrial detention is ordered by the PPS for reasons that include, among others, flight, collusion, or repeat offending. A survey conducted by the Federal Statistical Office in 2006 revealed that, on the reference day, 29 percent of all detainees were in pretrial detention. Among these suspects, 21 percent were Swiss citizens, 22 percent were foreign nationals with a residency permit, 16 percent were asylum seekers or persons admitted upon provisional authorization, and 45 percent were foreign nationals without residence permit (persons living near the border, illegal migrants, tourists). Whereas the proportion of Swiss citizen in pretrial detention has remained stable since 2001, the proportion of foreign nationals with a residency permit has decreased more than 12 points since 2004. During the same period, the proportion of illegal migrants has increased more than 11 points.

Criminal Justice for Juveniles In Switzerland, the minimum age of criminal responsibility is 10 years. If the competent authority learns that an offense has been committed by a child aged less than 10, the legal representatives of the child are informed. When it appears that the child needs particular attention, the guardianship authority or child welfare services, as designated in cantonal legislation, are informed. The offenses that can be committed by a juvenile consist solely of the offenses defined in the CP; there


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are no special offenses like status offenses as in some states of the United States. Since January 2007, articles related to juvenile law have been taken out of the CP and formulated into a special federal law setting up the sanctions applicable to any offender aged 10 to 17. The law is considered perpetrator-oriented as the person of the child or the adolescent is in the forefront. The appropriate decision is made based on the personality of the juvenile rather than on the seriousness of the offense; in this sense, Switzerland follows the general rehabilitative principles of juvenile justice. Therefore, the law distinguishes between corrective methods, special (therapeutic) treatment, and punishment. As of January 2007, the following penalties may be imposed on juvenile offenders: a reprimand, a personal work order, fines up to CHF 2,000 (approximately US$ 1,757) for offenders between 15 and 18 years old, a custodial sentence of up to 1 year for offenders between 15 and 18 years old, or up to 4 years for juveniles, from the age of 16 on, who have committed a serious felony. Finally, a major difference with the regular criminal law is that the juvenile law offers the possibility to convict the offender but to suspend the decision on the sanction for a given time. It applies, for example, when the judge is not sure whether a measure or a punishment would be adequate.

OFFICIAL DATA ON COURT ORDERS INVOLVING MINORS Since 1999, the Federal Statistical Office annually computes a database on juvenile justice. Data include all sentences imposed on minors from 10 years old to less than 18 years old. All offenses are considered, that is, offenses defined by the CP, the Federal Act on Narcotics and Psychotropic Substances, the Road Traffic Act, or the Federal Act on Foreign Nationals. Most sentences consist of disciplinary penalties: 12,328 disciplinary penalties were imposed in 2006. There is an important gap between rates of boys’ and girls’ delinquency. For example, in 2007, out of 14,404 sentenced cases, only 2,831 concerned a girl, that is, 19.7 percent. Over the past 9 years, on average, 18.9 percent of sentences cases dealt with girl delinquency.

Punishment Types of Punishment Sanctions (i.e., punishments and measures) are defined in the CP. The first ones intend to punish the accused, whereas the latter are designated to heal the defendant or protect the society. The Swiss system counts three distinct types of punishment—fines, community service, and custodial sentence—and five different types of measures— treatment for psychological disorders, treatment for addictions, measures for young adults, out-care treatment, and internment. In addition, a sanction may be suspended, as long as the custodial sentence is longer than 6 months, whereas partial suspension is possible for fines or community services. Contraventions may be sentenced with up to a CHF 10,000 (approximately US$8,786) fine or a community service order of up to 360 hours. Imprisonment is considered only if the accused cannot pay the fine. Sanctions for serious offenses and crimes differ according to the length of the sentence. The rule is to avoid short custodial sentences; therefore, the judge should always try to “convert” the sanction into a fine or a community service order. There are no sentencing guidelines in Switzerland, but there are some general rules in the CP referring to aggravating/mitigating factors and a few broad principles. In practice, judges are nevertheless required to provide the criteria that determine their sentence and choice of sanction. Although the Supreme Court does not review sentences as such, it has to guarantee the conformity of the sentences imposed by lower courts.

Conviction Data Convictions data encompass criminal convictions registered in the police record of each individual; contraventions are not registered in police records, unless they were sanctioned by a short prison sentence. The number of convictions has continuously increased over time, with the exception of a drop in the middle of the 1990s due to changes in recording practices (i.e., the definition of minor theft was enlarged, resulting in more thefts being sanctioned


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by fines and therefore not registered in conviction data). The constant increase in the number of convictions is partially explained by the inclusion of new offenses and by demographic growth. According to analysts from the Federal Statistical Office, the slight drop in 2005 parallels a drop in drug offenses and traffic offenses. This drop, as we have mentioned before, is related to the modification of the federal drug policy. The trend did not maintain in 2006. Over time, the average length of unsuspended custodial sentence has increased or decreased depending on the offense. Sentences for homicide fluctuate within a 10 to 15 percent range (3,574.4 days in 2006), whereas sentences for rape increased by 26 percent since 1984, with an average sentence of 1,073 days in 2006. On the opposite, the average length decreased for theft and robbery (40.7 and 705.2 days respectively, in 2006). Length patterns for drug-related offenses show a certain stability over time, although sentences have become less severe after 1994. In 2006, drug trafficking punishment was imposed an average of 394.9 days of imprisonment, 962.5 for aggravated drug trafficking.

Correction Data In 2007, the Federal Statistical Office carried out a survey on 115 prison facilities and institutions. On the reference day, 5,715 places were occupied for a total capacity of 6,654 places, that is, an occupation rate of 86 percent. Compared with a previous study conducted in 2005, it is a 7 point decrease consecutive to a diminution of the number of both pretrial detainees and detainees serving a sentence. Among the 5,715 detainees, 63 percent were serving a sentence, 29 percent were in pretrial detention, and 7 percent were detained for administrative purpose (i.e., waiting for an expulsion/extradition). These percentages have been stable over time since 2001. According to the Council of Europe Penal Statistics (SPACE), the Swiss prison population rate increased from 4,000 detainees in 1983 to 6,390 in 2000. An important decrease was registered in 2001 and continued in 2002 when there were 4,987 detainees. However, the prison population raised again in

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2003 and 2004 (6,021 detainees) before decreasing slightly in 2005 and remaining more or less stable since then. While the increase in 2003–2004 seems to be due to a harsher criminal policy, the overall evolution of the prison population is related to the implementation of alternatives to imprisonment in the 21st century. Currently, community work orders and electronic monitoring are more frequently imposed as alternatives to custodial sanctions. In 1984, 70 percent of detainees were serving their sentence in a prison facility, whereas they were only 54 percent in 2004. According to the Federal Statistical Office, in 2007, detainees were mostly males (94%), foreigners (70%), and serving an unsuspected custodial sentence (52%). Mean age for detainees was 34 years old. According to our interpretation, the high percentage of foreign prisoners seems due to the transnational character of some offenses (mainly drug trafficking and burglary) as well as to the fact that alternatives to imprisonment are seldom used for nonresidents. The median length of stay in prison has increased over time: from four weeks in 1984 to six weeks in 2004. Therefore, even though the number of persons sent to prison has decreased, the mean number of detainees in prison facilities and institutions increased up to 5,715 in 2007. In 2006, 4,087 community work orders were served, in majority by Swiss male citizens aged 35 on average. Orders required on average 90 hours of community work. Electronic monitoring was introduced in the CP in 1999. In 2006, 506 custodial sentences were, in part or totally, carried out under electronic monitoring. The profile of the offenders was similar to the one of offenders serving community work orders: 95 percent were males, 63 percent were Swiss citizens aged 35 on average. Véronique Jaquier and Marcelo F. Aebi Further Reading Eisner, Manuel, and Martin Killias. (2004). “Switzerland.” European Journal of Criminology 1(2): 257–293. Haymoz, Sandrine, Marcelo F. Aebi, Martin Killias, and Philippe Lamon. (2009). “Comparisons


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of Crime Data Based on General Population Surveys with Criminal Statistics in Switzerland.” In Comparing Crime Data in Europe: Official Crime Statistics and Survey Based Data, edited by Philippe Robert, pp. 127–140. Brussels: VUBPRESS Brussels University Press. Killias, Martin, Marcelo F. Aebi, Sonia Lucia, Leslie Herrmann, and Carine Dilitz. (2010). “Self-Reported Juvenile Delinquency in Switzerland in 2006: Overview and Explanations.” In Juvenile Delinquency in Europe and Beyond: Results of the Second International Self-Report Delinquency Study, edited by Josine Junger-Tas, pp. 79–95. New York: Springer. Killias, Martin, Mathieu Simonin, and Jacqueline De Puy. (2005). Violence Experienced by Women in Switzerland over Their Lifespan. Bern: Staempfli. Ribeaud, Denis, Martin Killias, and Marcelo F. Aebi. (2004). “Long-Term Effects of Heroin Prescription on Patients’ Offending Behavior.” In Crime Policy in Europe: Good Practices and Promising Examples, edited by Council of Europe, pp. 27–36, Strasbourg: Council of Europe Publishing.

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

Background Ukraine became an independent state in 1991, following the dissolution of the Soviet Union and, as a republic, is composed of 24 oblasts (provinces), one autonomous republic (Crimea), and two cities with special status: Kyiv, its capital, and Sevastopol. The

country is home to 46.4 million people, 77.8 percent of whom are ethnic Ukrainians, with sizable minorities of Russians, Belarusians, and Romanians. The Ukrainian language is the only official language in Ukraine, while Russian is also widely spoken. The dominant religion in the country is Eastern Orthodox Christianity. The Constitution of Ukraine was adopted in June 1996 and defines the state institutions and deals with human right of citizens. As a republic, Ukraine has a mixed semiparliamentary, semipresidential system with separate legislative, executive, and judicial branches. The president is elected by popular vote for a five-year term and is the formal head of state. Ukraine’s legislative branch includes the 450-seat unicameral Parliament, the Verkhovna Rada. Parliament is primarily responsible for the formation of the executive branch and the Cabinet of Ministers, which is headed by the prime minister.

Legal System Ukraine’s judicial system is made up of courts of general jurisdiction and the Constitutional Court of Ukraine. The Ukrainian Law on Judicial System of 2002 establishes the principle of the division of the legislative, executive, and judiciary powers. Judicial authorities shall exercise their power exclusively on this basis, according to the Constitution and laws of Ukraine. Judicial power shall be exercised by the administration of justice in the form of civil, commercial, administrative, criminal, as well as constitutional, legal proceedings. Legal proceedings shall be undertaken by the Constitutional Court and courts of general jurisdiction. Laws, acts of Parliament and the cabinet, presidential decrees, and acts of the Crimean Parliament may be abrogated by the Constitutional Court, if they should be found to violate the Constitution. Other normative acts are subject to judicial review. The Supreme Court is the main authority in the system of courts of general jurisdiction.

Courts In administering justice, courts shall ensure the protection of human and civil rights and freedoms,


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rights and interests of legal entities, as well as public and state interests that are guaranteed by the Constitution and Ukrainian laws. Ukraine’s judicial system is made up of courts of general jurisdiction and the Constitutional Court. The system of courts of general jurisdiction is made up from local courts; courts of appeal and the Court of Appeal; highest specialized courts; and the Supreme Court. Powers of specialized courts cover commercial, military, and administrative cases. Those jurisdictions comprise separate court subsystems. In courts of general jurisdiction judges specialize in hearing criminal, civil, and juvenile cases. The court system of Ukraine counts 783 courts, including 15 military courts, 39 commercial courts, and 35 administrative courts. More than 6,600 judges work under the administration of the court system. Professional judges are appointed by the president for a period of five years; other judges are elected without a time limit by the Verkhovna Rada. Justice in Ukraine shall be administered exclusively by courts whose functions cannot be delegated. Nor may other bodies or officials appropriate these functions. Consideration of cases in courts shall be open, except for cases envisaged by procedural law.

Law Enforcement The system of law-enforcement bodies of Ukraine is complex and consists of numerous agencies of general and specialized jurisdiction. There are two principal law enforcement agencies, which share responsibility for internal security: the Ministry of Internal Affairs, which controls the various police forces, and the Security Service of Ukraine, which guaranties the state security of Ukraine. The militia is a single system subordinate to the Ministry of Internal Affairs and incorporated into its structure. The major militia’s tasks are defined in the 1991 Law on Militia and include the following: • • • • •

Providing personal security for citizens Protecting their rights and freedoms Preventing crime Maintaining public order Revealing and detecting crime

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Arresting offenders Maintaining safety on the roads Protecting public and private property Executing administrative penalties

The protection of state sovereignty, the constitutional system, the state’s territorial integrity, maintaining the interests of society and the state in and out of Ukraine are among the main tasks of the Security Service. The Security Service of Ukraine is intended to carry out intelligence activities in compliance with the law, as well as uncovering criminal activities whose investigation is within its competence. Objectives also include the prevention, detection, interruption, and investigation of crimes against the peace and security of mankind, terrorism, corruption, and organized criminal activities in the sphere of management and economy.

Prosecuting Authorities The public prosecution of Ukraine is a centralized system under the supervision of the general prosecutor and representing the state in the process of prosecution. The general prosecutor is nominated by the president and approved by the Verkhovna Rada. The General Prosecutor’s Office supports the accusation in court and represents the interests of the citizen and the state. The general prosecutor may enter the case at any stage of the proceedings, if it appears necessary for the preservation of constitutional rights. Prosecutor’s requests are mandatory. Unfortunately, a complete reformation of the public prosecution system in accordance with principles and standards of the Council of Europe has not yet been accomplished.

Crime Classification of Crimes The new Criminal Code of Ukraine was enacted in 2001. It marked significant humanization of the criminal legislation. The system of punishment and rules of its imposition were significantly modified to prioritize noncustodial sentences. New types of offenses were introduced in the code in compliance


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with international standards (e.g., human trafficking, money laundering). In addition, some types of offenses (e.g., administrative offenses) are treated under special proceedings. The Criminal Code applies to all persons 16 years or older. Criminal liability of juvenile ages 14–16 depends on the type of offenses (e.g., murder, intended grievous bodily injury, rape, theft, or seizure of railroad rolling stock, hooliganism). Depending on the situation, juveniles are subject to punishment or special measures, such as educational measures. Criminal offenses committed by juveniles are treated by the criminal justice system within general proceedings. The Criminal Procedural Code includes special rules regarding criminal proceedings involving juveniles.

Crime Statistics Crime statistics are recorded by official agencies, namely, the Ministry of Internal Affairs, the Prosecutors’ Office, and the Supreme Court of Ukraine. It should be remembered that official statistics do not accurately reveal the actual crime rate, especially economic, organized, and white-collar crime. The main reason for this phenomenon is a high level of latent crime that is not known to the investigation authorities. The crime rate increased after the independence of Ukraine up to 1995 then stabilized. In 2003, the crime rate increased by 20 percent, yet this is partially due to a change in the procedure of crime recording. In 2007 the crime rate for the first time revealed a 1 percent reduction in comparison with 1991. However, it should be taken into account that simultaneously the country’s population declined by about 10 percent. Statistics show that, in 2007, law enforcement agencies uncovered 420 organized crime groups. Of the crimes committed by organized groups 64 percent belong to common delinquency (e.g., thefts, robberies) and 36 percent are economic crimes. Corruption remains a major, widespread problem in Ukraine that has a very negative impact on detection of organized crime. Economic crime constitutes another great challenge for Ukraine. Various illicit activities sustain

the shadow economy, which has been estimated to constitute approximately 30 percent or 40 percent of the economy. Looking back at the Soviet period, such crime was never a law enforcement priority, as the official doctrine denied private commercial relations. When this changed in 1991, a time of wild business and semicriminal activities began. No strict rules of commerce existed and people lacked traditions of civilized market economies. The situation, however, changed over time: new legislation was enforced and state agencies started to control financial interactions. Nevertheless, a significant proportion of the profit economy remains hidden behind semilegal schemes. Entrepreneurs are avoiding taxation, hiding part of their income, abusing labor and social security legislation. Targeting such illicit activities and other grey business transactions has become a state agencies’ priority. In 2007, 42,755 offenses related to economic crime were recorded, which represents 10.6 percent of total offenses. Property offenses are also common in Ukraine, especially thefts and robberies. Property offenses traditionally make up the largest proportion of nonviolent offenses. Between 1991 and 1995, thefts made up over 50 percent of registered crime. According to crime statistics, this increase was followed by a drastic drop: in 2007, the proportion of thefts accounted for 28.4 percent of all offenses. This phenomenon does not reflect a real change in the extent of property crime, but a change in legislation as the lower limit for a theft to be considered a criminal offense was raised to 772.7 Hryvnia (approximately US$97). The largest increase in the number of robberies registered by the police was observed in 1993. Proactive law enforcement policies aimed at reducing the number of robberies have been carried out recently and robberies have decreased. It represents approximately 1.5 percent of registered crime. Property offenses trends are closely connected to the financial situation of the country. The economic crisis and inflation in the 1990s resulted in high unemployment, lack of social payments, and slowing down of industry. People committed offenses to survive. Drug offenses also make up a significant proportion of crime in Ukraine and the number of drug


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offenses has increased over the years. Between 1991 and 2007, the rate of drug offenses was multiplied by a factor 6. Drug abuse was recently recognized as a public health issue: in 2007, 173,323 drug addicts have been recorded, that is, an increase of over 40 percent in less than five years. Moreover, official statistics underestimate the extent of drug addiction as many addicts are not officially registered. Public organizations estimate that approximately 2 million people have addiction problems. As drug addicts are often involved in delinquency (i.e., both criminal and noncriminal offenses), the Ukrainian criminal procedure includes measures of compulsory treatment of drug addiction that can be pronounced in association with a custodial sentence. Finally, human trafficking constitutes a serious problem whose importance has been increasing since the beginning of the 1990s. In 1998, human trafficking was introduced in the Criminal Code as an individual article that was later amended in 2001 and 2006 in compliance with international standards. The proportion of recorded offenses increased four times between 2001 and 2007 (89 and 359 cases, respectively). The International Organization for Migration estimates that about 100,000 Ukrainians have been victims of human trafficking over the period 2001–2008.

Finding of Guilt The Criminal Procedural Code of Ukraine is intended for the determination of criminal proceedings. It applies to the inquest, pretrial investigation, and judicial consideration of the case. The Ukrainian criminal justice system is based on both the inquisitorial and adversarial justice principles. Police custody cannot exceed 72 hours. After that time, the prosecutor has to file a petition to court to prolong detention. Other measures of restraint can be chosen; these include, for example, house arrest, bail (i.e., personal or by organization/institution), pledge, or pretrial detention up to 2 months. House arrest is the most common measure of restraint, whereas pledge is a relatively new measure that has not been widely used to date.

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Pretrial investigation ends with the drafting of an indictment, a resolution on closing the case, or a resolution on transferring the case to court. The accused is then informed of the closure of the investigation and presented with all investigation material. Petitions for additional pretrial investigation measures can be presented at this time. The indictment should be approved by the prosecutor before the case is brought to court. Justice in criminal cases is executed on the principles of equality of the citizens before law and court. Consideration of cases in courts is open, except when it runs counter to the interests of protection of state secret or other protected information. Criminal cases are considered in the court of primary jurisdiction by a sole judge as long as the possible punishment does not exceed a 10-year custodial sentence; other cases are considered by the court collectively. The Criminal Procedural Code contains the list of participants of criminal procedure and determines their rights and duties, namely, the suspect or defendant, the defense lawyer, the victim or civil plaintiff, the prosecutor, the investigator, the judge, the witnesses, and the legal experts. The prosecutor is a central figure in criminal proceedings as he or she supervises all decisions taken during criminal proceedings and has to approve each bill of indictment. After that he or she files the case to court and supports public accusation in all criminal cases. Investigative authorities (i.e., the police and the Security Service of Ukraine) have powers to drop proceedings only in a limited number of situations (e.g., unknown offender, lack of evidence, absence of criminal action). Such decisions are supervised by the prosecutor and other decisions implying the dropping of a case can only be taken by the court. The prosecution and the defense enjoy equal rights to present evidence, participate in the investigation, speak during proceedings, and appeal of court. The accused has to take part in the trial. He or she can defend himself or herself or be assisted by a legal representative. If he or she cannot financially afford to hire a counsel, the latter will be paid by the state.


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Ukrainian Supreme Court judges Anatoliy Yarema, left, and Viktor Kryvenko vote during a court hearing of an appeal by former prime minister Viktor Yanukovych, in Kiev, Ukraine, January 17, 2005.Yanukovych, the losing candidate, had appealed to the court over alleged fraud in the recent presidential election. (AP Photo/Sergei Chuzavkov)

The judgment of the court shall be legal and grounded. The court shall evaluate evidence according to the extent to which it is grounded on comprehensive, full, and objective consideration of all circumstances of the case and guided by law. The judgment of the court may be accusatory or justificatory. A justificatory judgment is made if the event of the crime has not been found out, when there is no clear evidence of the culprit’s actions, as well as when participation of the culprit in commitment of crime has not been proved. In all other cases the accusatory judgment shall be made. The copy of the judgment must be served to the convict or to the justified person in a three-day term after its passing. Court decisions can be appealed by the convict and his or her counsel, the plaintiff, or the victim

and their representatives. Courts of appeal can decide the following: • To retain the ruling • To cancel the ruling and order a new investigation or judicial consideration • To cancel the ruling and close the case • To modify the ruling Juvenile justice in Ukraine does not make up a separate jurisdiction and cases involving juvenile offenders are tried in courts of primary jurisdiction. The Criminal Procedural Code provides several extra guarantees to protect accused juveniles (e.g., mandatory legal counsel, authorization to be assisted by a third person such as a parent or a psychiatrist during interviews, investigation


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guidelines). Juvenile justice is handled as a rule by specialized judges. Finally, the Ukrainian criminal justice system does not recognize alternatives to trial such as mediation procedures. However, this might be included in the next revision of the criminal procedure.

Punishment Types of Punishment Types of punishment are listed in the Criminal Code. Punishment is defined as a coercive measure imposed in a judgment of court on behalf of the state upon a person found guilty of a criminal offense. Punishment aims not only at sanctioning but also at preventing recidivism and rehabilitating the offender. The Criminal Code of Ukraine defines general principles of imposition of punishment. The punishment imposed on an offender should be adequate and sufficient to reform the offender and prevent new offenses. The Criminal Code describes the following types of punishment: fines; downgrading of military rank, title, or qualification class; depriving of the right to take certain positions or to perform certain activities; community service; correctional works; service restriction for military personnel; forfeiture of property; arrest; restraint of liberty; retention in a disciplinary battalion for military personnel; imprisonment for a definite period; and life imprisonment. The existing types of punishment have been significantly modified in the reform of the Criminal Code in 2001. The main objective of the reform was to develop alternative sanctions such as community service and correctional works. The death penalty was abolished in 1999 after Ukraine faced strong political pressures when applying to join the Council of Europe. The death penalty was recognized unconstitutional and immoral, and commuted to life-term imprisonment. The code provides clear instructions on application of punishments. For instance, community service may not be imposed upon persons who have been certified to have a first- or a second-degree disability, pregnant women, persons of retirement age, or military personnel in active duty. Correctional

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work labor may not be imposed upon pregnant women, women on maternity leave, disabled persons, persons under 16 years of age, persons of retirement age, military servants, law enforcement officers, notaries, judges, prosecutors, defense attorneys, civil servants, or local government officials. Life imprisonment may not be imposed on persons who committed offenses under 18 years of age and to persons more than 65 years of age, and women who were pregnant at the time of offense or at the time of sentencing. The amount of a monetary fine is determined by a court based on the severity of the offense committed and the income status of the guilty person, but within the limits of 30 to 1,000 tax-free minimum individual income. The judge can impose a larger amount of a fine if it is prescribed by articles of the special part of the Criminal Code of Ukraine. A fine may be imposed as an additional penalty only if it is specifically sanctioned by an article in the special part of the Criminal Code of Ukraine. When imposing a punishment, a court may find aggravating circumstances such as recidivism, an offense committed in a group, an offense committed against a minor or a helpless person, as well as the violent character of an offense. Inversely, when imposing a punishment, a court may find mitigating circumstances such as voluntary compensation, offenses committed in excess of necessary defense or as a consequence of adverse personal, familial, or other circumstances. The code also recognizes the possibility to impose a milder punishment than that prescribed by law based upon the personality of offender and the nature of the offense. According to the Criminal Procedural Code, the type and the measure (including the term) of punishment is defined exclusively by the court. If the sanction implies a deprivation of liberty, the type of the correctional establishment is defined by the agencies of the State Department of Ukraine for the Execution of Sentences—the central official body of executive power with special status. Conviction statistics over the period 2002–2007 show interesting trends. Custodial sentences are the most common sanctions, making up 24–26 percent of all sanctions, whereas community service does not exceed 2.5 percent. The latter being a relatively


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new type of punishment, this is not surprising. Indeed, custodial sentences were far more numerous in the 1990s as they represented approximately 35 percent of all convictions. Finally, as defined in the Criminal Code, probation can be pronounced up to a period of 3 years and be associated with specific conditions such as the obligation to reside in the country or to undergo a medical treatment. Such court decisions are based on the personality of the culprit, the seriousness of the offense, and the circumstances of the crime. Probation in Ukraine differs from probation rules in other countries as it is a type of discharge from punishment that does imply criminal liability. Putting a culprit on probation does not prevent him or her from conviction. The strategic goal of reforming the system of enforcement of sentences in Ukraine is the establishment of the Probation Service in accordance with the European standards on the basis of the Criminal Executive Inspection.

Prison The Criminal Executive Code of Ukraine of 2004 regulates the procedure and conditions of the execution of custodial sentences. It serves the interests of the individuals and the state in creating conditions that ensure correction, favor resocialization, and prevent recidivism. Sentences are administered in dignity and torture and humiliations are prohibited. The institutions where sentences can be carried out are arrest facilities, criminal facilities, special facilities, and educational facilities (i.e., educational colonies). Criminal facilities are divided into open criminal facilities (i.e., correctional centers) and closed criminal facilities (i.e., correctional colonies). Different types of correctional colonies exist according to their level of security, namely, colonies of minimum, medium, and maximum security. The execution of sentences is controlled by the State Department for the Execution of Sentences and its management bodies, as well as the Criminal Executive Inspection. The State Executive Service executes punishments in the form of penalty and confiscation of property in cases and procedure

stipulated by the code and laws of Ukraine. The Criminal Executive Inspection executes punishments in the form of deprivation of right to hold certain positions or carry out certain activities, social work, and correctional work. Arrest houses execute punishments in the form of arrest. Correctional centers execute punishments in the form of limitation of freedom in relation to the persons condemned for crimes of small and middle gravity. Correctional colonies execute punishment in the form of imprisonment for a certain term or lifelong imprisonment. Isolation wards perform the functions of correctional colonies of minimum safety level with general conditions of holding and of correctional colonies of middle safety level in relation to the condemned that do economic service. Educational colonies execute punishment in the form of imprisonment for a certain term in relation to the condemned minors. The system of correctional institutions in Ukraine comprises 186 bodies of execution of punishment and 704 departments of criminal executive inspection and educational establishments. In 2006, this system housed 160,725 convicts, of which 32,600 persons were placed in centers of pretrial detention, 125,600 persons (of which 7,600 females) in correctional institutions, 2,200 juveniles in educational colonies, and 285 persons in medical centers for convicts. It should be noted that the number of convicts has significantly decreased over the last years. In 2007, 0.32 percent of the Ukrainian population was incarcerated. Correction policies aim at resocializing and rehabilitating the convicted person. To achieve this, the execution of the sanction should include socially useful work, educational work, general education, and vocational training. The convicted offender shall enjoy all rights of a human being and a citizen except limitations inscribed by the laws of Ukraine and this code and set by sentence of court. The regime in correctional and educational colonies is set by law and other legal procedures on sentence execution, which ensures isolation of convicts, permanent supervision; fulfillment of their duties; exercise of their rights and legal interests; safety of convicts and staff; separate keeping of different


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categories of convicts; different conditions of keeping of convicts based on the type of colony; change of terms of holding of convicts. To stop illegal actions and prevent both direct and indirect harm, physical strength, special devices, straitjackets, and weapons can be used under the following conditions: the convicts physically resist, do not perform legal requirements, show disorderly conduct, participate in mass disturbances, capture hostages, or commit other violent actions, as well as in case of escape. Convicts have the right to acquire food and basic items for the money earned in colonies. Condemned men older than 60 years old, women more than 55 years old, the disabled, pregnant women who have children in child care establishments at correctional colonies, minors, and the condemned who stay in medical preventive establishments of places of imprisonment have the above right also for the money obtained by orders, at the expense of pensions and other incomes. Convicts have the right to receive in book-posts, packages, parcels, as well as without limitation to acquire literature through a bookselling network, writing facilities, subscribe to newspapers and magazines for money that they have on their personal accounts. Convicts have the right to short meetings—up to four hours long, and long meetings—up to three days and nights. Short meetings may be with relatives or other persons in presence of a representative of the colony. Long meetings may be given with the right of joint living and only with close relatives (married couple, parents, children, foster parents, adopted children, own brothers and sisters, grandfather, grandmother, grandchildren). Long meetings may also be provided for the spouse who lived together as one family but was not married provided that they have common minor children. Services for use of rooms for short and long meetings are paid for by the convicts, their relatives, or other persons from their own funds. Convicts work in places and on works that are determined by the administration of the colonies. Convicts must be engaged in socially useful labor, taking into account available production capacities, sex, age, ability to work, health condition, and

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specialty. As a rule the condemned shall be engaged in labor on enterprises, in workshops of colonies, as well as on state or private enterprises, if the required conditions of protection and isolation are provided. For the persons who serve sentence in the form of imprisonment, the working week must not exceed the norm of working time that is set by regular labor legislation. Time of beginning and end of work (shift) shall be determined by the administration of the colony. The condemned shall be freed from work on weekends, holidays, and days off, which are determined by labor legislation. According to the law, colonies must provide for moral, legal, labor, aesthetic, physical, and sanitary hygienic education of the condemned, as well as other types of education that help to establish with the condemned such viewpoints that correspond to legal norms and requirements of socially useful activity. Freedom to profess any religion or express beliefs related to attitude toward religion shall be limited only in the part that is necessary for ensuring isolation and public security. The limitations are established by this code. Offenders sentenced to lifelong imprisonment serve sentence in correctional colonies of maximum safety level. They must be placed in camera-type rooms, as a rule, for two persons and wear clothes of set style. Confinement in a solitary cell might be envisaged to protect the convict from violence by other offenders, prevention of the commission of crime by the convict, or for any other medical reason. The Criminal Executive Code of Ukraine determines the procedure of discharge from serving sentence and aid to the persons who are freed from serving sentence, control and supervision. Grounds for discharge from serving sentence are completing the term of sentence given by the court, the law of Ukraine on amnesty, pardon act, cancellation of court decision and closing of criminal case, end of prescription term for execution of sentence, grant of parole from serving sentence, disease, or other grounds stipulated by law. Persons who have served the sentence shall bear responsibilities and enjoy rights that are established for Ukrainian citizens with limitations envisaged for the persons who


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have previous convictions. Such limitations shall be stipulated only by law. Not later than three months prior to the termination of the sentence, the administration, through territorial departments of domestic affairs and employment centers of population, must take measures to ensure labor and everyday settlement of the convict in a chosen place of residence. In conclusion, it must be noted that the transfer of the system of the execution of sentences to the Ministry of Justice has not yet been achieved. The State Department for the Execution of Sentences has continued and even extended its practice of adopting departmental procedures that violate the rights of convicted prisoners. At the present time there is no real effective mechanism for safeguarding the rights of prisoners to turn to the court to protect their violated rights and legitimate interests. The major unsolved problem now is the prisoners suffering from an active form of tuberculosis. The penitentiary system remains closed to society. Olena Shostko and Olena Ovcharenko Further Reading Dremin, Viktor. (2004). “Organized Crime and Corruption in Ukraine as a System Phenomenon.” In Organized Crime, Trafficking, Drugs: Selected Papers Presented at the Annual Conference of the European Society of Criminology, Helsinki 2003, edited by Sami Nevala and Kauko Aromaa, pp. 49–59. Helsinki: The European Institute for Crime Prevention and Control (HEUNI). Foglesong, Todd S., and Peter H. Solomon. (2001). Crime, Criminal Justice and Criminology in PostSoviet Ukraine. Washington, DC: National Institute of Justice. Shostko, Olena. (2004). “Organized Crime in Ukraine: Contemporary Situation and Methods of Counteraction.” In Organized Crime, Trafficking, Drugs: Selected Papers Presented at the Annual Conference of the European Society of Criminology, Helsinki 2003, edited by Sami Nevala and Kauko Aromaa, pp. 216–225. Helsinki: The European Institute for Crime Prevention and Control (HEUNI).

United Kingdom/England Legal System: Common Murder: Medium Burglary: Medium Corruption: Low Human Trafficking: Low Prison Rate: Medium Death Penalty: No Corporal Punishment: No

Background England’s population (2006 estimate) is 50,762,900, of which approximately 92 percent are white, while 8 percent are of immigrant or ethnic origin including Asian, African, or Chinese. England is a representative democracy. There is a two-house system: the House of Commons and the House of Lords. The three main political parties in England are Labour, Conservative, and Liberal Democrats, and are represented in both houses. The House of Commons consists of publicly elected Members of Parliament (MPs). The political party with the largest number of members in the House of Commons forms the government. At the heart of the government is the cabinet, consisting of the most senior ministers who each advise the prime minister on their specialist areas of responsibility. The House of Commons debates new laws and key political issues. It is also solely responsible for decisions on financial bills. The House of Lords consists mostly of those appointed by the queen on the advice of the prime minister. It is the highest court in England (Supreme Court of Appeal) and revises legislation. Decisions made in one house generally have to be approved by the other: the two-chamber system acts as a check for both houses. The House of Commons is generally considered to be the more powerful of the two.

History of the Criminal Justice System The English criminal justice system has existed for centuries and is the forerunner of many other such



systems around the world. Some key dates in its development include the following: • 1215: The Magna Carta, a document that limited the king’s powers by law, was signed. • 1723: The Black Act, which created 50 new capital offenses, was passed. • Late 1700s to early 1800s: Capital punishment was in decline and the modern prison was established: Reformers such as John Howard and Elizabeth Fry were key figures in England during this time. • 1829: The Metropolitan Police Act established professional policing. • 1837–1901 (Victorian period): A consensus evolved on sanctions to address criminal behavior. Workhouses and prisons were designed to have conditions harsher than those experienced by the lowest worker outside. An ethos of control was enforced over prisoners. • 1863: Broadmoor Criminal Lunatic Asylum opened. It was one of the first institutions for the treatment of those who had committed crimes while mentally ill. • 1895: Gladstone Committee on Prisons recommended a more rehabilitative system. • 1908: Borstal schools—prisons for youths— were introduced. This signified the beginning of separating juvenile justice from the adult system. • 1960s: This period saw the strengthening of drug laws, the decriminalization of homosexuality, and the abolition of the death penalty. • Present day: There has been an increase in the prison population, an increase in the fear of crime, and politicians have put crime at the heart of their election manifestos.

Legal System England works on a common law system, using the adversarial principle. A judge and jury, or bench of magistrates, listen to evidence presented by both parties: prosecution and defense. Safeguards are provided within the system to prevent an abuse of power by either the state or its agents. To this end there is a

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separation of powers, with executive, legislative, and judiciary branches all having independent decisionmaking powers. There are restrictions on the way evidence can be gathered and how long suspects can be held for questioning. The inclusion of strict procedures aims to increase fairness and reliability within the criminal justice system in England. Previously all responsibilities fell under the Home Office, but a new Ministry of Justice was launched on May 9, 2007. The aim of this new department was to create coherency across all aspects of the criminal justice system. The Ministry of Justice employs 77,000 people, with funding available for a further 21,000 members of staff. The ministry incorporates a variety of organizations from across the criminal justice system. It brings them together under one umbrella to improve the way that offenders, victims, and staff are dealt with. The core components of the Ministry of Justice are as follows: • The National Offender Management Service: administration of correctional services • Youth Justice Board • Inspectorates of Prison and Probation and the Prison and Probation Ombudsmen • Criminal, civil, family, and administrative law, including sponsorship of the Sentencing Guidelines Council • The Office for Criminal Justice Reform • Her Majesty’s Courts Service • The Tribunals Service • Legal Aid and Legal Services Commission • Judicial Appointments Commission, the Judicial Office, and Judicial Communications Office • The Privy Council • Constitutional affairs: electoral reform and democratic engagement • Ministry of Justice corporate center The Attorney General’s Office has existed in some form since 1315. Since 1461 there has been both an attorney general and a solicitor general, although they did not assume their current form until 1885. They are now jointly known as the Law Officers of the Crown; the solicitor general deputizes for the


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attorney general. They are guardians of the public interest to which end they can, for example, appeal against unduly lenient sentences, or bring proceedings under the Contempt of Court Act 1981. They are also chief legal advisers to the government, and they are criminal justice ministers. Questions of law arising on government bills and with issues of legal policy are referred to the law officers. The law officers are responsible for all Crown litigation and have overall responsibility for the work of the Treasury Solicitors Department, Crown Prosecution Service, Serious Fraud Office, Revenues and Customs Prosecution Office, and Her Majesty’s Crown Prosecution Service Inspectorate.

Police As of 2007, the Police Service employed 232,948 full-time equivalent staff, of which the majority are police officers. In addition to the staff employed by the Police Service, there are 14,021 Special Constables. These have all the powers of regular police officers but are volunteers who give up a minimum of four hours of their time each week. Police Community Support Officers do not have the same powers as police officers. They provide support to the police and act as a high-visibility foot patrol. They focus predominantly on lowerlevel crime, disorder, and antisocial behavior. They have standard enforcement powers to allow them to carry out their duties, for example, serving fixed penalty notices and seizing illegal drugs. The extent of police powers is laid out in the Police and Criminal Evidence Act (PACE) 1984. This piece of legislation sets out to strike the right balance between public rights and the powers of the police. PACE codes of practice are periodically reviewed and updated to ensure this balance is maintained. They include rules on stopping and searching persons, premises, and vehicles; detention, treatment, and questioning of suspects; keeping accurate and reliable criminal records; recording of interviews with suspects; powers of arrest. As of 2008, there are 43 police forces across England and Wales. The Police Service is entirely separate from the military. The Metropolitan Police is England’s largest police force, covering an area of

620 square miles with a population of 7.2 million. This compares to England’s smallest force, the City of London Police, who have responsibility for London’s Square Mile, comprising just 8,600 residents, alongside some 350,000 commuters. There is a three-way system of responsibility to allow the police to run smoothly without any political interference. This also avoids giving any one organization absolute power over the Police Service. The Home Office funds just over half of police costs, and so has the lead responsibility. Chief police officers take responsibility for regional police forces, and police authorities ensure that local forces work effectively. In addition to this threeway system, regional forces are monitored by Her Majesty’s Inspectorate of Constabulary. This is an independent body, separate from the Home Office and from the police, which examines and improves the Police Service. Since 2004, specific complaints have been referred to the Independent Police Complaints Commission (IPCC). The IPCC can investigate or manage complaints and helps the police to improve on the basis of their findings. Decisions on cases are free from government involvement. The Serious Organized Crime Agency (SOCA) was established in 2006. SOCA has law enforcement powers, harm reduction responsibilities, and is an intelligence-led agency. Current areas of focus for SOCA include trafficking of people and drugs, fraud, and other organized crimes. SOCA brings together expertise from areas as diverse as immigration, e-crime, and finance. Like the Police Service, SOCA is independent of government involvement, is funded by the Home Office, and complaints can be investigated by the IPCC. Unlike the Police Service, SOCA is exempt from the Freedom of Information requirement due to the sensitive nature of much of its information and sources.

Crime Classification of Crimes There are three categories of offenses in England: summary, triable either way, and indictment only. Summary offenses include the less serious crimes.



This group includes road traffic offenses, common assault, being drunk and disorderly, and criminal damage where the value of the property destroyed or damaged is less than £5,000 (US$7,191). These offenses are tried in a magistrates’ court. Offenses that are classed as triable either way are those that may be dealt with at either the magistrates’ court or the Crown Court. Proceedings for these offenses begin at the magistrates’ court where it is decided whether the case needs to be referred up to the Crown Court, or whether it can be dealt with by the magistrates. Offenses in this category include theft, criminal damage (where costs are estimated above £5,000), deception, and handling stolen property. The term “indictable offense” refers to all cases tried by the Crown Court, therefore “indictable

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only” is a term used to distinguish those offenses that can only be tried by the Crown Court. These are the most serious offenses as recognized under English law and include rape, murder, robbery, and serious firearms offenses. The age of criminal responsibility in England is 10. From the age of 10 to 13, defendants are classified as children, and from the age of 14 to 17 they are classed as young people, though in practice both groups are often referred to as juveniles. Children and young people will normally appear in the youth court, except where the youth court declines jurisdiction or where the crime is of a serious nature.

TERRORISM Following coordinated terrorist attacks in London on July 7, 2005, terrorism has been increasingly debated in the public forum. In a speech on January 17, 2008, the Home Secretary reported the Security Service’s estimate that in 2007, the United Kingdom had 2,000 operating terrorists, up from 1,600 on the previous year. In the wake of the Home Secretary’s speech there has been extensive discussion of possibilities for expanding the powers of police and security services in relation to terrorist offenses, suspects, and sentencing.

ANTISOCIAL BEHAVIOR

Police wearing body armor search a young man for drugs in Brixton, South London, July 10, 2002. The British government has announced its intention to downgrade marijuana from a Class B drug to a Class C drug, making possession and use a less serious offense. (AP Photo/Steve Holland)

Antisocial behavior includes activities such as vandalism, antisocial drinking, the misuse of fireworks, rowdy behavior, and nuisance neighbors. In a oneday count carried out by the Anti Social Behavior Unit (ASBU) on September 10, 2003, the number of complaints about antisocial behavior across England and Wales was recorded as 66,000. It is considered a cause of an increasing fear of crime in England. Since the Anti Social Behavior Act 2003 was introduced, failure to comply with an official request to abstain from the undesirable behavior automatically upgrades many of these behaviors to a criminal offense. Antisocial drinking of alcohol is considered a problem in many towns and city centers in England, particularly over the weekend evenings.


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DRUG OFFENSES The Misuse of Drugs Act is the main piece of legislation relating to drugs. It sets out drug-related offenses, and categorizes drugs as one of Class A, B, or C. Class A drugs are considered the most harmful, and so attract more severe sentences upon conviction. Trafficking is dealt with much more harshly than possession, with life imprisonment and an unlimited fine possible for individuals dealing Class A drugs (heroin, cocaine, etc.). In addition to trafficking, other offenses recognized under the Misuse of Drugs Act include the following: • Possession • Possession with intent to supply • Supplying/offering to supply (even where no payment for the drugs has been received) • Allowing premises to be used for the production or supply of controlled drugs The police have special powers in relation to controlled drugs. They may stop, detain, and search people on “reasonable suspicion” that they are in possession of a controlled drug. Drugs can be reclassified as new evidence emerges about the harm they cause and to reflect changes in the cultures and attitudes in England. In 2004, cannabis was reclassified from a Class B to a Class C drug, a controversial move said to cause confusion as to the harm and legal status of the drug. Cannabis is the most widely used recreational illegal drug in England, and several cabinet ministers have admitted to occasional use in their youth.

Crime Statistics The most recently available crime statistics (2007– 2008) for a selection of offenses that were reported to and recorded by the police are as follows: Homicide Rape (of female) Rape (of male) Domestic burglary Trafficking in drugs

784 11,648 1,006 280,704 28,130

In addition, the British Crime Survey, which collects information from interviews of household members, reported 729,000 domestic burglaries. The British Crime Survey has also found for several years that there is a lower risk of being a victim of household crime (including vandalism, vehiclerelated theft, and burglary) in rural areas than urban areas. There is also a lower risk of experiencing violence against the person in rural areas. However, variation in most crime types tends to be masked when examining broad regions, as most crimes in England tend to be geographically concentrated in smaller areas.

Finding of Guilt The criminal justice system works on the assumption that an individual is innocent until proven guilty. While a person is awaiting trial, he or she may be either remanded on bail or remanded in custody. The Bail Act 1967 advises that unless there are strong reasons why this should not be allowed, an individual will be remanded on conditional bail. The severity of the alleged offense may result in bail being refused, for example, the crimes of murder, rape, or manslaughter. Bail may also be refused where the individual has prior convictions; it is likely that he or she will commit further offenses before trial; the accused is likely to interfere with witnesses; or there is reason to believe the individual may disappear before the trial. If a person is remanded in custody, he or she is treated differently from those who have been sentenced, to reflect the presumption of innocence. These persons retain their entitlement to vote, can wear their own clothes, and can take reasonable activity to maintain their business interests. They also retain benefit entitlements where applicable, and do not have to work or attend education classes. Free legal advice and representation is available for everybody under investigation or facing criminal charges. During questioning at a police station, detainees are entitled to consult either a solicitor of their choice or the duty solicitor. The role of the attending solicitor is to protect the legal rights of his or her client.



For certain proceedings at a magistrates’ court or the Crown Court, the cost of a solicitor preparing a case and initial representation may be offered. Full legal representation for defense in criminal cases at all court levels is available. These services are provided nationally by the Criminal Defense Service (CDS). This provision of legal aid helps the courts and the police to operate fairly. Although legal aid can be offered to all defendants, a court order can be issued to recover legal aid costs if it is found the defendant could have paid for his or her own representation. The Crown Prosecution Service (CPS) was created by the Prosecution of Offences Act 1985. It is responsible for determining the charge and for prosecuting criminal cases investigated by the police. It is an independent body but works closely with other organizations within the criminal justice system. Crown prosecutors are responsible for making the decision on whether to prosecute. The decision is broadly based on whether there is enough evidence for a reasonable chance of conviction, and whether the prosecution would be “in the public interest.” The term “public interest” can be controversial, particularly where it does not coincide with that of the victim. England has a hierarchical system of courts. The Supreme Court of Judicature of England and Wales consists of the Court of Appeal, High Court of Justice, and the Crown Court. Subordinate courts include the magistrates’ courts, family proceedings courts, youth courts, and county courts. There are 650 Crown, county, and magistrates’ courts throughout England and Wales, all of which have been run by Her Majesty’s Courts Service since 2005. A criminal trial is required to be fair by both English common law and more recently the European Convention on Human Rights. Fairness does not require trial by jury. Any defects that occur during a trial can be rectified by a later appearance before the Court of Appeal: what matters is the fairness of the proceedings as a whole. The most commonly used court is the magistrates’ court, which sees around 95 percent of all criminal cases through to completion. Almost all cases are initially heard at a magistrates’ court, but

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may then be passed to the Crown Court for sufficiently serious offenses, for triable-either-way offenses, where the accused requests trial by jury, or where the magistrate believes a Crown Court trial is more appropriate. The magistrates’ court usually consists of three magistrates who are laypersons, that is, they are not lawyers or professional judges and are unpaid for their services. The three magistrates are collectively known as the bench. Magistrates are also known as justices of the peace. These are voluntary posts but all lay magistrates undergo mandatory training and have access to legal advice. There are around 30,000 magistrates in England and Wales, each of whom usually attends 35–45 half-day sittings each year. In addition to lay magistrates, there are around 130 district judges (formerly known as stipendiary magistrates) in England and Wales. These sit alone and must have at least seven years’ experience as either a solicitor or barrister and have two years’ experience as a deputy district judge. District judges deal with particularly sensitive or complex cases such as extradition hearings. The magistrates’ court tries and sentences summary offenses, as well as some triable-either-way offenses. The bench has the power to order sentences of up to six months, or fines of up to £5,000. In triable-either-way offenses, where the magistrates believe that the offense requires a more serious penalty than they can enjoin, the case may be referred to a Crown Court for sentencing. The Crown Court is a national institution based across 77 centers throughout England and Wales. It deals with all indictment offenses, which includes indictment-only offenses as well as those triableeither-way offenses that have been referred upward by a magistrates’ court. In addition, the Crown Court may handle summary offenses where these can be dealt with at the same time as more serious allegations and appeals against sentencing or conviction decisions by the magistrates’ court. Trials at a Crown Court are heard by a judge and a 12-person jury. Jurors are randomly selected from the electoral roll. Once summoned, jurors are legally obliged to serve on the jury unless they are ineligible for or disqualified from jury duty. Ineligibility


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is relatively rare, but may occur where the person summoned is on bail, has been sentenced, or suffers from certain categories of mental illness. The Crown Court has four options open to it should the defendant be found guilty. These are discharge, fines, community sentences, or imprisonment. Although the Crown Court has less restrictions on the sentence it can impose than a magistrates’ court, judges are still given sentencing guidelines that are designed to ensure consistency. There are maximum penalties designated to offenses, alongside minimum penalties for certain serious offenses. The Judicial Appointments Commission was launched on April 3, 2006. It has taken responsibility for choosing candidates for judicial appointments away from the Lord Chancellor for the first time in more than 900 years. This shift of responsibility aims to make the appointment process clearer and more accountable. The Lord Chancellor still has final veto over the appointment, but must provide reasons if rejecting the recommendation for appointment. To ensure judicial independence, once appointed, a judge has “security of position” and cannot be forced to leave his or her post. Therefore, appointing the right candidate is crucial. The 218 county courts throughout England and Wales deal with civil matters such as debt repayments, divorce, and personal injury claims. Unlike the magistrates’ court and the Crown Court, hearings are not accessible to the public and instead are heard privately in front of a judge. The Court of Appeal is the highest court within the Supreme Court of Judicature. Although in some cases a further appeal to the House of Lords is possible, in practice, for the majority of cases the Court of Appeal is the final opportunity for appeal. The prime minister recommends judges for appointment to the Court of Appeal, and they are appointed by the monarch (Queen Elizabeth II at the time of writing). All are senior judges with extensive judicial experience. The Bench normally consists of two High Court judges and a Lady or Lord Justice. An appeal against conviction should take no longer than eight months, and that against a sentence no longer than five months, providing the case is

straightforward. Should the conviction be quashed, and “the interests of justice so require,” the court can order a retrial. In recent years this has occurred in around a third of all quashed convictions. When an offender pleads guilty to a charge, a reduction in sentence is normally applied. The reduction is on a sliding scale depending on how soon the guilty plea was submitted. The maximum sentence reduction is one-third, where the offender pleads guilty at the first available opportunity. A reduction in sentence is considered appropriate as it allows justice to be administered more quickly and reduces costs. A guilty plea is not considered a mitigating factor. Reductions in sentence will be withheld where the court determines there should be a whole life minimum term. The youth court is used for nearly all offenses committed by persons aged from 10 years to 18 years. A very small number are tried in the Crown Court. This occurs where a “grave crime” has been committed. A grave crime normally consists of an offense that would carry a sentence of 14 years or more for a convicted adult. Three magistrates make up the bench in a youth court. These are specially trained “lay” magistrates and must include representation from both sexes. The youth court has three key principles that it abides by: ensuring welfare of the child or young person, the prevention of offending, and proportionality of the sentence to the offense. Unlike an adult court, members of the public are not permitted access to a youth court. There are restrictions on reporting that prevent the name of the child or young person being revealed either directly or indirectly. These restrictions can be lifted in some circumstances, for instance, where the juvenile is a persistent offender. However, in practice the restrictions on reporting are rarely removed.

Punishment Types of Punishment There are four sentencing levels available. From greatest to least punishment, these are imprisonment, community sentence, fine, or discharge.



Guidelines issued by the Sentencing Guidelines Council must be adhered to in all but exceptional circumstances. Sentences must address four key areas: protection of the public, fair and appropriate punishment of the offender, encouraging the offender to make amends for the crime, and reducing crime by stopping reoffending. All offenses have a maximum penalty applicable under law. Some offenses also have a mandatory minimum sentence associated with them. As of 2008 these are the following: • There must be a life sentence for murder. • There is an automatic life sentence for a second serious sexual or violent offense (there is a list of qualifying offenses, all of which have a maximum penalty of life). For offenses committed after April 4, 2005, this penalty has been replaced with new public protection sentences. • A minimum 7-year prison sentence for thirdtime trafficking in Class A drugs (this provision applies to importation, production, supplying, and possession with intent to supply Class A drugs. The maximum penalty for these offenses is life imprisonment). • A minimum 3-year prison sentence for thirdtime domestic burglary. The maximum penalty for burglary is 14 years’ imprisonment. • A minimum 5-year prison sentence for possession or distribution of prohibited weapons or ammunition. The maximum penalty is 10 years’ imprisonment. Custodial sentences are reserved for the most serious offenses. They can be imposed where the court assesses the offender as posing a risk of a sexual or violent nature to public safety. A custodial sentence can also be used where the offender refuses to comply with a community order, or if the offense is so serious that neither a fine nor a community sentence is an adequate response to the offense. The prison an offender is allocated to depends on a risk assessment. Different prisons have different levels of security. Since 2005, offenders serving determinate sentences of more than 12 months have served

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the second half of their sentence on a conditional license in the community. Community sentences combine punishment with making amends and changing offenders’ behavior. The community order has different elements that are tailored to the offender and the offense. Some of these are enforced using new technologies. For example, a curfew may be enforced using electronic tagging. The elements available to make up a community order may include compulsory (unpaid) work; curfew; exclusion from certain areas; residence requirement; mental health, drug, or alcohol treatment. Fines are the sentence most commonly imposed by the courts. The Crown Court may impose an unlimited fine, taking into account the seriousness of the offense and the offender’s ability to pay. The magistrates’ court has limits on the fines it may issue according to the level of the offense, up to a maximum of £5,000. Less serious offenses such as speeding, graffiti, and public disorder are often dealt with by a fixed penalty notice. These fines can be contested, but otherwise do not require attendance at court. The fine must be paid within a fixed period, and there is no criminal record associated with the fixed penalty notice. A discharge can be chosen by the court where punishment is not considered appropriate. The court must take into account the nature and circumstances of the crime and the character of the offender. An absolute discharge is given where the offense is very minor, and/or the court considers that the experience has been enough of a deterrent for the offender. In this case no further action is taken. A conditional discharge is similar, except that further action on the original offense is taken if another offense is committed within a period decided by the court, up to a maximum of three years. A discharge will still show up on an offender’s criminal record. Alternative arrangements exist in England for offenders who are mentally ill. Under the 1983 Mental Health Act, an accused person can be remanded to a secure hospital for either treatment or for a report on his or her mental disorder. Where appropriate, once an individual has been convicted of a crime,


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the court can make an order for the individual to be detained in a secure hospital for treatment and care. The discharge and movements of the patient can then be restricted, and any movement may require the approval of the Home Secretary. There are three high secure hospitals in England: Rampton, Broadmoor, and Ashworth. In addition there are a number of medium and low secure units around the country, as well as six Secure Forensic Services for Young People. The last execution in England took place in 1964, but it was not until 1998 that the death penalty was formally abolished for all crimes. There are provisions under English law to allow the reinstatement of the death penalty in times of war, or where war is imminent. A young person in England either committing a first minor offense or behaving antisocially will usually be kept out of the youth court. Instead, the police and relevant local authority will use a variety of orders and agreements to keep them out of the youth justice system. These enable help and support to be given to try to divert these young people away from criminal activity. The level of intervention used depends on both the young person and the offense. The least serious step that may be taken is the issuing of a reprimand. This is a formal verbal warning issued when a young person admits his or her guilt to a minor offense. Sometimes the person may also be referred to the local Youth Offending Team (YOT) to take part in a voluntary program designed to address the young person’s offending behavior. A final warning is similar to a reprimand in that it is a formal verbal warning issued to a young person. It is given when there is an admittance of guilt to a first or second minor offense. It differs from a reprimand in that the young person also undergoes a mandatory assessment to determine a program of activities to address the offending behavior. Antisocial behavior may be addressed by an acceptable behavior contract (ABC), an antisocial behavior order, or an individual support order (ISO). An acceptable behavior contract is targeted at those young people who are behaving in a low level antisocial manner. The local authority and YOT draw up a contract with the young person and his/her

parents or care-givers to stop the troublesome behavior. A breach of this contract can lead to the imposition of an antisocial behavior order (ASBO). This prohibits the young person from going to certain places, taking part in certain activities, or meeting up with specified people. If the young person does not comply with the ASBO, he or she can face prosecution. An individual support order (ISO) can be attached to an ASBO. This imposes conditions on the young person designed to address the antisocial behavior. An ISO typically requires the young person to attend up to two sessions a week supervised by his or her local Youth Offending Team (YOT). Failure to comply with an ISO may be punished by a financial order. There are 10 community sentences that can be applied to young people. Community sentences can be subject to additional orders: a curfew order, a parenting order, and/or a drug treatment and testing order. A curfew order requires a young person to be in a specified place for 2 to 12 hours of the day. It lasts for up to 3 months for those under 16, or 6 months for young people aged 16 or over. A parenting order places requirements on the parent of the young offender, for example, to attend guidance or counseling sessions, to meet regularly with their child’s teacher, or to ensure the child is at home at specified times. These conditions can last for up to 12 months. Although the parent does not get a criminal record, failure to comply with the order can result in prosecution. Drug treatment and testing orders are supervised by the Probation Service. With the young person’s agreement, regular drug testing and treatment is provided in the community for a period of between 6 months and 3 years.

National Offender Management Service The National Offender Management Service (NOMS), set up in 2004, was incorporated into the newly formed Ministry of Justice in 2007. NOMS collaborates with a variety of offender management services across public, private, community, and voluntary arenas to bridge the divide between custody and community.



Within the National Offender Management Service in England there are nine regional offender managers (ROMs). These managers coordinate delivery of prison and probation services. Each ROM is responsible for developing a regional plan for reducing reoffending, commissioning services for their region, and coordinating regional and local partnerships. The seven areas of focus that NOMS targets to reduce reoffending are accommodation; education, training, and employment; health; drugs and alcohol; finance, benefit, and debt; children and families; and attitudes, thinking, and behavior.

Prison There are four security categories of prisons for adult male prisoners in England. These categories are fluid: a prisoner often moves into an open prison close to his release date to acclimatize to life on the outside. Prisoners can also be moved into a highersecurity prison should they attempt to escape, or they are assessed as posing more of a risk. The four levels of security range from Category A for the most serious offenders who would pose a threat to public, police, or national security should they escape, through to Category D for prisoners who are trusted not to attempt to escape and may be allowed day release or to work in the community. Women and young offenders are not subject to security classification unless they are assessed as Category A offenders. They are instead kept in either an open or a closed prison. Remand prisoners are usually treated as Category B offenders; unconvicted women and young offenders are kept in closed conditions. England and Wales currently imprison 148 people per 100,000 of the population. The prison population on February 15, 2008, stood at 81,918, with the total operational capacity available (including 400 places in police cells) on the same date of 82,020. This compares to a prison population in 1998 of 65,727. Prison overcrowding poses a continuous challenge to Her Majesty’s Prison Service. At the end of October 2007, 85 out of the 141 prisons in England and Wales were overcrowded according to

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the Bromley Briefing Paper, a publication issued twice annually by the Prison Reform Trust. Wandsworth Prison in London is the largest in England, with a capacity of 1,416 inmates. It is also one of the largest prisons in Western Europe. Wandsworth Prison was built in 1851, though a modernization program upgraded the accommodation to include in-cell sanitation and privacy screens for cells housing more than one prisoner. More recently, a rolling program has provided electricity installation in individual cells. Wandsworth Prison runs a variety of workshops and day classes. The prison houses two gymnasiums and a sports hall, and also runs two accredited offending behavior programs: enhanced thinking skills and a sex offender treatment program. A dedicated chaplaincy team caters for a variety of faiths, and meals provided by the prison take into account most dietary and religious requirements. All prisoners in England have access to an educational and training service. This assesses need and teaches basic and key skills where appropriate. Some prisons have further education facilities, which may include provision for academic as well as vocational qualifications. Gymnasium access is provided to all prisoners in England to encourage fitness. Workshops in prisons vary across establishments. They range from craft workshops, where charities sell the finished products, to car maintenance, contract cleaning, and masonry. Although only token wages are earned, skills learned in these workshops may help a prisoner work toward a qualification or potentially gain employment on release. Convicted prisoners are permitted a minimum of a one-hour visit every two weeks. Only three people may visit at any one time, although children under the age of 10 are allowed in addition to this maximum. Unconvicted (remand) prisoners are entitled to at least one and a half hours of visits each week. Visiting times vary depending on the individual prison. Most visits take place in a relaxed open setting, which allows the prisoner and visitor to have some physical contact. However, this is not possible for some prisoners who are separated from the visitor by a screen. Conjugal visits are not permitted for any prisoners. In most prisons, visitors can give


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prisoners items such as CDs and books. The nature of permitted items varies depending on the individual prison. Prisoners can sometimes earn additional visiting time through the Incentives and Earned Privileges Scheme. This is a system run throughout the Prison Service that places the inmate on one of three levels: basic, standard, or enhanced. Prisoners move up and down through these levels depending on their behavior. Privileges earned as the levels increase can include access to more of their own money to spend in the prison shop or on telephone calls, more hours out of their cell, the opportunity to wear their own clothes and cook their own food, and the chance to pay for a television in their own cell. The Parole Board is responsible for risk assessing prisoners to decide whether they can be safely released into the community. It is an independent body that was set up in 1968 and works closely with other organizations within the criminal justice system. The Parole Board has responsibility for determining the release of prisoners on both indeterminate and determinate sentences. Parole Board decisions are made by a panel consisting of a selection of members from different backgrounds, including independent members, psychologists, criminologists, probationers, and judicial members. Oral hearings normally have three members on the panel while paper hearings can consist of one, two, or three members. Oral hearings are generally used for prisoners on indeterminate sentences and normally take place in prison. Paper hearings are used for most prisoners on determinate sentences, and decisions are based on a dossier containing a variety of reports, risk assessments, and occasionally victim statements.

Probation The National Probation Service (NPS) is part of the National Offender Management Service. It has responsibility for supervising offenders in the community. The duties of NPS include the following: • Providing presentence reports and bail information reports to magistrates and judges.

• Finding and supervising unpaid work by offenders. • Creating reports of risk and dangerousness assessments to allow decisions to be made about early release of prisoners. Probation can take two forms: criminal supervision, the supervision of an offender for a fixed period of time, or pre- and postrelease supervision, where the offender is supervised before or after release from custody. The latter is statutory for all young offenders and adults sentenced to 12 months or over. All offenders in custody, or up to 12 months after release, can opt to be voluntarily supervised. The caseload of the NPS on any given day is more than 200,000. Of these, approximately 90 percent are male, and 10 percent female; 70 percent are supervised on a community sentence, and 30 percent are imprisoned with supervision in the community as part of the license.

Extradition England has extradition agreements with more than 100 countries worldwide. Each case for extradition is heard before a judge. Extradition will be carried out only in cases where the judge decides there are no bars to this. Bars to extradition include the person’s age, or where the person may face punishment or a prejudiced trial on the grounds of his or her political opinions, sexual orientation, gender, nationality or race, or where extradition would otherwise contravene the 1998 Human Rights Act. Louise Grove and Graham Farrell Further Reading Criminal Justice System: http://www.cjsonline. gov.uk. Home Office: http://www.homeoffice.gov.uk. Kershaw, Chris, Sian Nicholas, and Alison Walker, eds. (2008). Crime in England and Wales 2007/08: Findings from the British Crime Survey and Police Recorded Crime. London: Home Office, Ministry of Justice.


United Kingdom/Northern Ireland

Sanders, Andrew, and Richard Young. (2006). Criminal Justice. 3rd ed. Oxford, UK: Oxford University Press. Youth Justice Board: http://www.yjb.gov.uk.

United Kingdom/Northern Ireland Legal System: Common Murder: Low Corruption: Low Human Trafficking: Low Prison Rate: Medium Death Penalty: No Corporal Punishment: No

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Ireland Assembly was established that reintroduced devolved government to Northern Ireland based on power-sharing principles. As of 2009, the majority of governmental functions (health, education, environment, etc.) have been devolved to the assembly; however, the British government still maintains overall control of policing and criminal justice matters. These are due to be devolved to the Northern Ireland Assembly in 2010.

Legal System

Background At the time of the last UK census (2001), Northern Ireland had a population of 1,685,000. This comprises nearly one-third of the total population on the island of Ireland and approximately 3 percent of the population of the United Kingdom. In ethnic terms 99.15 percent of the population of Northern Ireland is white and due to historically low levels of immigration, there is a relatively small minorityethnic population. Research conducted by the Office of the First and Deputy First Minister (OFMDFM) in 2002 estimated that there are 16,000 people from minority-ethnic community backgrounds in Northern Ireland. The largest group is Chinese, followed by those from the Indian subcontinent, and lastly those from a number of North African countries. In recent years, improved economic conditions have witnessed a net influx of economic migrants, mainly from Portugal and the recently accessioned countries of the European Union (EU), such as Poland, Latvia, Lithuania, and Estonia. Northern Ireland is a constituent region of the United Kingdom along with England, Wales, and Scotland. Between 1921 and 1972 it had its own Parliament in Belfast, which was deferred in 1973 until Direct Rule was introduced from Westminster in 1998. Following the peace negotiations (1994–1997) and the signing of the Belfast Agreement in 1998, a new Northern

As a common law jurisdiction the legal system in Northern Ireland is similar to that in England and Wales—but not Scotland—although there are some important differences in law and criminal procedure. It is an adversarial system with the prosecution and defense presenting evidence to magistrates in the lower courts or judges in the higher courts. Statute law in Northern Ireland derives from a number of sources: the UK Parliament at Westminster, the current Northern Ireland Assembly, the Northern Ireland Parliament between 1921 and 1972, and legislation passed by the Irish Parliament in Dublin before the Act of Union in 1800. Many of the statutes governing criminal procedure and police powers are derived from those found in England and Wales also. There is an independent public prosecution service while the age of criminal responsibility is 10. In the financial year 2009–2010 the annual budget to administer the criminal justice system in Northern Ireland stood at £1.3 billion (US$148.12 billion). One of the most significant differences between Northern Ireland and the rest of the United Kingdom in terms of the sentencing framework concerns the existence of a statutory system for restorative and reparative youth conferencing in relation to juvenile offenders—laid down by the Justice (Northern Ireland) Act 2002. However, it is important to recognize that considered historically, many aspects of policing, criminal justice, and legal powers were modified in Northern Ireland to deal with the political conflict. For more than 70 years between 1922 and 1998, Northern Ireland was governed almost continuously under state-of-emergency legislation such as the Civil Authorities (Special Powers)


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Act (Northern Ireland) [1922] and the Northern Ireland (Emergency Provisions) Act [1973].

Political Conflict in Northern Ireland Following the War of Independence with Britain in 1920, Ireland was partitioned. The southern 26 counties seceded from British rule to become the Irish Free State, with a Catholic majority, while 6 of the northeasterly counties were annexed to form the new state of Northern Ireland, which continued under British rule. This compromise situation was to sow the seeds of future instability, however. While the population of Northern Ireland was predominantly Protestant and unionist, it contained a significant Catholic minority, many of whom were Irish nationalists. Tensions between the unionist and nationalist communities were exacerbated during a phase of nationalist civil rights mobilization in the mid-1960s over what was perceived as discrimination by the Unionist government and the repressive character of the local police, the predominantly Protestant Royal Ulster Constabulary (RUC) and the exclusively Protestant police auxiliary, the Ulster Special Constabulary (USC). Toward the end of the 1960s these tensions spilled over into violent ethnosectarian conflict and political unrest. This unrest culminated in a campaign of political violence led by the Irish Republican Army (IRA), which sought to bring about a British withdrawal from Northern Ireland by violent means and that sparked a counterreaction from the RUC and British Army. In addition, loyalist paramilitary organizations— those who wanted to maintain the link with Britain by recourse to violent tactics—embarked on an indiscriminate campaign of targeting and murdering Catholic civilians. The conflict reached its most violent nadir between 1969 and 1994—a period that is colloquially referred to as “The Troubles.” The conflict had an undoubted impact on the nature of criminal justice and policing and led to a number of practices that were condemned by national and international human and civil rights organizations. These included the use of torture in obtaining confession evidence, claims of a shoot-to-kill policy against republican suspects, collusion with

prostate loyalist paramilitary organizations, the use of indefinite detention without trial, as well as modifications to the legal and criminal justice system, which among other things abolished jury trials for those charged with terrorist-related offenses (the socalled Diplock Courts). Between 1969 and the signing of the Belfast Agreement in 1998, just under 3,300 people had lost their lives due to the conflict while 41,837 were seriously injured. Based on population size, the corresponding scale of violence in Britain would have yielded more than 100,000 deaths and 1,406,000 serious injuries, while figures for the United States would have been 500,000 and 6,673,000, respectively.

The Peace Process: Criminal Justice and Policing Reform The Belfast Agreement, signed in 1998 as part of the developing peace process, resulted in a number of proposals for the restructuring of the criminal justice system, the reform of public policing structures, the release of paramilitary prisoners, and a review of the operation of antiterrorism legislation in Northern Ireland. The Independent Commission on Policing (ICP) was established to investigate police reform; the Criminal Justice Review (CJR) to consider criminal justice reform; while a senior British judge, Lord Lloyd, was charged with reviewing the operation of antiterror legislation. The ICP reported in September 1999 and made 175 recommendations for the reform of the RUC, including the renaming of the force to the Police Service of Northern Ireland (PSNI), as well as introducing a raft of new mechanisms to enhance the governance and accountability of the police, including the introduction of a fully independent police complaints machinery. The ICP proposals were given legislative effect in the Police (Northern Ireland) Act 2000 and 2003 as well as two Implementation Plans drawn up by the Northern Ireland Office (2000 and 2001). In addition, an international Oversight Commission was established to monitor the progress of police reform across a number of benchmark indicators and completed its work in 2007. The Criminal Justice Review reported in March 2000 and put forward



294 recommendations for reform across the system as a whole. These included the development of innovative youth justice strategies; improved support for victims and witnesses; and major changes to the public prosecution service, judicial appointments, prisons, and sentencing frameworks. The proposals were given legislative effect in the Justice (Northern Ireland) Act 2002 and 2004. The legislative basis for counterterrorist operations in Northern Ireland was rationalized and brought within the remit of the UK-wide Terrorism Act (2000) on the advice of the senior judge Lord Lloyd.

Terrorism The signing of the Belfast Agreement and the declaration of an end to armed conflict by the majority of paramilitary organizations in Northern Ireland has resulted in a considerable easing of the security situation and a reduction in the threat from terrorist attack. However, more recently, “dissident republicans”—those who oppose the leadership of Sinn Féin and mainstream republicanism—have become much more active. Such groups are numerically small and splintered into various factions such as Continuity IRA and Real IRA. The latter group was responsible for one of the biggest single atrocities of the entire conflict, the Omagh bombing of 1998, in which 29 people died and a further 220 were left seriously injured or maimed. More recently, in March 2009, the Real IRA also claimed responsibility for the killing of two British soldiers from the 38 Engineer Regiment at a military base in Antrim, while a few days later, Continuity IRA were involved in the shooting death of a PSNI officer in Craigavon. Constable Stephen Carroll was the first police officer to be killed in Northern Ireland since 1998. The threat from dissident republican groups has resulted in security measures being stepped up in Northern Ireland for the first time in over a decade.

Police Policing in Northern Ireland, as is the situation elsewhere in the United Kingdom, is separate and distinct from the military. In addition, there is no

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gendarmerie or its equivalent as is found in some continental European jurisdictions. The new Police Service of Northern Ireland (PSNI) is the “national” police force. As of late 2009, there were just over 9,000 officers in the PSNI, composed of 7,542 in the regular force and 1,539 in the full and part-time Reserve. The full-time Reserve force is due to be phased out by the end of 2010. There are currently plans to supplement regular officers with several hundred Police Community Support Officers (PCSOs) who will deal mainly with low-level crime and antisocial behavior. Policing is coordinated from PSNI Headquarters in Belfast and organized into a number of District Command Units (DCUs), which provide the bulk of operational policing at the local level. PSNI Headquarters in Belfast provides specialist technical and logistical support in relation to forensics, crime analysis, counterterrorism, and organized crime as well as having overall responsibility for the direction and management of force policy and ensuring compliance with directives emanating from the Home Office in London. Currently, the emphasis for the PSNI, as with all UK police forces, is on the development of Neighborhood Policing and various “partnership” initiatives. Unlike the rest of the United Kingdom, all police officers in Northern Ireland carry guns (sidearms), although their discharge necessitates an automatic investigation by the Office of the Police Ombudsman for Northern Ireland (OPONI). In the most recent period for which data are available (2007–2008), firearms were discharged by PSNI officers on four occasions; however, there were no fatalities. Between 2001 and 2009 there has been one fatality in Northern Ireland due to the police use of lethal force following what appeared to be a covert operation. The PSNI have had access to CS Spray (from 2003) and to the Taser electroshock weapon (from 2007). The police ombudsman automatically investigates all instances where the Taser is deployed. Since April 2009 there is no longer a requirement on the part of the PSNI to forward incidents involving the use of CS Spray to the ombudsman. One of the most deep-seated historical problems with policing in Northern Ireland has been the persistently low proportion of Catholic/nationalist


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recruits. To meet the targets proposed by the ICP, the PSNI was given a specific exemption from EU fair employment directives to embark on a program of positive discrimination to increase the number of Catholic officers. Catholic recruitment to the PSNI currently stands at just over 26 percent (October 2009) compared to less than 8 percent for the old RUC pre-2001, and the force seems on track to meet its 30 percent target for Catholic recruitment by 2011. Currently, the percentage of female officers in the PSNI stands at just over 20 percent, and the force has recently announced the establishment of a Gay and Lesbian Police Officers Association—a development that would have been unthinkable just a few years ago. The statutory powers of the police are laid down in the Police and Criminal Evidence (Northern Ireland) Order [1989], which is virtually identical to legislation adopted elsewhere in the United Kingdom. Likewise, the police accountability and governance structures are modeled on the Tripartite arrangements that are found in England and Wales and that establishes a three-way system of checks and balances between government, the police, and local communities. However, in Northern Ireland there have been some significant enhancements introduced as a result of the ICP reforms, which mean that the PSNI is subject to arguably more robust mechanisms for the democratic oversight of policing than exist in any other region of the UK. For example, a Policing Board comprising elected political representatives and independent members performs a similar role to Police Authorities in England and Wales but has considerably more powers to initiate inquiries into police actions. The Policing Board performs a number of statutory functions such as securing an effective and efficient police service, appointing and dismissing senior officers, developing long- and short-term policing plans in conjunction with the chief constable, monitoring the performance of the police in relation to these policing plans, and monitoring the police’s compliance with the provisions of the Human Rights Act. The Policing Board is also under a statutory obligation to convene public meetings during which community members may question senior police

managers about the performance of the PSNI. At the local level, there are 26 District Policing Partnerships (DPPs) in each local council area, again composed of elected representatives and independent members, and which monitor the performance of the local police. The investigation of complaints against PSNI officers is the responsibility of the Office of the Police Ombudsman for Northern Ireland (OPONI), which unlike the situation in England and Wales and Scotland, is modeled on a system of fully independent investigation and oversight of all complaints. Other oversight and accountability mechanisms such as Her Majesty’s Inspectorate of Constabulary (HMIC) also operate in Northern Ireland, while the PSNI are also subject to periodic inspection by the Northern Ireland Criminal Justice Inspectorate and the National Audit Office. The Serious Organised Crime Agency (SOCA), which was established in England and Wales to deal with serious organized crime, has a restricted jurisdiction in Northern Ireland but works closely with the Northern Ireland Organized Crime Taskforce. In April 2008 the Northern Ireland Assets Recovery Agency (ARA) merged with SOCA, which now undertakes civil recovery and tax investigations in Northern Ireland. In 2007 the UK security service, MI5, has established a regional headquarters in Belfast. Currently around 90 PSNI officers are seconded to MI5 to deal with the threat from local terrorism. One other notable feature of policing in Northern Ireland concerns the establishment of a Historical Enquiries Team (HET) as a unit of the PSNI to investigate a number of unsolved “cold cases”—specifically 3,369 murders—committed during the conflict. The HET has a team of 100 investigators and support staff and a budget of £30 million (US$43 million). It is divided into separate Review and Investigation teams, and the aim is to bring some closure to the relatives of those who died. Sophisticated data-mining software is used to piece together shreds of evidence from events stretching back over 30 or 40 years.

Crime Making direct comparisons between the levels of crime in different jurisdictions is difficult because of



differing counting rules, definitions of crime, and the contrasting ways criminal justice systems operate and measure crime. However, the official crime data suggest that Northern Ireland has lower levels of police-recorded crime than other regions of the UK, at about half that of England and Wales. Recently recorded crime levels have increased from 62,222 offenses in 1997 to 110,094 in 2008–2009. This has meant that the crime rate has increased from around 37 crimes per 1,000 of the population in 1997 to 62 per 1,000 population in 2008–2009. These changes appear to have largely been caused by new counting rules that came into effect in 1998, which record crimes that were not previously part of the official figures, and together with the introduction of a new data collection system, have had a significant impact on recorded crime levels. Despite these changes, however, Northern Ireland still has a lower level of recorded crime than England and Wales. Victimization surveys also confirm the view that Northern Ireland has a relatively low level of recorded crime. The International Crime Victimization Survey that surveyed victims of crime in a number of different countries in Europe and North America showed that Northern Ireland had the lowest victimization rate of any of the participating countries. Only 15 percent of those questioned in Northern Ireland (for the 2000 survey) had been a victim, compared with an international average of 21 percent. Earlier surveys confirm these findings and the 1995 International Crime Victims Survey showed Northern Ireland to have the lowest incidence rate of criminal victimization (at 27 crimes per 100 population) of the 11 industrialized countries surveyed. Indeed, the rate of victimization in Northern Ireland was considerably lower than in the United States, Canada, or England and Wales. A comparison of the Northern Ireland Crime Survey 2007–2008 (NIO Research Bulletin 1/2009) with the British Crime Survey (BCS 2007/08) also shows that the risk of becoming a victim of crime is lower in Northern Ireland (13.8%) than in England and Wales (22.1%). While England and Wales had higher rates than Northern Ireland for burglary (2.4% vs. 1.2%), the two jurisdictions had similar rates of violent crime (3.3% vs. 2.2%).

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However, these recent statistics mask other aspects of victimization that are not directly reflected in official crime statistics or addressed in the International Victims Survey; namely, the social and human costs associated with 30 years of violent conflict and that continue to exert a deep impact. There are also continuing problems of sectarian crime that blight communities across Northern Ireland. Many miles of euphemistically named “peace lines”—32-foot (10-meter) high walls—intersect Protestant and Catholic working-class areas of Belfast and in spite of the peace process of recent years, levels of sectarian and intercommunal violence still continue. Of course, violence such as this tends to be concentrated in specific geographical areas, but it remains an important corrective to the general view of Northern Ireland as a “low crime” society.

Juveniles Northern Ireland has adopted a radically different form of youth justice to the rest of Europe. This new system of justice was introduced following recommendations of the Criminal Justice Review, and it embraces a restorative model of justice. Unlike most criminal justice systems, it places a very strong emphasis on victims and offenders coming together in a meeting to deal with the crime and its aftermath. This system of “youth conferencing” was established under Justice (Northern Ireland) Act 2002 and began operation as a pilot project in December 2003 dealing with juveniles (10–16-year-olds). It was extended to the whole of Northern Ireland, including 10–17 year olds, in 2005. There are two distinctive types of conference available: diversionary conferences and courtordered conferences. In either case, a conference cocoordinator is responsible for submitting a plan to the prosecutor or court on how the young person should be dealt with for his or her offense. A decision to hold a diversionary conference is taken by the Public Prosecution Service. Unlike many restorative schemes elsewhere, diversionary conferences are not intended for first-time minor offenders. Instead, the program is aimed at young offenders who would normally be considered for prosecution


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through the courts. Providing a conference plan is agreed and successfully completed, the young person will avoid a court appearance and a subsequent criminal conviction. Two preconditions must be in place before a diversionary conference can proceed. First, the young person must admit to the offense, and second, he or she must consent to the process. If both these conditions are not in place, the offense will be disposed of in the normal way through prosecution in the youth court. Court-ordered youth conferences, on the other hand, are referred through the courts and take place with a view to a youth conference co-coordinator providing a recommendation to the court on how the young person should be dealt with for his or her offense. Again, the admission or establishment of guilt and consent of the young person are prerequisites for such a conference to take place. A distinctive feature of the Northern Ireland system is that a court must refer a young person to a youth conference. This is subject to certain restrictions: when a magistrate refers a case, he or she must take into account the type of offense committed. Only offenses with a penalty of life imprisonment, offenses that are triable, in the case of an adult, on indictment only (very serious offenses), and scheduled offenses that fall under the Terrorism Act are not automatically eligible for youth conferencing. In effect, the vast majority of young offenders have to be referred for the youth conferencing process. The mandatory nature of court-ordered referrals highlights the intended centrality of youth conferencing to the youth justice system. Restorative youth conferencing has changed the landscape of the youth justice system in Northern Ireland, and although it has only been in operation for a few years, early indications appear to be positive. The youth conferencing scheme has been subject to a major evaluation in which the proceedings of 185 conferences were observed and personal interviews were completed with 171 young people and 125 victims who participated in conferences (O’Mahony and Campbell 2006). The research findings were generally very positive concerning the impact of the scheme on victims and offenders,

and found it to operate with relative success. Importantly, the research showed that youth conferencing considerably increased levels of participation for both offenders and victims in the process of seeking a just response to offending. The scheme engaged a high proportion of victims in the process: over twothirds of conferences (69%) had a victim of some sort in attendance, which is high compared with other restorative-based programs. Of these 40 percent were personal victims and 60 percent were victim representatives (such as in cases where there was damage to public property or there was no directly identifiable victim). Indeed, nearly half of personal victims attended as a result of assault, while the majority (69%) of victim representatives attended for thefts (typically shoplifting) or criminal damage. Nearly all of the plans (91%) following conferences were agreed by participants, and importantly, victims were on the whole happy with the content of the plans. Interestingly, many of the plans centered on elements that were designed to help the young person and victim, such as reparation to the victim, or attendance at programs to help the young person. Recent research suggests that conferencing schemes have a positive impact on recidivism rates. These encouraging findings, which compare reconviction rates for young offenders given different disposals, including custodial and community orders, show those given restorative conferences had a oneyear reconviction rate of 38 percent, while those given custodial sentences and community disposals had reconviction rates of 73 percent and 47 percent, respectively.

Courts Historically, Northern Ireland has a special procedure for dealing with terrorist (scheduled) offenses and such cases were tried in Diplock courts, where a judge sat without a jury. Diplock courts were abolished in Northern Ireland in July 2007, although in rare instances terrorist offenses may still be tried by a judge sitting without a jury. Nonterrorist indictable offenses are heard in the Crown Court and involve a trial by judge and jury. But the vast majority



of all criminal offenses are tried summarily in a magistrates’ court and do not involve a jury trial. Over half of the offenses dealt with in the magistrates’ court relate to road traffic incidents. In 2006, 29,749 defendants were dealt with through the magistrates’ courts, of which 84 percent were found guilty, whereas only 1,625 defendants were proceeded against in the Crown Court. The sentencing power of the magistrates’ court is restricted to 12–18 months’ imprisonment. However, the Crown Court can impose lengthy and life sentences. Any appeals that are made have to go to the Court of Appeal. The Court of Appeal’s ruling may be further challenged in the House of Lords, with leave from the Court of Appeal or the House of Lords. The Public Prosecution Service (formerly the Department of the Director of Public Prosecutions) is generally responsible for preparing the indictment or charges that the accused will face in Northern Ireland. A third level of the court system is the youth court, which is a special magistrates’ court. It is constituted to deal with proceedings against juveniles between the ages of 10 and 17. The youth court operates along broadly similar lines to the adult court, but with some differences. It consists of a bench of three members, of whom the chairman is a resident magistrate, who sits with two lay magistrates, including at least one woman. Proceedings are less formal than the adult magistrates’ court and are held in private. Only persons connected with the case and court officials are usually present. The youth court can deal with any offense other than murder if it thinks that such a course is expedient and if the prosecution and the juvenile’s parents or the juvenile consents.

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a few days to life, which is mandatory for a person convicted of murder. In Northern Ireland, the maximum length of sentence that can be given by a magistrate is 12 months for an indictable offense or 18 months if the person is convicted of more than one indictable offense. Following the enactment of the Life Sentences (NI) Order 2001, a court passing a life sentence must state the period that should be served to satisfy the requirements of retribution and deterrence. This is referred to as the “tariff.” Following the expiry of the tariff, a life sentence prisoner may require the secretary of state to refer his or her case to the Life Sentence Review Commissioners for consideration for release. In exceptional circumstances a “whole life” tariff may be imposed where the court is of the view that due to the seriousness of the offense, the offender should not be considered for release on license. Imprisonment is a sentence mostly confined to persons aged 21 and over, but there is provision for detention of persons under 21 in a prison where the circumstances warrant it. Such detention is included in the statistics of imprisonment and can be for a stipulated sentence of more than four years or at the secretary of state’s pleasure—analogous to a life sentence for persons under 18 when their crime was committed. Prison sentences are rarely served in full. Remission is the cancellation of part of a term of imprisonment and may be granted at up to 50 percent of the sentence depending upon the circumstances. Detention in the young offenders’ center is instead of imprisonment for offenders of not less than 16 years but under 21 years who have been convicted of an offense that is punishable with imprisonment in the case of a person of at least 21 years of age. The maximum term is four years. Other types of sanctions include:

Punishment Types of Punishment Imprisonment is the most severe penalty available to the courts. The length of a term of imprisonment is determined either by statute or a judge or magistrate in a common law case. It can vary from

• Custody Probation Order. This is an order unique to Northern Ireland, reflecting the different regime that applies in respect of remission and the general absence of release on license. They are only available where a period in custody of more than 12 months would


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otherwise be justified. The custodial sentence, which can be of any length, is followed by a period of supervision by a probation officer for a period between 12 months and 3 years. Such an order cannot be made unless the offender consents. • Juvenile Justice Centre Order. This order was introduced in 1999 under the Criminal Justice (Children’s Northern Ireland Order 1998) to replace the training school order. It is available for children under the age of 17 and is for a period of six months unless the court specifies a longer period not exceeding two years. The period of detention is for one-half of the period of the order, with the remainder comprising a period of close supervision in the community. • Community Sentences. The Community Service Order is a community sentence that requires the offender to do unpaid work in the community. It can be given to someone aged 16 or over convicted of an imprisonable offense if the offender consents and may be between 40 and 240 hours’ duration. The Probation Order is a community sentence in which the offender is placed under the supervision of a probation officer for a period of between 6 months to 3 years. It puts the offender under supervision, during which probation personnel act as a source of guidance to avoid reoffending. The order may have extra requirements, for example, treatment for alcohol, or anger management. Offender consent is required. The Combination Order comprises a Probation Order and a Community Service Order and is intended for offenders who the courts believe should make some reparation to the community and who need probation supervision to reduce the risk of reoffending in the future. The order requires the offender to be under the supervision of a probation officer for a period between 12 months to 3 years and to perform unpaid work in the community for between 40 and 100 hours. Attendance Orders are used in the case of a juvenile aged under 17 and require the offender to attend a designated

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place and undertake a structured program of activities. The order should not be less than 12 hours and no more than 24 hours. The times at which the offender attends the center should avoid interference, so far as practicable, with school hours or working hours. Youth Conference Order. This is available to juvenile offenders (10–17 years). It aims to balance the needs of the victim and the young offender by agreeing to plans of action that satisfy the victim and create opportunities for the young person to make amends and stop committing crime. Suspended Sentence. The suspended sentence operates as a deterrent measure. Where a court sentencing an offender for an offense that is not a “serious offense” (i.e., an offense which a person aged 21 or over could, on indictment, be sentenced to prison for a term of five years or more) passes a sentence of imprisonment or makes an order for detention in a young offenders’ center for a term not exceeding two years, the court may suspend the sentence for between one and three years. Alternatively, where a court sentencing an offender for a “serious offense” passes a prison sentence for a term of not more than seven years, the court may suspend the sentence for between one and five years. Fines. This is a financial punishment, the maximum level of which is generally set by statute. In the Crown Court the amount is unlimited. It is not a part of the principle of this sentence to fine a wealthy person according to his or her means; rather, the court must inquire into the financial circumstances of the offender, for the purposes of increasing or reducing the amount of the fine. The fine is the most common disposal given in Northern Ireland, and of 26,363 persons sentenced in 2006, 66 percent were fined. Conditional Discharge. This order imposes a condition upon the offender that he or she commits no further offense for a specified period up to three years. If the condition is



broken, the person may be dealt with for the earlier and the current offense. • Absolute Discharge. This may be imposed where following conviction, punishment is considered inappropriate. The offender while found guilty is not further liable for the offense. • Deferred Sentence. After conviction, a person may have his or her sentence deferred for a period of up to six months. Sentence is passed after changes (if any) in the circumstances of the case have been assessed. For example, the offender may have made some form of reparation.

Prison Northern Ireland’s prison system has altered dramatically in recent years, primarily because of the developing peace process and the recommendations of the Criminal Justice Review published in March 2000. The prison population has decreased from a peak of approximately 3,000 in 1979 to currently around 1,500 prisoners. At the height of the conflict, paramilitary prisoners convicted of terrorist offenses made up nearly two-thirds of the entire prison population. However, as a key component of the peace process, paramilitary prisoners were released from prison and by July 2000, some 450 prisoners were released on license back into the community. There are three prison establishments: Maghaberry, Magilligan, and Hydebank Wood. Maghaberry is a high-security prison, housing long-term and remand prisoners and those charged or convicted of the most serious offenses. Magilligan is a mediumsecurity prison, housing lower-security prisoners, and Hydebank Wood is medium security, accommodating young male offenders (aged between 17 and 21 years) and female prisoners. As of October 2009, there were approximately 1,500 prisoners held across the Northern Ireland prison system, of which 500 were being held on remand. There were 26 female prisoners, and 82 young offenders aged between 17 and 21 at the time of conviction. The rate of imprisonment in Northern Ireland is 84 per

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100,000 population, lower than the rate for England and Wales (148) and Scotland (139). There are several anomalies in the Northern Irish prison system compared to other UK regions. For example, remand prisoners comprise a higher proportion of the prison population—34 percent compared to 15 percent in England and Wales. Also, fine defaulters amount to 59 percent of all prison receptions in Northern Ireland, a figure that is considerably higher than England (2.2%). This situation has recently been addressed by the Northern Ireland Courts Service. Recently, the Northern Ireland Prison Service has been heavily criticized for its general failure to provide a duty of care to inmates in a report commissioned by the Northern Ireland Human Rights Commission following a spate of suicides in prison establishments. There are also issues concerning a lack of effective and transparent oversight, and while this is provided by the Prison Ombudsman—an independent agency that has responsibility for investigating a prisoner’s complaints—its powers are largely limited to examining individual cases rather than having any overt role in shaping prison policy. Graham Ellison and David O’Mahony Further Reading Ellison, Graham. (2007). “A Blueprint for Democratic Policing Anywhere in the World? Police Reform, Political Transition and Conflict Resolution in Northern Ireland.” Police Quarterly 10(3): 243–269. Northern Ireland Criminal Justice Inspectorate: http://www.cjini.org. Northern Ireland Office, Criminal Justice Directorate: http://www.cjsni.gov.uk. O’Mahony, David, and Catriona Campbell. (2006). “Mainstreaming Restorative Justice for Young Offenders through Youth Conferencing: The Experience of Northern Ireland.” In International Handbook of Juvenile Justice, edited by Josine Junger-Tas and Scott H. Decker, pp. 93–116. New York: Springer.


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United Kingdom/Scotland

United Kingdom/Scotland Legal System: Common/Civil Murder: Medium Prison Rate: Medium Death Penalty: No

Background Scotland is a country that forms part of the United Kingdom (alongside England, Wales, and Northern Ireland). It lies to the north of England, making up around one-third of the island of Great Britain. With a population of some 5 million people, the majority are concentrated in the two main cities of Edinburgh and Glasgow. The population is over 98 percent Caucasian, with a small ethnic minority chiefly of Pakistani heritage. Scotland has also recently experienced a notable influx of people from Poland and the Baltic states, whether for shorter or longer periods of work or to settle permanently. Although Scotland has been part of the United Kingdom for the past 300 years, it has retained its own identity and culture and a separate legal system, reflecting its very different historical and constitutional evolution. During the later Middle Ages, there was development of a form of parliament (the Assembly of the Three Estates), a supreme civil court (the Court of Session), and a further institution (the College of Justice) with powers to enact laws for the administration of justice. During this period, Scots common law came under the influence of Roman and continental law and contributed to the development of Scots law as a “mixed system.” The Acts of Union of 1707, while creating the United Kingdom of Great Britain and a shared legislature at Westminster, preserved the independence and integrity of Scots law. This endures today and is evident in Scotland’s distinctive court systems, legal professions, and procedures and remedies. Distinctive features of Scottish criminal law include the requirement of corroboration, the jury system, and the third verdict of “not proven.” The criminal procedure is accusatorial in form, placing the onus on the prosecutor to provide sufficient

relevant evidence against the accused. There is no criminal or penal code. Scotland’s relative autonomy has been bolstered in the last 10 years following the devolution of significant legislative and executive powers and the (re)creation of a Scottish Parliament in the capital city of Edinburgh in 1999. However, evidence from opinion polling and voting patterns suggests that Scotland does not want full independence from the United Kingdom, although there is a settled majority in Scotland in favor of greater autonomy and the transfer of some additional powers to the Scottish Parliament and government. The Scottish Parliament has jurisdiction over a number of key policy areas, including education, health, and crime and justice (though not drugs laws, laws relating to firearms, border controls, and other issues considered to touch the security of the United Kingdom as a whole). Since 1999, there has been a marked escalation in the volume of legislation passed, particularly for criminal justice. Young offenders, persistent offenders, and those considered as presenting higher risk were among the chief targets of new legislation.

Crime Crime Statistics The two main sources of information on levels of crime in Scotland are from police-recorded data and information gathered from victimization surveys, the latter of which also gathers a wide range of information about the public’s attitudes to crime and punishment. Police-recorded data show that recorded crime has decreased almost continuously since the early 1990s, with the latest figures putting recorded crime at its lowest level for 30 years. The Scottish Crime and Justice Survey provides a more holistic picture of crime in Scotland, in that it includes crimes that are not reported to the police. Of crimes reported in the survey, 34 percent were incidents of vandalism (to an individual’s property or vehicle), 26 percent were minor assaults, 17 percent were thefts from the home (but not including housebreaking), 9 percent were theft from the person



(excluding robbery, which involves violence), 7 percent were motor vehicle thefts, 2 percent were housebreaking (burglary), 2 percent were robbery, and 2 percent were serious assault. Sexual offending was not covered in the most recent publication. The survey showed that the group most likely to be victimized were people aged between 16 and 24, particularly males, and that the most deprived areas of Scotland also experienced higher levels of crime. Although the rate of murder is low by global standards at just over 2 per 100,000, it is slightly higher than that in England and Wales. Many observers attribute this to the existence in some areas of a “knife culture”—an embedded practice of carrying knives and blades. Nearly half of all homicides in Scotland are committed with knives and blades, with firearms causing only 2 percent of the overall number. The majority of murders were carried out by someone known to the victim, and the typical victims are males between the ages of 16–30. As one would expect, there is substantial variation between levels of crime between rural and urban Scotland, with the vast majority of crime committed in cities, particularly in the cities of Glasgow and Edinburgh.

DRUGS, ALCOHOL, AND CRIME Crime in Scotland is widely considered to be closely linked to the twin public health concerns of drug and alcohol abuse. The former has long been within the ambit of criminal justice institutions, with drug policies having formed a central plank of crime control strategies since the 1980s. Latterly, however, Scotland has begun to acknowledge, and take some tentative steps toward addressing, the connection between alcohol, public disorder, and crime. Scotland has long had a problem with drugs, particularly with heroin, which ravaged many economically deprived communities during the 1980s and 1990s. Heroin continues to be a problem and is the drug associated with most other drug offending, particularly for female offenders. In recent years there has also been a sharp rise in the numbers taking cocaine due to a reduction in its street value, and other recreation drugs such as Ecstasy becoming less fashionable. Despite occasional media scare

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stories, synthetic drugs such as “crystal meth” have yet to take hold in Scotland. Research on the prison population shows that nearly all female prisoners (98%) test positive for drugs on admission to prison, the vast majority for heroin, and nearly two-thirds of prisoners reported that they were under the influence of drugs at the time of the offense. While awareness of drug issues in Scotland remains high, recognition of the relationship between alcohol and offending has increased over recent years as well. Scotland’s relationship with alcohol is complex in that it is very much linked to the country’s culture. Not only is an alcoholic drink one of the country’s most iconic (and lucrative) exports—the connoisseur’s tipple of malt whisky—but for many Scots, getting very drunk is traditionally closely associated with having a good time. The connection between alcohol and offending (particularly violent offending) is strong, most particularly for young offenders (aged 16–20). Recent research shows that for this younger age group, the consumption of alcohol played a more important role in their offending than did drugs, with 81 percent saying they consumed alcohol prior to their offense, and 79 percent blaming alcohol for the offense for which they were serving their sentence. There have been recent moves to address the issue of problematic drinking, with much stricter enforcement of the prohibition on the sale of alcohol to anyone under the age of 18. At the time of writing the Scottish government is seeking to introduce a “minimum pricing” policy, which would price drink per unit of alcohol it contained. This is very controversial, however, and it remains to be seen whether or not it becomes law.

Police Police in Scotland are organized into eight police forces. These vary considerably in size: the largest, Strathclyde Police, employs half of all police officers in Scotland, and the smallest has fewer officers than one of Strathclyde’s divisions. Each force is afforded a considerable degree of operational independence in determining how to police its


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A protester is removed by British police officers during the “carnival for full enjoyment” demonstration in Edinburgh, Scotland, ahead of the forthcoming G8 summit, July 4, 2005. (AP Photo/Matt Dunham)

territory. Strathclyde Police, for example, has developed innovative initiatives to tackle gang culture and violence reduction, working together with other agencies such as social work and education departments. There are more than 16,000 officers throughout all the forces, with this number projected to increase by another 1,000 by 2011. Only 22 percent of the police are female, and only 1 of the 8 chief constables (the most senior officer of a police force) is a woman. Increasing demands for efficiency have led to a significant rise in the numbers of civilians also employed in the service, who carry out functions such as clerical work and technical analysis. There are now more than 7,000 civilians in Scottish police forces. Police forces are divided in terms of general operations and specialist operations. General operations are routine tasks undertaken by uniformed patrol officers in the divisions (where “division” refers to a territorial fraction of a police

force area). Specialist operations concern tasks that require specific training and experience, such as the Criminal Investigations Department (CID), traffic, child protection units, and wildlife crime. In 2001, the Scottish Crime and Drug Enforcement Agency (SCDEA) was established. SCDEA focuses on tackling serious and organized crime in Scotland. SCDEA also works together with the Serious and Organised Crime Agency (SOCA), which is UKwide. Recent research shows that 63 percent of the public think that the police do a “good job” in their local area (although those who have been victims of crime are less likely to say that the police in their area do a good job—51%). Adults living in the most deprived areas of Scotland were also less positive about the performance of their local police force compared with the rest of Scotland (56%), and those living in accessible small towns were also less positive than the average (49%).



Finding of Guilt There are two types of criminal procedure: “solemn” and “summary.” Solemn procedure is trial on indictment before a judge of the High Court of Justiciary or a sheriff in the Sheriff Court, sitting with a jury of 15 people. This form of procedure is reserved for more serious crimes. Certain crimes such as murder, rape, and incest fall within the exclusive jurisdiction of the High Court and can only be tried on indictment there. Armed robbery and the most serious sexual offense would also be prosecuted in the High Court. More generally, crimes such as serious assault and drug trafficking would be dealt with under solemn procedure in either the High Court or Sheriff Court. Summary procedure is trial on complaint before a sheriff in the Sheriff Court, or before a bench of one or more “lay” justices in the district court and is used for less serious crimes. (“Lay” justices are volunteers drawn from local communities. They receive training and are advised in court by a professional clerk. They need have no legal background themselves and are unpaid.) The types of offenses that are prosecuted under summary procedure include breach of the peace (a crime of disorder), shoplifting, theft, and fraud, but also assault and some offenses involving weapons. Most road traffic contraventions and minor drug offenses are dealt with by way of summary procedure.

System of Public Prosecution Scotland has a system of public prosecution by independent lawyers, managed by the Crown Office and Procurator Fiscal Service (COPFS). This organization is headed by the Lord Advocate and the Solicitor General, Scotland’s law officers. These are political appointments and change at the time of a general election for the Scottish Parliament. The permanent local public prosecutor is the procurator fiscal. The discretionary powers of the public prosecutor are considerable and include the decision to take no action, to offer an alternative to prosecution, or to otherwise divert the case. If prosecution is thought to be in the public interest, the decision by the

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prosecutor as to forum, or court, and hence mode of trial (solemn or summary) is an important one given the different sentencing powers exercised by each court. The accused has no right to elect for trial by jury. The public prosecutor conducts all cases in court and has the right to discontinue proceedings or accept a plea to a reduced charge at any stage.

The Judiciary The High Court of Justiciary is Scotland’s supreme criminal court. There are 34 judges, known as senators of the College of Justice, of whom at present 4 are female. All judges are legally qualified and are drawn from the ranks of experienced advocates or solicitor-advocates (solicitors with extended rights of audience) with at least five years’ experience. In a criminal trial the judge sits alone with a jury. In the Sheriff Court, the judicial position of sheriff is held by 140 experienced solicitors and advocates, of whom 26 are female. The sheriff sits with a jury when hearing solemn cases and alone in summary cases. The neutrality and impartiality of the individual judge is integral to the judicial role. It is also considered essential for the doctrine of the separation of powers and the rule of law that the collective judicial body is independent of the other branches of government and not placed under any undue influence, control, or pressure from the other branches. This principle was recently invoked by the judiciary in its opposition to proposed sentencing reforms aimed at “structuring” judicial discretion by the introduction of sentencing guidelines. While declaring its commitment to the principle of judicial independence, the government asserted its right to legislate in sentencing policy, one of which aims was the reduction of the prison population.

Investigation The procurator fiscal is responsible for the investigation and prosecution of all crime in Scotland. In practice, most preliminary investigation are carried out by the police or other specialist reporting agency. The police have discretion in some minor cases to take no action, give informal warnings, or issue fixed penalty notices. In the most serious types of cases, the procurator fiscal is likely to become


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involved at an early stage of the investigation and may direct the police in their inquiries. In all cases the procurator fiscal must consider first whether there is sufficient evidence of a crime committed by the accused, and if so, what action is appropriate in the public interest. In less serious cases, no action may be taken or an alternative to prosecution offered, as follows: • A written or personal warning may be issued. • A “fixed penalty conditional offer” (fine) at a level between £50–£300 (US$72–$430) may be given. • There may be a compensation offer in cases where an individual has suffered monetary or personal loss, or alarm and distress. The maximum level of compensation is £3,000 (US$4,314). Compensation offers and fixed penalties are not criminal convictions but are recorded and can be disclosed to a court for up to two years. • Diversion from prosecution may be offered in suitable cases and may involve referral to psychiatric, psychological, or social work agencies. • Road traffic fixed penalties are routinely offered in less serious cases. • Reparation and mediation schemes may be available in some areas. The majority of cases reported to the procurator fiscal do not result in court proceedings. In 2008–2009, a total of 284,859 cases were reported and 58 percent were marked for no action or dealt with by way of alternatives to prosecution.

Rights of the Accused A person in custody has the right to have a solicitor (lawyer) informed without delay and to have a private consultation with that solicitor. A duty solicitor under the Legal Aid scheme will be made available. Thereafter, eligibility for legal aid for the cost of representation by a solicitor or advocate at trial is determined first according to whether it is believed to be “in the interests of justice” for the accused to be so represented. This is usually granted in any of the following circumstances: where an accused person

is remanded in custody before trial, is likely to go to prison if convicted, or to lose a job, if he or she has a mental or physical disability that prevents him or her from following proceedings, where English is not his or her first language, or in an appeal against a decision. The grant of legal aid is also subject to a financial assessment as to whether the expenses of the case would cause “undue hardship” to the accused person or his or her dependants without assistance. All crimes in Scotland are eligible for bail, consistent with the presumption of innocence in Scots law. The decision to grant bail is within the judge’s discretion and release on bail may be subject to conditions such as not to commit further offenses or interfere with witnesses in the case. In the period 2001–2008 the remand population (i.e., accused persons refused bail before trial) increased by 78 percent, contributing significantly to the problem of overcrowding in Scotland’s prisons. Notwithstanding governmental will to reduce the overall size of the prison population, higher prison sentences for breaches of bail were introduced in 2007, along with measures to limit the granting of bail to persons accused of serious, violent, or sexual offenses or of drug dealing with similar previous convictions. Under summary procedure, an accused person can be remanded for no more than 40 days after the first calling of the case in court. Under solemn procedure in the Sheriff Court, the trial must start within 110 days of the person’s full committal in court and within 140 days in the High Court. These are among the strictest time limits in the world.

Trial and Sentence Almost all cases that are prosecuted in court proceed by way of summary complaint. In 2008–2009, these accounted for 95 percent of all court disposals. Of summary cases, less than 5 percent resulted in a trial, and in solemn procedure only 18 percent of cases in the same period proceeded to trial. The Scottish criminal justice system allows an informal system of plea negotiation between prosecutor and defense lawyer (but with no judicial participation) in the expectation that lesser charges will attract a reduced sentence. In addition, there is now statutory inducement in the form of a sentencing discount



for an early plea. Alongside recent reform of summary justice aimed at increasing the efficiency of the courts, this appears to signal an open acknowledgment of the benefits to the system of early pleas. However, there may be concern at the lack of due process safeguards that arise.

Juveniles:The Children’s Hearings System The age of criminal responsibility in Scotland is currently 8, one of the lowest in Europe, although it is planned to raise it to 12. In practice, very few children under the age of 16 are prosecuted in court and only on the instructions of the Lord Advocate. Instead, children who offend are dealt with in the Children’s Hearings System. The Children’s Hearings System is Scotland’s distinctive way of dealing with young people under the age of 16 who offend. Introduced in 1971, it represented a radical departure from a court-based system to one in which an informal tribunal consisting of three trained volunteers from the local community considers the child’s needs with the participation of the child and their carers. The court is used only to determine grounds of referral where disputed. The guiding philosophy is that those children who commit offenses and those who require care and protection are often the same child and should therefore be dealt with in the same system. The Reporter to the Children’s Hearing, to whom all cases are reported, has wide discretion and most cases are dealt with other than by referral to a hearing, often by way of informal measures of supervision. The most common outcome of a Children’s Hearing is the making of a supervision requirement, usually involving the child remaining at home but taking part in some type of program or intervention, or being subject to restrictions on his or her movements. The child may also be placed with foster carers, in a residential unit, or rarely, in secure accommodation. In recent years, the UK’s ratification of the United Nation Convention on the Human Rights of the Child and the incorporation of the European Convention of Human Rights have brought new challenges for the Children’s Hearings System, requiring more consideration of due process rights and for

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any intervention in the life of the child or family to be proportionate. Moreover, recent political imperatives such as antisocial behavior legislation and the requirement in some cases for a Children’s Hearing to consider society’s need for protection sit uneasily with the still-central principle that the welfare of the child is of paramount interest. It is perhaps remarkable that this essentially caring, welfare-oriented rather than punitive response to offending in young people still retains considerable cultural force and political commitment during a period in which other features of contemporary crime and punishment in Scotland appear to have succumbed to a measure of what has been called the “penal temptation.”

Punishment Types of Punishment Broadly, four types of punishment are used in Scotland: imprisonment, community sentences, financial penalties, and cautions or admonitions. The last execution in Scotland was carried out on August 15, 1963. The death penalty was first suspended for the whole of the UK in 1965 and finally officially abolished in 1998. The Scottish judiciary has wide sentencing discretion, with no formal sentencing guidelines in place. The only mandatory sentences are life imprisonment for murder and a minimum of seven years’ imprisonment for a third offense of Class A drug trafficking. When life sentences are imposed, the judge specifies the minimum amount of time offenders will spend in prison (the punishment part of the sentence), after which they are entitled to apply to the Parole Board for release. In 1999, mandatory life sentence prisoners spent just more than 11 years on average in custody. Financial penalties are the most common sentence imposed overall—in 2007–2008 they accounted for 62 percent of all punishments. There are two types of financial penalties: the fine paid to the state and compensation orders, where the money goes to the victim. The average amounts ordered to be paid in 2007–2008 were £220 (US$316) and £331 (US$476), respectively. Imprisonment is the most usual sentence for murder, (attempted) rape, and most violent offenses. In


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addition, almost half of those convicted of housebreaking receive a custodial sentence. In total, imprisonment was imposed in 13 percent of all convictions in 2007–2008. Community sentences were imposed in a similar number of cases, also accounting for 13 percent of all sentences imposed in 2007–2008. The most common types of community sentence are community service and probation; other community disposals available to the courts are drug treatment and testing orders, supervised attendance orders, and restriction of liberty orders. Admonitions (judicial reproofs stated in open court) are noted on the offenders’ criminal record in case of their returning to court for a further offense, when they will be taken into account. Orders to find caution require the offender to pay a sum of money to the court as a safeguard of good behavior for up to a year. At the end of the specified period, the person can apply to be refunded the money if he or she has not offended again. Together, these orders made up 13 percent of the sentences imposed in 2007–2008.

COMMUNITY SENTENCES Unlike in England and Wales, community sentences in Scotland are carried out by criminal justice social work services, delivered by local authorities. This has been the case since the Scottish Probation Service was disbanded in 1969, following recommendations made in the Kilbrandon Report in 1964. Historically, the placement of offender services under the social work umbrella has meant that offenders have been seen as in need of help and rehabilitation, although more recently the meaning of community sentences has undergone a transformation, with the underlying rationale shifting toward one of protecting the public. In 2005 provision was made to organize the local authorities delivering criminal justice social work services into eight Community Justice Authorities (CJAs), to facilitate the delivery of offender services and coordination with the Scottish Prison Service (SPS). There is a wide array of noncustodial sentences in Scotland, most of which can carry conditions

that resemble other community sentences, and there have been suggestions that the situation should be simplified. A bill currently before Parliament proposes the creation of the “Community Payback Order” as the single community sentence, to which sentencers would be able to attach the conditions they considered most appropriate. This order would have an increased emphasis on reparative actions to be undertaken by the offender. Also, because of low levels of public confidence in community penalties, the aim would be to make Community Payback Orders more visible and better understood by the public. Currently available community disposals are briefly discussed below, in order of prevalence. The most frequently used community sentence, the Probation Order, can only be imposed with the consent of the offender and is intended to tackle offending behavior. These orders can last from six months to three years, and their content can range from very minimal contact between the practitioner and probationers who are deemed to be at low risk of reoffending to quite intensive programs of group work and one-to-one contact for medium- or highrisk offenders. Conditions that can be attached to probation include unpaid work, curfews (which can be enforced through electronic monitoring), and statutory drug and alcohol treatment. Community Service Orders require the offender to carry out between 80 and 300 hours of unpaid work in the community within 12 months. They are only meant to be imposed as an alternative to custody and require the consent of the offender. Supervised Attendance Orders are imposed when an offender ordered by the court to pay a fine defaults on this payment. They are meant to provide an alternative to (brief periods of ) imprisonment in these cases. Since 2003 they can also be imposed as an alternative to a fine, although this happens in only a small number of cases. Offenders who are given a Supervised Attendance Order are required to take part in constructive activity for between 10 and 100 hours. Restriction of Liberty Orders were introduced in 2002 and can be imposed for up to a year, but only with the consent of the offender. Offenders



are ordered to either stay within their homes for up to 12 hours per day or to stay away from a certain area for up to 24 hours per day. They are required to wear an electronic tag, which allows monitoring of their movements. The Drug Treatment and Testing Order (DTTO) is another relatively new disposal, rolled out across Scotland between 1999 and 2006. It is reserved for offenders who commit crimes to fund their drug habit. As the name suggests, it requires such offenders to undergo treatment for their drug problem and submit to frequent random drug tests. Uniquely, DTTOs are reviewed by the judge who imposed the order, allowing progress to be encouraged and lapses to be criticized. DTTOs can last from six months to three years.

Prison In 2007, Scotland imprisoned 139 people per 100,000 of the population, a rate slightly lower than in neighboring England and Wales. According to the most recent prison statistics compiled by the Scottish government, on June 30, 2007, 7,154 people were incarcerated, 334 of whom were female. The number of prisoners has increased by 22 percent over the previous nine years. This rise in imprisonment is predominantly fuelled by the increasing imprisonment of women (up by 87%) and the use of remand (up by 60%), alongside a huge increase in the reincarceration of those who have been released on license (up by 790%). Generally, the most disadvantaged are imprisoned to a far greater extent than others. Inspections have found that 90 percent of female prisoners are addicted to drugs or alcohol and 75 percent have histories of abuse and/or health problems, and that in male prisons, too, many prisoners have problems with addiction and/or their physical and mental health. However, only 4.5 percent of adult prisoners were found to have severe and enduring mental health problems. When prisoners require psychiatric treatment, they can be transferred to secure mental health facilities. Those with drug addictions, mainly heroin, can be prescribed methadone within the prison.

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In 2007–2008, half of all prison sentences imposed were for periods of up to three months, while 76 percent of all sentences were for six months or less. In Scotland, a distinction is made between short-term prisoners, those serving less than four years, and long-term prisoners, who are imprisoned for four years or over. While the latter made up 42 percent of prisoners in 2007–2008, only 3 percent of those with a charge proved against them in Scottish courts in the same period were given a long-term prison sentence.

PRISON CONDITIONS There are 16 penal establishments in Scotland, including 2 open prisons (Castle Huntley and Noranside). Two of the prisons are operated by private companies, including the most recent addition to the prison estate, Addiewell, which was opened on December 12, 2008. Male young offenders aged 16–20 are detained in a Young Offenders Institute (YOI Polmont) and part of 1 other prison (Perth). There is also a dedicated prison for female prisoners and young offenders (Cornton Vale), with some of the more remote other prisons having small units for females. To ease overcrowding at Cornton Vale, one hall in Her Majesty’s Prison (HMP) Greenock is now also used to house short-term female prisoners. Experiences of imprisonment can vary widely in Scotland, due to variable pressures on the system and to contrasts in entitlements and provisions between prisoner categories. The system is overburdened; in February 2008, 11 of Scotland’s prisons were holding more prisoners than their design allowed for. This has a negative impact on the availability of work, education, and rehabilitation for many prisoners. In the worst situations, prisoners spend most of their time, as much as 22 hours per day, locked up. On the other hand, there are positive developments and examples of good practice. Many prisons are being refurbished and most run accredited programs that address offending behavior, such as the Violence Prevention Programme and Constructs: Positive Steps to Stop Offending. Vocational training opportunities are varied in many prisons and focus on such employment areas as engineering, construction, horticulture, cleaning,


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forestry, and catering. Prisoners are also entitled to at least 1 hour’s exercise a day. Importantly, relationships between staff and prisoners are rated as at least satisfactory by almost all prisoners. The largest prison in Scotland is HMP Barlinnie, first opened in 1882. It is located in Glasgow and houses 20 percent of all Scottish prisoners. It holds remand and short-term prisoners, while also temporarily accommodating those serving more than 4 years until they can be transferred to the long-term prisoner system. Barlinnie is one of the most overcrowded prisons in the Scottish estate: its average population was 1,462 during 2007–2008, 45 percent more than the 1,018 it is designed to hold. Consequently, its prisoners only spend 20 minutes per day on average on meaningful activity (employability training, education, exercise) compared to a national average of 50 minutes per day. During the last inspection in 2006, on average only 127 prisoners were working outside of their hall each day and 27 were attending education. Vocational training programs include industrial cleaning, hairdressing, bricklaying, and joinery. Other courses available are in English, information technology (computing), modern studies, art, creative writing, and communication. Entitlement to visits varies between prisons, but convicted prisoners are allowed a minimum of one half-hour visit per week. This allowance can be saved up in most prisons to one two-hour visit every four weeks. Up to three adults can visit at a time, with no restriction on the number of children visiting. Visits ordinarily take place in visiting rooms, with no physical barrier between the prisoners and their families. Where there are particular security concerns, prisoners and visitors may be separated by a glass barrier. Prisoners book the visits themselves and it is their responsibility to inform visitors of the date and time. There is no provision for conjugal visits. As extradition is dealt with by the Home Office for the UK as a whole, the arrangements in Scotland are the same as those in England and Wales.

THROUGHCARE AND RELEASE While practice in preparing prisoners for their release into the community varies somewhat between

establishments, the following is an attempt to describe usual practice. All prisoners who are serving more than seven days have their needs assessed when they first come into the prison to facilitate referral to specialist services within the prison. For short-term prisoners, this information feeds into a Community Integration Plan, which is updated prior to their release. Short-term prisoners are routinely released at the halfway point of their sentence (with the exception of sex offenders serving more than six months). Since 2006 short-term prisoners serving more than three months can be released up to four and a half months before the halfway point of their sentence on Home Detention Curfew (HDC). The curfew requires them to stay at their home address or hostel from 7:00 p.m. to 7:00 a.m., with their movements monitored by means of an electronic tag. If the curfew is breached, the prisoner is recalled to prison until the halfway point of his or her sentence. Released short-term prisoners are not subject to statutory supervision. For long-term prisoners, a multidisciplinary Action Planning Case Conference takes place at most six months after the start of their sentence and at least yearly thereafter. They can apply to the Parole Board once they have served half their sentence to be released on license. If they are rejected for this, they are automatically released on license after twothirds of their sentence. Any prisoner released on license is subject to statutory throughcare: he or she has to maintain contact with criminal justice social workers and may have to attend group programs and take other steps to reduce the risk of future offending. Released prisoners can be returned to prison if they breach a condition of their license or commit another imprisonable offense before their original sentence has expired. Fiona Jamieson, Katrina Morrison, Marguerite Schinkel, and Richard Sparks Further Reading CJScotland: http://www.cjscotland.org.uk/. This a regularly updated, independent Web resource on crime and criminal justice in Scotland, providing both news and commentary.


United Kingdom/Wales

Scottish Centre for Crime and Justice Research: http://www.sccjr.ac.uk. Scottish Government’s Research on Crime and Justice: http://www.scotland.gov.uk/Topics/ Research/by-topic/crime-and-justice

United Kingdom/Wales Legal System: Common Murder: Medium (England and Wales) Burglary: Medium (England and Wales) Corruption: Low (England and Wales) Human Trafficking: Low (England and Wales) Prison Rate: Low Death Penalty: No Corporal Punishment: No

Background Wales is a country with a population of 3 million, situated as a large peninsula in the west of Great Britain. It is about 270 kilometers (162 miles) long and about 100 kilometers (60 miles) wide, bordering England to the east and surrounded by sea on the other three sides, with more than 1,200 kilometers (720 miles) of coastline. Much of the country is rural, with agriculture and tourism the main industries. The main population and industrial areas are in the south of the country and consist of the areas around the three cities of Cardiff, Swansea, and Newport. Here, during the last 50 years the traditional extractive industries of coal and iron ore have been almost entirely replaced with service industries and tourism. Parts of the north and center of Wales are quite mountainous with low population density, where access to local communities is poor with few motorways or railways. Wales has a long unique cultural tradition, including four universities and its own language and literature. The resurgence of Welsh pride since 1950 has led to a rediscovery of old traditions. This is particularly the case with the Welsh language, which is one of a family of similar languages spoken in Scotland, through Ireland, Wales, and Cornwall

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to northern France. Although the populations of Wales all speak English, Welsh is now spoken by around 20 percent of the population and around 40 percent of those aged under 20. The Wales Language Act of 1993 had the function of promoting the use of the Welsh language and giving effect to the principle that in the conduct of public business and the administration of justice in Wales the English and Welsh languages should be treated on a basis of equality. There is a long tradition of population movement both ways between Wales and England so that many Welsh people are educated outside Wales, work or live outside Wales, and vice versa. The 20th- and 21st-century immigration from other parts of the world into England has also affected Wales, but to a lesser extent so that today 4 percent of the Welsh resident population is of minority ethnic origin compared to 8 percent in England. Wales was entirely part of England and Wales from 1534 to 1997. However, there was a movement toward more autonomy for Wales during the latter half of the 20th century, spurred on by the large number of countries of similar size throughout the world that had themselves become independent following the end of the various European empires. Cardiff was named the capital of Wales in 1955; the political party Plaid Cymru, aiming for independence for Wales, achieved growing support: a special government office (the Welsh Office) was created in 1964 with gradually increasing powers, and a television channel in Welsh was established (S4C). A referendum for a move toward Welsh independence was rejected in 1976 but passed in 1997, leading to the creation in 1999 of a Welsh Assembly with limited legislative powers, which were enhanced in 2007.

Criminal Law Before 1534, Wales had its own body of criminal and civil law Cyfraith Hywel, set up during the rule of King Hywel between 904 and 949, a time when the country was peaceful and conducive to the working out of a code of law. This was a remarkably detailed set of laws, laying down the


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obligations of the king and his officers and covering every likely social situation. Penalties were often quite light by the standards of the time. Homicide was punished by payment of recompense to the victim’s family. Certain serious thefts could be punished by death but most other offenses were punished by a fine. In court the accused gave evidence under oath, as long as he or she could find a number of men to swear that he or she could be trusted. A judge decided on guilt and sentence. The law also set down the rights and obligations of women and husbands, the law of contracts, and the law of inheritance. The law was continually revised and updated until Wales was absorbed into the wider jurisdiction of England and Wales. By the 12th century, the English had moved away from a code of law, especially one as liberal as Hywel’s. The Statute of Wales (1284) introduced the English Common Law System into the courts and Hywel’s criminal law lapsed. However, much civil law, especially laws of inheritance, remained untouched until the 16th century. The Act of Uniformity in 1534 replaced the Welsh Penal Code by the Anglo-Saxon Law of England, and from then until 1997 there was one jurisdiction run from London. During much of this time the Welsh population remained poor in comparison with the ruling English who were the main landowners. Much crime involved typical rural crime in such a country: stealing animals or robbing rich travelers; those who robbed the English often achieved some fame and were written about as folk heroes. One such hero, Twn Sion Catti, was an outlaw, a robber, and a highwayman of the 16th century whose exploits compare with the English Robin Hood. The current Welsh legal system follows that of England. Petty offenses, especially traffic violations, are dealt with by fixed penalties, imposed by the police or other authorities. Police also give warnings or cautions after admission of guilt, often as agents of the prosecutor (the Crown Prosecution Service or CPS). Of the cases that are prosecuted in court, the minor offenses are dealt with by the magistrates’ courts in the common law tradition in which suspects are tried and sentenced (mainly) by nonlegal

members of the public who have volunteered for this (unpaid) role. More serious offenses come before the Crown Court. Appeals from the Crown Court go to the Court of Appeal and eventually to the highest court in the jurisdiction. At present the highest court is composed of Law Lords, sitting as a committee of the Upper House of the London Parliament, the House of Lords. In 2009, this almost-medieval English concept will be renamed the Supreme Court and its links with Parliament severed. All appeal courts are situated in London, the capital of England, reflecting the current single jurisdiction of England and Wales. Courts are conducted on an adversarial basis, where the prosecution has to prove the case against the accused according to a set of firm rules on admissibility of evidence. All evidence can be challenged in court, through cross-examination, which leads to lengthy trials in many cases. There is no career judiciary. In many magistrates’ courts, guilt and sentence are given by lay magistrates representative of their local communities. At the Crown Court guilt is determined by a lay jury of 12 members from the local community; admissibility of evidence and sentence is determined by the judge, a trained lawyer of many years’ standing. Welsh criminal law, in common with any other country following a common law tradition, develops through the use of precedent, particularly by referring to decisions and opinions of judges that have been made in similar cases. For example in 1991, Welsh Law was changed by a decision of the Court of Appeal that reversed a long-held legal rule that a man could not be legally found guilty of raping his wife. This was entirely because of the judges’ reactions to cultural changes in society that relegated such a legal rule to the category of actions that could no longer be tolerated in a society where the position of women had changed out of all recognition. Welsh criminal law also develops by changing the context in which it operates. Although it is too early to say if or when the Welsh Assembly will have substantive legislative powers over Welsh criminal law, it already exercises many powers influencing the



crime situation; for example, it sets drugs policies, defines crime reduction initiatives, and intervenes to deal with young offending through such instruments as the Substance Misuse Action Fund, the Safer Communities Fund, and the All Wales Youth Offending Strategy. Welsh law also develops through the setting up of new institutions. Occasionally, despite the appeal process having been exhausted, a criminal case is still thought to involve a miscarriage of justice. This can lead to a media campaign or result from the discovery of new evidence or an improvement in detection technology, such as the coming of DNA analysis. Such a case can be referred to the Criminal Cases Review Commission, often many years after the case has first been concluded. The Criminal Cases Review Commission is an independent body that has the resources to review such a case. If the new material is thought to be significant, then this commission will send it back to the Court of Appeal in London. If this court finds the new circumstances compelling, then it can quash the original verdict or order a new trial. Welsh criminal law also develops through legislative change. And in recent years Wales has achieved a degree of legal autonomy from London. This is likely to grow in the next generation. Acts of 1998 and 2006 set out limited areas of devolved responsibility for the Welsh Assembly to draft laws. On July 9, 2008, the assembly passed the first new Welsh law since Cyfraith Hywel in the 10th century. Where powers have not been devolved, they can now be requested from London, if public interest is sufficiently large. A consultation is underway, with a recommendation from the current Welsh ruling political coalition, that criminal justice be devolved.

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taking part in the Local Service Boards that are Wales’s new model for engaging the whole of the Wales public service by integrating services and responding more effectively to citizens’ needs. Police in Wales are a completely civilian group, divided into four forces: South Wales, Gwent, covering mainly urban areas, and North Wales and Dyfed-Powys, covering mainly rural areas. Lowlevel crimes are dealt with by these four forces with special arrangements for cooperation with other forces if needed. More serious crime involving more than one force or international agents is dealt with by national organizations such as the Serious Organised Crime Agency (SOCA) in London. In 2008, there were 7,500 police in Wales, a ratio of 253 per 100,000 population. Of these, 1,800 were female. In addition, there were 870 special (voluntary) constables and 700 community support officers who assisted the police on the streets and 3,800 civilians who assisted with administrative tasks. Police in Wales are overseen by Her Majesty’s Inspectorate of Constabulary (HMIC) in London. The police service has seen a major cultural change since 1990 and has become part of a wider police family, including not only the police service with full powers to arrest offenders but also community support officers who have a more on-the-street presence, although they have limited police powers, and neighborhood wardens who have more limited, discretionary powers. Since 1994, all police activity has to be conducted in Welsh if a victim, witness, or defendant wishes it to be done that way. Police are also very active in crime prevention and reduction, keeping in close touch with other agencies and community groups and issuing a large amount of guidance to individuals and businesses.

Crime

Police Policing is not a devolved service in Wales but follows law and guidelines set down by London. However, everything the police in Wales do impacts on all the services already devolved to the Welsh Assembly government. A Police Liaison Team works closely with the Welsh Assembly to ensure the police play a full part in all assembly activities, including

Classification of Crimes Crimes in Wales are classified into the following three broad groups: • Indictable: The most serious offenses, only triable at the higher courts. The main indictable offenses are homicide, robbery, and rape.


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• Either-way: Less serious offenses, which can be tried at either the higher court or the magistrates’ courts. This includes all forms of theft, burglary (theft from a building), criminal damage, less serious offenses of violence, fraud offenses, trafficking offenses, offenses involving firearms and knives, less serious sex offenses, drug offenses, and some motoring offenses. • Summary: Least serious offenses. This includes nearly all traffic offenses that can be dealt with outside the court process or through a court trial, administrative offenses such as not possessing licenses, offenses against various acts such as environmental offenses, trading offenses, and prostitution offenses. The age of criminal responsibility is 10 years, extremely low by international standards, although there are special court arrangements for children up to the age of 18, and penalties for younger people are lower than those for adults. There is particular concern about violent crime, especially those committed in a public place, using weapons such as guns or knives, or by young people. Wales has generally managed to avoid the high rates of many English cities, and gun and knife crime is quite low. However, the urban areas around the ports in the south of Wales have a much longer tradition of violence and upsurges in violent crime occur from time to time. Violent crimes against women or against young children also attract considerable attention in Wales, as do drug offenses that drive much of property crime. Although security is high, Wales has also avoided any significant terrorist incidents or conspiracies. As much of Wales is composed of rural areas, crime in general is lower than in England. Police-recorded crime in Wales follows the counting rules laid down by London, which include attempts. According to the Home Office, total police-recorded crimes in Wales for the 2007–2008 period were 243,623, a decrease of 6 percent from the previous year (compared with a decrease of 9 percent for England and Wales). Rates per 1,000 population for the same period for major offense categories were as follows:

All offenses Violence Burglary Vehicle offenses Theft Criminal damage

82 17 9 12 16 20

These figures have been falling for about 10 years, reflecting intensive crime prevention activity by law enforcement authorities and the population alike. Theft and criminal damage are typical crimes in the extensive rural areas of Wales; urban areas are characterized by more examples of robbery and street violence; domestic violence and hate crime are found in all areas and are offenses of particular interest to the police. All cultivation, sale, and use of unprescribed drugs is illegal, and drugs are divided into three bands, according to their seriousness, with penalties ranging from fines, fines with periods in prison, and for the most serious, up to life in prison. About 15 percent of all households in Wales experienced a crime in 2007, and 5 percent of households experienced a crime against the person. Both these figures are slightly less than the English situation, reflecting the fact that Wales is basically a rural nation. In particular vehicle crime in Wales affected 5.0 percent of the population compared to 6.4 percent in England, with the rural parts of central and north Wales having rates of just under 3 percent. Levels of worry about burglary and car crime are similar to England with about 10 percent having a high concern. However, other concerns were higher in Wales: 18 percent of households were worried about antisocial behavior, 32 percent about drug dealing, and 28 percent worried about young people drinking in public and rowdy behavior. In total 48 percent of people thought the police were doing a good job and this rose to 56 percent in rural areas. The Welsh police forces are recruited locally, and 62 percent of people thought the police in Wales understood local concerns well. All these perceptions had remained stable over the last few years.

Investigation of Crimes Offenses in Wales are investigated by the police. However, the Crown Prosecution Service is



organized within the same four regions as the police and works closely with them, with most large police stations having a resident prosecutor to give advice on criminal investigations. At present the CPS does not carry out any investigations itself, although it is conducting some experiments in interviewing rape victims. However, the police will consult closely with the CPS from the earlier stages of the investigation. The case file will then be sent to the local CPS, who will decide on what action to be taken. In most cases the CPS will decide to charge the suspect and take the case to court, but the CPS can also ask the police to conduct more investigation before a decision is taken. An important characteristic of criminal justice in Wales is that resources to deal with known offenses are limited. Thus, in 2006–2007, of the quarter of a million offenses known to have been committed, around a third of these offenses were brought to justice. However, not all of these were due to findings of guilt at a court. Authorities in Wales follow English procedures regarding case ending that enable cases to be finalized without a full court trial. These alternative procedures all involve the accused admitting his or her guilt. The procedures comprise final warnings issued by the police to juveniles or cautions issued to adults on admission of guilt; penalty notices (“on the spot fines”) issued by police for disorderly behavior, including shoplifting, mainly used for juveniles, on admission of guilt; formal warnings for cannabis possession, issued by the police; other offenses taken into account by the court, without extra penalty, when the offender is found guilty of another crime. For many of these alternative procedures, legal representation is not easily available or is discouraged in the interests of speedy conclusion of the case. Of the 252,473 recorded offenses in 2006–2007, 80,546 of these were brought to justice. Of these, 41,248 resulted in convictions, and the remainder were dealt with by police and court actions such as penalty notices and warnings. For those cases where police feel that further action is necessary, they pass the case file to the prosecution service (CPS). The CPS in Wales then decides what further action is necessary and in 2006 took the following actions:

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• In 28 percent of cases a charge was brought and the case proceeded against in court. • In 4.8 percent of cases they were sent back to the police for further investigation. • In 2.5 percent of cases they were sent back to the police to finalize the case through a caution or other means. • In 36.9 percent of cases the CPS decided no further action was to be taken on grounds that evidence was not strong enough to give a good chance of conviction. • In 3.2 percent of cases the CPS decided no further action was to be taken in the public interest. • In 24 percent of cases action was postponed until further information was available. The accused has the right to a full trial in all cases where a charge is brought. However, there is often some pressure by the courts to go along with alternative procedures, such as pleading guilty to a less serious offense for a lower penalty, rather than pleading not guilty as charged. An accused also has the right to legal representation, first at the police station and then when represented at court. For cases that do go to trial at court, most of these are dealt with in front of a panel of 3 lay magistrates, chosen to be aware of local concerns. For the more serious offenses, or if the accused insists, trial is before a jury of 12 lay people, chosen by lot from the local electoral registers. The jury decides on the facts, and the judge will decide on what evidence is allowed to be put before them and on sentence, if the accused is found guilty. Legal defense is provided by the public, if the accused is unable to pay for such defense himself or herself. A Legal Service Commission decides on the accused’s eligibility for legal assistance; 55,000 defendants were so assisted in Wales in 2007. Most cases are decided before a magistrates’ court in a summary trial. In 2006–2007, 208,816 persons were found guilty of less serious offenses at magistrates’ courts in Wales, and 2,906 were found guilty of the more serious offenses at the Crown Court. Court authorities encourage guilty pleas by judges


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giving a “discount” of one-third on sentence for a guilty plea, as long as it is made in good time. Thus, at the magistrates’ courts most cases involve a plea of guilty and at the Crown Court about one-half of cases involve a guilty plea. At the Crown Court, depending on the seriousness of the case and of the strength of the evidence, there is scope for informal hearings between the judge and the prosecution and defense lawyers; these hearings aim to reduce length and cost of the trial and can discuss any possibility connected with a guilty plea for a lesser offense, including an informal statement from the judge as to the type of sentence that he or she would give in certain cases. For serious cases, the accused is held in custody before trial. However, there is a presumption that bail will be granted before trial unless the police object, for example, on the grounds that the suspect will leave the country or intimidate witnesses. At most magistrates’ courts, all judges are nonlawyers, chosen from volunteers from the local Welsh community, although a growing number of magistrates’ courts are now presided over by a qualified (district) judge. The numbers of Crown Court judges in Wales are as follows: 36 circuit judges, 69 recorders (less senior judges), and 68 district judges or their deputies. There is no career judiciary but Crown Court judges are chosen from qualified lawyers who have had considerable experience of court work in Wales. There are no appeal court judges in Wales as the Appeal Court sits in London. Most judges sit on civil as well as criminal cases. All agencies of law enforcement have the ability to look for alternative case resolutions, especially for young people or for less serious offenses. There are separate courts for young people that, especially for first offenders, refer cases to social authorities for alternative dispute resolution, for example, an offender can offer an apology or some restitution to the victim or to the community at large.

Punishment Punishments follow the general laws of England and Wales. There is no corporal punishment, capital

punishment, or banishment to another country. The legal age of responsibility is 10 years old, although juveniles up to 18 are treated differently from adults, with special courts, offender programs, and custodial establishments. For traffic offenses, fixed penalty fines are laid down in law, including a penalty points system that can add up to suspension of the offender’s driving license. The fixed penalty system has recently been extended to a number of public order offenses including theft from shops. Most offenses dealt with at the magistrates’ courts result in fines, although magistrates can award probation, electronic monitoring, and imprisonment. The higher Crown Court is much more likely to award probation or imprisonment. Electronic monitoring can involve restriction to one’s home for much of the day. The proportions awarded imprisonment and the lengths of imprisonment have increased considerably in the last 15 years. In addition to these punishments, compensation to the victim can be awarded, assets can be confiscated in some circumstances, or offenders can be forced to attend offender programs, either in the community or in prison. Compensation can be awarded to victims of violent crime, even if the offender is not caught. Offender programs can involve such areas as drug therapy, anger management, cognitive behavioral work, alcohol therapy, better driving, or sex offender treatment. Also, many offenders, especially young offenders, are encouraged to make reparation to their victims. The very few mandatory sentences in Welsh courts are the following: • A life sentence for murder. • An automatic life sentence for a second serious sexual or violent offense called a public protection sentence. • A minimum 7-year prison sentence for thirdtime trafficking in Class A drugs (this provision applies to importation, production, supplying, and possession with intent to supply Class A drugs. The maximum penalty for these offenses is life imprisonment).



• A minimum 3-year prison sentence for thirdtime domestic burglary. The maximum penalty is 14 years’ imprisonment. • A minimum 5-year prison sentence for possession or distribution of prohibited weapons or ammunition. The maximum penalty is 10 years’ imprisonment. Apart from these judges have full flexibility in their sentences up to the maximum set by law. A judge can give a very low penalty or even none at all, even though the defendant has been found guilty. However, guidelines are set and published for typical offenses and a judge has to justify deviation from these. Life imprisonment tends to mean at least 15 years, and this has grown considerably over the last 10 years as penality has increased. A recent change in the law has resulted in indefinite custodial sentences being given to very serious offenders, who will not be released if they are judged to be of serious risk to the public. The indefinite nature of this law is presently being challenged in the courts as being against human rights legislation.

Prison Wales has only four prisons: Swansea, Cardiff, Usk (for young offenders), and the Parc, a private prison within the public prison system. There is not an exact match between those sentenced to imprisonment in Wales and these four prisons. Many of those sentenced in Wales in fact end up in English prisons. On the other hand, some prisoners sentenced in English courts can be sent to Welsh prisons, depending on the available prison spaces, at a time of acute overcrowding within the English and Welsh system. In July 2008, there were 2,635 prisoners in Welsh prisons, which were running at nearly full capacity. The largest prison in Wales, the Parc, is situated to the north of the industrial area in south Wales, near Bridgend. It is a Category B local prison housing approximately 1,126 male adults (convicted only), young offenders (convicted and remand), and young people (convicted and remand). The prison

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opened in November 1997 and is the only private prison in Wales. It is managed by Group 4 Securicor on behalf of the Prison Service. The prison employs 580 members of staff, many of whom are recruited from the local area. The Parc offers a progressive and challenging regime in a modern environment. A range of activities aim to equip offenders with the key skills necessary to reduce the risk of reoffending after release. Education is provided for all subjects and for all qualifications up to and including university courses. The gymnasium is in use up to 10 hours every day. There are nine workshops employing 40 people. Health care is provided through an inpatient ward with 24 beds, as well as routine visits from local hospitals, dentists, opticians, and psychiatrists. The prison does not tolerate the presence and use of illicit drugs and has effective security measures to restrict smuggling of drugs. Drug services include routine drug testing, both mandatory and voluntary, clinical provision for maintenance management programs, detoxification, and management of stimulant withdrawal and naltraxone prescriptions prerelease is provided. A range of one-to-one interventions (harm reduction, overdose awareness, drug use and offending, relapse prevention, relationships, and drug use and safer injecting) is provided to individuals. Counseling and group work is provided for those assessed as needing these types of intervention. There is also a cognitive behavioral group work program designed to address drug dependence and related offending. Interventions are designed specifically to address and promote change with regard to the particular cognitive deficits and criminogenic attitudes that are common within the majority of offenders serving a custodial sentence. Services comprise a mixture of programs accredited nationally and innovative pilot schemes exclusively developed within the Parc. The Parc is also committed to the effective resettlement of offenders back into the community, offering offending behavior courses, prerelease training programs, and workshops to prisoners nearing their date of release.


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All Welsh prisons offer similar arrangements for their prisoners, in so far as resources are available. However, there is no prison at all in North Wales and those sentenced in the north have to be sent to prisons across the border in England. Also, all women sentenced to imprisonment in Wales have to go to English prisons as there are no women’s prisons within Wales. For the families of such people, there is considerable extra traveling to see their relatives in prison in England. Full religious behavior is possible within prisons, for all faiths. Prison visiting is possible from family and friends of the prisoner, on at least a monthly basis. Visitor centers are usually available where visits can take place in comfort and a certain amount of privacy. Most Welsh prisons are quite close to urban areas and can be accessed easily by public or special transport. Other privileges allowed include shortterm release as a preparation before final release; also, in many cases, prisoners are released early and made to stay in their homes on home detention curfew orders. The British Prison Service has prisoner transfer agreements with 96 countries and territories. Statistics are not available for Wales alone but in 2006, 109 prisoners were transferred from prisons in England and Wales to prisons in other countries to continue serving their sentences of imprisonment, and 43 prisoners were transferred from prisons abroad to prisons in England and Wales to serve the remainder of their prison sentences here. On average about 3 percent of these will have been from/to Welsh prisons.

Community Sentences There are also many community sentences awarded in Wales. In 2006, there were 2,259 community penalties awarded in magistrates’ courts in Wales. These combine punishment with making amends to the victim or to society and in trying to change the offender’s behavior, while encouraging the offender to deal with any problems that might be making him or her commit crime—like drugs. Technological advances, such as electronic tagging and voice recognition, provide ways to restrict liberty and reduce crime without requiring a prison

sentence. The previous diversity of community order for adults has now been replaced by a single generic community order with a range of possible requirements. Courts are able to choose different elements to make up a bespoke community order that is relevant to that particular offender and the crime(s) committed. The range of requirements that are available with a generic community sentence or community order are compulsory (unpaid) work; participation in any specified activities; programs aimed at changing offending behavior; prohibition from certain activities; curfew; exclusion from certain areas; residence requirement; mental health treatment (with consent of the offender); drug treatment and testing (with consent of the offender); alcohol treatment (with consent of the offender); supervision; and attendance orders. These penalties are served under the supervision of the Welsh Probation Service. Offenders under 18 are dealt with by various Welsh Youth Offending Teams, which exist in all areas. These teams are multiagency partnerships with staff drawn from children’s services, the schools service, the police, probation service, and health services, from Careers Wales, the Crime Reduction Initiative, and local street drugs projects. Their principal aim is to prevent offending by children and young people by working with young people aged 10–17 who have offended, giving support and guidance to their parents and carers, and by offering restorative justice, general advice, and support to victims of crimes committed by young people. Modern technologies are also used to supervise offenders. Electronic monitoring of adult offenders provides value for money and a cost-effective alternative to custody for low-risk offenders. Research has shown that three months of an electronically monitored curfew are nearly five times cheaper than three months in custody. Thus, each month, a small number of prisoners, judged safe to be released up to three months early are allowed to complete their sentence in their own homes on electronic curfew arrangements. Electronic monitoring is also used extensively by the Probation Service in Wales, for example, if the offender has been given a curfew order


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or a community rehabilitation order with electronic monitoring requirements by the Crown Court. Chris Lewis Further Reading Annual Criminal Statistics, the Ministry of Justice: http://www.justice.gov.uk/publications/criminal annual.htm. Crime Statistics in Wales, the Home Office: http:// www.homeoffice.gov.uk/rds. Jenkins, Dafydd, ed. (1986). Law of Hywel Dda: Law Texts of Medieval Wales. Ceredigion, Wales: Gomer. Public Order, Justice and Rights, the Welsh Assembly: http://wales.gov.uk/publications/accessinfo/ drnewhomepage/publicorderdrs2/?lang=en. Sandars, Andrew, and Richard Young. (2006). Criminal Justice. Oxford, UK: Oxford University Press.

Vatican City and the Holy See Legal System: Civil Death Penalty: No

Background The Vatican is a sovereign and independent citystate. It is an enclave located on Vatican Hill, west of the Tiber River, within the city of Rome, Italy. The name “Vatican” derives from the ancient Latin Mons Vaticanus, where allegedly the Roman emperor Caligula built his private circus, in which a number of the early Christians were martyred and which was later completed by Nero. The Christian Church attained the status of a sovereign political entity with the emergence of the Papal States in mid-eighth century, ruling a considerable part of the Italian peninsula for more than a thousand years, although during this period the regions over which the Church had secular control have varied notably in extent. In the 18th century, at the height of their power, the Papal States embraced modern Latium, Umbria,

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Marche, and other areas in continental Italy and around Avignon in France. As a result of the process of Italian unification, from 1860 to 1870, most of the Papal States, that in 1859 still encompassed a territory of about 44,030 square kilometers (17,000 square miles) across central Italy, were absorbed into the newly created Kingdom of Italy. The temporal power of the Pope was subsequently abrogated and much Church property confiscated. The problem of the Pope’s status and his relation to the Italian state between 1870 and 1929 is historically known as the “Roman Question,” which began in 1870 with the annexation of Rome to Italy and was not resolved until February 11, 1929, when the Italian government and the Holy See signed in the Lateran Palace in Rome an agreement of mutual recognition between Italy and the Holy See known as the “Lateran Pacts.” The Lateran Treaty was incorporated into the Italian Republican Constitution in 1947. The State of the Vatican City was therefore founded with the signing of the Lateran Pacts between the Holy See and the Kingdom of Italy. They provided the Holy See with a temporal jurisdiction and independence, full property rights, and exclusive sovereignty on the Vatican, also definitely establishing its territorial extent, by assigning 108.7 acres of Rome to the Holy See. Hence, the world’s smallest sovereign nation, both by size and population, was created.

Territory The State of Vatican City has a total border of 3.2 kilometers (2.0 miles) almost totally surrounded by medieval and Renaissance walls (mura leonine) and includes St. Peter’s Square, whose border is just outside the oval formed by Bernini’s impressive colonnade. There are five entrances to Vatican City, each of them patrolled by the Pontifical Swiss Guards and by the Gendarmes Corps of Vatican City State. The villas and the palace of Castel Gandolfo, which is the summer residence of the Pope, the complex of patriarchal basilicas, and some other belongings of the Holy See that are located outside Vatican territory, enjoy extraterritorial rights. Castel Gandolfo and the basilicas are patrolled internally


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by police agents of the Vatican City State and not by Italian police. St. Peter’s Square is ordinarily policed jointly.

Population and Languages The total population of Vatican City is 779, of whom 527 have Vatican citizenship, while the rest have permission to reside there, either temporarily or permanently, without the benefit of citizenship. The Vatican citizenry essentially consists of clergy, generally working in the service of the Holy See, a few officials of the state, and the Swiss Guard. Only a part of Vatican City’s 527 citizens live within the Vatican’s walls. In fact, about half of them (287) serve (mostly as diplomatic personnel) in Vatican embassies around the world. The total resident population of Vatican City consists of 492 persons. Most of the more than 3,000 Vatican lay workers are Italian citizens residing outside the Vatican territory. Each year some 18 million tourists and pilgrims visit Vatican City. Although Latin is the official language of Vatican City, Italian is the everyday language most used in the state. Laws and regulations are also published in Italian in the Supplemento per le leggi e disposizioni dello Stato della Città del Vaticano, attached to the official state bulletin Acta Apostolicae Sedis. Many languages are used within the state. The Pontifical Swiss Guard use German, French, or Italian, which are three of the four official languages of Switzerland. The Holy See’s newspaper, L’Osservatore Romano, is published in Italian, English, French, German, Polish, Portuguese, and Spanish. The Holy See uses Latin for its official documents, which are published in the Acta Apostolicae Sedis.

Institutional and Political Contexts The Vatican City State and the Holy See are two distinct entities. The Holy See, or Apostolica Sedes, is the seat of the Pope, as Bishop of Rome, the Roman Curia, and the various bodies that assist the pontiff in carrying out his pastoral mission. The term therefore defines the supreme authority and the central government of the Roman Catholic Church. The Holy See is a religious entity that does not occupy a temporal location. The Vatican City

State is the territorial unit where the Holy See is located, providing it with the territorial sovereignty necessary to exist alongside other states. According to the Lateran Treaty, the Holy See has “full ownership, exclusive and absolute power and sovereign jurisdiction” over the Vatican City State. The state of Vatican City and the Holy See are recognized sovereign subjects of international law. Unlike the Holy See, the state of Vatican City is not a diplomatic entity and therefore does not receive or send diplomatic representatives. Foreign ambassadors are accredited not to the Vatican City State, but to the Holy See. Although the Vatican City State is a distinct legal jurisdiction, its intrinsic connection with the Holy See renders it difficult to separate the temporal functions of the state from the functions and government of the Catholic Church. The institutional system of the Vatican City State is not based on separation of the legislative, executive, and judicial powers of the governmental body. The Holy See is ruled by the Pope through the Roman Curia and the Papal Civil Service. The Roman Curia consists of the secretariat of state, 6 congregations, 3 tribunals, 12 pontifical councils, and a system of administrative offices and structures. The congregations and councils consist of cardinals, archbishops, bishops, and laypeople selected from the worldwide Catholic Church, and each is chaired by a cardinal prefect or president who is assisted on the practical level by officials responsible for administrative tasks and by a body of consulters chosen for their specific skills and knowledge. The Vatican City is the sovereign territory of the Holy See (Sancta Sedes) and the location of the Pope’s residence, referred to as the Apostolic Palace. It is an absolute elective monarchy that is ruled by the Bishop of Rome, the Pope, who is elected for a life term in conclave by cardinals under the age of 80. As head of state and head of government, the Pope has ex officio full legislative, executive, and judicial power over Vatican City. His official title is Sovereign of the State of the Vatican City. The highest state functionaries are all clergymen of the Catholic Church. Legislative power, except for those cases that the Pope intends to reserve to himself or to others, is exercised by a commission composed of a cardinal



president and other cardinals, all appointed by the Pope for a five-year term. The commission can seek the advice of the “Consulta,” a group of experts on legislative matters appointed by the Pope. The cardinal president of the commission is also president of the governorate of the state of Vatican City. Executive authority is delegated to the governorate of Vatican City. The governorate consists of the president, a general secretary, and a deputy general secretary, each appointed by the Pope for five-year terms. Important actions of the governorate must be confirmed by the Pontifical Commission and by the Pope through the State Secretariat. The governorate oversees the central governmental functions through several departments and offices. The directors and officials of these offices are appointed by the Pope for five-year terms. These organs concentrate on material questions concerning the state’s territory, including local security, records, transportation, and finances. The Prefecture for Economic Affairs of the Holy See, one of the offices of the Roman Curia, is in charge of the Vatican City State budget, coordinates the finances of the Holy See departments, manages the fiscal affairs of the Roman Curia, and supervises the administration of the patrimony of the Holy See.

Military and Police The Vatican’s security and police corps is the Corpo della Gendarmeria dello Stato della Città del Vaticano (Corps of Gendarmes of the Vatican City State), or Gendarmerie, of about 100 officers, which is in charge for all regular police duties, such as public order, law enforcement, crowd, traffic and border control, security, crime prevention and investigations, enforcement of financial and commercial regulations in Vatican City. The Corps of Gendarmes is a part of the Security and Civil Defense Services Department (which also includes the Vatican Fire Brigade), an organ of the governorate of Vatican City State. The chief of the Vatican gendarmerie is appointed personally by the Pope, as is the chief of the Swiss Guard. The Corps of the Pontifical Swiss Guard, or Swiss Guard, is a small military force of the Holy See,

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consisting of some 110 members, responsible for the safety of the Pope, the security of the Apostolic Palace, and Vatican City‘s border patrol. The Swiss Guard carry modern efficient arms like SIG P225 semiautomatic pistols and SIG SG 550 assault rifles, the same weapons that are used in the Swiss Army. The guard also engages in yearly rifle competition, enhanced training in unarmed combat, and defensive bodyguard tactics similar to those used in the protection of many heads of state. Notwithstanding such strong protective measures, allegedly the Pope entrusts himself almost entirely to Divine Providence. Security in the State of Vatican City is also taken care of by the Italian Inspectorate of Public Security to the Vatican. This special section of the Italian State Police, of about 150 selected officers, is in charge of the protection of the Pope during his traveling in the Italian territory. It is also in charge of policing in St. Peter’s Square, which, according to the Lateran Pacts, is subject to supervision by the Italian police authorities.

Legal System The Vatican legal system can be defined as a civil law (Romano-Germanic law or Continental law as opposed to common law) system, based on Canon Law. Under the current Law of the Sources of Laws, the principal sources of Vatican City law are as follows: • The Codex Iuris Canonici (Code of Canon Law), which has to be regarded as the first source of Vatican law and the first principle of its juridical interpretation. In this sense the Vatican legal system can be defined as based on the Code of Canon Law and revisions to it. • The Fundamental Law of Vatican City State, along with the other constitutional laws. • The laws promulgated either directly by the Pope or through the Pontifical Commission or other delegated legislative organs; these include the Vatican Code of Civil Procedure (May 1, 1946), administrative acts and regulations, apostolic constitutions, and conventions and agreements with other states.


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The use of Italian and local laws as well is allowed, providing that they do not conflict with Canon Law, the rules of the Lateran Treaty (and its revisions), or Divine Law. These include the following: • • • •

The Italian Civil Code The Italian 1899 Penal Code The Italian 1913 Code of Penal Procedure Other laws relating to public works, transportation, telecommunications, health and sanitation

Under the current Law of the Sources, all Italian laws have to be examined (and, if necessary, modified) by Vatican authorities before they are adopted as part of the city state’s own legislation. The Vatican’s new statute also states that the Holy See will scrutinize international treaties before deciding whether to sanction ‘‘the explicit admission of conformity of the Holy See’’—a measure that has been implicit in the past. Great care is taken to ensure that Italian law is not applied in instances where it might conflict with pontifical or Canon Law. The Pope, as noted, enjoys full legislative, executive, and judicial power and, consequently, he can use any means in keeping with or opposed to positive law to resolve individual cases. The legislative regulations are published in a special supplement of the Acta Apostolicae Sedis.

Finding of Guilt Judicial power is exercised by the juridical organs established by the Pope, which exercise their authority in his name. The Vatican City’s court system is similar to the Italian judicial system. Specific procedures and responsibilities are established by the codes currently in force in Vatican City. Four judicial organs are responsible for civil and criminal matters: • • • •

A Judge (Giudice Unico) A Tribunal (Tribunale) A Court of Appeal (Corte d’Appello) A Supreme Court (Corte di Cassazione)

Judges and prosecutors, as noted, are directly appointed by the Pope, at his complete discretion. As a

rule, they are, however, distinguished jurists in both Canon and Civil Law. The Giudice Unico mostly handles minor crimes and violations, which are punished with administrative sanctions. The judge, directly appointed by the Pope, must be a citizen of the Vatican City State, and must also serve as a judge on the other courts. The tribunal consisting of a president and of three judges, all designated by the Pope, has jurisdiction over both civil and penal matters. Each year one of the three judges is appointed by the president as investigating judge (giudice istruttore) for a one-year term. The tribunal is also competent to handle appeals from any decisions of the Giudice Unico. The president and the three other judges of the Court of Appeal are appointed for a five-year term by the Pope. The Giudice Unico and the judges of the tribunal are laypersons, while the Court of Appeal is composed partly of lay judges and partly of judges who are members of the clergy. The president of the Supreme Court is the cardinal prefect of the Apostolic Signatura, the highest canon law court in the Catholic Church. The two other judges of the court are also cardinals and members of the Apostolic Signatura. The Corte di Cassazione is responsible for hearing appeals from the Court of Appeal and has jurisdiction over penal matters against high-rank ecclesiastics, unless the Pope decides to handle the case personally. Many of the judges from the canon law courts serve a dual function as judges on the Vatican courts. With respect to criminal procedure, the Vatican City’s judicial system is based upon a variant of the inquisitorial system, being a kind of “bench” trial made up of a single judge or a judicial panel, which includes the inquisitorial figure of the investigating judge and does not provide for a jury of peers. The Vatican City State has full penal jurisdiction on its territory and therefore can sentence offenders to prison. However, in practice, such jurisdiction is not exercised for crimes punished with imprisonment. Offenders sentenced to prison in the Vatican would have to serve time in Italy, at the Vatican’s expense, since in fact the Vatican has no prison facilities. Important criminal cases are mostly tried in Italy, also because, according to the Lateran Pacts, anyone who commits a crime on Vatican territory



can be handed over to Italian police and prosecuted in an Italian court. That is why in 1981 Italians carried out the investigation and trial of Mehmet Ali Ag˘ca, who shot and seriously wounded Pope John Paul II in St. Peter’s Square. Rights of the accused may be generally summarized as follows: • The accused has the right to be tried by a single judge or by a judicial panel. • Under the 1913 Code of Penal Procedure, currently in force in Vatican City, a public defender assistance is provided. • The chief prosecutor is the Vatican’s “Promoter of Justice,” corresponding to the Italian attorney general, and conducts the prosecution, while the investigation is conducted by the investigating judge. • Under the 1913 Code of Penal Procedure, currently in force in Vatican City, no “plea bargain,” nor negotiated settlement, is allowed. • Most criminal cases are “resolved” without resorting to a prison sentence. The most common sanctions are fines or deprivation of financial privileges normally granted to Vatican residents. • Incarceration before trial is in theory allowed. In practice it is not carried out, since, as noted, the Vatican has no prison system, although it does maintain a small jail facility, located just to the south of St. Peter’s Basilica, off St. Martha’s Square, which is rarely used.

Crime Classification of Crimes The age of full penal responsibility is 21 years. Under the Penal Code currently in force in Vatican City, the so-called 1899 Zanichelli Code, there is a basic distinction between serious and less serious offenses. All criminal offenses are divided into two broad categories: delitti, which are serious offenses and contravvenzioni, which are less serious offenses. The distinction between delitti and contravvenzioni is based on the seriousness of the crime and on the severity of punishment. The crime categories are described in the second and

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third books of the Penal Code, entitled Libro secondo: Dei delitti in ispecie (in particular) and Libro terzo: Delle contravvenzioni in ispecie (in particular), respectively. Although they are both punishable by imprisonment and/or fine, the sentences for delitti are more severe than those for the contravvenzioni. The Penal Code generally classifies each criminal offense under the following specific headings: • Crimes against the safety of the state, for example, espionage, armed bands, terrorism. • Crimes against religious, and individual freedom, for example, offenses against religious feelings, profanation of a tomb, reduction to slavery, abduction, kidnapping, threat/ intimidation, unlawful entering, offenses against secrecy (such as confidentiality of correspondence). • Crimes against public authority, for example, corruption, bribery, embezzlement of public property by an officer, resisting and/or insulting a public officer on duty, breaking of seals, destroying crime evidence. • Crimes against judicial authority, for example, simulation of offense, slander, perjury, prevarication, subornation, aiding and abetting, prison escape, duels. • Crimes against the public order/breach of the peace, for instance, criminal association/ incitement. • Crimes against public faithfulness, for example, forgery and counterfeiting. • Crimes against public safety, for instance, arson, bombing, provoking a railway or air disaster, adulteration/poisoning of food, water, and drugs. • Crimes against public and family morality, for example, rape, indecent assault, abduction, adultery, bigamy. • Crimes against the person, for example, murder, assault/bodily harm, abortion, child abandonment/abuse, defamation. • Crimes against property, for example, theft, robbery, extortion, ransom kidnapping, fraud, embezzlement, receiving stolen property, penal damages.


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• Offenses concerning public order, for example, mendicity, disturbing the peace. • Offenses concerning public safety, for example, infringement of laws/regulations on weapons and explosives. • Offenses concerning public morality, for example, gambling, drunkenness and disorderedly conduct, indecent exposure, maltreatment of animals. • Offenses concerning the public protection of property, for example, unjustified possession of money/goods/burglary tools.

DRUG OFFENSES In Vatican City there is a lack of legislation regarding the possession and sale of illegal drugs, that is, there is no specific legal provision against this offense. This became apparent in 2008 after a Vatican employee was caught with 87 grams of cocaine. As a result of that case, Nicola Picardi, promoter of justice in the tribunal of Vatican City State, said that, since the Vatican employee could only be sentenced to the maximum of six months’ imprisonment, the sentence was “completely inadequate to the seriousness of the crime and not in line with the legislation of other states,” according to VaticanNews.com.

Crime Statistics No crimes of murder, rape, serious property offenses, and serious drug offenses have been reported in Vatican City in recent years, though there have been occasional murders celebrated in the media, in particular the May 4, 1998, murders of Swiss Guard Commander Alois Estermann, his wife, and a young guard, all shot by Swiss Guard ViceCorporal Cedric Tornay. The killings of the Estermanns were, ostensibly, the first to take place in the state since its creation. The case was eventually pronounced by the Vatican’s investigation as a murder suicide, though many rumors and controversies surround the episode to this day. According to the Vatican, almost all crimes consist of petty theft, especially pickpockets, whose

perpetrators are rarely caught, with about 90 percent of complaints not leading to a prosecution. Other crimes include embezzlement, fraud, and insulting the police and civil servants. The number of cases involving Vatican residents is insignificant. Although most of Vatican City crime seems to be of trivial nature, the city state has more criminal cases per capita (per unit of inhabitants) than any other state of the world. According to the Vatican’s promoter of justice (the equivalent to the Italian attorney general), Chief Prosecutor Nicola Picardi, the Vatican’s justice department in 2008 had to contend with 549 civil and 486 criminal cases. In a population of 492 residents, this amounts approximately to one criminal case per person—20 times the corresponding rate in Italy, notwithstanding the fact that the Vatican City State has about one Swiss Guard or police officer for each citizen. These figures are, of course, deceptive: such a high crime rate in fact derives from what has been called “a handful of black sheep” among the some 18 million pilgrims and tourists who visit Vatican City every year.

Punishment Types of Punishment There is no “typical” or commonly used punishment for murder, rape, and serious theft/burglary/robbery, since, as noted, there is no recorded evidence of the occurrence of these crimes in Vatican’s territory. As far as serious drug crimes are concerned, as noted, there is a lack of legislation in the Vatican regarding the possession and sale of illegal drugs; there is no specific legal provision against this crime. The death penalty, originally provided only for attempted assassination of the Pope, has been definitely removed for all crimes in Vatican City State with the 2001 Fundamental Law. No execution was carried out since the creation of the state in 1929.

Prison The Vatican has no prison facilities. Persons sentenced to prison in the Vatican have to serve



their sentence in Italy, at the Vatican City State’s expense. Pietro Marongiu and Graeme R. Newman Further Reading Vatican, the Holy See: http://www.vatican.va. Vatican Publishing House (Libreria Editrice Vaticana) publishes the Acta Apostolicae Sedis (AAS), together with its supplements, on a

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periodic basis. AAS constitutes the official bulletin for the Holy See. The Vatican Publishing House also publishes Vatican City’s newspaper The Roman Observer. The daily edition is in Italian. A weekly, English-language compendium edition is also published.

Wales. See United Kingdom/Wales


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. 405 © 2011 ABC-Clio. All Rights Reserved.

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Beirne, P., and D. Nelken. (1997). Issues in Comparative Criminology. Sudbury, MA: Dartmouth. 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 FiftyNine 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-factbook/ 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.cejamericas. org. This research and advocacy group publishes online country-specific 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.europeansourcebook.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. © 2011 ABC-Clio. All Rights Reserved.


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 Problem-Oriented 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 4 Editors Marcelo F. Aebi, PhD, is a professor of criminology at the University of Lausanne, Switzerland. He is also a scientific expert for the Council of Europe, the European Union, and the United Nations Office on Drugs and Crime, as well as a part-time professor at the Autonomous University of Barcelona, Spain. His main fields of expertise include comparative criminology and victimology, drugs and crime, and juvenile delinquency. Véronique Jaquier, PhD, is a lecturer and senior researcher at the University of Lausanne, School of Criminal Sciences. She has trained in social psychology and criminology both in Switzerland and the United States. Her fields of expertise include violence against women—especially methodological problems arising in the measurement of victimization and comparative research—as well as issues surrounding the policing and sentencing of domestic violence.

Volume 4 Contributors Cândido da Agra holds a PhD in psychology from the Catholic University of Louvain-la-Neuve, Belgium, and is a full professor and director of the School of Criminology, Faculty of Law, University of Porto. Andri Ahven is an adviser to the criminal policy department at the Estonian Ministry of Justice. His research is related to crime victimization surveys and interpretation of crime statistics. Nazmia E. Alqadi is a graduate student at the School of Criminal Justice, State University of New York at Albany. 413 © 2011 ABC-Clio. All Rights Reserved.

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Nathaniel Kip Arnold is a graduate student at the School of Criminal Justice, State University of New York at Albany and is a librarian at Schenectady County Community College of New York State. Bruno Aubusson de Cavarlay, research director at the Centre national de la recherche scientifique (CNRS, National Center for Scientific Research), works at the Center for Sociological Research on Law and Penal Institutions (CESDIP) on criminal statistics and the functioning of the criminal justice system. He is a member of the Experts Group of the European Sourcebook of Crime and Criminal Justice Statistics project. Daniel J. Beers is a visiting lecturer in the Department of Political Science and International Relations at Knox College. During the 2007–2008 academic year, he conducted dissertation field research in Romania and the Czech Republic with the support of a Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship. Dennis C. Benamati is library director, Jamestown Community College, Jamestown, New York. Karin Bruckmüller is a university assistant at the Institute of Criminal Law and Criminology at the University of Vienna, and a research associate for the Austrian Criminal Bar Association and the Victim Support Organization “Weisser Ring.” Muhamed Budimlic´ is an assistant professor of criminology, Faculty of Criminal Justice, Criminology and Security Studies, University of Sarajevo. Trevor Calafato is an assistant lecturer, Institute of Criminology, University of Malta. His research interests include crime prevention, community-based sanctions, security and terrorism. Carla Cardoso holds a master’s degree in biology and a PhD in biomedical sciences from the University of Porto. She is an invited professor at the Faculty of Law, University of Porto. Her main research interests are experimental criminology, security, and statistics. Josefina Castro holds a degree in psychology and a master’s in criminology from the University of Porto. She is an assistant professor at the Faculty of Law, University of Porto. Her main research interests are juvenile delinquency and social control. Carlos Guillermo Castro Cuenca holds a doctorate in criminal law from the University of Salamanca and is a lecturer at the Universidad del Rosario in Colombia. Martin Cejp is a researcher at the Institute of Criminology and Social Prevention, Prague. Algimantas Cˇepas is a researcher at the Law Institute of Lithuania.



Anastasia Chalkia, a sociologist, is currently studying for a PhD on punitive attitudes at Panteion University in Athens, Greece. Prior to this, she gained an MA in criminology at the same university. Sanja Copic, LLM, is a researcher at the Institute for Criminological and Sociological Research in Belgrade, as well as a researcher and president of the Executive Board of the Victimology Society of Serbia. Her research interests cover the following topics: trafficking in human beings, domestic violence, juvenile delinquency, crime victims’ position in the criminal justice system, and restorative justice. Vaughn Crichlow earned an MA in Criminal Justice from Rowan University, LLB from the University of London, and a BA in English at the University of the West-Indies, Trinidad. Natalia Delgrande is a researcher at the School of Criminal Sciences of the University of Lausanne in Switzerland. She is a scientific expert for the Council for Penological Co-operation (PC-CP) of the Council of Europe and voluntary project-adviser for the Probation Office in Chisinau, Republic of Moldova. Steven DeStefano is a law and justice studies student at Rowan University. Lina Mariola Díaz Cortés holds a doctorate in criminal Law from the University of Salamanca, Spain, and is a lecturer in special criminal law in the Security Sciences Degree Programme-CISE-of the University of Salamanca. Tsveta Docheva works as chief expert in the section International Relations and Projects at the Administration of the Prosecutor General in Bulgaria. Graham Ellison is a senior lecturer in the School of Law, Queen’s University Belfast. Graham Farrell, PhD, is a professor of criminology at the Midlands Centre for Criminology and Criminal Justice at Loughborough University. He has previously worked at the universities of Cincinnati, Oxford, and Manchester, Rutgers University, the Police Foundation (Washington, D.C.), and the United Nations. Jana Gajdošová has a Master of Law from Comenius University, Faculty of Law, in Bratislava (Slovakia), and a PhD in law from the University of East Anglia, Norwich Law School (United Kingdom). She has published several articles on the European human rights law and currently works as a legal advisor to the Agent of the Slovak Republic before the European Court of Human Rights. Maria Galanou, MA in criminal law-criminal procedure, MA in criminology, is a PhD student at the Law School of Athens University. Jessica Gentile is a graduate student at the School of Criminal Justice, State University of New York at Albany. Laurie Gould is an assistant professor at the University of Texas at Arlington in the criminology and criminal justice department. She has previously published


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on a variety of topics including the use of strategic planning by state correctional agencies and the availability of jail visitation information. Christian Grafl is an associate professor of criminology and criminalistics at the Institute of Criminal Law and Criminology at the University of Vienna. He is head of the Department of Criminology and deputy head of the Institute of Criminal Law and Criminology. Louise Grove is a PhD student funded by the Economic and Social Research Council (ESRC) at the Midlands Centre for Criminology and Criminal Justice at Loughborough University. Anna Gustafson has a Bachelor of Law from Abo Akademi University in Finland and is working toward a master’s degree in law. She is currently working at the District Court of Parainen. Markku Heiskanen, PhD, is a senior researcher at the European Institute for Crime Prevention and Control, affiliated with the United Nations (HEUNI). His research activity has focused on victimization surveys, violence against women, national and international crime statistics, social surveys, drinking habit surveys, survey methodology, and statistical analysis. Kristen Lee Hourigan is a graduate student at the State University of New York at Albany. Vasilika Hysi is an associate professor of criminology and penology and crime policy, Law Faculty, Tirana University, Albania. Fiona Jamieson is a research student at the University of Edinburgh and an affiliated researcher of the Scottish Centre for Crime and Justice Research. Jörg-Martin Jehle is director of the Institute for Criminal Law and Justice, head of the Department for Criminology, University of Göttingen, and member of the Experts Group of the European Sourcebook of Crime and Criminal Justice Statistics project. Sladjana Jovanovic, PhD, is an assistant professor at the Law School of Union University in Belgrade. She has been publishing and doing research in the following areas: gender equality, domestic violence, trafficking in human beings, violence in the workplace. Andreas Kapardis is a professor at the University of Cyprus, Department of Law. Zdeneˇ k Karabec is a researcher at the Institute of Criminology and Social Prevention, Prague. Paul Knepper is a senior lecturer, Department of Sociological Studies, University of Sheffield, and a visiting professor, Institute of Criminology, University of Malta. His research involves the historical origins of contemporary crime problems, conceptual foundations of crime prevention, and the racialization of crime. His recent book is The Invention of International Crimes (Basingstoke: Palgrave Macmillan, 2010). © 2011 ABC-Clio. All Rights Reserved.


Sonja Kotnik, LLM, is a senior lecturer in criminal law on the Faculty of Criminal Justice and Security, University of Maribor, Slovenia. Her research field is mainly criminal procedure law, criminal substantive law, and partly private security sector. Currently, her interest is summary criminal proceeding and its impact on crime in Slovenia. Krzysztof Krajewski is head of the Chair of Criminology at Jagiellonian University in Krakow, Poland. He is a fellow of the Alexander von Humboldt Foundation and spent several longer research periods at the Max Planck Institute for International and Foreign Penal Law in Freiburg, Germany. He has served as president of the European Society of Criminology and president of the Polish Criminological Association. Edda Kristjansdottir is a member of the Faculty of Public International Law at the University of Amsterdam, the Netherlands. André Lamas Leite holds a degree in law from the University of Porto and a master’s in law–criminal sciences from the University of Coimbra. He is an assistant professor at the Faculty of Law, University of Porto. His main research interests include penalties’ system and criminal procedure law. Miklós Lévay is a judge of the Constitutional Court of Hungary, a professor of criminology at the Eötvös Loránd University, and general secretary of the Hungarian Society for Criminology. He also teaches criminal law at the University of Miskolc and is a member of the Scientific Committee of the International Society for Criminology. Chris Lewis is a senior research fellow and a visiting professor at the Institute of Criminal Justice Studies at the University of Portsmouth. He was born in Wales, studied in England, and became first chief statistician at the British Home Office and later assistant director of research from 1976 to 2003. He continues to work and write on criminal statistics and justice policies throughout the world, especially Europe, Africa, and Japan. Stefano Maffei (DPhil, Oxford) is a lecturer in criminal procedure at the University of Parma, Italy, and was a visiting professor at the University of the Pacific McGeorge School of Law in fall 2008 and summer 2009 (Salzburg Programme). Almir Maljevic´ is a senior lecturer of criminal law, Faculty of Criminal Justice, Criminology and Security Studies, University of Sarajevo. Hristo Manchev is deputy prosecutor general at the Supreme Cassation Public Prosecutor’s Office in Bulgaria. Alena Marešová is a researcher at the Institute of Criminology and Social Prevention, Prague. Vesna Markovic is the director of collection for the Institute for the Study of Violent Groups at Sam Houston State University. She earned her PhD in criminal justice from Sam Houston, and her research interest focus is on terrorism, transnational crime, and comparative criminal justice systems. © 2011 ABC-Clio. All Rights Reserved.

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Pietro Marongiu is an associate professor of criminology, School of Medicine, University of Cagliari, Italy. Timothy McCorry is a graduate of the State University of New York at Albany, having majored in criminal justice and informatics. He is currently working for the New York State Office of Cyber Security and Critical Infrastructure Coordination (CSCIC). Isabella Merzagora Betsos is professor of criminology at the State University of Milan, Italy. Gorazd Meško, PhD, is a professor of criminology and dean on the Faculty of Criminal Justice and Security, University of Maribor, Slovenia. His research interests include criminology theory, modes of social control in contemporary society, fear of crime, crime in countries in transition, and violence. Miran Mitar, PhD, is an assistant professor of methodology on the Faculty of Criminal Justice and Security, University of Maribor, Slovenia. His research interests are in the field of evidence-based crime prevention and security policies in the framework of modern systems theory. Raquel Moriarty is a graduate student in the School of Criminal Justice, State University of New York at Albany. Katrina Morrison is a research student at the University of Edinburgh and an affiliated researcher of the Scottish Centre for Crime and Justice Research. Elmedin Muratbegovic´ is an assistant professor of criminal justice, Faculty of Criminal Justice, Criminology and Security Studies, University of Sarajevo. Ian O’Donnell is a professor of criminology at University College Dublin. His recent books include Prison Violence: The Dynamics of Conflict, Fear and Power (Willan, 2003) and Child Pornography: Crime, Computers and Society (Willan, 2007). David O’Mahony is a reader in Durham Law School, Durham University, and codirector of the Centre for Criminal Law and Criminal Justice. Olena Ovcharenko is an assistant professor at Yaroslav Mudry National Law Academy of Ukraine. Matthew Pate is a doctoral candidate in the School of Criminal Justice at the State University of New York at Albany. His academic interests include cross-national studies of criminal justice, policing, and media depictions of criminal justice. He has previously published on topics as varied as the Alger Hiss affair, search and seizure litigation as well as Neighborhood Watch program evaluation. Miriam Pina holds a degree in psychology from the University of Porto and a master’s in criminology and security from the University of Lausanne. She is an assistant professor at the Faculty of Law, University of Porto. Her main research interests are clinical criminology and victimology.



Annette Robertson, PhD, is a senior lecturer in criminology in the Department of Law, School of Law and Social Sciences, Glasgow Caledonian University, Scotland. Gintautas Sakalauskas is a researcher at the Law Institute of Lithuania. Miroslav Scheinost is a researcher at the Institute of Criminology and Social Prevention, Prague. Marguerite Schinkel is a research student at the University of Edinburgh and an affiliated researcher of the Scottish Centre for Crime and Justice Research. Paul Schupp is an assistant 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. Alfonso Serrano Maíllo is a professor at Universidad Nacional de Educación a Distancia, Madrid. Olena Shostko is an associate professor at the Yaroslav Mudry National Law Academy of Ukraine. She has also been head of the Laboratory of International Cooperation of the Institute for the Study of Crime Problems, Ukrainian Academy of Legal Sciences. She is the national correspondent of Ukraine for the European Sourcebook of Crime and Criminal Justice Statistics project. Biljana Simeunovic-Patic, PhD, is a researcher at the Institute of Criminological and Sociological Research in Belgrade. Her main research interests include crimes of violence, theoretical criminology, juvenile delinquency, and trafficking in human beings. Paul R. Smit is a researcher at the Ministry of Justice in the Netherlands. His main research topic is international comparisons of crime statistics, and he is a member of the European Sourcebook of Crime and Criminal Justice Statistics project group. Tony R. Smith is an assistant professor in the Department of Law and Justice Studies at Rowan University, Glassboro, New Jersey. Daria Solenik is a legal advisor, Eastern Europe and French-Speaking Countries, Swiss Institute of Comparative Law, Lausanne, Switzerland; a scientific expert, Directorate General of Human Rights and Legal Affairs, Council of Europe, Strasbourg, France; a lecturer in law, University of Nancy, France, and European Humanities University in Vilnius, Lithuania. Richard Sparks is a professor of criminology in the School of Law, University of Edinburgh, and a codirector of the Scottish Centre for Crime and Justice Research (http://www.sccjr.ac.uk). He is author or editor of a number of books including (with Ian Loader) Public Criminology? (Routledge, 2010). Anette Storgaard, PhD, is an assistant professor in criminology and criminal law at the University of Aarhus, School of Law, Denmark.


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Andromachi Tseloni, PhD, is a professor in criminology at Nottingham Trend University, UK. Charlotte Vanneste, PhD, is director of the Department of Criminology of the National Institute for Criminalistics and Criminology in Brussels. She is also a national correspondent for the European Sourcebook of Crime and Criminal Justice Statistics project. Hanns von Hofer is a professor of criminology at the Department of Criminology, Stockholm University, Sweden. Anna Vuorelainen, BA, worked in 2008 as a research assistant at the European Institute for Crime Prevention and Control (HEUNI). Christina Zarafonitou, PhD, is a professor in criminology and director of the postgraduate program “The Contemporary Criminality and Its Confrontation” at Panteion University in Athens, Greece.


Categorical Index

AFRICA 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 prison system, 1:6 punishment for crimes, 1:5 – 6 Benin, 1:7 – 10 crime in, 1:10 Justice Ministry Building, 1:8 legal system of, 1:7 – 10 prison system, 1:10 punishment for crimes, 1:10 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 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 Cameroon, 1:27 – 30 crime in, 1:30 legal system, 1:28 – 30 prison system, 1:30 punishment for crimes, 1:30

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 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 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 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 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 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 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 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 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 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 Ghana, 1:86 – 91 crime in, 1:86 – 87 finding of guilt in, 1:88 legal system, 1:88

421 © 2011 ABC-Clio. All Rights Reserved.

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Categorical Index

police in, 1:88 – 89 prison system, 1:89 – 91 Guinea 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 Ivory Coast (Côte d’Ivoire), 1:100 – 105 crime in, 1:101 finding of guilt in, 1:101 – 104 legal system, 102, 1:102 – 104 prison system, 1:105 punishment for crimes, 1:104 – 105 Kenya, 1:106 – 111 crime in, 1:106 – 108, 107 legal system, 1:109 – 110 police in, 1:108 – 109 punishment for crimes, 1:110 – 111 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 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 Mali, 1:133 – 136 crime/police in, 1:133 – 134 legal system, 1:134 punishment for crimes, 1:134 – 135 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 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 punishment for crimes, 1:148 – 149 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 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 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 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 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 prison system, 1:177 punishment for crimes, 1:176 – 177 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 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 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, 186 – 187 punishment for crimes, 1:188 – 189 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 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 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 South Africa, 1:205 – 211 crime in, 1:206 finding of guilt in, 1:208 – 210

Categorical Index

legal system in, 1:208 – 209 police in, 1:206 – 207, 207 punishment for crimes, 1:210 – 211 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 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 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 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 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

THE AMERICAS 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 Antigua and Barbuda, 2:5 – 9 crime in, 2:6 – 8 finding of guilt in, 2:8 legal system, 2:5 – 6 prison system, 2:9 punishment for crimes, 2:8 – 9 rights of the accused, 2:8 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 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 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 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 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 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 police in, 2:47 – 48


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423

prison system, 2:52 – 53 punishment for crimes, 2:51 – 53 rights of the accused, 2:49 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 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 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 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 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 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 Colombia, 2:98 – 109 crime in, 2:99 – 102 finding of guilt in, 2:102 – 107 legal system, 2:98 – 99

424

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Categorical Index

plea bargaining in, 2:103, 104 – 105 prison system, 2:108 – 109 punishment for crimes, 2:107 – 109 rights of the accused, 2:102 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 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 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 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 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 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

Greenland, 2:159 – 162 crime in, 2:160 finding of guilt in, 2:160 – 161 legal system, 2:160 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 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 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 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 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


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 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 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 Montserrat, 2:230 – 238 crime in, 2:232 finding of guilt in, 2:232 – 233 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 Navajo Nation, 2:238 – 247 crime in, 2:241 – 242 finding of guilt in, 2:242 – 244 juvenile justice system, 2:244 – 245 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 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

Categorical Index

juvenile justice system, 2:253 – 254 police in, 2:248 prison system, 2:254 rights of the accused, 2:250 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 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 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 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 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 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 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 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 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 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


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425

prison system, 2:345 – 346 punishment for crime, 2:344 – 345 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 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

ASIA 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 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 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 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 Bhutan, 3:37 – 47 crime in, 3:41 – 44 juvenile justice system, 3:44

426

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Categorical Index

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 Singapore, 3:202 – 209 crime in, 3:204 – 205 finding of guilt in, 3:205 – 207 juvenile justice system, 3:207

Categorical Index

legal system, 3:202 – 203 police in, 3:203 – 204 prison system, 3:208 – 209 punishment for crimes, 3:207 – 209 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 violations of special laws (VSL), 3:213 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 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 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 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 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 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

EUROPE 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 Andorra, 4:12 – 17 crime in, 4:13 – 15 finding of guilt in, 4:15


|

427

juvenile justice system, 4:14 legal system, 4:12 – 13 policing practices, 4:13 prison system, 4:16 – 17 punishment for crimes, 4:16 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 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 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 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 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

428

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Categorical Index

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 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 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 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 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 France, 4:114 – 123 crime in, 4:114 – 116 finding of guilt in, 4:116 – 119 juvenile justice system in, 4:118 – 119 legal system in, 4:114 prison system in, 4:121 – 122 punishment for crimes, 4:119 – 121 rights of the accused in, 4:116 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 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 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 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 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 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 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


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 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 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 Liechtenstein, 4:191 – 197 crime in, 4:195 juvenile justice system, 4:195 legal system, 4:191 – 193 police in, 4:193 – 194 prison system, 4:194 – 195 punishment for crimes, 4:195 – 196 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 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 Malta, 4:217 – 225 crime in, 4:218 – 221 finding of guilt in, 4:221 – 223

Categorical Index

legal system, 4:218 police in, 4:218 prison system, 4:225 punishment for crimes, 4:223 – 225 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 Montenegro, 4:238 – 240 crime in, 4:239 human rights in, 4:239 police in, 4:238 punishment for crimes, 4:239 – 240 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 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 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 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

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 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 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 Serbia, 4:296 – 304 crime in, 4:298 – 299 finding of guilt in, 4:299 – 302 juvenile justice system, 4:302 – 303 legal system, 4:297 police in, 4:297 prison system, 4:304 punishment for crimes, 4:303 – 304 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 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 Spain, 4:323 – 329 crime in, 4:324 – 326 finding of guilt in, 4:327 – 328


|

429

juvenile justice system, 4:325 – 326 legal system, 4:323 punishment for crimes in, 4:328 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 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 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 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

430

|

Categorical Index

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 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

MIDDLE EAST AND NORTH AFRICA 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 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 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 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 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 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 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 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 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 Morocco, 1:333 – 336 legal system in, 1:334 police in, 1:333 – 334 punishment for crimes, 1:334 – 335 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 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 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 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 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 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 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 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 Yemen, 1:384 – 387 crime in, 1:384 – 385 legal system in, 1:385 – 386 police in, 1:385 punishment for crimes, 1:386

THE PACIFIC Australia, 3:299 – 305 crime in, 3:299 – 303 finding of guilt in, 3:303

Categorical Index

legal system in, 3:303 punishment for crimes in, 3:303 – 305 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 Cook Islands. See Polynesia 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 French Polynesia. See Polynesia 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 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 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 Niue. See Polynesia Norfolk Island, 3:337 – 339 crime in, 3:339 legal system, 3:338 – 339 punishment for crimes, 3:339 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 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 Republic of Belau (Palau) crime in, 3:317 legal system, 3:316 – 317


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431

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 Nauru crime in, 3:327 legal system, 3:326 police in, 3:327 punishment for crimes, 3:327 rights of the accused, 3:327 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 Samoa. See Polynesia 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 Tuvalu. See Polynesia Wallis and Futuna. See Polynesia

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

I-1 © 2011 ABC-Clio. All Rights Reserved.

I-2

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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 4: Europe

Crime and Punishment around the World, Volume 2: The Americas

Crime and Punishment around the World, Volume 1: Africa and the Middle East

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