RESOURCE MATERIALSERIES No. 56

UNAFEI
Fuchu, Tokyo, Japan

December 20001

Mikinao Kitada
Director
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26, Harumi-cho, Fuchu, Tokyo 183-0057, Japan

2

CONTENTS
INTRODUCTORY NOTE ................................................................... vii
PART ONEWORK PRODUCT OF THE 112TH INTERNATIONAL TRAINING COURSE“PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE FAIR AND
EFFECTIVE CRIMNAL JUSTICE”
Visiting Experts’ Papers• Private Participation in the Treatment of Offenders: Contracting
Private Operators in Criminal Justiceby John Brian Griffin (Australia) ............................................... 3• Innovations in Correctional Services : An Excursion Through the
Changing Prisons Culture of Victoria
by John Brian Griffin (Australia) ............................................. 16• Participation of the Public and Victims in Criminal Justice
Administration
by John Brian Griffin (Australia) ............................................. 28• Victim Assistance in Canada
by Ezzat A. Fattah (Canada) ..................................................... 48• Victimology Today: Recent Theoretical and Applied Developments
by Ezzat A. Fattah (Canada) ..................................................... 60• The Vital Role of Victimology in the Rehabilitation of Offenders
and their Reintegration into Society
by Ezzat A. Fattah (Canada) ..................................................... 71• Victim Redress and Victim-Offender Reconciliation in Theory andPractice: Some Personal Reflections
by Ezzat A. Fattah (Canada) ..................................................... 87• Ancillary (Adhesion) Proceedings in Germany as Shaped by theFirst Victim Protection Law: An Attempt to Take Stockby Eberhard Siegismund (Germany) ...................................... 102• The Function of Honorary Judges in Criminal Proceedings inGermany
by Eberhard Siegismund (Germany) ....................................... 114

iii

•Community Policing in the Context of Singapore
by Jarmal Singh (Singapore) .................................................. 126•Crime Prevention: The Singapore Approachby Jarmal Singh (Singapore) .................................................. 140•Criminal Victimisation Across the Globe
by Ugljesa Zvekic (UNICRI) .................................................... 151•Citizens’ Experience with Crime Prevention
by Ugljesa Zvekic (UNICRI) .................................................... 163•Citizens’ Appraisal of Security and Criminal Justice: An
International Perspectiveby Ugljesa Zvekic (UNICRI) .................................................... 176•Including Victims in the American Criminal Justice Process
by Heather Cartwright (United States) ................................... 190
Participants’ Papers•The Framework and Current Situation of China’s Crime
Prevention
by Wang Ping (China) .............................................................. 204•Community Involvement in Corrections in Hong Kongby Tai Kin-man (Hong Kong) .................................................. 215•Participation of the Public and Victims for More Fair and Effective
Criminal Justice Administrationby Ghazali bin Hj. Md. Amin (Malaysia) ............................... 224•Participation of the Public and Victims for More Fair and Effective
Criminal Justice Administration in the Philippines
by Donna Lynn A. Caparas (Philippines) ............................... 241
Reports of the Course•Victim Assistance: Public Participation for More Effective Crime
Prevention and Law Enforcement
by Group 1 ................................................................................ 259•Participation of the Public and Victims for More Effective
Administration in Prosecution and the Judiciaryby Group 2 ................................................................................ 283

iv

•Participation of the Public and Victims for More Effective
Administration in the Treatment of Offenders
by Group 3 ................................................................................ 300
PART TWOWORK PRODUCT OF THE 113TH INTERNATIONAL TRAINING COURSE“THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE FOR THE
PREVENTION OF CORRUPT ACTIVITIES BY PUBLIC OFFICIALS”
Visiting Experts’ Papers•International Anti-Corruption Initiatives
by Donald K. Piragoff (Canada) .............................................. 327•Good Governance: A Mere Motto or a Pragmatic Endeavour for a
Realistic Strategy? (The French Example of an Anti-Corruption
Agency)by Laurence Giovacchini (French Republic) ........................... 343•Corruption Prevention: The Hong Kong Experienceby Thomas Chan (Hong Kong) ................................................ 365•Recent Innovations in Tackling Corruption in the Civil Services inIndia
by R. K. Raghavan (India) ....................................................... 378•Strengthening Integrity: The Importance of Transparency andAccountability in Economic Sustainability
by Tunku Abdul Aziz (Malaysia) ............................................. 386•International Case Study: Stamping out Corruption in Malaysia
by Tunku Abdul Aziz (Malaysia) ............................................. 393•Current Problems in the Fight Against Corruption and Some
Possible Solutions : US Perspective
by Anthony Didrick Castberg (United States of America) ..... 400•Campaign Financing and Corruption in the US
by Anthony Didrick Castberg (United States of America) ..... 412•Illegal Drugs: the Challenge to Law Enforcement
by Anthony Didrick Castberg (United States of America) ..... 421v

•Corruption in Japan and the US
by Anthony Didrick Castberg (United States of America) ..... 435•Prevention and Repression of Corruption within a Law
Enforcement Agency
by Michael A. DeFeo (United States of America) ..................... 440•Prevention and Repression of Corruption in Non-Law Enforcement
Agenciesby Michael A. DeFeo (United States of America) ..................... 455
Participants’ Papers•Investigation of Corruption in Japanby Tamotsu Hasegawa (Japan) ................................................ 469•The Effective Administration of Criminal Justice for the Preventionof Corrupt Activities by Public Officials: the Nigerian Position
by Onuoha Emmanuel Ifeanyi (Nigeria).................................. 476•The Effective Administration of Criminal Justice for the Preventionof Corrupt Activities by Public Officials
by Sadar Muhammad Raza (Pakistan) ................................... 482•The Effective Administration of Criminal Justice for the Preventionof Corrupt Activities by Public Officials
by Roderick Kamburi (Papua New Guinea) ............................ 492•Graft and Corruption: The Philippines Experience
by Nelson Nogot Moratalla (Philippines) ................................ 501
Reports of the Course•Current Situation of and Recent Trends in the Corrupt Activities of
Public Officials, and Criminal Legislation against Corruption
by Group1 .................................................................................. 524•Current Problems in Responding to the Corrupt Activities of Public
Officials at the Investigation and Trial Stages, and Solutions for
Themby Group2 .................................................................................. 546•General Preventive Measures against the Corrupt Activities of
Public Officials
by Group3 .................................................................................. 563
APPENDIX ...................................................................................... 581
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INTRODUCTORY NOTE
It is with pride that the Asia and Far East Institute for the Preventionof Crime and the Treatment of Offenders (UNAFEI) offers to theinternational community the Resource Material Series No. 56.
This volume contains the work produced in two UNAFEI
international training programmes: the 112th International Training
Course (conducted from 12 April to 2 July 1999) and the 113th
International Training Course (conducted from 30 August to 18 November1999). The main themes of these courses were “Participation of the Public
and Victims for More Fair and Effective Criminal Justice Administration”,
and “The Effective Administration of Criminal Justice for the Preventionof Corrupt Activities by Public Officials”, respectively.
As an affiliated regional institute of the United Nations, UNAFEI
has paid utmost attention to the priority themes identified by the UN
Commission on Crime Prevention and Criminal Justice. Moreover,
UNAFEI has been taking up these issues as the main themes and topics
for its training courses and seminars. The above-mentioned themes of
the 112th and 113th International Training Courses were decided undersuch a consideration. Community involvement in crime prevention, as
well as accountability and fairness for offenders and victims in the criminal
justice process, were substantive agenda items and workshop topics at
the Tenth United Nations Congress on the Prevention of Crime and theTreatment of Offenders, which was held in Vienna from 10 to 17 April
2000. The 112th UNAFEI Course explored measures to enhance theparticipation of the public and victims for more fair and effective criminal
justice administration in the participating countries. Similarly, combating
corruption was also one of the workshop topics at the Tenth United Nations
Congress. In light of the fact that corruption is becoming transnational
in character, and it is a primary tool of organized crime, participants of
the 113th Course introduced their countries’ experiences regarding
corruption, analyzed the causes and dynamics of corruption, and sought
concrete measures for its eradication.
In this issue, papers contributed by visiting experts, selected individual
presentation papers from among Course participants, and reports of eachvii

Course are published. I regret that not all the papers submitted by Course
participants could be published. Also, I must request the understandingof the selected authors for not having sufficient time to refer the
manuscripts back to them before publication.
I would like to pay tribute to the contributions of the Government ofJapan, particularly the Ministry of Justice and the Japan International
Cooperation Agency, and to the Asia Crime Prevention Foundation forproviding indispensable and unwavering support to the UNAFEI
international training programmes.
Finally, I would like to express my heartfelt gratitude to all who sounselfishly assisted in the publication of this series, in particular, theeditors of Resource Material Series No. 56, Mr. Hiroshi Iitsuka (Chief ofTraining Division) and Ms. Rebecca Findlay-Debeck (Linguistic Adviser),who so tirelessly dedicated themselves to this series.
March 2000

Mikinao Kitada
Director of UNAFEI

viii

MAIN ACTIVITIESPART ONERESOURCE MATERIAL SERIES
No. 56Work Product of the 112th International Training Course“PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE FAIR AND EFFECTIVE
CRIMINAL JUSTICE”

UNAFEI1

112TH
INTERNATIONAL
TRAINING
COURSEVISITING
EXPERTS’
PAPERSVISITING EXPERTS’ PAPERSPRIVATE PARTICIPATION IN THE TREATMENT OF
OFFENDERS: CONTRACTING PRIVATE OPERATORS IN
CRIMINAL JUSTICEJohn Brian Griffin*
ABSTRACTOver the past decade, governments havebeen forced to critically review the way they
manage their economies in the face ofgrowing international competition. Debt
reduction and taxation imperatives,
coupled with raised community expectationof value of money from its public sector, has
underscored profound changes in the form
and nature of government worldwide.
In Victoria, the Kennett Government
since 1992 has pursued a significant
government reform agenda. Reforms
within the criminal justice system havebeen an important part of this ‘change’
agenda. Contractualism and privatisation
are now integral elements in the oparationof Victoria’s justice system, especially the
key aspects of policing and correctional
management. While the signs are positive,
the changes have required a fundamental
policy rethink in such areas as contracting
out, accountability, risk management,
regulation and performance monitoring.
There is no doubt these issues will be thesubject of on-going debate well into the next
millennium.
I. INTRODUCTION
Public administration worldwide has
been the subject of revolutionary changeover the past decade. Privatisation,
corporatisation, outsourcing, outcome/output budgeting and accrual accounting* Chief Exective Officer, Core-the Public Correctional
Enterprise, Department of Justice, Australia.

are but some of the contemporary businessconcepts that are now the hallmark ofmodern government administration. Past
practice no longer provides an adequate
basis to ensure the future viability of the
public sector.
A special edition of “The Economist” in
September 1997 entitled “The Future of theState”, succinctly summarised thesechanges in quite dramatic terms:“... the State is in retreat. At the turnof the millennium, it is argued,
governments are confronted by two oldenemies, stronger now than everbefore: technology and ideology. The
State is proving unequal to thechallenge. Its power to rule is fading.
A new industrial revolution is underway. Advances in computing andtelecommunications press relentlesslyon, eroding national boundaries andenlarging the domain of the global
economy. Increasingly, these changes
render governments mere servants ofinternational markets.”
In the face of international competition,
governments have realised that a high debt
burden and high taxing regimes undermine
the country’s level of competitiveness.
Increasingly, governments are wrestlingwith the paradox that voters want lower
taxes but want more public spending. This
has required governments to examine thebreadth of responsibilities they haveaccumulated over the years, to shed more
peripheral functions and to ensure residual3

RESOURCE MATERIAL SERIES No. 56
functions operate efficiently. Over the past
decade, there has been a greater
questioning of the efficacy of big
government and critical comment aboutpublic monopolies which, being free frompressures to innovate or become more
efficient, have been shown not to offer value
for money to the communities they serve.
II. REFORM OF GOVERNMENTIn the 1980s, there was recognition in
the UK and Europe that the high level ofgovernment spending could not besustained. The Thatcher Government in
the UK introduced radical reforms in a bid
to reduce public spending, which in 1980
comprised 43% of GDP. Similar programs
were pursued to a lesser extent in France(55%), Italy (52%) and Belgium (54%).
Government’s transferred the delivery ofservices to the private seczWr {B withdrew
from service delivery altogether.
In the USA, where big government had
not been a feature of the American politicallandscape, there was nevertheless ongoing
voter pressure to minimise taxation andincrease the responsiveness of the public
sector. In 1992, the seminal work of DavidO s b o r n e a n d Te d G a e b l e r t i t l e d“Reinventing Government” took the world
by storm. Osborne and Gaebler identified
ten principles around which
entrepreneurial public organisations arebuilt:
1. Steering more than rowing.
2. Enpower communities rather thansimply deliver services.
3. Encouraging competition rather thanmonopoly.
4. Being mission driven rather thanrule driven.
5. Funding outcomes rather than
inputs.
6. Meeting the needs of the customer not
the bureaucracy.

4

7. Concentrating on earning not justspending.
8. Investing in prevention not just cure.
9. Decentralising authority.
10. Solving problems by leveraging themarket place, rather than simply
creating public programs.
“Reinventing Government” became therequired reading of politicians andbureaucrats alike following the book’s
publication. The sentiments of the book
hit a chord with many in government andin communities around the world.
Within Australia, various Federal andState Commissions of Audit Report’s
recommendations echoed the book’s major
thrust. In 1995, the Council of Australia
Governments (COAG) endorsed the
National Competition Policy (NCP) Reportof the Independent Committee of Inquiry(the Hilmer Committee) set up in 1993.
The NCP established consistent principles
governing pro-competitive reform ofgovernment enterprise and of government
regulation. It was agreed that all
Commonwealth and State legislation
would be reviewed to ensure it did notunnecessarily restrict competition.
The NCP Independent Committee ofInquiry summarised the merits ofcompetition in the following way:
“Competition provides the spur forbusinesses to improve theirperformance, develop new products
and respond to changing
circumstances. Competition offers thepromise of lower prices and improved
choice for consumers and greater
efficiency, higher economic growthand increased employment
opportunities for the economy as awhole”.
The Hilmer Committee was at pains to112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
stress, however, that it did not support
totally unfettered competition andindicated there were bona fide reasons
where governments would need tointervene in specific markets with theintention of protecting the public interest
or for generating other benefits for thecommunity as a whole or from particularsectors of the community. The committee
commented:“Competition policy is not about the
pursuit of competition per se. Rather
it seeks to facilitate effective
competition to promote efficiency andeconomic growth whileaccommodating situations wherecompetition does not achieve efficiency
or conflicts with other social
objectives. These accomodations arereflected in the content and breadthof application of pro-competitive
policies, as well as the sanctioning ofanti-competitive arrangements on
public benefit grounds”.
Implementation of the NCP wasunderwritten by the Federal Government
through the allocation of substantial funds
to States/Territories to address transitionalcosts and negative revenue implications
arising from the adoption of the NCP.
Following the Victorian State electionsin October 1992, the Kennett Liberal/
National Coalition Government proceededswiftly with major reform of the public
sector. In the face of a $32billion State debt,
significant budget cuts were made togovernment departments, programs werereduced or axed, services were outsourced,
many statutory authorities were
corporatised and there was a concerted
effort to privatise electricity generation andsupply, and gas retailing.
In 1993, the Victorian Commission of
Audit set the tone for subsequent change

through its identification of the key
principles for public sector reform:
•
•
•
•
•

a preference for market mechanisms;
empowered consumers;
minimised government regulation;clear accountability for results; andprofessional and buisiness-likemanagement of public agencies.

The “steering not rowing” metaphor soontranslated to a notion of “purchaser/
provider split” whereby the purchaser ofthe service would not also be the providerof the service. In a market context withmultiple suppliers, governments were seen
to be able to maximise public benefit in thepurchase of services and avoid thedownsides of departments as single service
providers.
The privatisation of government services
in Victoria over the last six years has beensignificant and has touched all Ministerial
portfolios. Major changes have occurredin the following areas:
•
•
•
•
•
•
•
•

utilities;
communications;roads;
trains, trams and buses;
regulation and inspection;
welfare services;educational and training services;
health services.

In addition, there has been signficant
privatisation and contracting out within
the Justice portfolio in such areas as:• corporate services (payroll, humanservices, audit, building
maintenance, fleet management);• the police airwing;• computer aided dispatch of
emergency vehicles;• staff training;• prisoner transportation;

5

RESOURCE MATERIAL SERIES No. 56• the operation of police traffic cameras
and the administrarion of theenforcement of on-the-spot fines;• the management of police custody
centres;• building, owning and operating threeof the State’s thirteen prisons;• building, owning and operating the
proposed new County Court complex.
The results of the overall Government
reform program have been impressive. The
State debt has been reduced from
$32billion to $11billion, Victoria has moved
from being the highest taxing State,
unemployment has fallen below thenational average and there is growing
confidence in the business community (bothlocally and internationally) that Victoria
is a good place in which to invest.
The Productivity Commission’s 1999
report to COAG on the benchmarking ofgovernment services confirms the preeminence of Victoria in many of the key
performance indicators (in relation to thebenchmarking of a broad range ofgovernment services).
The reforms however have not been
without their critics. The speed andbreadth of change, the quantum of thebudget cuts, the apparent primacy of
economic imperatives driving so muchchange, and the extent of privatisation
have been the subject of much community
debate.
Perhaps one of the most controversial
reforms has been the Kennett
Government’s prison privatisation
program. It is a program worthy of further
analysis, as in many ways the issues withprivate prisons resonate in character withother reforms within the Justice portfolio.

6III. THE PRIVATISATION OF
VICTORIAN PRISONS
Before the Kennett Government’s
election in 1992, the Victorian prison
system was the responsibility of the Officeof Corrections. The previous Cain/ Kirner
Labour Government had made major
investments in the construction of four new
prisons at a total cost exceeding$170million. Notwithstanding thisinvestment, the large bulk of prisoners still
resided in accommodation built in the lastcentury.
The general productivity of the prison
system was poor. Sick leave rorting byprison officers was rampant (average 28
days annual sick leave per prison officer
at Pentridge Prison in 1992). The level ofprison staffing was the subject of on-going
tension between management and theunions.
Interestingly, the concept of contracting
out was not new to the prison system.
Private contractors provided many of theprison support services; health services
were provided by the Health Department;
and education provided by the TAFE
Division of the Education Department. A
separate statutory body (VicPIC) was
responsible for prison industries and thedelivery of many prisoner programs
involved both paid staff and volunteers
drawn from the wider community.
A key element of the Liberal/National
Coalition party policy platform was theprivatisation of elements of the prison
system. It was envisaged that privatisation
would reduce the annual unit cost per
prisoner, provide comparative benchmarks
against which to evaluate the performanceof public prisons and, no doubt, break thestranglehold of union influence on thesystem. In addition, through the adoptionof a build, own, operate (BOO) philosophy,

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the Government was able to construct three
new prisons which, given the size of thedebt burden, would be unlikely to havebeen built for a considerable time. The
BOO approach enabled the Government totransfer the construction and ownershiprisk onto the private sector. The issue of
inadequate asset maintenance provision
has long been a sore point with public
sector managers. BOO projects eliminatedthese difficulties, as well as avoidnig any
increase in State borrowings which was a
key priority of the new Government.
So how does the new Victorian prisonssystem now work?
The amended Corrections Act 1986 gives
the State direct authority for the security,
safety and welfare of prisoners; and for the
maintenance of standards, in both public
and private correctional services. In 1995
the Office of the Correctional Services
Commissioner (OCSC) was established tooversee the corrections system. The
Commissioner is responsible for:• strategic planning;• developing and setting state-wide
policy and standards;• the management of prisoner
sentences, including prisoner
assessment, classification andplacement;• monitoring the delivery ofcorrectional services by both public
and private providers;• adviding the Minister (the purchaser)
about each provider’s performanceand level of compliance with
contractual obligations;• providing overall leadership to theVictorian corrections system.
Specific prisoner health and welfare
standards developed by theCommissioner’s Offive include:• prisoner access to programs which
address issues related to theiroffending behaviour;• prisoner access to personal
development and life skills programs;• provision of health care services
which meet community standards;• prisoner access to adequate fitness,
sport and recreational activities;• prisoners being given opportunities
to develop the skills for employment
after their release through access toboth work experience in prison
industries and education andtraining programs.
The Commissioner enforces a rigorous
monitoring regime built around:• clear specification of requirements ofproviders;• monitoring providers from on-site
observation and the analysis ofperformance date;• validation of provider reports;• provision of formal feedback toproviders.
The Minister for Corrections, as thepurchaser of services, has assigned the taskof Contract Administrator to the Deputy
Secretary, Justice Operations within the
Department of Justice. This position is
supported by a separate Corrections
Contracts Branch. The role of the Contract
Administrator is to:• identify the correctional services tobe purchased by the State;• establish appropriate contractual
arrangements;• administer the contracts on behalf ofthe Minister for Corrections.
The Contract Administrator regularly
reviews reports from the Correctional
Services Commissioner concerning service
providers’ performance and levels of

7

RESOURCE MATERIAL SERIES No. 56
compliance with their contracts.
The correctional providers within the
Victorian correctional system are a mix ofpublic and private providers. The public
provider - the public Correctional
Enterprise (CORE) - operates ten prisonsand manages the State’s community
correctional services.
In addition, there are three private
providers of prisons:• Metropolitan Women’s Correctional
Centre (125 beds) - Corrections
Corporation of Australia (opened
August 1996);• Fulham Correctional Centre (600beds) - Australasian Correctional
Management (opened April 1997);• Port Phillip Correctional Centre(600beds) - Group 4 Correction
Services (opened September 1997).
A preliminary observation of the multiprovider system relates to the impact thatprivatisation has had on CORE - The
Public Correctional Enterprise. It is a great
credit to the management and staff of
CORE that they have responded to thechallenge (or threat) in a very constructive
and effective way. Many would not haveanticipated how effective this response
would be.
Institutionalised work and staffing
practices have been reformed, facilities andservices improved, staff attitudes andmotivation improved and costs have been
reduced substantially. These reforms could
hardly have been contemplated in the
traditionl monopoly system. These reforms
give confidence to the notion that the public
provision of prison services can continue
in a multi-provider environment, where
performance in terms of service quality andcost will be the bottom line.

8

The Victorian correctional model has
been very deliberately designed to separate
the roles of the purchaser and providers,with the OCSC playing the key system
leadership role of policy, standard setting,performance monitoring and sentence
management. The key responsibilities of
the Commissioner (as outlined in Section
8A of the Corrections Act 1986), requires
the Commissioner to exercise these
responsibilities impartially between allproviders. In allocating to the Contract
Administrator the responsibility for
managing the commercial and financial
interests of the Government in thecontracts, the integrity of theCommissioner’s role in addressing the safe
custody and welfare of prisoners is
effectively preserved.
While there have been many calls forindependent monitoring of prison
performance, no other jurisdiction had
implemented a model as definitive as thatin Victoria, separating responsibility forsafe prisoner custody and welfare from theresponsibility for financial or budgetary
targets for the system.
The contracts with the private
correctional providers are built around anumber of commercial principles:• the Government purchases acomprehensive package ofaccommodation and correctional
services from the provider over set
contract periods for a defined
prisoner population;• the private provider owns the prison
through an equity investment in thefacility and the acceptance of design,
construction, ownership andmanagement risks;• the private provider supplies new
prison facilities and is responsible for
their on-going maintenance;• the private provider provides

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
correctional services, as well as
health and prisoner programs, which
maintain or enhance the standard of
those available in public prisons;• the private provider assumes therisks related to the development,
ownership and operation of thephysical plant and service delivery.
Each successful private provider
consortium therefore owns the prison
which has been built on crown land, leased
to the provider by the Government. In
these cases, the Government hascontracted with the provider to supply bothfacilities and services. The provider isrequired to develop, maintain and operate
the prison, including providing sevices andprograms, which meet the Government’s
corrections policy objectives in relation toprison safety and security, accommodation,and rehabilitation of prisoner standards.
Contract payments to private
correctional providers are divided into
three categories:• Accommodation Service Charge(ASC) is a monthly payment for theprovision of correctional facilities toa Government specified standard - itis in effect a debt servicing andfacility charge;• Correctional Service Fee (CSF) is amonthly payment for the operationof the prison and the provision ofcorrectional services, education,
traning, health, and other programs;• Performance Linked Fee (PLF) is anannual payment based on theachievement of specified outcomes forboth prison facilities and services - itis in effect a return on investment
payment.
A fundamental feature of the contracts
is the focus on outputs and outcomes rather
than the traditional focus on inputs andprocesses. Specific service delivery
outcomes are specified which must be
achieved to justify, for instance, thepayment of the performance linked fee.
Both the ASC and CSF payments areaffected by sub-standard provider
performance. For example, nonavailability of part of the accommodation
could result in ASC and PLF payment
reductions. While failure to comply withany of the forty-two prison management
specifications for correctional services could
result in CSF payment reductions.
To achieve full payment of the PLF,
providers must achieve specified outcomesfor accommodation and correctional
services, as well as meet specified
benchmarks in five key correctional
services:
•
•
•
•
•

prison operations;education and training;prison industries;
health;other prisoner programs (e.g, drug
education programs).

As a last resort, where the payment
regime to a provider has apparently notworked, the prison contracts provide a
default regime. The default process is mostappropriately applied where there are
significant and continuing issues that need
to be remedied by the provider within a predetermined timeframe. If the provider fails
to address the issues within the stipulated
period, a range of legal remedies areavailable to the Minister, including seeking
damages, “step-in” provisions and contract
termination.
In addition to the Minister’s ability to
reduce payments, a wide range ofincentives and safeguards have been put
in place to ensure private providers deliver
the appropriate standard of correctional

9

RESOURCE MATERIAL SERIES No. 56
facilities and services:• the Government retains the right tore-tender the contract for correctional
services after the initial 5 year periodof the contract and every 3 years
thereafter;• overall responsibility for prisoners
remains with the State;• Government representatives have
unfettered access to all aspects of theoperation of a prison;• all prisons are open to public scrutiny
through the Official Visitors Scheme,
FOI, the Ombudsman and visits byprisoner visitors, clergy, TAFE
teachers, medical staff and various
other community representatives;• rigorous probity processes ensuresthat high standards apply to prison
contractors, sub-contractors and all
staff employed in prisons;• the Minister has clear “step-in right”
to maintain the security of thesystem, and can, in the event of aserious breakdown, take over the
management of a prison;• in defined adverse circumstances, theMinister can require the contracting
consortium to remove the operator
and appoint a new operator.
A number of commentators andacademics have challenged the efficacy ofthe private prisons “social experiment” inVictoria. This is often done, it seems,
without any appreciation of the safeguardsof the Victorian Model, in particular the
powers and status of the Commissioner in
relation to the safe custody and welfare ofprisoners.
Linda Hancock, University of
Melbourne, in her paper “Contractualism,
Privatisation and Justice : Citizenship, theState and Managing Risk” (Australian
Journal of Public Aadministration December 1998) provides a useful10summary of the key issues of debate on
privatisation. At the start of her paper she
states:“Much of the debate in Australia
around contractualism has concernedhuman services. However, those
opposing privatisation in justiceargue that justice is different fromother policy areas in that part of thework of justice departments involves
the use of delegated sovereign powerwith the potential to discipline,
punish and use force. They object tothe principal (sic) of delegating theState’s power to punish to private for- profit corporations”.
Hancock subsequently outlines thecounter-argument:“Others adopt the view thatdelegating the State’s powers to
private interests is acceptable,
provided adequate accountability andregulatory structures are put in place.
This view would dismiss arguments
about an integral role for the Stateand actions of non-delegatable powers(i.e, to punish) as unfounded.”
In concluding her article, Hancock gives
the impression she believes that the jury
is still out on the privatisation reforms injustice, especially in relation to key issuesof “accountability, quality of service
delivery, service gaps, balancing civil rights
and budget efficiencies, ethical issues andissues of democratic governance”.
It is worth briefly pondering theseissues, as they tend to recur through manyof the contemporary writings about private
prisons.
A. Accountability
Prior to the advent of private prisons,the accountability for the prison system

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
was vested with the Minister for
Corrections and the Director-General of
Corrections. The Director-General issued
Director-General Rules which
operationalised elements of the Corrections
Act and set guidelines for the general
operation of prisons. They were proceduralin nature and contained few quantifiable
performance measures.
A separate inspectorial unit would
conduct an intensive inspection of eachprison over a two to three year cycle.
Prisons were required to report incidents
as they occurred but there was norequirement for monthly performance
reports. Prisoner regimes were left largely
to the discretion of the Governor and outof cell hours were very much determinedby the prevailing staff levels.
The onset of private prisons introduced
a discipline that had previously not beenpresent. Because of the contractual natureof the relationship between the State andprivate prison providers, greater specificity
was needed in relation to all aspects
relating to prison design, facilities andprisoner services. No longer could thecorrectional system rely on informal andill-defined prison specific arrangements.
Contractors wanted to know what outputs
and standards were required before theywould commit on price.
A much tougher and specific prison
monitoring framework was establishedrequiring detailed monthly reporting bycontractors, on-site monitoring and service
validation audits by both theCommissioner and the health authorities
in relation to health services.
It is interesting to note that the private
prison providers comment that the breadthand depth of reporting and monitoring in
Victoria are more intense and demanding
than in other States or in overseas prison

systems.
The various other accountability
processes that existed previously in the
public prison system have also beenretained. One suspects the Government
understood the potential political risks ofprivatising prison management anddeveloped a “belt and braces” approach tothe issue of accountability. It would be
difficult to conceive how prisons could havebeen subjected to more accountabiliy.
There appears to be a misconception that
Government has abrogated its
responsibility for prisoners once they areplaced in a privately operated prison. Thisis clearly not the case. The Commissioner’s
responsibility for the sentence
management function encompasses
ongoing responsibility for the classificationa n d p l a c e m e n t r e v i e w, a s w e l l a s
monitoring prisoner welfare through onsite monitoring and other review processes
outlined earlier. The Commissioner
maintains an ongoing oversight andinterest in the progress of every prisoner
throughout the sentence to ensure proper
placements are made in each case andoutcomes delivered.
A good deal has been written and said
i n t h e Vi c t o r i a n m e d i a a b o u t t h eperformance of the three private prisonsin Victoria. It is necessary to make anumber of observations about this media
coverage.
The first observation is that the
progressive commissioning of three private
prisons, representing 45% of the prison
system, over the period from August 1996
to December 1997 was always going to bea significant challenge. The fact that it wasdone quite deliberately, with staff that were
new to prison work in order to minimise
the transfer of the “old culture”, did not
make the task any easier.

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RESOURCE MATERIAL SERIES No. 56
Secondly, the media and interest groups
pre-occupation with private prisonscertainly highlighted the incidents that did
occur. It is apparent that the first year or
so of commissioning new prisons was clealy
a difficult time, as was illustrated by thecommissioning of the Silverwater publicly
operated facility in New South Wales. The
final judgement about public versus private
prison performance cannot be realisticallymade on the basis of the performance inthe year of commissioning, but rather on
the sustained performance over at least two
to five years. Those claiming otherwise are
either exposing an ideological bias or are
unwilling to accept change.
Thirdly, the evidence in Victoria is thata multi-provider environment is now
delivering real and sustainable benefits inservice and cost terms.
B. Quality of Service Delivery
The quality of service delivery in prisons
is monitored by both individual prison
management and by the Correctional
Services Commissioner. Health service
quality is scrutinised by the Departmentof Human Services.
The experience in dealing with private
operators in Victoria belies this fear thatmany have. A well developed contract,
combined with thorough and wellstructured monitoring, has shown that thefocus now being made on quality far
exceeds the assurance that was everavailable in this regard under traditionalmonopoly provider systems. Monitoringneeds to be well targeted to key issues andbased on an open approach that rewards
sustained good performance. The incentive
for providers to maintain quality services
is a multi-provider business environmentthat is subject to thorough monitoring areself evident, and the cynical view that thefirst priority of private providers is to cut
costs is not well founded.

12

A visit to any prison in Victoria, public
or private, would challenge the objective
observer to discern material differences in
the quality of the services between the twocategories of providers.
C. Service Gaps
The Government made a major
investment in planning and policy
development to underpin the privatisationof nearly half of its prison system. Every
aspect of a prison’s operations wereidentified, analysed, specified andstandards defined. Forty-two prison
management specifications were definedand standards set. Each private prison was
required to develop an Operating Manual
around these management specifications
and this Manual is, in part, the basis fort h e e v a l u a t i o n o f e a c h p r i s o n ’s
performance.
The prison operator specifies the “howto” in terms of inputs and processes,
whereas the Government specifies theoutputs and outcomes required. The
operator has ‘ownership’ of the inputs andprocesses and carries the related risks.
D. Balancing Civil Rights andBudget Efficiencies
The Corrections Act specifies not only
the legislative parameters for the Victorianprison system but also defines prisoner
rights (Victoria was the first State tolegislate prisoner rights in the mid-1980s).
The Corrections Act makes no distinction
between public and private prisons on theissue of prisoner treatment. In agreeing
on a contract price for a private prison, theGovernment has needed to satisfy itself
that the provider had the appropriate
capability to deliver the services required.
The capacity of the bidder to provide aservice at the price quoted was animportant consideration in contract
evaluation.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Again, the argument that the profit
motive will result in a diminution ofprisoner rights in private prisons has notproven to be the case. There is considerable
evidence that the quality of prison
environments, for instance, in terms ofhours out of cells and access to training
programs has considerably improved. The
consequences of non-compliance withlegislative requirements would simply not
be risked by the operator. Empiricalevidence would suggest that the profit
motive is acting as a key focus on private
prison operators to pay close attention tocausal factors of tensions within the prison
and to adopt management and earlyintervention regimes to prevent more
untoward prisoner behaviour that impact
on prison operations.
E. Ethical Issues
The issue of ethics may arise in two
significant ways in relation to private
prisons.
Firstly, the ethical standards that apply
in the management of contact dealings
when tenders are let for private prison
consortiums. In Victoria, a rigorous probity
process saw a high quality approach to theletting, evaluation and selection of
successful tenderers. This probity review
is ongoing and any change in ownership or
key personnel is subjected to critical review.
Failing to notify such changes has serious
contractual consequences.
Secondly, there is the ethics that
operators of prison of bring to the way
prisons are managed. Neither theCommissioner’s Office, Official Visitors, theOmbudsman nor Chaplains have reported
ethical breaches in the conduct of any of
the State’s private prisons. Contrary to theperception created by interest groups andthe media, a wide range of groups visit
prisons on a regular basis. In addition,
there is a constant movement of prisoners

between prisons, as well as visitors toprisoners. There is no evidence that ethicalstandards are being compromised. The
ethical standards of the operators issomething in which they place greatemphasis given their active ongoing
involvement in tending for new businessaround the world. Unfavourable publicity
about their ethical standards would,
without doubt, hamper their chances in any
future bidding process.
F. Democratic GovernanceIn large part the issue of democratic
governance relates to the issue raised by
Hancock in her paper over the capacity of
the State to delegate its power to punish
private for-profit organisations.
This is a fundamental issue. This is whyin the Victorian model the role of theCommissioner in managing the sentence
given to the prisoner by the Court iscritical. It is the Commissioner who acts
to ensure that the sentence of the Court isproperly implemented, not the prison
operator. It is also the Commissioner who
decides the placement of the prisoner andperiodically reviews this placement. The“delegation” to the operator of the prison
is defined by the provisions of theCorrections Act, publicly available service
standards and operating manuals, and is
the subject of substantial accountability
and monitoring regimes.
Perhaps the most controversial issue
that arises with privatising in government
relates to the conflicting ideals of thepeople’s right to know, the public interest,and “commercial confidentiality” of theprivate prison contacts. In Victoria, thebulk of the private contact details andrelated documents have been released tothe public, however, provisions dealing
with security matters and specificcommercial details have not been released.
There is no answer to this conundrum that13

RESOURCE MATERIAL SERIES No. 56
will be acceptable to everyone. Commercial
contractors when bidding for government
services do so in the full expectation thatcertain details of their bid remain
confidential. The community equally needs
to be assured that the Government isachieving value for money when entering
into contracts with the private sector.
There has been no complaint that the“product” specified in the project briefs forVictoria’s private prisons was inadequate.
Indeed, there is more information in the
public arena about what prisoner services
should be provided then has everpreviously been the case.
The issue seems to be how to engenderpublic confidence that what should be done
is, in fact, being done. This is not a newissue, as it has also existed in relation to
the traditional monopoly provision ofprison services. The introduction of private
providers has, it seems, brought aheightened level of suspicion, at least insome quarters.
Perhaps there is a middle path where
an independent broker, such as the
Auditor-General, can validate the overall
efficacy of private prison contracts, without
revealing the commercial details of thecontract. It is important that thecommunity has confidence in theprivatising of services while private
contractors can confidently bid forgovernment work on the understandingthat competitors are not privy to theirpricing details.
IV. SUMMARY
Public administration has been thesubject of rapid and substantial changeover the past decade. Governments havebeen confronted with the full force of
globalisation. To remain competitive,
Governments worldwide have taken

14

difficult decisions to reduce debt andminimise taxes. As a result, the role of the
public sector has changed remarkably.
In Victoria, the public sector has beenat the cutting edge of reform over the last
six years. The Government has pursued asignificant program aimed at increasing
the productivity of the public sector. A
major part of the reform program has been
to privatise significant aspects ofgovernment services, including a range ofservices within the Justice portfolio.
The privatisation of around 45% of theState’s adult prisoner capacity has been thefocus of many debates. The advent of three
new private prison operators since 1996
has required the development of more
rigorous and transparent design andoperational standards for prisons,introduced new and additional
accountability mechanisms, and provided
an imperative for the public prison system
to become more efficient, responsive andinnovative.
While the transition to a new multiprovider system has not been without its
problems, overall results to date would
indicate that the prison privatisation“social experiment” in Victoria is bringing
substantial benefits in terms of service
quality, innovation, responsiveness andreduced costs.
REFERENCES
The Economist, A Survey of the World
Economy, “The Future of the State”, 20
September 1997.
O s b o r n e D & G a e b l e r T, 1 9 9 2 ,“Reinventing Government”.
Beazley R & De Silva D, 1998,“Outsourcing Democracy and Public
Accountability”. Conference Paper,

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Biennial Conference of theInternational Bar Association, Canada.
Beazley R, 1998, “Government
Outsourcing and the Preservation of
Legal Remedies”, Conference Paper,
Biennial Conference of theInternational Bar Association, Canada.
Davies J, 1998, “The Effect of Prison
Privatisation on the Legal Position of
Prisoners”, Australian Journal of
Administrative Law, Vol. 6, November.
Hancock L, 1998, “Contractualism,
Privatisation and Justice: Citizenship,
the State and Managing Risk ”,
Australian Journal of Administrative
Law, Vol. 57, No. 4, December.
Weller P, 1998, “Prisons, the Private
Sector and the Market: Some
Queensland Lessons”, Australian
Journal of Administration, Vol. 57, No.
4, December.
Department of Justice, 1997, “TheVictorian Adult Corrections System”,
Brochure.

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RESOURCE MATERIAL SERIES No. 56

INNOVATIONS IN CORRECTIONAL SERVICES AN
EXCURSION THROUGH THE CHANGING PRISONS CULTURE
OF VICTORIAJohn Brian Griffin*
ABSTRACT
Victorian prisons have witnessedsignificant changes over the past decade:from 1988 when there were a multitude ofinquiries into prisoner incidents, deaths
and corruption, through the turbulent
beginnings of unit and individual prisoner
management, to the creation of statewide
Drug, Violence and Sex Offender Strategies
and the contracting out of key servicesculminating in the privitisation of 45% of
the prisoner population and the closure ofold prison stock.
For CORE- the Public Correctional
Enterprise, Victoria’s public corrections
agency, the journey has been one ofsignificant organisational and culturalchange, and progression to a learningorganisation. This is clearly reflected in
the way we manage prisoners. “Just gaols”
have at their foundation, professional staffprisoner relationships and theempowerment of staff and prisoners. They
welcome scrutiny and challenges to oldpractices.
Marked changes in culture and prisoner
management mean that prisoners have agreater opportunity to return to thecommunity with more skills. The challengeahead however is to achieve the rhetoric of
rehabilitation and demonstrate to thecommunity that we have a system that‘works’.
* Chief Executive Officer, Core-the Public
Correctional Enterprise, Department of Justice,
Australia.

16“Pain is an enduring feature of thecorrectional enterprise. We must
accept this hard reality, and quite
explicitly attempt to promote growththrough adversity. This is a genuine
correctional agenda. For men who
cope maturely with prison, I willargue, are men who have grown as
human beings and been rehabilitatedin the process.”(Johnson, 1996, p.97)
I. INTRODUCTION
The tendency to use imprisonment as apunishment for crime has risen and fallen
over the years, depending on the attitudeof the courts, and the public’s tolerance ofcrime. Despite the differing views andopinions people hold of imprisonment, it
will remain an important feature ofsentencing in the foreseeable future.
Rightly or wrongly, in Australia, thecommunity still sees imprisonment as themost effective way of protecting itself fromfears. Nevertheless, to the community,
imprisonment is a double edge sword: onthe one side it offers protection, throughdeterrence and incapacitation; and on theother, it is expensive and damaging to thecommunity, possibly causing an escalationin crime among many individuals who are
eventually released.
Imprisonment emerged as a major formof punishment for crimes during the lateeighteenth and early nineteenth centuries,
coinciding with the period of“Enlightenment” in Europe and the112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
industrial revolution, replaced earlier
forms of punishment that took their toll
upon physical pain and social
embarrassment.

few and isolated exceptions, therehabilitative efforts that have beenreported so far have no appreciable effecton recidivism”.

The early aim of imprisonment was toachieve the “moral salvation” of theoffender through the provision of harsh,
deterrent and retributive justice. Prison
programs, such as they were, facilitatedthis aim by providing hard labour andreligious indoctrination.

Secondly, after a series of incidents andenquiries (such as the Jenkinson Inquiry
in 1972) there was a general recognition
that prisoners were citizens with legally
enforceable rights. There was a time whena prison conviction often meant “civil
death”, a cruel form of punishment
expressly acknowledging a prisoner ’s
permanent removal from free society. It is
now argued that prisoners should beentitled to the same rights as a free citizen,
except where the nature of the confinement
necessarily requires modification.

By the mid 20th century, the aims ofreformation and rehabilitation had cometo be given equal status to those ofdeterrence and retribution. In the 1950s
and 1960s the belief that the purpose of
imprisonment included the “treatment andtraining” of prisoners had become fully
established and accepted by the wider
community.
Under this “treatment model”, programsin the State of Victoria multiplied and there
was a general feeling that prisons could
succeed in rehabilitating offenders.
Psychiatric services were introduced in theearly 1950s. Parole was introduced in 1955
in order to allow “rehabilitated” prisoners
the benefit of early (conditional) release.
Training prisons were identified based on
the theory that a strong work ethic in theprison system would produce rehabilitatedoffenders. The classification system wasadopted by Victoria as a means ofdifferentiating prisoners according to theirdifferent treatment needs.

These two developments led to the“justice model” of punishment and to thenotion of the purpose of imprisonment as
being “humane containment”. This viewhas been sustained since the 1980s and is
still current today. There was during this“justice model” era an increasing emphasison physical security and a growing
concentration on prisoners’ rights, rather
than their needs. The rhetoric of treatment
and training had had its day. Programs
were provided for prisoners to access only
if they wished. Correctional agencies did
not perceive that they had any
responsibility for encouraging prisoners toundertake programs. The belief was that
only properly motivated prisoners would
benefit from participation in prion
programs.

In the mid 1970s the feeling of optimism
began to change for two reasons. Firstly,
the publication of a report by Lipton,
Martinson and Wilkes (1975) which
seriously questioned the efficacy of thetreatment models. After examining theevaluation reports of 231 correctional
programs in the US, dating from 1945 to
1967, the researchers concluded that “withIt is clear that prison programs in an
historical sense through the “justice model”
have focused on the “rehabilitation” of theoffender; ensuring the prisoner does not
reoffend after release. Even during thehumane containment era, prison programs
were conceived of as being related to theprisoner’s capacity to cease reoffending.
They were viewed cynically by the majority

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RESOURCE MATERIAL SERIES No. 56
of correctional practitioners for this very
reason. The evidence suggested that
programs could not succeed inrehabilitating offenders. Prison programs
were offered only if prisoners sought themout and expressed a desire to participate.
The rhetoric of the time identified it as theprisoner’s responsibility to rehabilitate
themselves.
Another purpose of prison programs is
only just now emerging. Rather thanfocussing solely on the goal of rehabilitationand therefore “outwards” and into the
future, prison programs are increasingly
focussing “inwards” and upon the present
and upon the goal of providing positive andeffective custodial management. This iswhat is termed as “positive custody”.
Building upon the humane containment
era, the “positive custody” model recognisesthat imprisonment can be “criminogenic”
or can increase the likelihood of future
crime and can promote immature coping
behaviours by prisoners. Prison programs
as part of the “positive custody” canenhance the safe and secure managementof prisons and promote the development of
mature coping skills which are equally
relevant within and on release from prison.
Achieving Positive Custody-Prison
systems can intensify the social conditions
that lead to offending behaviour. For
instance prisons have the potential to:• Alienate prisoners by failing to givethem any say in the management of
their lives and by removing them fromtheir normal environment;• disempower prisoners by failing toprovide adequate and accessible
information about the system and theway that it works;• bore prisoners by failing to provide
activities that effectively occupy theirtime;• provide opportunities for crime by

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failing to provide adequate supervisionor the means for prisoners to be safe or
to protect their personal belongings;
promote sub-cultural norms by failingto provide adequate supervision or themeans for prisoners to be safe or toprotect their personal belongings;
promote continued poverty by failing toprovide prosocial leadership and by
allowing gangs to be maintained inprisons;
reinforce patriarchal social norms byhaving a majority of male staff andprisoners with no active considerationof the needs of female staff or prisoners;
andpromote undesirable outcomes ofdeinstitutionalisation by failing to
involve relevant agencies in the
supervision of the psychiatrically ill or
intellectually disabled.

In order to achieve positive custody,
prisons should emulate within their walls
the society that is not “criminogenic”. To
do so, prisons must adopt community
standards as a base but at the same time
be less alienating, more empowering, moreconstructive and more egalitarian.
Managing people within prisons is acomplex affair. Complex, because
invariably it involves the need to balance
a number of conflicting needs and aims.
Stakeholder analysis has shown myorganisation, CORE-the Public
Correctional Enterprise, that these needs
and aims are described as:“custody, safety, crime prevention,
deterrence, reform, containment,
control, incapacitation, punishment,
retribution, restraint, rehabilitation,
constructive activity, justness, therapy
and training”.
Johnson (1996) argues strongly that a
traditional hierarchal system of prison

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
management “conditions” those associatedwith it, that includes both staff andprisoners, to cope “immaturely”. He goeson to say that modern prison systems
should be re-structured in such a way as
to encourage what he calls “mature coping”.
Certainly to become more effective,
imprisonment must continue to offer theprotection of incapacitation and deterrence
but at the same time it must lessen theharmful effects of the experience. Biles(1992) argues that the totality of theexperience of the prisoner must be
considered when developing a regime to
manage the offender whilst challenging(and changing) antisocial or criminal
behaviour. I strongly believe that goodmanagement and leadership can only
achieve this.
In terms of management, this meansthat prison staff must provide prisoners
with the opportunity to develop or maintainskills that will enhance their chances ofleading a law-abiding lifestyle after theirrelease. Skills that lead the individual toaccept greater responsibility, self relianceand self discipline. In terms of leadershipit means that prison staff- all prison staff must serve as strong examples of honesty,
fairness, tolerance, patience andunderstanding. In essence, goodmanagement and leadership are theessential features of prison work and are
our prime collective responsibility. To failthat responsibility is to fail ourselves andto fail to provide the community withprotection beyond the prisoner’s term of
imprisonment and prisons remain “justgaols”.
How does CORE- the Public Correctional
Enterprise respond to this challenge? The
greatest single endeavour of public
corrections in Victoria over the past decade
has been to change the culture of ourprisons and CORE as a whole. I would liketo take you on a brief journey through thesignificant events in Victorian prisons overthe past 10 years that have shaped the
management of prisons to go beyond “justgaols”. I believe we now have to talk about
the challenges ahead and deliver on
rehabilitation and harm minimisation
strategies.
Probably the blackest day in Victoria’s
prison history was the death of fiveprisoners in October 1987 in a fire at Jika
Jika, a high security, management unit inPentridge Prison. On the heels of thistragedy were numerous internal andexternal inquiries into incidents, deaths,
drugs, accountability, corruption and maladministration within the then Office ofCorrections. It was a demanding time forme to take on the responsibilities as thethen Director of Prisons, because it was at
this time that changes to the way wemanage prisoners in Victoria really began
in earnest. We are entering the era ofhumane containment going beyond theconcept of “just gaols”. In the early 1990s
CORE (the then Office of Corrections)developed a framework to encompass all
aspects of the prison environment,
including regimes, programs and prison“culture” and worked to establish, develop
and exploit the synergistic links between
each in order to maximise the potential for
successful rehabilitation of Victorianprisoners.
What is “rehabilitation”? Complete lossof freedom is the maximum punishment
our law permits. The length of time that
freedom is lost depends on many factors;
the crime, the circumstances, the intentionof the offender, prior history, displays ofremorse and the plea. The court will also
weigh the need for: retribution; specificdeterrence; general deterrence;
rehabilitation and parsimony. In balancing
these considerations, no two cases areexactly the same.

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RESOURCE MATERIAL SERIES No. 56
Whilst rehabilitation often implies therestoration of a previous level offunctioning, for example learning to walkagain after a physical injury, this is not a
useful definition when talking about the“rehabilitation” of offenders. Their levelof functioning before entering the prison
system may not have been conducive to theultimate goal of prosocial and lawful
behaviour. For example, a prisoner may
have had poor living and vocational skills
prior to incarceration. Thus rehabilitationin the first instance must refer to equipping
prisoners for making a living or integrating
into the community in a prosocial andlawful manner, and will in many instances
involve a gradual process of acquiring new
skills and challenging offence related
behaviours.
Successful rehabilitation is generally
taken to mean that a prisoner will not reoffend after release. This may not always
be a realistic goal given that most offenders
will need to make substantial attitudinal
personality and behavioural changes anddevelop educational, vocational, social andliving skills in order to increase thelikelihood that they can successfully
maintain themselves in the community. It
may therefore be more useful to measure
the effectiveness of rehabilitation in termsof altered offending patterns, such as
reduced seriousness of offending, orincreased time periods of re-offending.
A. The Purpose of Prison Programs
A rehabilitative environment
encompasses all aspects of the prison
environment, including regimes, programs
and prison “culture”, and synergistic links
between these different facets must be
established and exploited in order tomaximise the potential for successful
rehabilitation. Thus, while programs canmake a strong contribution to theachievement of a rehabilitativeenvironment, a broader strategy including:

20

promoting humane and effective
management strategies; the successful
adoption of unit management, andpromoting the input of the programs team
into management approaches is crucial toachieving the goal of “positive custody”.
The potential contribution of prison
programs to achieving these objectives canbe summarised under the following
headings:(i) p r o g r a m s w h i c h c r e a t e a nenvironment conductive torehabilitation:• programs which provide basic
standards of care;• programs which seek to create arehabilitative environment;(ii) programs which prepare prisoners to
re-enter society:• programs which provide prisoners
with integration skills;• programs which seek to reduce
offending behaviour.
Programs which provide basic standardsof care and which seek to create arehabilitative environment should receive
the highest priority. Both contribute to thegoal of developing a prosocial prison
environment, which is conductive to change
and to the development of mature coping
skills. Programs which prepare prisoners
to re-enter society, including those directed
towards reducing specific offending
behaviour, tend to be more successful
within a rehabilitative environment.
These program categories apply equally
to male and female prisoners, as well as tospecial groups within the prison population(such as Aboriginal prisoners and young
adults). The different needs of groups ofprisoners will be relevant to the design ofprograms rather than modifying theiroverall purpose.

112TH INTERNATIONAL TRAINING COURSE
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II. PROGRAMS WHICH CREATE AN
ENVIRONMENT CONDUCTIVE TOREHABILITATION
Rehabilitation and education of
offenders is a priority. However, programs
targeted towards reducing offending
behaviour are best provided in anenvironment that actively encourages
prisoners to use their time constructively,
and provides basic standards of care.
A. Programs Which Provide BasicStandards of Care
The first and most important duty ofprison administrators must be to provide
basic standards of care for prisoners, andsuch programs must receive the highest
priority.
Programs, which fit into this category,include:• Primary medical and psychiatric care(addressing the physical and mental
problems of prisoners).
• Crisis intervention (addressing theimmediate needs of distressed or
suicidal prisoners).
• Classification programs (achieving
safety and security for all prisoners
by differentiating between groups ofprisoners based on their risk andneeds).
• Legal aid (providing prisoners withadequate access to legal
representation).
B. Programs Which Seek to Create a
Rehabilitative Environment
Creating a positive, rehabilitativeenvironment within the prison system isessential if prisons are to cease being
criminogenic in nature, and if the prison
conditions are to be conducive torehabilitation. Prisons should not intensify
the social conditions that have lead tocriminal behaviour in the first place, butmust provide a pro-social environment
which:• is conducive to change;• challenges rather than supports or
accepts offending behaviour;• provides pro-social modelling;• minimises harm;• promotes self-esteem;• maximises prisoners’ self-control andsense of control over theirenvironment and their future;• encourages prisoners to takeresponsibility for their actions;• promotes mature coping skills.
Programs which seek to contribute to arehabilitative environment can reduce theopportunity for crime to occur within aprison, and can provide a forum in which
staff can provide pro-social leadership.
Such programs seek to occupy the time ofprisoners and so reduce the boredom that
may lead to management problems within
the prison. These programs may also
provide the potential for the acquisition ofbasic skills and interests that may assist
prisoners to undertake more constructive
activities and leisure pursuits on theirrelease from prison.
Programs which assist to create arehabilitative environment include:• Reception and orientation programsreception into custody (providing
prisoners with information about theprison system and allowing them tolearn how to deal positively with thehere and now of their imprisonment).
• Reception and orientation programstransfer between prisons (providing
prisoners with information about theprison system, and options for
program participation).
• Drug and infectious diseaseeducation programs (providing
prisoners with information about

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drug and alcohol use and infectious
diseases).
Recreation (reducing boredom andpromoting productive use of leisuretime by providing interesting andpleasurable sporting and hobby
activities).
Contact visits (promoting themaintenance of essential links withfamily and friends).
Spirituality (allowing prisoners toreceive the support of their faith).
General welfare and counselling(addressing the welfare needs andproblems of prisoners).

III. PROGRAMS WHICH PREPAREPRISONERS TO RE-ENTER
SOCIETY
Rehabilitation, education and reform are
an integral part of the prison system, andpreparing prisoners for constructive andnon-violent participation in community life
upon their release must be a priority. The
prison system must provide opportunities
for prisoners to participate in programs,
which reduce offending behaviours andencourage citizenship, and must actively
support and encourage such participation.
Programs which prepare prisoners to reenter society include programs which
provide prisoners with basic skills tofacilitate integration, and programs
targeted at offending behaviour.
A. Programs Which Provide
Prisoners with Integration Skills
Programs targeted at assisting
prisoners’ reintegration into thecommunity provide the potential for theacquisition of skills that may assist
prisoners to pursue education, findemployment or use their time in a moreconstructive manner on their release fromprison. Such programs may include;• Prison industries (promoting work
skills and habits through the
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•

•

provision of rewarding and usefulwork).
Education and Training (promoting
skills acquisition relevant to thelabour market by providing
accredited training and basic
education for prisoners).
Release preparation (providing a
range of life skills programs thatassist the prisoner’s return to thecommunity).
Custodial Community Permit
Program (allowing long-term
prisoners the opportunity togradually re-establish family ties andreadjust to life in the community
prior to their release).
Community Integration Program(providing prisoners due for releasewith practical and essential
information to assist theirreintegration into the community).
Integration Programs (increasing
prisoners’ practical living skills
necessary to re-enter thecommunity).
Personal development programs(increasing prisoners’ personal andsocial skills through programs
including adventure-based challenge
programs, communication skills,social skills, etc).

B. Programs Which Seek to Reduce
Offending Behaviour
Programs which seek to reduce offending
behaviour will either be related directly tooffence types or to underlying problems
within the individual that have caused theoffending behaviour. Treatment programs
and programs targeted at offence-related
behaviour include;• Drug and alcohol treatment
programs.
• Sex offender treatment ormanagement programs.
• V i o l e n t o f f e n d e r Tr e a t m e n t

112TH INTERNATIONAL TRAINING COURSE
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Programs.
• Drink-drive programs.
In 1988 F Division, previously a prisoner
accommodation unit at Pentridge prison in
Melbourne, was developed into a state-wide
reception and assessment program centre
for all newly received male prisoners
entering the Victorian prison system. For
the first time, remandees and sentenced
prisoners were given a comprehensive
induction into the prison system that
included medical assessments, screening
for risk and providing information about
the prison system and options for program
participation. In the five years prior to thecreation of the reception and assessment
program, there had been twenty-six
suicides in Victorian prisons. In the five
years following the introduction of thisprogram, six prisoners committed suicide.
In 1989 and 1990 three new 250 bed
prisons were commissioned in Victoria toreplace old facilities. They were theMelbourne Remand Centre, Barwon andLoddon, each with single self-contained cellaccommodation. CORE, the Public
Correctional Enterprise, manages each ofthese prisons. Moves to change theinfrastructure of our other facilities alsobegan and our large, old divisions where
we previously ‘warehoused’ prisoners werer e - f u r b i s h e d i n t o s m a l l e r, m o r emanageable and livable units. Sanitation
was provided to all prisons, cells refurbished and large dormitories were
replaced by smaller rooms with amaximum of four prisoners.
This was also the time that unit
management was borne in Victoria,
wherein prisoners were managed insmaller groups, with high levels ofinteraction between staff and prisoners andthe requirement for prisoners to takegreater accountability for their lives inprison (Griffin, 1995).

Unit management provided theframework for achieving a positive
custodial environment. In a unit managed
prison, prisoners have the opportunity tohave a say in the management andorganisation of their lives through thedevelopment of individual management
plans in tandem with their supervisingprison officer and through unit meetings.
They are therefore potentially lessalienated by the justice system.
The opportunity to have input into thedevelopment of individual management
plans and the capacity for prisoners to get
to know their supervising prison officers
also provides a means for prisoners to haveaccess to information about the way a
prison system works.
Under unit management, prisoners aremanaged in small groups by staff who know
them. They receive closer scrutiny andsurveillance which leads to increased
security, feelings of safety, less opportunity
for crime and lessened potential for gang
formation and maintenance. Barriers
between staff and prisoners are broken
down in unit managed prisons so that staff
have the capacity to provide prosocial
leadership to prisoners.
The Individual Management Plan (IMP)was also created as part of UnitManagement. This is a file in which all
information pertaining to the prisoner’s
sentence, management and participation
in industry, education and programs wasdetailed. Prison officers are trained tobroaden their traditional roles to include
prisoner assessment and orientation,individual management planning, general
welfare and counseling, and recreational
planning.
All of these initiatives helped
tremendously in our endeavour to work

23

RESOURCE MATERIAL SERIES No. 56
towards a safe, secure, humane and justenvironment for both prisoners and staff.
Prisoners began to feel more empowered.
They could make decisions affecting theirown lives. They could choose when to
shower, they had a greater choice of
canteen items, in many locations they could
cook their own meals, they could apply for
positions in industry, they were educatedthrough the external educational TAFE
campuses at each location, rather than by
primary school teachers, they could
commence and complete programs
regardless of which prison they werehoused in, and they had a choice of a rangeof programs and activities directed at
integration and rehabilitation. They began
to talk to officers about what they wanted
and expected from the prison system toensure that the Individual Management
Plan recorded their working toward theirrelease.
The use of Individual Management
Plans (IMPS) meant prisoners wererequired to be more accountable for theiractions and were required to take greater
personal responsibility than they had
under previous regimes.
In the mid 1990s, CORE developed
Strategies relating to Drugs, Violence andSex Offenders, which provided clear
direction for the management of suchoffenders within the prison and methodsof addressing their offending behaviour.
For example, in regard to drugs, from theoutset the results of the Drug Strategy
were promising. Results indicateddecreased drug use and a reduction in thenumber of violent incidents andstandovers. However one of theunfortunate paradoxes of this detection,
deterrence and treatment paradigm is thatthose who elect to continue to use drugs inprison tend to do so now more unsafely
because our ability to find injecting
equipment and associated paraphernalia

24

is much improved and they resort to unsafe
injecting practices.
The way CORE has re-developed
Bendigo prison in country Victoria is
exemplary as far as progressive prisoner
management is concerned. Bendigo prison
accommodates up to 80 medium security
male prisoners for whom drugs and related
harmful behaviours have contributed totheir incarceration. The prison offers a
range of treatment options to substanceabusers within a “community prison”
environment. CORE has contracted witha provider of specialist offender
psychological services and a well-respected
community drug and alcohol agency.
Prisoners are assessed and matched toprograms of varying intensity andduration. An essential element of thesuccess of the program is the positiveenvironment; created by prisoners andprison and treatment staff that reinforces
personal accountability, mutual respect
and a commitment to model community
values.
However these approaches only went
part way to dealing with the problem.
Breaking open the ‘closed rank mentality’and challenging the way prison officers
related to prisoners brought about the realdifference to prisoner management in
Victoria. In the words of Vivien Stern:“The prison officer is at the centre of
the system. And the prison officer’s
job is crucial to a humane andcivilised system. This is where reform
has to start”(Stern, 1975, p.94)
In 1991, in a move unprecedented in
Victorian prison history, six officers werecharged with assault for the violence thatwas perpetrated on a prisoner who wasbeing transferred between divisions. To be
brutalised by the relationships one has in112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
prison is a most damaging experience for
persons whose histories are typicallymarked by pain and abuse, for whom thispain and abuse is a factor in their offending
behaviour and who will one day be released
from prison into the community.
In 1996, CORE implemented one of themost important elements of its Strategy for
Violence Prevention, namely conflict
resolution training of all prison staff. This
training, rolled out by trained prison
officers, further empowered staff byoffering them skills to manage themselves
and their relationships with prisoners. Aninteresting outcome of the training wasthat staff feedback also told us that thetraining impacted on their home lives in apositive way.
Lateral entry across all levels in
Corrections and new paradigms ofcorrectional management challenged thedecade-old mentality that the only way one
could be appointed as a prison governor
was by coming up through the ranks. We
now recognise that to manage a prison, one
needs to be a good general manager, aleader and an enabler, not necessarily agood custodian. CORE has invested a great
deal of resources in ensuring our senior
managers receive diverse leadership andmanagement training. We have also
invested heavily in succession planning.
One example of CORE’s commitment tostaff training is its strong support andleadership role in developing National
Competency Standards for all Officers
working in Corrections. Under unit
management the base grade officer has
been empowered to make decisions in asignificant number of areas; a marked
departure from the traditional hierarchicalstructure where even the most mundaneof decisions required the manager’s action.
(Griffin, 1995). To enable these changes tooccur, we attempted to work differently, lessantagonistically with the unions and havebeen successful in pushing through manychanges as a result.
In a move that in hindsight advanced
the public corrections reform agenda bycreating a sense of urgency, the Victorian
Government called for expressions ofinterest from the private sector to build,own and operate two X 600 bed facilities
for males and one X 125 bed female facility.
These prisons were to replace existing
public sector prisons and lead to thedecommissioning of five old Victorian era
public prisons and the retrenchment of justover 600 staff. CORE then had theopportunity to assist staff moves who either
did not have the skill mix or the wish toenter into a new era in corrections.
Through these changes CORE-the
Public Correctional Enterprise has
accepted the challenge of a competitive
business environment and is developing
into a learning organisation. We haveadopted the Business Excellenceframework of the Australian Quality
Council; we’re surveying offenders,prisoners, staff, and other stakeholders on
their expectations of our performance. We
have developed our own identity andclearly articulated our mission, vision,values and behaviours to our staff.
We are moving from being “just gaols”
in the sense of “simply” or “only” prisons,to “just gaols” or “fair” prisons and beyond
that of a correctional organisation thatstrives to offer a range of products(placement options, services and programsfor prisoners) in a competitive environment
in an attempt to match the individual
needs of the prisoner.
I believe we have come a long way, andfrom structured feedback mechanisms
know that the majority of prisoners
perceive the prison system as fair and25

RESOURCE MATERIAL SERIES No. 56
generally safe. It no longer offers theexcesses it did previously. In the event of
disciplinary action and sanctions being
necessary, they are anticipated and do notconstitute a flagrant abuse of power andposition. In a system that is fair andwithout excesses, and where prisoners canquestion why things are done a certain way- where there is fundamentally a sense ofjustice, then prisoners are less damaged bytheir experience and more easy to manage.

development influenced by the outcomes ofcontrolled evaluation studies. We must
continue to promote professional staffprisoner interactions - wherein prison staff
serve as strong examples of honesty,
fairness, tolerance, patience andunderstanding (Griffin, 1995). From thiswill develop a prison experience that is
empowering for both prisoners and prison
staff, rather than defeating.

Mature problem solving builds selfesteem, which in turn produces confidence
and resilience in the individual and often
makes failure manageable. Our challenge
as providers of correctional services is tooffer prisoners an environment in which
this growth can occur, wherein mature
coping is modelled by our staff.

Programs in the late 1990’s are integral
to the purposes of imprisonment. Where
once the purpose of imprisonment wasnothing more than humane containment(and the priority task related to security
and custody), the purpose of imprisonment
now includes a requirement that there be
active attempts to rehabilitate prisoners,
and it is acknowledged that this can only
occur within an environment that is
conducive to such rehabilitation. This mustbe achieved through a combining of unit
management and effective prison programs
and prison security. In the past, prison
security has been used as an excuse for notproviding effective prison programs.
Prison security will be maintained in sucha system through closer surveillance, staff
personal knowledge of prisoners andthrough effective occupation of prisoners’
time. Security is part of the process ofcreating a rehabilitative environment, notexcluded from it. This new humane
containment model, will be achieved
through a combining of the many facets ofthe prison system such as programs,
management approach and security inorder to achieve a meaningful environment
for prisoners which promotes pro-social
behaviour and prepares prisoners toeffectively reintegrate into society.

We must continue to offer high quality
programs to assist prisoners’ maturationand skill development, but also start asking
the hard questions about “what works” andbeing prepared to have our program

And, remembering the words of Johnsonthat I started with, that pain is the harshreality of imprisonment, we must makeconcerted efforts to establish a greater
range of diversion programs that offer

But the bar needs to be set even higher.
All prisons have the capacity to challenge
the immature and destructive ways
prisoners deal with their imprisonment
experience and the other elements of theirlives. Robert Johnson’s concept of “mature
coping” has application here. It means:• dealing with life’s problems like a
responsive and responsible humanbeing;• seeking autonomy without violating
the rights of others (the premise here
being that prisoners with a sense ofcontrol over their lives adjust betterto prison and to life on the outside);• security without resort to deception
or violence and relatedness to others
as the fullest expression of humanidentity (wherein trust replaces
power as a mode of problem solving).

26

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
reparative value to the community whilst
allowing the offender to maintain family
and social supports and access tocommunity treatment resources.
The notion that staff and inmates canshare a constructive agenda- that theymight work together in service of a
prison community that promotes
mature coping and responsible
citizenship- looms as a distinct
possibility for perhaps the first timein prison history
Johnson, 1996, p.89
Prisoners must cope maturely withthe demands of prison life; if they donot, the prison experience will simply
add to their catalogue of failure anddefeat. Mature coping, in fact, does
more than prevent one’s prison life
from becoming yet another series of
personal setbacks. It is at the core ofwhat we mean by correction or
rehabilitation, and thus creates thepossibility of a more constructive life
after release from prisonJohnson, 1996, p.98

Catching and Keeping, p.117-129, Centre
for Police and Justice Studies, Monash
University.
King D., Goss E., Haas I. (1993), The
Purpose of Programs in Prisons: Working
Towards Rehabilitation, Correctional
Services Division, Department of Justice,
Victoria, Australia.
Johnson R. (1996), Hard time:
understanding and reforming the prison,
Wadsworth, USA, second edition.
Latessa, Edward & Allen, Harry (1997),
Corrections in the Community, Cincinnati,
USA.
Lipton D., Martinson R., and Wilks(1975), The Effectiveness of Correctional
Treatment, New York, NY Praeger, USA.
Report of the Board of Inquiry into
Allegations of Brutality and Ill-Treatmentof Prisoners at HM Prison Pentridge (TheJenkinson Inquiry), Parliamentary Papers(Vic.), Australia.
Stern V. (1987), Bricks of Shame:
Britain’s Prisons, Penguin, England.

REFERENCES
Biles D., Offenders and their Treatment:
An Australian Perspective, 3rd Conferenceof Commonwealth Correctional
Administrators, Harare 9-15 May, 1992.
Australian Institute of Criminology,
Canberra.
CORE (Correctional Services Division),
Department of Justice, Victoria, Australia,
Prison Programs-Achieving Positive
Custody, Policy Document 1992.
Griffin J. (1995), Modern Prison
Management. In Ellem, B.(Ed.), Beyond

27

RESOURCE MATERIAL SERIES No. 56

PARTICIPATION OF THE PUBLIC AND VICTIMS IN
CRIMINAL JUSTICE ADMINISTRATIONJohn Brian Griffin*
I. COMMUNITY SAFETY AND
CRIME PREVENTION EVERYONE’S RESPONSIBILITY
Developing and maintaining a safe
community is vital to improving the living
conditions of all citizens. It makes ourcommunities a better place in which to live,
raise a family, to invest and do business.
Achieving a safe community is more thansolving and reducing crime, it is reducing
the public’s fear of crime. It is about
encouraging all sections of the communitythat they can participate in a diverse rangeof business and recreational activities at
all times of the day and night, and be safe.
In the past, crime prevention strategies,
throughout the world, have tended to be:
•
•
•
•
•

Narrowly focused
Fragmented
Program driven
Funding dependent; andShort term

Economically and socially, new crime
prevention strategies are required which:• Are innovative• Are outcome orientated• Provide a more coordinatedgovernment and community
approach• Build on local and international
experiences• Involve the wider community andprivate sector* Chief Executive Officer, Core-the Public
Correctional Enterprise, Department of Justice,
Australia.

28

In order to place Australia’s crime
prevention and community safety
approaches into context, it is useful to
examine the broader international
environment.
II. UNITED KINGDOM
A. Crime and Disorder Act: Placing
Crime Prevention Within a
Statutory Framework
In 1998 the United Kingdom introduced
the Crime and Disorder Act. This Act
places a legal obligation upon the police andlocal authorities (eg, housing, health, andeducational authorities), to work together
to develop and implement a strategy for
reducing crime and disorder in theircommunities.
The overall aim of the Crime andDisorder Act is to empower local
communities to address crime problems.
In formulating and implementing astrategy, police and local authorities haveto:(i) Conduct and publish an audit of local
crime and disorder problems:(ii) Consult locally in conducting a crime
audit, seeking the views ofcommunity groups;(iii)Set and publish objectives andtargets of their strategy arising fromthe auditing process (short and longterm performance targets have to be
formulated).
(iv) Identify and stipulate the various
responsibilities of the agencies thatwill be involved in implementing thestrategy.
(v) Monitor outcomes and outputs.

112TH INTERNATIONAL TRAINING COURSE
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The Crime and Disorder Act aims toensure that a partnership, multi-agency
approach is adopted in addressing local
crime and disorder problems. The Act does
not prescribe what the agenda for local
partnerships should be, nor the structuresthat will be needed to deliver that agenda.
Rather these have to be tailored to local
community contexts.
B. Safer Cities Program: The Needto Combine Situational andSocial Approaches
Also in the United Kingdom is the Safer
Cities program, which aims to reduce crimeand fear of crime. It forms part of theGovernment’s Regeneration Program, thataims to address the social, physical andeconomic problems of disadvantaged urban
areas - particularly council housing estates.
The program provides funding forindividual projects, with the UK Home
Office and Audit Commission responsible
for monitoring and evaluating Safer Cities.
The program takes a partnership or multiagency approach. Elements include:• Voluntary bodies and the private
sector have been important in thedesign and delivery of Safer Cities
initiatives.
• Projects have tackled a range of crime
problems (eg, domestic andcommercial burglary, domestic
violence, vehicle crime, shop theft,crime against small business) anddisorder issues (eg, graffiti andvandalism).
• Decreased fear of crime has been
regarded as a consequence of
successfully reducing crime per se.
• The dominant focus of Safer Cities
has been upon the reduction ofburglary, both in domestic andcommercial settings. Hencesituational approaches like physicalsecurity measures have dominated.
• A number of successful“demonstration projects” have shownthat while situational measures may
work independently, a comprehensive
approach involving sociallyorientated initiatives (eg, educational
and publicity campaigns, support for“at risk” families and young people)
ensures that all possible predictorsof crime and disorder are addressed.
C. Repeat Victimisation: Focusing
Crime Prevention where it is
Most Needed
The United Kingdom Home Office
Research and the Safer Cities programillustrated there are some places andpeople that are prone to multiple criminal
victimisations, by the same or different
crime over time. This is termed ‘repeat
victimisation’.
Research shows that places and people,
who are revictimised, account for a large
percentage of criminal victimisations.
Repeat victimisation has become a key
focus of UK crime prevention initiatives.
Programs to prevent repeat victimisation
have addressed residential and commercial
burglary, car theft, domestic violence andracial attacks.
Reducing repeat victimisation isincreasingly used by UK police as a key
performance indicator. Experts argue that
focusing on repeat victimisation as a crime
prevention strategy ensures:(i) Crime prevention is focused upon
those people and places in highest
need of intervention.
(ii) Scarce crime prevention resources
are more strategically focused.

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RESOURCE MATERIAL SERIES No. 56
D. Social Exclusion: The
Interdependency of Crime, Socialand Economic Issues
In 1998, the Blair government made acommitment to address the problem ofsocial exclusion by establishing the Social
Exclusion Unit. The United Kingdom
government regards social exclusion as a
combination of linked problems that
individuals or areas can suffer. These
include unemployment, poor skills, low
incomes, poor housing, high crime
environments, bad health and family
breakdown.
A variety of strategies have emerged
under the banner of addressing social
exclusion. These include work and training
programs, reform to welfare benefits andentitlements, family tax credits, income
support, improving numeracy and literacy
skills of the young, capital support for
housing improvement, a national drugs
strategy and local crime reduction
partnerships, economic regeneration ofpoor neighbourhoods, and initiatives toaddress physical and mental health.
Due to the multi-faceted andinterdependent nature of the problem, oneof the central roles of the Social Exclusion
Unit is to promote cooperation between
government departments, local authorities
and community agencies, and to improvemechanisms to integrate their work inaddressing social exclusion.
III. UNITED STATES OF AMERICA
A. The US Crime Control Model: A
Dual Track System
The US approach to crime control is
working, because crime rates overall havebeen decreasing. Despite this, its juvenile
crime rate has not followed a similar trend.
America adopts two contrasting
approaches - a dual track system:

30(i) “Get tough” retributive measures,
exemplified by “three strikes”
legislation, boot camps, and zerotolerance policing.
(ii) Measures concerned with earlychildhood development, opportunities
for young people, improving
residential neighbourhoods andproactive problem orientatedpolicing.
B. Developmental Prevention:
Addressing Risk and Protective
Factors
A key concern of US initiatives has beenwith reducing risk factors associated withjuvenile delinquency (eg, availability ofdrugs and firearms, economic deprivation,family dysfunction and conflict, poor school
performance, early problem behaviour, andgang membership) and strengthening
protective factors (eg, family attachment
and stability, consistent parenting,economic opportunity, high academic
achievement and pro-social role models).
The US Congress has recently legislated
for the development and funding ofdelinquency prevention programs (eg,juvenile mentoring). A “Comunities That
Cares” model has guided US initiatives
that address risk and protective factors at
the local level. This model involves:(i) Mobilisation of key authorities (eg,educational officials, political andbusiness leaders and police) to agree
to a program and pledge theircommitment.
(ii) Establishment of a Community
Board consisting of various agencies(eg, schools, police, health, probation,
parents, youth groups, business,churches and the media), who
conduct a community assessment,with technical assistance, to identify
the main local risk factors that need
to be addressed.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS(iii) A number of high priority risk factors
arising from the community
assessment are identified (ie, factorsthat are typically above the national
average).
(iv) Empirical evidence about effective
methods that tackle these priority
risk factors is collected.
(v) The Community Board develops apreventative plan based upon
addressing identified risk andprotective factors, and stipulating
how the plan will be implemented.
C. Place Specific Crime Prevention:
Neighbourhood Environments
and Crime
Place specific crime prevention focusesupon changing the physical environment
and improving property management.
This approach addresses the connection
between the physical features ofneighbourhoods (eg, signs of crime likevandalism or poorly designed housing),
crime and fear of crime. It entails five
approaches:(i)

Improved housing design to address
security features.
(ii) Changing land use and circulation
patterns to reduce exposure topotential crime targets.
(iii) Develop “territoriality” so residents
become more vigilant against crimeand disorder.
(iv) Address physical deterioration to
reduce signs of crime and improveresidential perceptions.
(v) I m p r o v e f o r m a l a n d i n f o r m a lmanagement practices withinneighbourhoods to ensure changes
are sustained over the long term.
This approach has been mainly
implemented in highly disadvantaged anddeprived US neighbourhoods.

D. Problem Orientated Policing:
Improving Police Crime
Prevention Efforts
The New York approach of zero tolerance
policing is not indicative of reforms to police
practices in the rest of the US. The mostsignificant national reform has been the
adoption of Problem Orientated Policing(POP).
The idea of Problem Orientated Policing(POP) is that police should be solving theunderlying problems that come to theirattention in the communities they serve,rather than simply reacting to them.
Problem Orientated Policing (POP)involves police attempting to understandlocal crime patterns, and address theirproximate causes through pro-active
measures.
One method by which crime patterns
have been understood is through crime
mapping and analysis, identifying where
crime and disorder is clustered in time andspace. Addressing crime “hot spots” (ie,locations that continue to demand police
attention) has shown to maximise the effectof a problem orientated approach.
Problem Orientated Policing (POP) has
been used to address illicit drug markets,gang and handgun violence. Establishingpartnerships with community groups andlocal agencies is a key focus of Problem
Orientated Policing (POP). In order for
Problem Orientated Policing (POP) towork, US police departments have
devolved increasing authority to beat
officers, empowering them with theautonomy to address local crime problems.
E. Civil Remedies: The Legal
Enforcement of Crime
Prevention
Civil remedies involve legal action toprevent behaviours or situations frombecoming a problem, or to reduce or

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RESOURCE MATERIAL SERIES No. 56
eliminate problems that already exist.
Community groups and police in the US,
utilise civil remedies to address local crimeand disorder problems. Civil remedy
approaches to crime prevention include
such measures as enforced clean-up andup-keep of deteriorated housing, evictionof problem tenants, youth curfews,
injunctions against gangs and the carryingof weapons, enforcement of health andsafety violations, and restrictions on the
selling of alcohol, cigarettes or spray paintto youths.
IV. CANADA
A. The Canadian National Strategy:
Strengthening Community
Institutions
The Canadian National Strategy
comprises of two phases.
(i) Phase One: the establishment of theCanadian Crime Prevention Council,
whose role is to provide the federal
framework for national crime
prevention initiatives.
(ii) Phase Two: launched in 1998,
provides a $32 million investment todevelop community-based responses
to crime.
The Canadian National Strategy adopts
a social developmental framework,
addressing crime and safety issues
involving children, youth, women,
aboriginal people, and families. Canada’s
national strategy incorporates thefollowing key initiatives:(i) Safer Communities Initiative: assists
local communities in developing andsustaining programs, funds
demonstration projects, and provides
support to non-government andvoluntary organisations.
(ii) Promotion and Public Education

32

Program: aims to increase awarenessof, and provide information on,community crime prevention.
(iii) Partnerships with the Private Sector:
facilitates and encourages the private
sector to support and implement
crime prevention activities.
Programs have involved the following
measures:(i) Providing stress management,
parenting skills, and support toyoung parents.
(ii) Supporting “at risk” youth eg, thoseof single parents, or children living
in poverty.
(iii) Improving the literacy skills of
disadvantaged youth.
(iv) Addressing child maltreatment.
(v) Providing knowledge about aspects of
the law to aboriginal youth.
(vi) Assisting in the integration of
refugees and migrants into Canadianneighbourhoods.
B. Problem Orientated Analysis: A
Systematic Approach toPreventing Crime
The Canadian strategy stipulates
communities should utilise a problemorientated approach in addressing crimeand safety problems. This involves thefollowing steps:
1.

2.
3.

4.

Identifying and analysing local
community problems using
appropriate data sources.
Identifying from this auditing process
key priority problems.
Investigating these key priority
problems in greater detail (eg,identifying victim or offendercharacteristics, patterns and trends,
methods of offending, location of the
problem, involvement of alcohol ordrugs).
Develop an action plan and112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
determine the level of intervention(eg, at the neighbourhood orindividual level).
5. Identify those who need to be
involved in planning andimplementation.
6. Identify avenues for resources,
particularly in poor areas orcommunities.
7. Identify and select appropriate
strategies.
8. Set goals and objectives to be met.
9. Prepare an action plan stipulating
the duties and tasks of agencies andgroups to be involved.
10. Design an implementation timetable.
11. Obtain community and agency
support for the action plan.
12. Implement and monitor the strategy
to ensure it is sustained over time.
13. E v a l u a t e t h e i m p a c t o f t h einterventions by referring to the data
sources used in step one to three.
V. AUSTRALIA
A. The National Anti-Crime Strategy
The National Anti-Crime Strategy wasestablished by the Premiers and Chief
Ministers from all Australian States andTerritories in November, 1994. The
Strategy recognised the value of crossjurisdictional cooperation and a multidisciplinary approach to of crime
prevention.
Crime prevention in Australia is
primarily the responsibility of the six
States and two Territories. On 28 June
1995, the Commonwealth, State andTerritory Ministers endorsed a National
Anti-Crime Strategy paper containing theagreed principles of crime prevention andcommunity safety within jurisdictions,principles and a structure for cooperation
between jurisdictions.

B. Crime Prevention Initiatives
across the Commonwealth
Government
The Government has recognised a whole
government approach to preventing crime
is needed. An indication of some of theinitiatives and programs is set out below.
C. Attorney- General’s Department(i) Firearms Control-coordinating thenational implementation of thefirearms control and firearms buyback program.
(ii) Fraud Control - work is currently
being undertaken to revise theGovernment’s Fraud Control Policy,
which will form the basis of fraud
management programs across all
Commonwealth agencies andorganisations.
(iii) National Crime Authority - hasreceived additional money for
initiatives which target complex
money laundering and tax evasion
schemes.
(iv) National Register of Convicted
Paedophiles - Police Ministers fromall Australian States and Territories
have agreed to the establishment ofa national register which can beused by education and community
service agencies to carry out checks
for prospective employees.
(v) Aboriginal Deaths in Custody - inconjunction with the Aboriginal andTorres Strait Islander Commission(ATSIC), the Attorney General’s
Department has organised a
Ministerial summit.
(vi) Classification Guidelines for Films
and Video Tapes - were reviewed
and amended to restrict films
containing excessive high level
violence from public release or salein Australia.
(vii) Family Violence and Intervention
Projects - being conducted by Legal
Aid and Family Services, examining

33

RESOURCE MATERIAL SERIES No. 56
models for effective intervention infamily domestic violence situations.
(viii) M a r r i a g e a n d R e l a t i o n s h i p
Education Programs - to develop
best practice approaches and early
identification of risks andprevention of violence inrelationships involving young
women.
(ix) Domestic Violence Database agreement has been obtained
between States and Territories todevelop a database to better
facilitate the sharing of data fromfamily law, firearms registry anddomestic violence protection ordersources.
(x) M o d e l o f D o m e s t i c Vi o l e n c e
Legislation - the Standing
Committee of Attorney-Generals
has agreed to a model of domestic
violence legislation to ensure a
uniform approach across all States
and Territories.
(xi) Changes to the Family Law Act - in
1996, to ensure family violence istaken into account by the Court
when considering arrangements forchildren following parental
separation.
D. Department of Communicationand the Arts(i) R e p o r t o f t h e C o m m i t t e e o f
Ministers on the Portrayal of
Violence in the Electronic Media.
(ii) Government response to the reporton the Select Committee on
Community Standards Relevant to
the Supply of Services UtilisingElectronic Technologies - Portrayalof Violence.
E. Office of the Status of Women(i) National Forum on Domestic
Violence (1996).
(ii) A National Women’s Safety Survey
was undertaken by the Bureau of

34

Statistics - providing confirmationthat violence against women is stilla significant crime and social issue.
(iii) National Ministerial Summit on
Domestic Violence.
F. Department of Health and Family
Services(i) Strengthening Families Strategy incorporating a range of family
support programs including
parenting education, child abuse
prevention and emergency relief
programs.
(ii) “ G o o d B e g i n n i n g s ” N a t i o n a lParenting Project - home visiting
projects focusing on child abuse
prevention and parenting
education.
(iii) National Youth Suicide Prevention
Strategy - supporting research,education and training for
professionals, and increased accessto counselling and telephone
support services.
(iv) Youth Homelessness Pilot Program- piloting a program to test
innovative early intervention
strategies to assist young people atrisk of homelessness to re-engage infamily, work, education and training
and life in the community.
(v) Supported Accommodation andAssistance Program - providing
better monitoring of transitional
supported accommodation andassociated services provided toyouth, homeless persons, domestic
violence victims and children.
(vi) R u r a l a n d R e m o t e D o m e s t i c
Violence Initiative - trialing a
number of different information andreferral models, including services
for Aboriginal women and womenfrom non-English speaking
backgrounds in remote and rural
areas of Australia.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
G. Department of Employment,
Education, Training and YouthAffairs(i) Research Initiatives - together with
the States and Territories researchhas been completed on Transitional
Arrangements for Post Release
Young Offenders; Early School
Leaving; and Youth Homelessness.
H. Department of Immigration andMulticultural Affairs(i) Work is being undertaken, in
cooperation with the law
enforcement agencies, to improve
the systems for ensuring that thereis effective exchange of informationon undesirable persons entering
Australia.
I. Primary Industries and Energy(i) Firearms Safety - training materials
to primary users (farmers, graziers
and rural workers) on how to use
firearms safely.
(ii) Integrated Rural Strategy - general
support for rural communities.
(iii) First National Rural Public HealthForum - to address particularconcerns in relation to domestic
violence, firearms, and men’s healthissues (particularly in relation toroad and work accidents and alcoholabuse) in the rural sector.
J. Sport, Territories and Local
Government - Australian Sports
Commission(i) Young Persons Sport and Recreation
Development Program - provides
funding to States and Territories tofacilitate the involvement ofindigenous young people in sport asa means of providing structured
recreational activities to relieveboredom.
(ii) Aussie Sport - a program to promote
the involvement of children in juniorsport which, among other things,
constantly promotes the importanceon non-violence in sport.
(iii) Give Racism the Boot - an initiative
which is being developed to combat
racist behaviour and attitudes at alllevels of sport involvement.
K. Aboriginal and Torres Strait
Islander Commissioner (ATSIC)(i) Aboriginal Legal Services Program- includes a component ofcounselling, assistance and referralof young indigenous people who are
at risk of coming into contact withthe criminal justice system.
(ii) ATSIC is piloting a program foryoung offenders, initiated by thePrime Minister, called the Improved
Integration of Young Offenders into
Employment, Education, Training
and Community Life.
(iii) Funding for Night Patrols - where
members of the local indigenous
communities provide transport
home to young people in an attempt
to divert them from anti-social
activity when they congregate ingroups.
VI. THE STATE OF VICTORIA
A. Crime Prevention Initiatives
Across The State of Victoria VicSafe - Partnerships Against
Crime
Promotes highly focused community
consultation on community safety andcrime prevention concerns and proposals.
The Safer Cities and Shires program will
help develop and maintain a safer
community. Creating a safer community
includes:(i)

Addressing the safety and crimeissues of most concern to the local
community.
(ii) F o c u s s i n g o n c o s t - e f f e c t i v eoutcomes.
35

RESOURCE MATERIAL SERIES No. 56(iii) Improving social and physicalenvironments.
(iv) Minimising the public’s fear of crimeand violence.
(v) Achieving a high level of publicorder that enables all people to go
safely about their lawful pursuits,
and to participate fully incommunity and public life,
anywhere, anytime.
Many, if not most, community safety andcrime prevention problems call for local
community solutions:
These solutions need the support
and participation of the wholecommunity working in partnershipwith police, corrections and otheragencies.
(ii) A safer community is thus acommunity responsibility and not
the sole responsibility of police,corrections nor any other criminal
justice agency.
(iii) Local community safety work brings
police closer to the community they
serve, and includes greater
accountability to local communities.

(iii) Setting realistic, achievable targets
to gain significant and sustainablereductions in particular forms ofcrime and violence.
(iv) Using performance indicators andmeasures to accurately andobjectively assess the outputs andoutcomes of this work.
(v) Developing and implementing
innovative, best practice strategies
to tackle safety and crime issues inlocal communities.
(vi) Creating partnerships and project
teams at the local level to implement
these strategies.

(i)

Local Governments are being asked totake the lead in coordinating initiatives toaddress the safety and crime issues of mostconcern to their local communities. The
State Government, through the
Department of Justice, is offering seeding
funding to cities and shires over the next
three years to put strategies in place thatwill address these concerns.
Safer Cities and Shires will emphasise:(i)Addressing community safety andcrime prevention issues through astrategic, planned whole ofgovernment approach.
(ii) Preventing problems before they
emerge.

36

1. Strategies
Innovative and outcome oriented
strategies are required to provide a morecoordinated and integrated governmentand community approach to safety andcrime issues. New approaches need tobuild on local and international experience,and involve the wider community andprivate sector.
Safety and crime issues are complex,
interdependent, and embrace the activitiesof all government agencies at national,
state and local levels, and the private
sector. These activities are most likely tobe effective if they are focussed on outcomes
rather than inputs, guided by best practicebenchmarks, and have the capacity to bemainstreamed into core government,
business and community responsibilities.
2. Why Local Government?
Local councils are well placed to engage
government and non- government
agencies, the private sector, educational
institutions, and community groups inpartnerships to improve community safety.
Local government is best placed to audit
the vast input of resources. It can bring a
blend of services to meet local communities
safety needs. Resources can be aligned with

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
those practical initiatives that produce thebest outcomes for the least costs. Local
governments provide the setting,infrastructure, and policy framework todevelop, implement and sustain
community-based programs that addresscommunity safety and crime issues. It isbest placed to develop a real sense ofcommunity ownership of strategies toimprove community safety andinvolvement in determining which safety
and crime issues have priority.
The role of local government now
encompasses social and community
planning, urban design, the provision ofhuman services, environmental
management, education and training, andeconomic development. These changes,
which have taken local government beyond
its historical and traditional role ofproviding physical infrastructure andservices to property, have significant
implications for community safety andcrime prevention.
3. C o m m u n i t y S a f e t y a n d C r i m ePrevention Board
The Victorian State Government
established the Community Safety andCrime Prevention Board with the Heads
of Government Departments (Premiers,
Education, Health, Justice and Local
Government) together with significant
community leaders and representatives ofLocal Government to coordinate theimplementation of the VicSafe Strategy.
The functions of the Board are to:(i)Actively promote and champion theconcept of crime prevention as acommunity initiative, and provide
advice to the Minister for Police andEmergency Services on community
safety and crime prevention policy,
strategies and issues of concern tothe community.
(ii) Provide strategic leadership in theplanning and delivery of major
components of the statewide,
community safety and crime
prevention framework.
(iii) O v e r s e e t h e m u l t i - a g e n c ycollaboration necessary to ensurethat State and Local Government
agencies effectively incorporate andachieve appropriate community
safety and crime prevention
outcomes within their businessplanning processes.
(iv) Ensure ongoing evaluation of thecommunity safety and crime
prevention framework, and ensurethat it achieves visible and tangible
outputs and outcomes of direct
benefit to the Victorian community.
(v) Establish, foster and maintainstrategic links with private, not for
profit agencies, religious andacademic sectors in identifying,promoting integrating andresourcing community safety andcrime prevention best practicet h r o u g h o u t t h e Vi c t o r i a n
community.
B. Safer Cities and Shires Strategic Directions:
Implementing Safer Cities and Shires
involves Local Government performing astrategic leadership role in developing
comprehensive local community safety andcrime prevention policies and actions.
Safer Cities and Shires identifies five
strategic directions:(i) Direction 1: Build on Local
Government’s strength as a catalyst
in creating comprehensive, local
community safety plans conduciveto the sustainable, long term
development of safer cities andshires.
(ii) Direction 2: Build on the local
g o v e r n m e n t ’s s t r e n g t h a s afacilitator to bring about a blend of37

RESOURCE MATERIAL SERIES No. 56
services to meet a local community’ssafety needs and to ensure the costeffective and coordinated use ofresources to produce the best
outcomes for the least costs.
(iii) Direction 3: Develop a whole ofgovernment and whole of council
approach to community safety andenable local Government to obtain
added value from existing programsand expenditure by building
community safety and crime
prevention strategies into theirmainstream operations.
(iv) Direction 4: Develop comprehensive
needs analyses to create
sophisticated, integrated andobjective safety, crime and healthprofiles in local communities.
(v) Direction 5: Create a Safer Cities
and Shires performancemeasurement framework,
consisting of precise performancemeasures and indicators and Statebenchmarks for best practice thatcan be publicised and emulated inother areas.
C. Three Principal Outputs of Safer
Cities and Shires are:
1. A comprehensive local community
safety plan in each municipality that
can:
(i)

Identify clear, short and long-term
outcomes within specified key
results areas that are formulatedaround agreed local priorities.
(ii) Detailed strategies to achieve theseoutcomes based on sustainable
resource input available to andwithin the local community throughthe government and private sectors.
(iii) Complement and support municipal
public health plans, municipal
emergency management plans,
environment improvement plans,
and other business plans that38

impact on community wellbeing.
(iv) Identify end detail locally based
community safety and crime
prevention initiatives that address
the needs of the local community.
(v) Be based upon shared information
between agencies, interagency
protocols and compatible datasystems.
(vi) Use integrated safety, crime, health,and quality of life profiles in thelocal communities.
(vii) Develop baseline information andperformance indicators against
which future progress can bemeasured.
(viii) Be revised annually to ensure its
relevance.
2. A senior management team in eachmunicipality that can:(i)Guide and coordinate thedevelopment and implementation of
the community safety plan and its
regular review.
(ii) Include high level representatives
f r o m t h e c o m m u n i t y, L o c a lGovernment, police, corrections,private sector, non-government
agencies and Commonwealth andState Government Departments.
3. A process of community consultationand involvement through, for example,
customer surveys, needs analysis of
local community safety and crimeissues, and the circulation of the draft
community safety and crime
prevention plan to the community forcomment to encourage community
ownership of the issues and thesolutions.
4. A whole of government approach
involving the Department of Premierand Cabinet, Victoria Police, and theGovernment Responsibilities for112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Education, Health and Human
Services, Justice, Corrections,
Infrastructure, Local Government,
Treasury, State Development, andNatural Resources and Environment:(i) Core business approach.
(ii) Strategic partnerships with thecommunity.
(iii) A clear focus on outcomes.
(iv) Development of quality data.
(v) Identifying and mainstreaming bestpractice.
(vi) Achieving cost effectiveness.
VII. WHO IS A VICTIM OF CRIME?
A victim of crime is a person who has
suffered harm because of a criminal act.
That harm can be physical injury,
emotional trauma or financial loss. For
example, a person who is injured in aviolent attack, or someone who has
experience a sexual assault or robbery is a
victim of crime. Family members of aperson killed or injured because of a crime
may also be victims. It is common for people
to witness a crime to suffer emotional
trauma. These are victims even though
they may not have been physically harmed.
Being a victim of crime effects people indifferent ways. It is not unusual for people
who have experienced serious crime, suchas robbery or assault, to feel immediately
shocked, fearful or angry. Later it is quite
normal for some victims to experience
depression or even to feel guilty. These
reactions are natural and part of theprocess of dealing with a traumatic event.
In the majority of cases they are also
temporary. With support from family,
friends, and colleagues, most people
recover from the effects of the incident
within a few months. For other people therecovery process is more difficult. The
harm may have occurred over a long periodof time, or a crime may have been especiallytraumatic.

VIII. GROUPS WITH SPECIAL
NEEDS
A. Women - Sexual Assault andDomestic Violence
Many women in our society suffer
violence; both from strangers and frompeople they know, including family
members, friends or workmates. This
violence includes sexual assault such as
rape, physical abuse (including hitting or
beating), verbal abuse and threats.
Because this violence occurs often within
the home, many women suffer in silence
because they feel isolated and ashamed.
B. Child Abuse
Child abuse is not usually a single
incident, but takes place over time, often
at the hands of parents, their friends orother members of the family, rather thanat the hands of a stranger. Child abuse
can take many forms. It includes physicalabuse such as hitting or shoving, sexual
abuse including unwanted fondling orincest; emotional abuse such as regularly
threatening or frightening a child; andneglect, which is failing to properly provide
such basic needs as food and shelter.
C. Men - Violent Crime
Crime statistics show that men aged 1725 years form the largest victim group in
the community. Men also need support andassistance in coping with the effects ofcrime.
D. Aboriginal Victims
It is important for AboriginalAustralians to recognise that there aresupport services available to help
Aboriginal people affected by violent crime.
E. Elderly Victims
The likelihood of an elderly person
becoming a victim of a crime in Australia
is extremely low. However, when a crime
does occur it usually has a greater effecton an older person. An elderly person is
39

RESOURCE MATERIAL SERIES No. 56
physically less able to fight back or flee,and can find it harder to recover physicallyor emotionally if injured. The elderly areoften alone and may not have the support
to help them through the personal suffering
caused by violence. Programs fundedrecognise these issues and can help elderly
victims to recover their independence andconfidence.
F. People with Disability
People with disability, whether it be an
intellectual disability, psychiatric illness or
p h y s i c a l d i s a b i l i t y, m a y f i n dcommunication difficult. This can be adisadvantage when seeking help. If
someone suspects that a person with adisability is being harmed in any way theyshould contact the police or the Office of
the Public Advocate.
G. Ethnic Communities
People from different cultural or ethnic
backgrounds who become victims of crime
may need to contact someone they know
and trust for support. However, they may
be afraid of contacting anyone in their own
community because of fear ofembarrassment or gossip. They may also
be isolated from their community and needto find out how to make the first contact.
Many migrants and refugees may notunderstand or trust the Australian legal
system or the police.
H. Families of Homicide Victims
The death of a loved one at the hands ofanother person is not easily overcome. Itis especially hard if families are faced withlengthy trials or unwelcome publicity.
Special services, including the Victorian
Police Victims Advisory Unit and the
Homicide Victims Support Group ofVictoria, offer support to the families ofvictims of homicide.

40

IX. RIGHTS OF VICTIMS OF CRIME
Victims of crime have rights andresponsibilities in the criminal justicesystem. Victims have the right to betreated with courtesy, compassion and withrespect for their dignity and privacy. They
have the right to receive information about
their case, the progress of the investigationand details of any court proceedings.
Victims also have a right to welfare,counseling and medical assistance. They
have a responsibility to assist police in theirinvestigations and to participate in any
court case that may follow.
The main steps in the criminal justicesystem are when:(i)A victim reports a crime to thepolice;(ii) The police investigates the crime;(iii) The police charge a person with acrime;(iv) A court decides whether the person
is innocent or guilty;(v) The Court sentences a person who
is found guilty, which may include
a goal sentence.
A. BackgroundThe establishment of the Victims
Referral Assistance Scheme (VRAS) wasannounced by the Attorney General in
November 1996 following an inquiry
undertaken in 1994/ 95 by the Victims Task
Force of the Victorian Community Council
Against Violence into services available forvictims of crime.
The terms of reference for the inquiry
were wide, and the VCCAV reported on thecurrent circumstances of assistance forvictims of crime. The VCCAV found that
Victorian services for victims of crime had
developed in an ad hoc manner. There wasa lack of co-ordination between services andthe absence of a co-ordinated strategy torespond to the needs of victims.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The inquiry identified the needs ofvictims of crime, services, currently
available, gaps in services provided,
funding criteria, and presented a model fora co-ordinated and integrated strategy torestore victims of crime.
The inquiry found that although somevictims were able to access a variety ofimportant services, gaps and overlaps
existed in service delivery. There was alack of knowledge amongst professionals
and victim support agencies about services
available and needed. A lack of coordination existed between central andlocal services throughout Victoria. The
overwhelming view expressed by the
VCCAV was that there was a real need forvictim assistance to be grounded within thecontext of a strategic approach and basedon a number of guiding principles, which
would provide a framework within which
practical, comprehensive and efficientreform could be undertaken.
An integrated victim assistance regime
was needed with professional andcommunity interfaces developed between
the wide variety of people who can impact
upon victims of crime. Such an integrated
strategy would focus upon:(i) A central referral service;(ii) The information needs and rights ofvictims, service providers and policy
makers;(iii) A responsiveness and sensitivity of
the criminal justice system;(iv) Real service and rehabilitationneeds and rights of victims of crime;and(v) The accountability of services
funded by Government to provide
these Services.
The guiding principles in an integrated
victim support strategy would include:(i) Victims rights;(ii) Complete rehabilitation; and(iii) Community responsibility.
B. Victims Referral and Assistance
Service
The Victim Referral and Assistance
Service is the primary focus of theGovernment’s new Victim Assistance
Strategy introduced in July, 1997. The
service focus is upon an integrated and coordinated system, which is restorative in
its approach and assists victims of crimein a holistic, responsive and caring manner.
A victim of crime is a person who has
suffered harm because of a criminal act.
Harm can mean physical injury, emotional
trauma or financial loss. The crime may
be reported to the police or not. The
mission of the VRAS is to “assist victims ofcrime to overcome the negative effects of
their experiences resulting from crime.” Itsfunctions are to:(i)Refer victims to appropriate support
agencies in an attempt to restore
them, in so far as it is possible, totheir former state;(ii) Administer the Victim’s Counseling
Scheme which will enable victims toaccess immediate short termcounselling;(iii) Manage researching of funding ofadditional assistance to victims
through the Victims Assistance
Program working with community
agencies.
Where required, VRAS will assist eligible
victims access the Victims of Crime
Assistance Tribunal.
These functions are delivered throughthe central referral and advice systems,
which enables the most appropriate andrelevant assistance to be provided
immediately upon contact with the VRAS.

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RESOURCE MATERIAL SERIES No. 56
Local community assistance is provided
t h r o u g h o u t Vi c t o r i a b y a f u n d e dcommunity network, which can meet needs
locally and in a specialised way. Special
research and other projects assist the
VRAS to develop policies and practices
which continue to meet needs as they are
identified.
The establishment of these new services
within the Department of Justice isproviding for the first time a systematicand integrated approach to meeting theneeds of victims of crime. It provides an
acknowledgment of victim needs andrights, a pathway to rehabilitation and an
involvement of Government andcommunity in responsibility for assisting
victims of crime. In this way, victims aretreated with respect and dignity, so
important for their well being andrestoration.
C. The Help Line
VRAS operates a centralised referral
service to provide victims of crime withreferral to appropriate counsellors and/or
government and community based
networks and agencies.
VRAS operates a Helpline staffed bytrained professional advisers who can
inform callers about the steps they can taketo manage the effects of a crime. The crime
may be reported or unreported, and may
have occurred in the past or very recently.
The crime may range from a burglary to“bag snatching”, sexual assault or
homicide. It may be regarded by some asa minor incident but may have a significant
impact upon an individual caller. Callers
sometimes ring on behalf of others.
The VRAS Helpline is available for all
those who wish to call and seek assistance.
The Helpline can refer victims tocommunity organisations for help, explain
how to access counselling and provide

42

information about a wide range of otherassistance which is available. Sometimes
a caller simply needs to talk through an
issue and needs no further referral. Eachcase is individual and is given individual
attention.
The needs of each particular caller areassessed and a large and extensive database provides access to suitable referrals
including Government agencies, service
providers and community agencies. The
database contains over 11,000 entries
describing services which may be relevant
to a particular circumstance. More than
33,000 people have called the hotline since
it opened in July 1997. Around 11 percentof those are victims of homicide; familiesof the dead or witnesses to the killing.
In addition to the psychologists who
provide counselling though the Victims
Counselling Scheme, VRAS staff can assess
and refer a caller to agencies which provide
information and assistance about housing,financial, legal, community health andsupport services and groups. VRAS staff
speak a number of community languages
and an interpreter service is available. A
comprehensive and detailed listing of
support services and counsellors from nonEnglish speaking backgrounds is readily
available. Assistance for those with adisability can be arranged through carers
or facilitators, as requested.
D. Administering the Victims
Counseling Scheme
VRAS administers a Victims Counseling
Scheme which provides immediate accessto short term counselling. Counselling canhelp victims of crime manage the effects ofcrime on their lives. Counselling isprovided by trained professionals andinvolves assisting or guiding a person toresolve some of the personal, social or
psychological effects of a crime.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Those eligible for five free counsellingsessions with a registered psychologists oran approved counsellor include:(i)Primary and secondary victims of aviolent crime which occurred in
Victoria and has been reported tothe police;(ii) Families of homicide victims; and(iii) Victims of domestic violence,
stalking or assault who have applied
for an intervention order.
About 20 percent of the 33,000 callers
take up the offer of five free counsellingsessions with psychologists of their choice,to the cost of $110 per session. An
additional 5 sessions are granted if thevictims say that they need it. The scheme
has paid out $3,630,000 to psychologists.
Claim forms for the scheme are available
at the time the crime is reported to police,or from Registrars of Courts when anintervention order is applied for.

directly or with the assistance of areferral from the VRAS), a doctor orcommunity agency or other person.
Where counselling is required beyond
the tenth session, the victim may be eligible
for financial assistance from the Victimsof Crime Assistance Tribunal.
E. Regional Agencies Funded by the
VRAS
To meet the needs of victims throughout
Victoria, VRAS provides funding to a
network of services to operate in country
regions and the metropolitan area. This iscalled the Victims Assistance Program.
Qualified professional staff in theseagencies have the knowledge and skills todeliver services and to recruit, train andco-ordinate a network of volunteers able toprovide an immediate response to victims
of crime in their particular regions.
These agencies provide the following
range of services to victims:

1. How the Scheme Works(i)
1. The police officer attending the sceneof a crime (at the crime scene or at
the police station when a report ismade) gives a Notice to Victim Formto the victim.
2. The police officer will indicate (byticking a ‘yes or no box’) whether or
not the person named in the form hasreported a crime against the person.
The reverse side contains theCounselling Claim Form.
3. Some victims who do not receive aclaim form may obtain one from theVRAS.
4. A v i c t i m w h o a p p l i e s f o r a nintervention order will receive theform from the Registrar of the Court,
who will validate it.
5. The victim seeking counselling froma registered psychologist in private
practice of his or her choice (either

Immediate crisis response to victims
of crime, both by telephonecounselling and outreach services;(ii) Where appropriate, refer victims toother services which may be best
able to meet their specific needs;(iii) Practical support of victims of crime(eg shopping, arranging improved
security, contacting relatives,
friends or an employer, writing
letters or assisting to complete
forms).
(iv) Establishment and conduct ofspecialist support groups for victims
of crime and/or people suffering
through a crime committed against
a close relative or friend.
(v) Where no such service is available,
provide support to victims or
witnesses to a crime who are
required to attend court;(vi) Develop the mechanisms through43

RESOURCE MATERIAL SERIES No. 56
which the views of clients are
elicited and considered in theplanning and delivery of futureservices, including the developmentof a grievance or complaints
procedure.
The agencies undertake community
education activities to promote community
awareness of issues facing victims of crime
and the availability of the funded service.
They also have networks with otheragencies and professionals providing
services to victims of crime including police,
lawyers, court staff, medical and humanservice providers to enhance theeffectiveness of the service and ensure thatit complements, rather than duplicates,
those services.
F. Victims of Crime Assistance
Tribunal
A major avenue for victims is throughthe Victims of Crime Tribunal, whosefunction is to consider applications forfinancial assistance by victims of violent
crime. A primary, secondary or related
victim of crime can make a claim forfinancial assistance. In summary, people
who are injured or die as a direct result ofa crime are regarded as primary victims.
People who witness a crime but are notdirectly involved are secondary victims.
Related victims may be a dependent, closefamily member or a person who had a close
personal relationship with a primary
victim who has died.
People may not be paid financial
assistance if they are assisted from othersources. These could include a successful
civil suit against the offender, insurance
policies or other schemes such as workcoveror TAC.
The crimes where assistance can besought from the Tribunal include:

44(i) Armed robbery(ii) Aggravated burglary;(iii) Sexual assault;(iv) Homicides;(v) Assaults;(vi) Threat to kill;(vii) Culpable driving;(viii) Assault and robbery.
For the Tribunal to consider a victim’s
application, the crime must have beencommitted in Victoria. Claim forms may
be obtained from the Victims of Crime
A s s i s t a n c e Tr i b u n a l , t h r o u g h t h e
Magistrates’ Courts, a police station or
through a solicitor. The claim form has a
Statutory Declaration and should be
carefully completed. If unsure, theapplicants are encouraged to see a solicitor
for assistance.
The amount of financial assistancedepends on the circumstances of each case.
The maximum total financial assistanceawarded by the Tribunal is $60,000 for a
primary victim; $50,000 for a secondary
victim or related victim. These totals may
include medical, counselling or funeral
expenses and in exceptional circumstances,some other expenses, or a combination ofeach. It is important to note that the
maximum cumulative amount available toall related victims of any one primary
victim is $100,000, less any amountawarded for funeral expenses.
The Tribunal will give priority torequests for payment for counselling. It
can grant these requests without a hearing.
However an application should be made as
quickly as possible. The Tribunal may stillassist an applicant even if no person isfound guilty, or if the offender is not found.
All payments of financial assistance are
made by the Victorian Government.
In most cases the Tribunal will require
an applicant to provide evidence from their

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
treating doctor or hospital to prove thatthey had been injured. The applicant isalso expected to provide proof of loss ofearnings and any expenses incurred as aresult of the crime. The Tribunal willcollect the evidence, including evidence
from the police, to make a decision about
the victim’s application.
Hearings usually take about half an
h o u r, b e f o r e s p e c i a l l y a p p o i n t e d
Magistrates who hear applications
throughout Victoria. Applicants can attend
alone or with a lawyer or a friend. In somecases, decisions can be made about
compensation without a hearing. After the
hearing the Tribunal may decide any of thefollowing:(i) To give assistance;(ii) Not to give assistance;(iii) To put off the hearing until anotherdate (this could happen if the
Tribunal needs more evidence, or if
its decision depends on the outcomeof another court case).
If a victim believes that the award is too
small, or if their claim is refused, they canappeal the Tribunal’s decision to the
Administrative Appeals Tribunal.
G. Restitution
By law, people can seek damages for any
harm another person or organisation has
caused them. This means a victim of crime
can hire a lawyer and sue an offender. In
Victoria, the State Government can sue
offenders for damages on behalf of thevictim. If the Government agrees to do so,
victims will usually receive any money
recovered additional to the assistance theGovernment has already provided. This
could include compensation for pain andsuffering.
TheVictorian Government will only sue
on a victim’s behalf if the victim or anotherperson can provide details to theGovernment indicating that the offender
has assets or income which he or she canpay to the court, and that it is likely thatthe amount the offender may have to pay
is more than the legal costs of taking theaction.
A criminal court may make acompensation order for pain and sufferingand for damage to property where an
offender is found guilty and the court has
appropriate evidence before it to make anorder if the victim requests that this bedone.
H. Support Program for the
Families of Persons Charges witha Major Crime and VACRO
Support Program for the
Families of Persons Charged withSex Offences
These programs offer counselling andsupport to family members of persons
charged with major crimes including
homicide, and to those persons charged
with sex offences. Contact can be short orlong term, with face to face and telephonecounselling and home visits. The major
crime program assists families to workthrough trauma, grief and coming to termswith the enforced changes to their lives.
The program assisting families of
persons charged with sex offences has asimilar emphasis, with an educative
component reinforcing the principles of thespecific programs offered to sex offenders
in prisons. It offers support to sex
offenders’ families without colluding witheither the offenders’ behaviour or theirdenial of it. The social worker is involvedin co-facilitating with CORE, one of the
management and intervention programs,
which is a twenty-six week, offence-specificprogram for sex offenders in thecommunity.

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RESOURCE MATERIAL SERIES No. 56
X. CONCLUSION
From this review of crime prevention
practices in the United Kingdom, America,
Canada and Australia, and particularreference to the State of Victoria, a numberof general trends can be identified:(i)Communities and agencies need tobe empowered in their efforts toaddress crime and safety problems.
(ii) Strategies to reduce crime andimprove community safety should
be based upon researched evidenceof what works.
(iii) Strategies to reduce crime andimprove community safety must be
tailored to local conditions andproblems.
(iv) A problem-orientated approach tocrime prevention ensures that key
crime problems are addressed, andappropriate strategies
implemented.
(v) Communities, families, schools,
labour markets, welfare groups,
voluntary organisations,businesses, government
departments, police and agencies of
the criminal justice system all havea role to play in crime prevention
and community safety.
(vi) Crime prevention strategies must
be comprehensive and multifaceted, addressing social,
developmental, and situational
issues.
(vii) No single agency can reduce or is
expected to reduce crime, or improve
community safety.
(viii) For crime prevention to work,
governments must show politicalcommitment, eg, giving it astatutory footing.
(ix) Strategies to reduce crime andimprove community safety should
be based upon research of whatworks;

46(x)

Programs need to have in-built
evaluation measures that monitor
outputs and outcomes.

I strongly believe that people who live
and work in communities are best placed
to solve local crime and safety issues. As aconsequence, all criminal justice agencies
must work in partnership with each otherand their local communities, in their efforts
to reduce crime and improve community
safety.
REFERENCES
Benyon J., (1995), Policing and theCommunity - the UK Experience, In Ellem
B. (Ed.), Beyond Catching and Keeping,
Centre for Police and Justice Studies,
Monash University, Clayton, Victoria,
Australia.
Polewski-Koziell K., Community
Participation in Corrections in Biles, David(ed) (1989), Current International Trends
in Corrections, Federation Press, Sydney,
Australia.
Brown Malcolm (ed) (1995), Australian
Crime, The Book Company International,
Sydney, Australia.
Chappel, Duncan & Wilson, Paul (1986),
The Australian Criminal Justice System,
Butterworths, Sydney, Ausralia.
Latessa, Edward & Allen, Harry (1997),
Corrections in the Community, Andersen
Publishing Co., Cincinnati, USA.
National Campaign Against Violenceand Crime Unit in the Attorney General’s
Department - Best Practice in Crime
Prevention - Project Summary Document,
Canberra (1997), Australia.
National Campaign Against Violenceand Crime Unit in the Attorney General’s112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Department - Crime Prevention Initiatives
across the Commonwealth Government Policy Document, Canberra (1997),
Australia.
National Campaign Against Violenceand Crime Unit in the Attorney General’s
Department - Fear of Crime - General Fact
Sheet, Canberra (1997), Australia.
National Campaign Against Violenceand Crime Unit in the Attorney General’s
Department - Improving Crime Prevention- General Fact Sheet 2 Canberra (1997),
Australia.
Police and Strategic Development Unit,
Department of Justice, Victoria, Australia,- Safer Cities and Shires - A Guide toDeveloping Strategic Partnerships - Policy
Document (1999), Melbourne, Australia.
Victims Referral & Assistance Service,
Department of Justice, Information forVictims of Crime, General Information
Booklet (1999), Melbourne, Australia.
Whitehouse Gazette Newspaper article
3 March, 1999 “Take the First Step to Stop
the Effects of Crime”, USA.

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RESOURCE MATERIAL SERIES No. 56

VICTIM ASSISTANCE IN CANADA
Ezzat A. Fattah*
I. INTRODUCTION
Canada is a beautiful and lovely country.
It is consistently rated as one of the bestplaces in the world to live. Canada is aconfederation of ten provinces and two
territories. As a confederation, Canada has
a complex political and government system.
There are actually three levels ofgovernment in Canada: federal, provincial,
and municipal. The federal government
has sole jurisdiction in some areas, forexample, the criminal code. This is why,in contrast to the United States where eachstate in the union has its own criminal
code, in Canada there is one federal
criminal code that applies to the entire
land. The provinces and the territories
have sole jurisdiction in some matters, forexample, education.
The administration of justice is a mixed
jurisdiction. There are federal courts andprovincial courts. Some judges areappointed by the federal government andothers by the provincial government.
There are provincial prisons and federal
prisons called penitentiaries. To someextent, policing is a shared responsibility.
There are three main types of police forcesin Canada. I say main types, because inaddition to these three, there are
specialized or localized police forces suchas harbour police which operate in ports
such as the Port of Vancouver.
The three main types of police forces arefederal, provincial, and municipal. The
largest police force in Canada is obviously
the federal police, known as the Royal* Professor Emeritus, School of Criminology, Simon
Fraser University, Canada.

48

Canadian Mounted Police or the RCMP.
The two largest provinces in Canada;
Ontario and Quebec, each has its own
provincial police force in addition to manymunicipal police forces. But they are theonly ones that have such a provincial force.
Each city or municipality in Canada could
have its own municipal police force andlarge cities usually do. But even smaller
municipalities can have their own police
force consisting of seven, eight or ten
constables. In the greater Vancouver area,
this is the case of municipalities such asWest Vancouver or Port Moody. In
Montreal, many years ago, all municipal
police forces were amalgamated into one
force called the “Montreal Urban
Community” police force.
Through a contract signed between thefederal government and the provinces,
municipalities that do not want, or cannot
afford, to have their own police forces could
have their territory policed by the RCMP.
They can have an RCMP detachmentservicing the municipality.
This division of jurisdiction has anenormous bearing on victim assistance inCanada. This is because there are no truly
national standards or unified sets of rulesthat govern victim services. As a result,these services are more developed incertain areas than in others, and in someplaces they are virtually non-existent.
Even in an area such as government
compensation to victims of crime, because
each province has its own Compensation
Act or law, the rules and amounts ofcompensation can show substantial
variation. Naturally, this is a far from ideal
situation, though it is not very different
from what exists in other federalist states,

112TH INTERNATIONAL TRAINING COURSE
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such as the United States, Switzerland orAustralia. These difference make it
impossible to offer a general picture ofvictim assistance in Canada or to present
a general synopsis of the state of victim
services in such a huge and diverse country.
II. VICTIM ASSISTANCE IN
CANADA: A BRIEF HISTORY
Until the 1960’s, the situation of crime
victims in Canada was no different fromtheir situation in other western countries.
Not only were they the forgotten persons
in the criminal justice system, but they
were also the orphans of social justice.
They had no legal status, no rights, and noone seemed to pay any attention to theirplight. They were a disenfranchised groupwith few supporters and even fewer
defenders! Until now I can hardly
understand how or why it is that in welldeveloped welfare states, in the aftermathof the second world war, where the statecame to the help and rescue of the weak,t h e p o o r, t h e u n e m p l o y e d , t h eunderprivileged, the dispossessed, nothing
was done to improve the victims’ lot or to
alleviate their plight. It is simply
incomprehensible that at a time whensocial solidarity and social assistance werebuzz words, the cause of crime victims was
totally ignored.
Things began to change in the early
1960’s. Thanks to the laudable efforts of a
British magistrate, Margery Fry, andothers, voices were heard on both sides of
the Atlantic calling for state compensation
to victims of crime. But it was New Zealandwhich was to become, in 1963, the first
country to establish a state compensation
program for crime victims, only to befollowed the year after by Great Britain.
In the United States, the first initiative wasthat of the State of California, which began
a compensation scheme in 1966, to befollowed a year later by New York and

Hawaii.
In Canada, the lead was taken by theProvince of Saskatchewan in 1967, followedby Ontario (1968), Alberta and New
Foundland (1969), Manitoba and New
Brunswick (1971), British Columbia andQuebec (1972). Today, all Canadianprovinces have compensation programs forthe victims of certain offences. Althoughcrime victims compensation isadministered exclusively by each provinceor territory, it is financed on a cost-sharebasis with the federal government. Lateron, we will see to what extent these
programs have been successful infinancially assisting crime victims.
Financial assistance was thus the firstsign of society assuming some
responsibility for crime victims. Victim
services were yet to wait for some more
years before being offered to the victims.
And this was not even a government
initiative but a grass roots one. The
feminist movement should be given credit
for recognizing the suffering of female
victims of sexual assault and of domestic
violence, and for setting up privately run
rape crisis centres and shelters for battered
women, where victims not only could seek
refuge, but also could get counselling andassistance of varying kinds.
The ideological roots of rape crisis
centres and shelters for victims of domestic
violence have remained largely unchanged
and explain why it is that their clientele is
exclusively women (and in some cases theirchildren). This is so, although research in
the US suggests that men are as often
victims of family violence as women are(Steinmetz, 1978; Straus, Gelles andSteinmetz, 1980) and it is by now a wellknown fact that rape and sexual assaults
are not exclusively a male/female
phenomenon. In fact, in one of the early
shelters in Vancouver (Ridington, 1978)

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RESOURCE MATERIAL SERIES No. 56
there were only three rules: no liquor, nodrugs, no men. One of the reasons why
male companions of the residents are notallowed is the fear that they might cause
trouble, and this is why the locations of the
shelters are kept secret and strict
precautions are taken to keep them thatway (Peltoniemi, 1989, p335).
The creation of rape crisis centres andbattered women shelters highlighted thelack of services available to crime victims
and their dire need for some help andassistance to find their way through themaze of the criminal justice system, to copewith the traumatic effects of victimization,and to avoid future victimization.
The police, ever anxious to improve theirimage and to strengthen their contacts andrelationships with the community they
serve, quickly realized that there wereseveral administrative benefits to begained from establishing victim assistanceprograms. It is sad to say, but in Canada
at least, the impetus for victim assistanceprograms was not a genuine concern forthe plight of crime victims but theadministrative goals of the police agencies.
Compensation programs were actuallydesigned to encourage victim reporting to
the police and to improve victim
cooperation with the criminal justicesystem. The primary benefits were seen
as enhancing victim participation andcollaboration, thus increasing the efficiency
and effectiveness of the system.
The same can be said of victim assistanceprogrammes. The major guiding influence
was not compassionate or humanitarianconsideration for victims, but theadministrative goals of the agency. The
Calgary Victim Services Programme, oneof the first of its kind in Canada (started
in 1977), is just one example of many. The
programme is described in a document
published by the Solicitor General’s

50

Department in Ottawa. The document
makes no secret of the fact that theobjective of the programme “is to develop agood working relationship with victims ofcrime in order to encourage their futurecooperation with the police in crime
prevention”. This statement tells a great
deal about the victim service programmes
which were set up by various police
departments in Canada, as in othercountries. It explains the distinct
preference for having these programmes
housed in police departments or publicprosecutors’ offices, rather than in thecommunity.
III. MODELS OF VICTIMASSISTANCE
Victim assistance programs do not follow
the same model. The choice of one model
rather than another is dependent upon alarge number of variables. Since evaluative
research analysing and comparing thedifferent models is lacking, it is impossible
to tell whether a certain model is betterand more effective than the others, or tojudge which model works best for which
victims. The setting for the program, thatis, whether it is housed in a police station,
the prosecutor’s office, or the community;t h e p r o g r a m ’s p e r s o n n e l , w h e t h e r
professionals, para-professionals, orvolunteers; the type of assistance theprogramme offers: referrals, counselling,emotional support, etc; the type and lengthof follow up on program’s clients; are all
factors that are bound to affect thep r o g r a m ’s p e r f o r m a n c e a n d i t seffectiveness. As does the ideology
underlying the program or the service.
Studying women shelters, Peltoniemi(1989, p334) identified two shelter
ideologies: the feminisit shelter ideology
and the family-oriented shelter ideology.
According to Peltoniemi, the mostimportant feature of the feminist shelter

112TH INTERNATIONAL TRAINING COURSE
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ideology is its emphasis on a nonhierarchial system. He points out that insuch shelters there are no specified work
roles and those staying at the shelter are
called women, not clients or anything else.
The whole ideology is based on one
explanatory theory of family violence: thestructual theory saying that family violenceis caused by a patriarchal society. The
feminist ideology also emphasizes thecriminal nature of family violence and the
preponderant role of the court system incontrolling and preventing it. Peltoniemi
explains that the family-oriented shelter
ideology is the exact opposite of the feminist
ideology. Family violence is seen as
violence that is not directed exclusively at
women but towards many different victims
within the family. He adds:
Several reasons for violence aresuggested, and it is considered thatthe entire family needs help, not only
women. The shelters are organized
in a more traditional way andcooperate closely with social careagencies (1989, p335).
In Canada, victim assistance programs
housed in police departments and operated
by the police agencies are generallyorganized according to popular models.
There is usually one coordinator, in mostcases a civilian (not a member of the force)
who is hired and paid by the police. The
major responsibility for this coordinator isto recruit, train, and supervise a numberof volunteers, to assign their duties,
determine their case load, and to coordinate
their activities. The coordinator is also
expected to liaise with the community, topublicize the existence of the program andto ensure its acceptance and support by thecommunity.

IV. PROGRAM SETTING ANDPERSONNEL
The most appropriate setting for victim
assistance programs, as well as the mostappropriate background for victim helpers,
have been the subject of many heateddebates. Should victim assistanceprograms be housed in police departments
and be run directly, or under close
supervision by the police? There is no clearcut answer to this question, and there arevalid arguments on both sides of the issue.
The major argument in favour of this modelis rather a practical one. It is claimed that
placing the program in the police stationis the surest way of having the largest
number of victims take advantage of theservice. The first encounter of crime
victims with the criminal justice system,in the vast majority of cases, is their contact
with the police. Once a complaint is filed,
the police get the victim’s address (andtelephone number), and refer the victim
immediately to the victim service, or
provide the program with the necessary
infomation to get in touch with her/him.
It is argued that programs located in thecommunity will be much less successful inknowing who the victims are and inlocating them.
Those who argue in favour of placing
victim assistance programs within thecommunity are generally apprehensive
because of the strong temptation to use theservices for victims as a means to ensure
victims’ continued cooperation with thepolice. They also point to the great
reluctance of many victim groups:
minorities, immigrants, deviants,
homosexuals, prostitutes, etc, to takeadvantage of a service offered andcontrolled by the police. They insist thatrape-crisis centres and battered womenshelters would have had little chance ofgetting clients if they were located in andoperated by the police. They also argue

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RESOURCE MATERIAL SERIES No. 56that community programs are likely to be
more neutral, more impartial, to take amore objective approach to the needs andwishes of the victims, and not to subscribe
to police stereotypes of certain
unconventional victims. Should victim
assistance programs use volunteers as
their main service providers or should thedelivery of services be done, as incorrections, by professionals and paraprofessionals?
The practical considerations that
dictated that victim assistance programs
be housed in police stations or police
departments are similar to those that
resulted in victims assistance being
delivered mainly by volunteers. The
decision to use volunteers was not basedon valid, scientific evidence that they can
perform this task better than paid
professionals or para-professionals. It was
not based on a sound judgement showingthat volunteers are better service providers
than others. Financial considerations were
the primary reason for the adoption of thevolunteer model.
Governments, as reluctant as they were,to provide decent budgets to statecompensation schemes for crime victims,
were even more reluctant to allocate
financial resources to victim services. They
wanted the programs because they were
popular with the general public, and thus
politically beneficial, but they wanted tocommit only token amounts to theiroperation. It should also be kept in mind
that victim assistance is a very new field
and to my knowledge there are no college
or university programs offering training,courses, diplomas and degrees in victim
services. In fact, our knowledge of this fieldremains so rudimentary that no viable
programs could be mounted at present totrain professionals in this area.
Like other models, the volunteer model

52

of victim assistance has some advantages
but also significant drawbacks. The
overwhelming advantage is obviously
economical. Programs using volunteers arenaturally much less costly than those using
professionals, be it psychologists,
criminologists, social workers, or others. It
is also suggested that volunteers,particularly those with similar
victimization experiences, can relate betterto the victims and can better understandtheir pain and suffering, the traumaticeffects of the crime, and the impact it hason their lives, than do professionals.
Volunteers therefore might have more
sympathy and empathy than those whose
daily activities over the years are meeting
victims and listening to their tragic or sad
stories. Volunteers also tend to treat thevictims they are dealing with as humanbeings, as fellow citizens, rather than‘clients’ or ‘recipients of services’.
Be this as it may, the most importantdimension on which the models should beassessed and judged is the quality ofservices to crime victims. Do volunteers
provide better and more effective services
to the victims than professionals or paraprofessionals? This is questionable. In
Canada, the training that recruited
volunteers receive before working in victim
services is very crude and very elementary.
There is therefore a danger that the service
they provide might not be effective, and areal danger that the intervention, thoughdone with the best of intentions, will insome cases do the victims more harm than
good (that is, prolonging or evenmagnifying the trauma, delaying thenatural healing process and so forth).
Volunteers tend to be more emotional thanprofessional, they tend to side with theperson they are trying help. And while thismight provide temporary comfort to anumber of victims, it might not be in theirbest interest in the long run. This isparticularly true in cases where the most

112TH INTERNATIONAL TRAINING COURSE
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appropriate advice the victim needs issound, objective, candid and non-partisan
advice.
In the field of corrections, therehabilitation of offenders, the issue of
professionalization and of specialized
training for those who deliver the services,that is, the treatment and rehabilitation
programs, was settled several decades ago.
It would be unthinkable at the present timein the industrialized world to return to thevolunteer model of corrections that was
spearheaded last century in the US by the
Quakers, and in the State of Massachusetts
by John Augustus, who initiated thepractice of probation.
In Canada, the delivery of victim
assistance is done predominantly by
volunteers. As the volunteers have no
training or expertise in psychology orcounselling, they are instructed to refrainfrom acting as psychologists or counsellors.
They might be able to provide some
practical assistance to the victim: driving,cleaning, shopping, baby-sitting, helping
with the children and so forth, but in mostcases the only thing they do provide isemotional support.
This should not be interpreted as anendorsement of counselling for crime
victims, as there is no evidence showingthat counselling is effective. Davis andHenley (1990) reviewed research findings
and found little indication that counsellingof any sort is effective in reducing postcrime trauma. They regretted the fact thatmuch money is being spent on crisis
intervention services for victims in theabsence of knowledge as to which forms oftreatment work and which do not. There
are also reasons to believe thatintervention, if not done properly, can delay
rather than accelerate the natural healing
process and can prolong rather thanshorten the trauma of victimization.

V. THE NEEDS OF CRIME VICTIMS
Victims of crime constitute a very
heterogeneous population. And whilecertain needs might be common to all those
who suffer some form of criminal
victimization or another, there are several
groups of victims who might have special
and rather specific needs and therefore
might have to receive special andindividualized services. In the field ofcorrections, the principle of individualized
penal measures and of individualized
treatment, has been recognized for many
decades. There is a long-held view that
offenders respond differently torehabilitation and treatment programs,that certain programs are totallyineffective for certain types of offenders,
while other programs are more effective forsome than for others.
The diversity of the victim populationand the enormous variety of the types ofcriminal victimization from which they
could suffer, suggests that the principle ofindividualization is as important and as
valid in interventions with victims as it iswith offenders. Few examples could
illustrate well what is meant by
individualized intervention. The needs ofvictims of sexual offences are different fromthose of victims of property crimes, or evenvictims of common assault. But even for
those who are sexually victimized, theneeds may vary greatly from one group of
victims to another, and even from one
victim to another. The needs will vary not
only in the function of socio-demographic
variables such as age, gender, social class,level of education, race, etc, but will also
vary according to the type of offence
committed (rape, sexual touching,molestation, indecent exposure, anal
penetration, and so forth), the amount ofviolence or coercion used, the relationshipbetween the offender and the victim (total
stranger, acquaintance, close friend, pro-53

RESOURCE MATERIAL SERIES No. 56
genitor, etc), the age and race differentials
between the offender and victim, and soforth.

that would satisfy the specific needs of eachcrime victim, or of a specific victim group.
VI. THE TYPES OF SERVICES

Lurigio and Resick (1990) insist that
because reactions to crime and otherdeleterious experiences are often quite
varied, it is essential to study individual
differences in response to criminal
victimization. They state that variability
in victim recovery can be a function of
victim characteristics and predispositions,the nature of the incident, victims’
perceptions and interpretation of theoccurrence, and events that occur in theaftermath of the crime. Lurigio and Resick(1990) place a high emphasis on theindividual correlates of post-crime distressand recovery. But socio-cultural factors andattitudes can be of great importance as
well, and plays a significant role inspeeding up or delaying the recovery
process. In our society, there is a tendency
to stress, even overblow, the negative
effects of victimization, whereas in others
only the positive effects are emphasized.
Even physical injuries resulting fromvictimization do not carry the same weight
everywhere, and their impact, therefore, isbound to be greater or lesser according toa host of variables. It is undeniable thatpsychological wounds heal faster andbetter in some cultures than in others. All
this is to say that victim assistance is a lot
more than just a charitable or
humanitarian endeavour. If done properly
and effectively, victim assistance is not a
simple, easy or a mere common sense task.
In other words, it is not something that
could be delivered in a hasty or ad hocmanner unless it consists of nothing morethan moral support, tea and sympathy.
To my knowledge, no victim assistanceprogram in Canada, or for that matter,elsewhere, is able at the present time toprovide the kind of individualized services

54

Crime victims, regardless of the type ofvictimization they suffer, need different
types of support and varying kinds ofassistance. They need practical services
such as fixing the lock, replacing thewindow, or driving the kids to school. They
need information and advice, particularly
advice on how to avoid future victimization.
They might need referral to other services
or legal assistance. They need a great dealof emotional support. All these types ofservices are not problematic and the moreof them available to the victim after the
event, the better it is. It is the other kindof well-intentioned support: counselling,
therapy, and treatment that can pose real
problems.
One common need, spelled out by thevast majority of victims, is the need for
information about the progress of theircase. They felt frustrated that nobody
cared to tell them what is happening,whether the case will proceed or not, andif so, on what date. Once the case is before
the court, they want to be informed of theoutcome, whether the Crown will launch
an appeal, and the final disposition in any
appeal by the defendant or the Crown. If
the offender is sentenced to a prison term,
they want to know the eligibility dates forthe various types of early release, the datesof the hearings, the decision by the paroleboard. They want to be notified when theoffender is released. In response to thisexpressed need for information, guidelines
have been developed in many provinces in
Canada in order to ensure that the victims
are not kept in the dark, that they are being
kept informed of the progress of the caseat the various stages of the justice process.
This simple and rather inexpensive service
has gone a long way towards alleviating

112TH INTERNATIONAL TRAINING COURSE
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victims’ dissatisfaction with the justicesystem.
Another need that many victims have isthe need for some legal assistance and legal
advice. They are frustrated that free legal
aid is usually available for those offenders
who do not have the means to hire private
legal counsel, but the victims have to pay
if they needed to consult a lawyer. In many
provinces in Canada and elsewhere, there
are now provisions that make it possible
for victims to get some basic legal advice
without pay. Sometimes it is the prosecutor
who provides this advice, other times it isby a paralegal. But everywhere thisremains a process separate andindependent from the office of the publicdefender or that of legal aid.
VII. FINANCIAL ASSISTANCE TO
CRIME VICTIMS IN CANADA
Although crime victim compensation, or
criminal injuries compensation, as it isusually called, is administered exclusively
by each province (or territory), it is financed
on a cost-share basis with the federal
government. The federal government
assists in program funding to ensure theestablishment of uniform, minimum
standards. There are approximately forty
crimes of violence that are covered by thesefederal/provincial agreements.
While provincial (and territorial)
compensation schemes in Canada sharemany similarities and have several
common characteristics, there are stillsome notable differences. For example, thenature and structure of the compensating
agency vary from one province to the other.
In Ontario, Saskatchewan, Newfoundland,and Alberta, it is a separately establishedboard. In Quebec, Manitoba and British
Columbia, it is part of the already existing
Workman’s Compensation apparatus, stillin others it may be a provincial judge.

Schemes also differ in terms of the upper(and lower) limits the set for lump sum
awards and for periodic payments.
Financial assistance to crime victims in
Canada, as in most other countries thathave created similar schemes, is largely
inadequate and is subject to various
restrictions and limitations. This has led
many researchers to claim that statecompensation is essentially a symbolic act
by governments to show their concern forvictims, but with little real intention offollowing it through with hard cash (Miers,
1983, p19990; Maguire and Shapland,
1997, p218). As if to add insult to injury,
many governments, including theCanadian government, decided in recent
years to transfer the financial burden of
victim compensation to offenders througha levy called ‘a victim fine surcharge’imposed on those who are sentenced to apenal fine, even if the sentence is for a socalled ‘victimless crime’ (section 727.9 of theCanadian Criminal Code).
The major problem with Canadiancompensation schemes, as with others, isthat they exclude the vast majority ofvictims from the realm of compensation.
For the very few who are eligible forcompensation and who ultimately get it, it
is, for budgetary reasons, too little, andbecause of bureaucratic procedures, toolate.
In Canadian schemes, as in others,
victims of non-violent property crimes whoconstitute the bulk of crime victims, aretotally excluded from compensation. Sadly,
most of these victims do not have andcannot afford private insurance. In fourout of five of these property crimes, theculprit is neither identified nor caught.
And the few who are arrested, charged andconvicted are, more often than not, poor or
insolvent and nothing could be obtained
from them through a civil judgement even

55

RESOURCE MATERIAL SERIES No. 56
if the victim had the means to obtain one.
Victims of violence for whom theschemes are designed do not fare muchbetter. The conditions of eligibility for statecompensation are such that only a small
fraction do qualify. In almost all systems,
eligibility is contingent upon reporting theoffence to the police and the victim’s
willingness to cooperate with the criminal
justice system. Many have a means test
ensuring that compensation is given only
to the poorest of the poor. Most exclude
violence among family members, whereasa good part of all violence occurs indomestic settings. Most also exclude (ordrastically reduce the awards to) victims
who provoked or otherwise contributed totheir own victimization. One sure way ofmaking the majority of victims of violenceineligible for state compensation is to set ahigh minimum limit for compensation
below which victims do not qualify. (In theUK, for example, the lower limit was set
at £1,000 despite the recommendations
made by victims groups to remove it). The
burden of proof is upon the victim and it iseasy to imagine how difficult it can be toprove that the injury resulted from acriminal attack when the attacker has run
away and there were no witnesses. With
the exception of sexual victimization, mostschemes do not provide funds tocompensate the victim’s emotional pain andsuffering.
It is not surprising that many victims
are deterred from applying by the lengthy
bureaucratic procedures and theinvestigative process. More distressing
still is that many victims are simply
unaware of the existence of the schemes.
As in many jurisdictions, the budget isdetermined in advance and cannot be
exceeded, the more applications the
program receives, the lower are the awards.
And as the schemes are poorly funded in
the first place, successful applicants

56

usually end up receiving ridiculously low
amounts as compensation for their
victimization. It is easy to understand,therefore, why it is that in some countries
there is a deliberate attempt not topublicize these state compensation
schemes.
VIII. OFFENDER RESTITUTION
Restitution by the offender to the victim
is one of the earliest forms of redress to
those who suffer injury or harm throughthe actions or negligence of another. This
was the composition or wergeld paid to thevictim or the victim’s kin.
Since state compensation programs areoften strictly limited to victims of violence,
restitution by the offender has re-emerged
as a means of redress in property offences
as well as in violent crimes. The problem
is that the vast majority of offenders areeither unemployed or do not have thefinancial means that would make itpossible for victims to collect restitution.
Added to this problem is the fact that inmany countries the collection of the penal
fine takes priority over restitution orders.
Provisions on restitution by the offender
to the victim are a relatively recent
addition to the Canadian Criminal Code
(CCC). Thus section 725 of the CCC
stipulates that:
Where an offender is convicted ordischarged under section 736 of an
offence, the court imposing sentenceon or discharging the offender shall,
on application of the Attorney Generalor on its own motion, in addition to
any other punishment imposed on theoffender, if it is applicable andappropriate in the circumstances,order that the offender shall, on suchterms and conditions as the court may
fix, make restitution to anotherperson.....

112TH INTERNATIONAL TRAINING COURSE
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Section 737 pertaining to the placementof offenders on probation, cites a numberof conditions that could be attached to aprobation order. One of the conditions (737/2/e) is to ‘make restitution or reparation to
any person aggrieved or injured by thecommission of the offence for the actual loss
or damage sustained by that person as aresult thereof’’.
Section 737.8 contains various
provisions on how payment of restitution
or part of it could result in a reduction of
imprisonment.
IX. VICTIM-OFFENDER
RECONCILIATION AND VICTIMOFFENDER MEDIATIONPROGRAMS
Another important development inrecent years has been the rediscovery of
restorative justice. Restorative justice,which is widely practised in small,agrarian, rural societies, has a long andrich history in the aboriginal communities
in Australia, among Canada’s First Nationand the Inuit communities of the CanadianNorth.
The quasi-universal
disenchantment with the punitive/
retributive justice system was bound toforce those calling for justice reform to seek
alternatives to the current system ofpunishment. A turning point was the
publication of a seminal article by Nils
Christie in 1977 entitled “Conflicts as
Property”. In it, Christie explained thatthe root problem of the system is thatconflicts were stolen from their legitimate
owners, the victims, and became theproperty of professionals rather thanpeople. Christie’s ideas provided a strong
impetus to those who were calling for the
replacement of the destructive,
unproductive and ineffective system ofpunishment with the constructive practicesof dispute settlement, conflict resolution,
mediation, reconciliation and reparation.

Advocates of restorative justice pointed outthat in addition to its devastating effects
on offenders, their families and the larger
society, the system of punishment acts tointensify the conflict rather than solving
it. Instead of bringing the feuding parties
closer to one another, it widens the gap that
separares them (Fattah, 1997, p259).
Spearheaded by the Mennonite Church,
victim-offender reconciliation programs
were set up in Canada and the UnitedStates in the mid 1970s and then spreadto many other countries. Writing in 1983,
Dittenhoffer and Ericson (1983, 1992)
noted that the notion of VORP rapidly grewin popularity. They pointed out that at thetime, in Ontario alone, there were 24 VORP
centres operating, as were other centres
across Canada with similar programs. The
early programs have now been in existencefor over twenty years and the restorative
justice movement is expanding at a fast
pace. Outside of North America it hasestablished strongholds in Germany, theUnited Kingdom, Belgium, and France
among others. Three years ago, the Councilof Europe in Strasbourg set up the Expert
Committee on Mediation in Penal Matters.
The Committee has been meeting twice ayear and is due to release its report andmake its recommendations by the end of
this year.
Despite the appeal and popularity of thenotion of victim-offender reconciliation, thegoal of ‘reconciliation’ proved to be difficult
to achieve in practice. In many programs,
the foremost objective is to ensure
restitution by the offender to the victim andto see to it that the offender fulfills theobligations agreed upon in the mediationagreement. The programs were thus
inclined to changed their names fromvictim-offender reconciliation to mediation
programs.
Attempts to exploit the cause of crime57

RESOURCE MATERIAL SERIES No. 56
victims for political ends and to sell thepolicies of law and order, under the pretextof doing justice to victims, often required
the portrayal of victims as vengeful,vindictive, retributive and evenbloodthirsty. Those claiming to represent
and speak on behalf of victims gave theimpression that concern for crime victims
invariably requires a harsh, punitive
justice policy. While the distress of somevictims might be so overwhelming thatthey will demand the harshest possible
penalty for their victimizer, this could
hardly be said of the majority of victims.
Healing, recovery, redress, and preventionof future victimization are the primaryobjectives of most crime victims.
If the primary purpose of social
intervention is to restore the peace, redress
the harm, heal the injury, and stop the
repetiton of the offence, then it is easy tounderstand how and why the restorative
system (based on mediation, reconciliation,
restitution, and compensation) succeeds
where the punishment system fails.
Mediation and reconciliation bring the twoparties together, face-to-face, and ensurethat they see each other as human beings
in a state of distress. When faced with thevictim, it becomes impossible for thevictimizer to deny the victim’s existence or
the injury or harms s/he has caused. S/hecan no longer de-personalize, deindividuate, objectify or reify the victim. S/
he can no longer avoid post-victimization
cognitive dissonance. The confrontation
between the offender and the victim in amediation situation is the surest and mosteffective means of sensitizing him/her tothe victim’s plight, of countering andreversing the mental process of desensitization that s/he has gone through inorder to avoid guilt feelings or badconscience (Fattah,1991a).
The mediation process, when done
properly, can be very effective in awakening

58

and activating any positive emotions theoffender might have lying beneath a crueland indifferent fecade. Emotions such aspity, sympathy, empathy, compassion,commiseration, can all be brought to thesurface and reinforced.
On the side of the victim, the mediation
situation can also have salutary effects.
The feared, stong, cruel and unemotional
victimizer is bared to a weak and often
helpless being, a being that evokes morepity than fear, more compassion thananger. Distorted but long held stereotypes
disappear when checked against the real
offender. Both parties end up by gaining arealistic view of one another andreconciliation becomes possible (Fattah,
1995, p312).
Thus in the long run, the interests ofcrime victims and of society at large are
best served by humanity, empathy andcompassion, by tolerance and forgiveness,by the development of conciliatory andforgiving communities rather than hostileand vengeful ones (Fattah, 1986, p13).
Constructive healing, not destructive
punishment, should be the primary andforemost goal of both victim policy andvictim services.
X. CONCLUSION
Hopefully, this bird’s eye view of victim
services and victim assistance programs in
Canada has provided you with some ideaof recent developments in this field.
Naturally, it is rather difficult toadequately present such a varied,multifaceted and broad sector in a brief andrather hasty overview. As mentioned at theoutset, the task is made more difficult by
the complexity of the Canadian system ofgovernment, and the enormous diversityof the Canadian provinces and territories.
As you probably have noticed, it was not
my intention nor is it my habit to present

112TH INTERNATIONAL TRAINING COURSE
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a rosy picture of the services or the
programs involved. I tried to present
things the way they are, and might havebeen overly critical at times. But whatevercriticism I have made is meant to beconstructive, and is intended to highlightthe problems, the weaknesses, theinadequacies, the shortcomings, so thatsomething may be done to correct them.
After all, the plight of crime victims has
been ignored for far too long. They surely
deserve much more and much better thanwhat they got in the past or are getting atpresent. Their cause is dear to my heart
and it has pained me greatly over the years
to see their cause being exploited byunscrupulous right wing politicians, andto witness their use as pawns in law andorder campaigns. The time has come in
Canada and elsewhere to hold politicians
to task and to require them to live up to
their promises and their rhetoric by
matching commitments in financial andhuman resources. Although the situationof crime victims now is undoubtedly better
than it was twenty years ago, the road isstill long and a great deal remains to bedone to help and assist those who are forced
to suffer as a result of unfair social
structures and failing social institutions.

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RESOURCE MATERIAL SERIES No. 56

VICTIMOLOGY TODAYRECENT THEORETICAL AND APPLIED DEVELOPMENTS
Ezzat A. Fattah*
I. INTRODUCTION
Criminology today is very different from
criminology at the end of the 19th century
or the first half of the 20th century. And
victimology is very different fromvictimology in the 1950’s or the 1960’s.
Scientific disciplines undergo constantevolution, though the pace of change mayvary from one discipline to the other.
Victimology has undergone not only arapid, but also rather fundamental,
evolution in the last two decades.
Twenty years ago, in 1978 at theInternational Congress of Criminology heldin Lisbon, Portugal, I presented a paper
entitled “Some Recent Theoretical
Developments in Victimology”. The paper
was published in the only victimologicaljournal available at the time (Victimology:
An International Journal, Vol.4, no.2,
pp.198-213). In the paper, I pointed to thediscipline’s transformation from a‘victimology of the act’ to a ‘victimology ofaction’. I explained how in its beginning,
victimology was essentially the victimologyof specific crimes: victimology of violent
crimes, i.e, homicide; victimology of sexual
offences, i.e, rape; victimology of property
crimes, i.e, burglary and fraud. These
pioneer theoretical studies of early
victimology were soon overshadowed bymajor developments in the applied field,
well-intentioned and persistentendeavours aimed at alleviating the plightof crime victims, and at providing themwith the services, aid and assistance that
* Professor Emeritus, School of Criminology, Simon
Fraser University, Canada.

60

would help them cope with, and recoverfrom, the harmful and traumatic effects ofvictimization. The paper also made anattempt to explain the reasons for thistransformation and the forces that played
a vital role in bringing about the change.
So what has happened in victimology
since that scientific meeting twenty years
ago? The decades of the 1980’s and 1990’s
could easily be described as a period of
consolidation, data gathering theorization,
new legislation, victim compensation,
redress and mediation, assistance andsupport.
II. CONSOLIDATIONIn the last few years, the discipline ofvictimology firmly established itself on theacademic scene. There was a substantial
increase in the number of universities andcolleges offering courses in victimology andrelated subjects. A large number of books
and articles were published in different
languages, and in addition to several
periodicals published in local languages, anInternational Review of Victimology, in
English, was put out by AB Academic
Publishers in Britain. A number of nationaland regional societies of victimology were
established. Japan has been one of theleaders in this respect, thanks to thetireless efforts of Professor Koichi
Miyazawa, the world renowned
victimologist, and a dynamic group of his
students and followers.
The World Society of Victimology
continued to hold its international
symposia once every three years. The lastone, the ninth in the series, was held in112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Amsterdam in August 1997, and drew a
record number of participants. All in all,victimology is no longer a subject of
bewilderment or curiosity but is slowly
becoming a household name. This is being
facilitated by the extensive coverage crimenews and victim issues are receiving in themass media; by the wide publicity victims’
programs are getting and by the
proliferation of victim services and victim
assistance programs in many countries.
The last twenty years saw the creationand extremely rapid expansion of victim
services. Victim assistance programs,
totally non-existent a couple of decades ago,
have mushroomed all over the globe from
Australia to Europe, from South America
to Asia, and from the large Islands of Japanto the relatively small Canary Islands.
One of the most important developmentsin the field of victimology in the last twenty
years was the formal approval by theGeneral Assembly of the United Nations
on November 11, 1985 of the “UN
Declaration of Basic Principles of Justicefor Victims of Crime and Abuse of Power”.
In adopting it, the General Assembly statedthat it was “Cognizant that millions ofpeople throughout the world suffer harm
as a result of crime and abuse of power, andthat the rights of these victims have not beenadequately recognized”.
III. DATA GATHERING AND
THEORY FORMULATION
One of the primary tasks of theoreticalvictimology is to collect empirical data on
crime victims. The main instrument usedat present to collect this information is
victimization surveys. They are conductedat the local, regional, national andinternational level. Notable among thesesurveys are the ones that are carried out
on a regular basis, at regular intervals, inEngland and the US: the British Crime

Survey and the National Crime Survey in
the United States. Each of these surveys
yields a wealth of information on crime
victims. Both of them allow a thoroughanalysis of the temporal and spatial
patterns and trends in various types ofvictimization. The original goal of thesesurveys, namely counting victimization,
has been largely expanded and several newquestions were added in recent years to the
instrument to explore various areas suchas the levels of fear of crime, the levels ofsatisfaction with police action, the reasonsfor not reporting the incident to the police,
the consequences of victimization, etc.
Another area that was examined was themeasures taken by the respondents toprevent certain types of offences, or tominimize the chances of future
victimization. Some surveys tried toestablish whatever link may exist between
offending and victimization by including
questions requesting respondents to selfreport acts of delinquency they might havecommitted. These latter questions led tosome very interesting findings.
In their London (England) survey,
Sparks, Genn, and Dodd (1977) foundvictims of violent crime to be significantly
more likely than non-victims to self-report
the commission of violent crimes.
Gottfredson (1984) analysed the 1982
British Crime Survey data and was struckby the relatively strong inter-relationshipbetween offending and victimization. For
persons with at least one self-reported
violence offence, the likelihood of
victimization was 42 percent, or seventimes the likelihood of personal
victimization for persons reporting no selfreported violent offences. The British
Crime Survey of Scotland (Chambers andTombs, 1984), revealed that 40 percent ofrespondents admitting an assault werethemselves assault victims during that
period.

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RESOURCE MATERIAL SERIES No. 56
Despite the methodological and practicalproblems of victimization surveys anddespite their limitations, they have allowed
researchers to collect a huge amount ofdata on victims of crime that is extremelyrich in variety and detail. Thanks tovictimization surveys we now know thatcriminality and victimization are clustered
within certain groups and certain areas,
and that there is much greater affinity
between offenders and victims than iscommonly believed. This is not to say thatall victims of crime share the attributes of
their victimizers. It is only to stress thatthe two populations have several common
characteristics. Whether in Europe, theUS, Canada or Australia, research showedthat offenders involved in the types ofcrimes covered by victimization surveys are
disproportionately male, young, urban
residents, of lower socio-economic status,
unemployed (and not in school), unmarried,
and in the US, black. Victimization surveys
revealed that victims disproportionately
share these characteristics and that thedemographic profiles of crime victims andof convicted criminals are strikingly similar(Gottfredson, 1984).
Several researchers ( Hindelang et al.,
1978; Singer, 1981) discovered that,particularly in crimes of assault, victims
and offenders were related in theirdemographic characteristics and in termsof certain shared responses to perceived
situations of physical or psychologicalthreat. It is understandable that thefrequency with which some individuals
become involved in violence-prone
situations will affect both their chances ofusing violence and of being recipients ofviolence, of attacking and being attacked,of injuring and being injured, of killing andbeing killed. Who will end up being thevictim and who will be legally considered
the offender depends quite often on chancefactors rather than deliberate action,planning, or intent. Thus, victim/offender62

roles are not necessarily antagonistic but
are frequently complementary andinterchangeable (Fattah, 1994d).
This situation is particularly true ofbrawls, quarrels, disputes, andaltercations. In many instances,
dangerousness and vulnerability may be
regarded as the two sides of the same coin.
They often coexist since many of the factorsthat contribute to dangerousness may
create or enhance a state of vulnerability.
One such factor is alcohol consumption,
which may act simultaneously as acriminogenic and as a victimogenic factor,
enhancing the potentiality of violent
behaviour in one party and of violent
victimization in the other (see Fattah andRaic, 1970).
An important step on the road tocomparative victimology was achieved withthe conducting of International Crime
Surveys. The surveys are a useful attempt
to collect standardized victimization datafrom a number of countries using the samequestionnaire in each country. The main
purpose was to avoid the problems ofcomparing data collected by means ofdifferent instruments, using different
methodologies. Field data for thisinternational crime survey were gatheredin January 1989 and published in 1990
(Van Dijk, Mayhew and Killias, 1990) . The
size of each nationally representative
sample varied between 1000 and 2000,
though most participating countries opted
for the larger size sample; the Federal
Republic of Germany even chose 5000
interviews.
Telephone interviewing was chosenbecause of its relatively modest costs, andit was decided to use the computer-assisted
telephone interviewing method (CATI
method), which allows for much tighter
standardization of questionnaireadministration. Respondents were asked

112TH INTERNATIONAL TRAINING COURSE
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about their victimization experience withnine types of crimes over the previous five
years, though victimization in 1988 washighlighted to give up-to-date annual risks.
The nine crimes covered were theft of motor
vehicles (cars, motorcycles and mopeds);
theft from motor vehicles; vandalism tomotor vehicles; burglary and attemptedburglary; robbery and attempted robbery;other thefts of personal property; sexualassault (women only); and assault. Victims
were then asked short questions about thenature and material consequences of crime;
whether the police were involved (and if
not, why not?) ; and their satisfaction withthe police response and any victim
assistance given.
A second round of the International
Crime Survey was carried out in 1992.
Some of the countries that participated in
the first survey such as Switzerland,
Norway and Northern Ireland did not takepart in the second one. But the survey
included some countries from Eastern
Europe which did not participate in thefirst one, such as Poland and the former
Czechoslovakia (see Del Frate et al., 1993).
Despite the proliferation of victimization
surveys and their unquestionable utility,
it is not yet clear what exactly they domeasure and what are their long term
objectives. Victimization is a personal
subjective and relative experience. The
feeling of being victimized does not always
coincide with the legal definition of
victimization. So what exactly are
victimization surveys trying to measure?
It is far from clear whether their objective
is to measure those criminal victimizations
that meet the criteria set by the criminal
code, or whether they are meant tomeasure the subjective victimizations
experienced by the respondents. These,needless to say, are two different realities.
Or to put it bluntly, are the surveys
designed to measure crime or

victimization? The titles ‘crime survey’ and‘victimization survey’ continue to be usedinterchangeably (Fattah, 1997).
Rape is good case in point because of theenormous gap that may exist between thelegal definition and the subjective
experience of the female. Also because thesexual act can be experienced in very
different ways by different women.
A. Theoretical Models
The wealth of data collected mainly
through victimization surveys has led tovarious theoretical formulations. Models
were developed to offer plausible
explanations for the variations invictimization risks, for the clustering of
victimization in certain areas and certain
groups, and to unravel the intriguing
phenomenon of repeat victimization. The
different models are presented andsummarized in my introductory
victimology book entitled ‘Understanding
Criminal Victimization’ (Prentice Hall,
1991).
One of the first and more importantmodels explaining the differential risks ofvictimization is the Lifestyle Modeldeveloped by Hindelang, Gottfredson andG a r o f a l o ( 1 9 7 8 ) . To d e v e l o p t h i s
explanatory model, the authors used
empirical data gathered from an eight-city
survey conducted by the United States
Bureau of Census in the cities of Atlanta,
Baltimore, Cleveland, Dallas, Denver,
Newark, Portland (Oregon) and St. Louisin 1972. Hindelang et al. (1978)
synthesized the findings and put forthsome propositions to account for variations
in risk and consequences of personal
victimization. Their model posits that thelikelihood an individual will suffer apersonal victimization depends heavily on
the concept of lifestyle.

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RESOURCE MATERIAL SERIES No. 56
Using lifestyle to explain variations inrisk is neither a novel nor a uniqueapproach. It has been known for a longtime that the probability of accidental
death or injury is, in many respects, related
to people’s lifestyle and the kind ofactivities in which they are involved.
Physicians have repeatedly stressed theclose link between lifestyle and routine
activities, and the risk of suffering certain
diseases such as cancer, high bloodpressure, and cardiovascular ailments. Asa matter of fact, the lifestyle concept
permeates the explanations of a higher orlower susceptibility to a wide variety of
diseases. We refer to lifestyle when we
maintain that those who smoke have ahigher risk of lung cancer than those who
do not; that those who expose themselves,
unprotected, to the sun have a greater
probability of skin cancer; that those who
drink heavily have a greater susceptibility
to liver disease. Lifestyle is also the central
concept in explanations linking dietary
habits, the lack of exercise and a sedentary
way of life, to heart disease. More recently,
lifestyle has been identified as a major risk
factor in contracting Aids. The belief thatlifestyle can influence the probability ofvictimization by increasing or decreasing
people’s chances of becoming victims ofcertain crimes may be seen as a simple, andin many ways logical, extension of theconcept to the social sphere.
Another explanatory model is the
Routine Activity Approach developed by
Cohen and Felson (1979). The focus in
Cohen and Felson’s approach is on “ directcontact predatory violations,” which arethose “involving direct physical contact
between at least one offender and at least
one person or object which that offender
attempts to take or damage” (Cohen andFelson, 1979, p.589).
Cohen and Felson (1979) argue that theoccurrence of these types of victimization

64

is the outcome of the conference in space
and time of three minimal elements:
motivated offenders, suitable targets, andabsence of capable guardians. The central
factors underlying the routine activity
approach are opportunity, proximity/
exposure, and facilitating factors. For
example, the abundance of goods that canbe stolen leads to higher rates of property
victimization (opportunity). The dispersionof routine activities in the United Statessince the end of World War II has led to a
substantial increase in predatory crime.
This shift of routine activities away fromthe home, and the greater interaction
between people who are not members of thesame household results in greater exposureof people to potential offenders outside thehome, and thus, increases the risk of directcontact predatory crime (proximity/
exposure). Concomitantly, the increasing
absence from home leaves the residences
insufficiently protected and renders themsuitable and easy targets for common types
of household victimization (facilitating
factors : the absence of capable guardians).
These are by no means the only models.
There is also the Opportunity Model(Cohen, Kluegel and Land, 1981) and theDutch Model (Steinmetz). The opportunity
model incorporates elements from both thelifestyle and routine activity perspectives
and posits that the risk of criminal
victimization depends largely on people’s
lifestyle and routine activities that bringthem and/or their property into directcontact with potential offenders in theabsence of capable guardians. The Dutch
model was developed by Van Dijk andSteinmetz who identified three main
factors: proximity, attractiveness andexposure, as important determinants ofdifferential victimization risks.
In an attempt to integrate the various
models into a comprehensive scheme I used
ten different components. There are :112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
(1)

(2)

(3)

(4)

(5)

(6)

Opportunities: which are closely
linked to the characteristics ofpotential targets (persons,households, businesses) and to
the activities and behavior of
those targets.
Risk factors: particularly thoserelated to socio-demographic
characteristics such as age andgender, area of residence,
absence of guardianship.
Presence of alcohol and so forth.
Motivated offenders: this isbecause offenders, even nonprofessional ones, do not choose
their victim/targets at random
but select their victims/targets
according to specific criteria.
Exposure: this is because
exposure to potential offenders
and to high-risk situations andenvironments enhances the riskof criminal victimization.
Associations: the homogeneityof the victim and offender
populations suggests thatdifferential association is as
important to criminal
victimization as it is to crimea n d d e l i n q u e n c y. T h u s
individuals who are in close
personal, social or professional
contact with potential
delinquents and criminals run
a greater chance of being
victimized than those who arenot.
Dangerous times and dangerous
places: the risks of criminal
victimization are not evenly
distributed in time or space there are dangerous times suchas evenings, early night hours
and on weekends. There arealso dangerous places such asplaces of public entertainment
where the risks of becoming a
victim are higher than at work

or at home.
Dangerous behaviors: this isbecause certain behaviors, suchas provocation, increase the riskof violent victimization whileother behaviors such as
negligence and carelessness
enhance the chances of property
victimization. There are otherdangerous behaviors that placethose engaging in them indangerous situations where
their ability to defend andprotect themselves against
attacks is greatly reduced.
(8) H i g h - r i s k a c t i v i t i e s : a l s oincrease the potential for
victimization. Among suchactivities is the mutual pursuitof fun, as well as deviant andillegal activities. It is also wellknown that certain occupations
such as prostitution carry withthem a higher than averagepotential for criminal
victimization.
(9) Defensive/avoidance behaviors:
as many risks of criminal
victimization could be easily
avoided, people’s attitudes tothose risks can influence theirchance of being victimized. It
goes without saying that risktakers are bound to be
victimized more often than riskavoiders. It also means that fearof crime is an important factor
in reducing victimization, sincethose who are fearful take more
precautions against crime, evencurtailing their day and nighttime activities, thus reducing
their exposure and vulnerability
to victimization.
(10) Structural/cultural proneness:there is a positive correlation
between powerlessness,deprivation and the frequency of(7)65

RESOURCE MATERIAL SERIES No. 56
criminal victimization. Cultural
stigmatization andmarginalization also enhances
the risk of criminal victimization
by designating certain groups as‘fair game’ or as culturally
legitimate victims.
IV. NEW LEGISLATION
There has been a flurry of victim
legislation in recent years in a large
number of countries. Following the
adoption of the UN Declaration of Basic
Principles of Justice for Victims, so-called
Victims’ Charter of Rights or Victims’ Billsof Rights were passed by the legislative
bodies in various societies.
In the United States there was an
attempt by the victim lobby to bring abouta change to the Sixth Amendment of the
US Constitution to provide a legal basis forprotecting the rights of crime victims, but
it did not succeed. However, as Karmen(1995, p339) reports, since 1980, in almost
every American state, legislatures passed
various statutes acknowledging basic
rights for victims: to be notified about andto participate in judicial proceedings, topromptly get back stolen property that wasrecovered, to be protected from
intimidation and harassment, and toreceive restitution or compensation.
Similar legislation was passed in
Canada, Australia, Britain and some other
European countries. Also in Europe,
victims received a considerable boost froma number of important initiatives in the
mid-1980s, including a Convention and two
important Recommendations by theCouncil of Europe in 1983, 1985 and 1987
(on, respectively, state compensation, theposition of the victim in the criminal justicesystem, and assistance to victims)(Maguire and Shapland, 1997, p212).

66

While legislative initiatives and/orchanges acknowledging victims rights weregenerally well received and encounteredlittle or no opposition in parliaments andlegislative assemblies, they are not without
critics. In a seminal article entitled ‘The
Wrongs of Victim’s Rights’ Lynn Henderson(1985, 1992) outlined many of the
weaknesses inherent in the notion of
victim’s rights and many of the dangers ofvictim’s rights legislation.
One particular initiative that hasreceived a great deal of criticism is ‘victim
impact statements’. VIS, designed to allow
victims some input in the court’s decisionin their case (by providing a statement of
the impact the victimization has had on
their lives and their families), was singled
out for particular criticism andencountered a lot of resistance from somequarters. In Australia, for example, after
reviewing the arguments for and against
victim impact statements, and after notingthat many victims do not wish to be
involved by giving evidence on the impact
of offences on their lives, the Victorian
Sentencing Committee concluded that thecase against the introduction of VIS was
more compelling than the case for them.
Consequently, the Committee (1988)
recommended that VIS not be adopted in
Victoria (p.545) (Fattah, 1992, p416; seealso Kelly and Erez, 1997, p236-7).
In the US, the Supreme Court barredvictim impact testimony in capital cases as
violating the Eight Amendment of theAmerican Constitution (Booth v. Maryland,
1987, and South Carolina v. Gathers, 1989)
and then in Payne v. Tennessee (1991) the
court upheld the use of victim impact
testimony at the sentencing stage of acapital case (Kelly and Erez, 1997, p2356).

112TH INTERNATIONAL TRAINING COURSE
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V. VICTIM COMPENSATION
Redress to crime victims in the form ofmonetary compensation by the state is thefirst attempt in recent history to alleviate
the plight of victims and to improve theirlot. In the 1960s, a British magistrate,
Margery Fry, and others called for State
compensation to crime victims, and theirpleas led to the creation of government
indemnification programs in New Zealand,
the United Kingdom, North America,
Europe and elsewhere. These programs
have been operating for more than aquarter of a century and many have been
the subject of varying kinds of assessments
and evaluation (Burns, 1980; Miers, 1978;
Doerner, 1978; Elias, 1983).
This is without doubt an area where
action has not matched the politicalrhetoric. Economic hardships andbudgetary restraints have greatly limited
the scope of compensation and the numberof victims who receive it. The evaluations
suggest that the amounts victims get fromthe schemes are, for the most part, token
amounts, and that the programs in reality
fulfill no more than a symbolic function. A
very tiny proportion of victims end up
receiving any compensation, and for those
who do, it is, more often than not, too little
and too late. Ironically, researchers (Elias,
1983a, 1983b) found that victims who apply
for and go through the process ofcompensation, even those who end up
receiving some funds, are less satisfied
than those who do not apply. In England,David Miers (1983, 1990), quoted by
Maguire and Shapland (1997, p218) argued
that state compensation is essentially asymbolic act by governments to show theirconcern for victims, but with little real
intention of following it through with hard
cash.
Most victims of property crime, who are
excluded from state compensation

schemes, do not have and cannot afford
private insurance. In four out of five casesin these property crimes, the culprit isneither identified nor caught. And the few
who are arrested, charged and convicted
are, more often than not, poor or insolvent,so that nothing could be obtained fromthem through a civil judgement. And to
add insult to injury, in most countries thecollection of criminal fines continues tohave priority over the payment of civil
damages or of restitution/compensation
orders.
In recent years, several governments
decided to transfer the financial burden of
victim compensation to offenders througha levy called ‘a victim fine surcharge’imposed on those who are sentenced to afine even if the sentence is for so-called
victimless crime (Fattah, 1997).
VI. OFFENDER RESTITUTION
Restitution by the offender to the victim
is one of the earliest forms of redress to
those who suffer injury or harm throughthe actions or negligence of another. This
was the composition or wergeld paid to thevictim or the victim’s kin. Parker (1977,p28) describes the historical developmentthat led to the emergence of the criminallaw:
At this stage of legal development
there was no differentiation between
what we know as crime or criminal
law and tort or civil liability fordamage inflicted. All injuries topersons or property were consideredas ‘wrongs’. The seriousness of thewrong depended upon the disruption
caused to the community or the actualor perceived affront to the injured
parties. Slowly, a distinction emerged
between wrongs which were private
disputes and required payment to theinjured party or his kin and wrongs

67

RESOURCE MATERIAL SERIES No. 56
which had a public quality andrequired compensation to the wholegroup.
Since state compensation programs areoften strictly limited to victims of violence,
restitution by the offender has reemerged
as a means of redress in property offences
as well as in violent crimes. The problem
is that the vast majority of offenders areeither unemployed or do not have thefinancial means that would make itpossible for victims to collect restitution.
Added to this problem is the fact that inmany countries the collection of the penal
fine takes priority over restitution orders.
There are different models of restitution.
Maguire and Shapland (1997, p219) outline
three models that are common in Europe:
The ‘partie civile’ procedure, theaward of a compensation order aspart of a sentence against the offender,and restitution made informally or as
part of a diversion arrangement by theprosecution. The first two models
have tended to be seen as mutually
exclusive in jurisprudential terms, sothat one country has favoured one andanother, though the Netherlands iscurrently considering introducing
compensation orders while retaining
the possibility of using ‘partie civil’.
Citing the results of evaluation of anumber of local schemes conducted indifferent countries, Maguire and Shapland(1997, p221) write:
The conclusions seem universal.
Financial restitution figures in onlya small proportion of the cases sent
for mediation (the majority ending
with an apology or in some contract
concerning the offender’s behavior).
Mediation cases themselves remainvery much a minority disposal in68

terms of the flow of criminal justicecases overall. The dominant modelis still prosecution, or some form of
discontinuance (such as a formal
caution in England and Wales),sometimes accompanied by work withthe offender - but rarely involving thevictim.
VII. VICTIM SERVICES
The last twenty years have witnessed an
unprecedented development in the field ofvictim services. Victim services have beencalled the growth industry of the decade.
The expansion of service programs forvictims of crime in the United States,
Canada, the United Kingdom and manyother countries has been nothing short ofphenomenal. During the 1980s and the1990s, legislation was passed, services
were created, and programs were set up,
all aimed at helping crime victims andimproving their often unhappy lot (Fattah,
1992, p260). In the UK, it is considered
the fastest developing voluntary movement(see National Association of Victims
Support Schemes, 1984). In 1990, Davisand Henley estimated the number of victim
service programs in the United States tobe in excess of 5,000, whereas 20 years
earlier there had been none (p157).
Most assistance programs, particularly
those housed in police departments, refervictims, according to their needs, toexisting services within the community.
Some, in addition, provide victims withurgently needed help: replacing the broken
window, the damaged lock, fixing thevandalised car, driving, cleaning, shopping,
helping with the children and so forth.
There are also various programs thatprovide special assistance to certain
categories of victims, for example, victimsof rape, child victims of sexual assault,
victims of family violence, etc. Rape crisis
centres and shelters for battered women

112TH INTERNATIONAL TRAINING COURSE
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are currently operating in many places.
Overall, however, the two most important
services provided to crime victims by
victims assistance programs are
information and moral support.
Despite enormous strides, a great deal
remains to be done. Maguire and Pointing(1988, p37) note that victim support
remains essentially a ‘grassroots’, lowbudget enterprise which relies upon thegood will and hard work of volunteers.
Shapland, Willmore and Duff (1985, p178)
maintain that the major projects aimed atfulfilling victims’ needs were set up without
regard to, or even investigation of, victims’
expressed needs. Rock (1990, p408) insiststhat victims’ interests were never the
motivating or mobilizing force behind the
new initiatives to help victims. Mawby andGill (1987, p228) detected a right wing, law
and order focus among victim support
scheme volunteers. They expressed
concerns that crime victims might become‘the victims of political expediency’. While
Elias (1993, p120) affirms that victims’services really serve official needs, notvictims’ needs.
IX. CONCLUSION
I have tried to present a bird’s eye viewof recent developments in victimology, boththeoretical and applied. Victimology has
made enormous strides in the past twenty
years. As a result of ongoing studies andresearch, we now possess a betterknowledge than ever before of thephenomenon of victimization and of those
who are occasionally, frequently or
repeatedly victimized. We have adequate
knowledge of the distribution of
victimization in time and space, of the
dynamics of victimization, of the process
of victim/target selection, and we haveseveral theoretical models that are meant
to explain the variations in victimization
risks.

More progress has even been achievedat the applied level. The victim movement
has been very successful in sensitizing
politicians, policy makers, the criminal
justice system and the general public to theplight of crime victims. This has resulted
in a flurry of legislation aimed at improving
the sad lot of crime victims and atrecognizing and implementing some basic
rights for crime victims. Many steps havebeen taken to increase victim participationin criminal justice proceedings, to improve
the treatment of victims by criminal justicepersonnel, and to allow the victims some
input in criminal justice decisions.
There have been many otherdevelopments at the applied level. In many
countries, state programs to compensate
crime victims were set up. Restitution by
the offender is being ordered in a growing
number of cases, particularly in cases of
economic crimes, white collar crime, andproperty victimization. A paradigm shift
is slowly shaping up in criminal justice andthe growing realization of the futility ofpunitive/retributive justice is facilitating
the acceptance of the new paradigm ofrestorative justice. Restitution by theoffender (to the victim) is increasingly
becoming one of the primary conditions ofdiversion and of probation, both in thejuvenile and adult systems.
Programs for victim-offender mediation
both in serious as well as in minor offences
have been established in many countries
and in most cases, making amends by
repairing the harm done to the victim is
one of the primary conditions of successful
resolution of the conflict.
Victim services, practically non-existent
two decades ago, are becoming widespread
not only in the wealthy countries of theindustrialized world, but also in many
developing countries. Assistance, invarious forms, though mostly by well-69

RESOURCE MATERIAL SERIES No. 56
intentioned volunteers, is being offered to
victims who desire it. Special assistanceto certain categories of victims, such as
victims of rape, child victims of sexualassault, and victims of family violence is
now available in many places. Shelters forbattered women and children have been
opened to help victims avoid the repetitionof victimization. Special counselling
programs are also made available to thefamilies of victims of homicide.
It can thus be concluded that theachievements have been many and in someinstances nothing short of spectacular. But
the road remains long and paved withobstacles. A great deal remains to be donein order to meet the challenge to victim
services in the next millennium.

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112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE VITAL ROLE OF VICTIMOLOGY IN THE
REHABILITATION OF OFFENDERS AND THEIRREINTEGRATION INTO SOCIETY
Ezzat A. Fattah*
I. INTRODUCTION
This paper is about a relatively new andnot very well known discipline called
victimology. The logical starting point is
to see what victimology is all about, tobriefly trace its beginnings, its historicalevolution, and its present state. I willaddress three major questions that arehighly relevant to the subject-matter of thistraining course. These are:
(1)

(2)

(3)

Why is a good knowledge ofvictimology indispensable forbetter understanding theoffender and the offence?
Why is a good knowledge ofvictimology absolutely essential
for positively changing offenders’attitudes and behaviour?
What new and exciting
possibilities does victimology
offer for the rehabilitation of
offenders and their successful
reintegration into society?

Victimology is a very young discipline,
much younger than its parent discipline:
criminology. Victimology is only fifty years
old but it is neither a fad nor a fashion, it
is a scientific reality that has imposed andaffirmed itself. Its impact on, and its
contribution to, criminology have beensignificant. Victimological research fills anenormous gap in our knowledge about thephenomenon of crime. It satisfies a needdeeply felt by researchers and practitioners

alike for factual and systematic
information about crime victims. It goes
without saying that the study and theunderstanding of the phenomenon of crime
will never be complete unless the victims
are included in the explanatory models. No
valid theory of criminal behaviour canafford to ignore the victim. To try to do sowould be an attempt to explain a dynamic
and interactionist form of humanbehaviour in a unilateral, uni-dimensionaland static manner. This is why the studyof the victim is, and will always remain,
an integral part of criminology.
II. WHAT IS VICTIMOLOGY?
If criminology is the science of crime andcriminal behaviour then, for the sake ofsimplification, we can say that victimology
is the science of victims and victimization.
Theoretical victimology is the study ofcrime victims, their characteristics, theirrelationship to, and their interactions, with
their victimizers, their role, and theiractual contribution to the genesis of thecrime. It is also the study of the impact ofcrime on victims, in particular, thetraumatic effects of victimization, victims’
response to victimization, and the coping
mechanisms they use for healing andrecovery. Applied victimology is theapplication of knowledge acquired from thestudy and research on victims andvictimization in practice to help and assist
those victimized by crime and prevent
victimization.

* Professor Emeritus, School of Criminology, Simon
Fraser University, Canada.

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RESOURCE MATERIAL SERIES No. 56
III. A BRIEF HISTORY OF
VICTIMOLOGY
Early victimological notions weredeveloped not by criminologist or
sociologist but by poets, writers andnovelists. The first systematic treatmentof victims of crime appeared in 1948 inHans von Hentig’s book ‘The Criminal and
His Victim’. In the fourth part of the book,under the provocative title ‘the Victim’sContribution to the Genesis of the Crime,’von Henting criticized the static
unidimensional study of the offender which
had dominated criminology and suggested
in its place a new dynamic and dyadic
approach that pays equal attention to thecriminal and the victim. Von Hentig had
earlier treated the topic in a paper
published in the Journal of Criminal Law
and Criminology in 1940. In it, he notedthat:
It is true, there are many criminal
deeds with little or no contribution on
the part of the injured individual.
...On the other hand, we canfrequently observe a real mutuality inthe connection of perpetrator andvictim, killer and killed, duper andduped. Although this reciprocal
operation is one of the most curious
phenomena of criminal life, it hasescaped the attention of sociopathology.
In his book, von Hentig (1948:438) is
critical of the legal distinction between
offenders and victims and the criteria usedby the criminal law to make such
attributions:
Most crimes are directed against a
specific individual, his life orproperty, his sexual selfdetermination. For practical reasons,the final open manifestation of humanmotor force which precedes a socially72

undesirable result is designated as thecriminal act, and the actor as the
responsible criminal. The various
degrees and levels of stimulation or
response, the intricate play ofinteracting forces, is scarcely taken
into consideration in our legal
distinctions, which must be simple
and workable.
Elsewhere von Hentig points out that:
The law considers certain results andthe final moves which lead to them.
Here it makes a clear-cut distinction
between the one who does, and the one
who suffers. Looking into the genesisof the situation, in a considerable
number of cases, we meet a victim who
consents tacitly, co-operates, conspires
or provokes. The victim is one of thecausative elements. (p.436)
Von Hentig insisted that many crime
victims contribute to their own
victimization, be it by inciting or provoking
the criminal or by creating or fostering asituation likely to lead to the commissionof the crime. Other pioneers in victimology,
who firmly believed that victims may
consciously or unconsciously play a casualrole, outlined many of the forms thiscontribution can take: negligence,carelessness, recklessness, imprudence,and so forth. They pointed out that thevictim’s role could be a motivational one(attracting, arousing, inducing, inciting) ora functional one (provoking, precipitating,triggering, facilitating, participating)(Fattah, 1991).
Von Hentig’s book was followed by anumber of theoretical studies that dealt
with victim types, victim-offender
relationships, and the role victims play incertain kinds of crime. The book also
provided an impetus for several empiricalstudies that devoted special attention to the112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
victims of specific offences.
The term victimology was coined in 1949
by an American psychiatrist, Frederick
Wertham, who used it for the first time inhis book ‘The Show of Violence’. Wertham
wrote:The murder victim is the forgottenman. With sensational discussions on
the abnormal psychology of themurderer, we have failed to emphasize
the unprotectedness of the victim andthe complacency of the authorities.
One cannot understand thepsychology of the murderer if one does
not understand the sociology of thevictim. What we need is a science
victimology. (p.259)
During the early years of victimology,
literature on crime victims remained
relatively small when compared to that on
criminology. During the 1980’s, however,a great spate of important books andarticles marked the coming of age ofvictimology (Rock, 1994). At present, it isfair to maintain that the study of crime
victims has become an integral part ofcriminology.
The need for criminology to thoroughly
study the victims of crime may today
appear obvious and axiomatic. And it may
seem rather surprising that such obvious
need has escaped the attention of
criminologists for over a century. But it is
not rare for social scientists to miss theobvious. This point is well made by Rock(1994, pxi) who points out:
Even criminology and the sociology ofdeviance - disciplines concentrated
most squarely on the analysis ofcrime, criminals and criminal justice- tended somehow to obliterate thevictim for a very long while, failingto see what, in retrospect, should

probably have been evident all along.
Such omissions occur continually.
They are an ineluctable part of any
discipline, a consequence of the truth
marked by Burke when he said that‘a way of seeing is always a way ofnot seeing.’ The price of organizing,
specializing and accumulatingknowledge about any area is asystematic neglect of the other matters
thrown out of focus and beyond themargins. Precisely because
criminology is an empirically-driven
discipline, it has tended to ignore
those things that do not bear the nameof crime, criminals and criminal
justice.
IV. WHY VICTIMOLOGY
Since the dawn of scientific criminology,
criminologists have tried to find out whysome individuals become criminals whileothers do not. They conducted countlessstudies to discover whether criminals aredifferent in any respect from non-criminals.
An equally interesting and thoughtprovoking question is ‘Why do someindividuals become victims of crime whileothers do not?’. Is criminal victimization arandom occurrence? Is it due simply tochance factors, misfortune, or bad luck? Do
victims of crime constitute a representative
sample, an unbiased cross-section of thegeneral population? Do victims of crimediffer in any way from non-victims? How
do offenders select their targets; how dothey pick their victims? There are manyother questions for which research isseeking answers. The following are just a
few examples:(1)

Why are certain individuals orgroups of individuals more
frequently victimized thanothers? Why are certain targets(individuals, households,
businesses, etc) repeatedly73

RESOURCE MATERIAL SERIES No. 56
victimized? How can the
differential risks and rates ofvictimization be explained?
(2)

Are certain persons (or targets)
more prone and more vulnerable
to victimization than others, andif so, why? What is the nature ofthis proneness; what are theelements of this vulnerability?

(3)

Are there born victims,
predestined victims, predisposed
victims? Are there recidivist
victims? Are there victim
stereotypes just as there arecriminal stereotypes?

(4)

Are there specific characteristics
or specific behaviours thatenhance the risks and chances ofcriminal victimization, that are
responsible for, or conducive to,becoming a victim? And if so,
what are these characteristics
and these behaviours?

(5)

Is there such a thing as victiminvited, victim-induced, victimprecipitated, victim-facilitatedcriminality? Do some victims
promote, provoke, or trigger theirown victimization? Do potential
victims emit non-verbal signals,
signalling their vulnerability towould-be assailants throughgestures, posture andmovements?

These questions and many others raise
a number of issues and research topics thatare quite different from those that havebeen the focus of mainstream criminology.
Although the scientific study of thecriminal is more than a century old, thesystematic study of the victim is still in its
infancy. And yet, it seems axiomatic thatto analyse the crime phenomenon in its

74

entirety and in all its complexity, equal
attention has to be paid to the criminal andtheir victim. There are several reasonsthat render the study of crime victims
essential, indeed, indispensable, for abetter understanding of the phenomenonof crime (Fattah, 1991):(1)

Motives for criminal behaviour do
not develop in a vacuum (vonHentig, 1948). They come into
being through drives andresponses, reactions andinteractions, attitudes andcounter attitudes. In many cases,
the victim is involved consciouslyor unconsciously in the
motivational process, as well as
in the process, of mental
reasoning or rationalization thatthe criminal engages in prior tothe commission of the crime(Fattah, 1976). In someinstances, the motives for thecriminal act develop around a
specific victim. An examinationof the place the victim occupies
or the role the victim plays inthese processes is necessary tounderstand why the crime wascommitted and why a particulartarget was chosen.

(2)

The commission of a crime is theoutcome of a process where manyfactors are at work. In mostcases, crime is not an action but
a reaction (or an overreaction) to
external and environmental
stimuli. Some of these stimuli
emanate from the victim. The
victim is an important element of
the environment and of thecriminogenic situation.

(3)

Often, the criminal act is not an
isolated gesture but thedenouement of a long or brief

112TH INTERNATIONAL TRAINING COURSE
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interaction with the victim. In
such cases, it is not possible tounderstand the act fully without
analysing the chain ofinteractions that led to its
perpetration. It is scientificallyunsound to examine and analyse
the offender’s act in isolation fromdynamic forces that have
prepared, influenced,
conditioned, or determined it, or
to dissociate it from themotivational and situational
processes that led to its
commission.
(4)

(5)

Current theories of criminal anddeviant behaviour, whether
attempting to explain causation
or association, offer only static
explanations. Since criminal
behaviour, like other forms ofhuman behaviour, is dynamic, it
can be explained only through adynamic approach, where theoffender, the act, and the victim
are inseparable elements of a
total situation that conditions thedialectic of the victimizing
behaviour (Fattah, 1976).
The traits approach, seeking thegenesis of criminal behaviour inthe characteristics and attributesof the offender, is simplistic.
Theories of offenders’ attributes,
personalities, or social
background do not explain why
other individuals who have thesame traits or personality type or
who grow up in identical or very
similar conditions do not commit
crimes or do not persist in acriminal career. They fail toexplain why the offendercommitted the crime in aparticular situation, at a given
moment, against a specific victim.

The traits approach either
ignores or deliberately minimizes
the importance of situational
factors in actualizing or
triggering criminal behaviour.
The study of victims offers great
promise for transforming
etiological criminology from thestatic, one-sided study of thequalities and attributes of theoffender into a dynamic,
situational approach that views
criminal behaviour not as aunilateral action but as theoutcome of dynamic processes ofinteraction.
(6)

As Anttila (1974) points out, thestudy of the victim has a general
informational value. It provides
information on the frequency andpatterns of victimization, thus
making possible themeasurement of risk probabilities
and the establishment of risk
categories (high, low, medium). It
also provides valuable
information on proneness tovictimization, fear of
victimization, response to
victimization, consequences andimpact of victimization. Suchknowledge is essential for theformulation of a rational criminal
policy, for the evaluation of crime
prevention strategies, and fortaking social action aimed at
protecting vulnerable targets,increasing safety, and improving
the quality of life.

(7)

The victim has a strong impact
on criminal justice decisions,particularly those of the police
and the courts. In most cases, itis the victim who decides whether
or not to mobilize the criminal
justice system by reporting or not

75

RESOURCE MATERIAL SERIES No. 56
reporting the offence.
Furthermore, the characteristics,
attitude and behaviour of thevictims, and their relationship to
the offender, have a significant
bearing upon the decision of thepolice to proceed in a formal oran informal way (see Black,1970). In the latter case, victimrelated factors can greatly affectthe final outcome. The study ofthe victim leads not only to abetter understanding of thefunctioning of the criminal justicesystem, but also to improving thedecision-making process.
Enhancing victims’ involvementin the process and establishing
the modalities of such
involvement require a better
understanding of the role victims
currently play in criminal justice.
(8)

76

To b e t t e r f u l f i l s o c i e t y ’ s
obligations to the victims of crime- in order to help, assist, andmake the victim whole again - itis necessary to gain a thoroughknowledge of the consequences
and impact of the crime on those
who are victimized. Moreover, anadequate knowledge of thevarious needs of victims ofdifferent types of crime is aprerequisite for setting up
efficient victim services, victim
assistance, and compensation
programs.
A betterunderstanding of victims’
perceptions of, and attitudes to,the criminal justice system, theirreasons for not reporting
victimization and refusal or
unwillingness to co-operate withthe system, are essential to
improving attitudes andenhancing co-operation.

(9)

Modern criminology is paying
more attention to the concept
opportunity (see Mayhew et al.,1976). The commission of many
crimes is believed to be largely afunction of the opportunities tocommit those crimes.
Opportunities, in turn, areviewed as being greatly
influenced by the behaviour ofpotential victims. The collective
behaviour of potential crime
victims may have a strong impact
on crime rates, and variations in
those rates may be explained, at
l e a s t p a r t i a l l y, t h r o u g hdifferences or changes in victim
behaviour. For this reason, abetter understanding of theattitudes and behaviour ofvictims holds great promise forcrime prevention. Victim-based
prevention strategies haveseveral advantages over offenderbased ones. The former aims at
hardening the targets, making
the commission of crimes moredifficult and less profitable. The
role potential victims are called
upon to play in thisenvironmental/situational
approach is a primary one.

(10) T h e m e d i e v a l p a r a d i g m o f‘retributive justice’ seems to havereached its terminal phase andattempts are already underway tohave it replaced by anotherparadigm of ‘restorative justice.’
Restorative justice is based on theprinciples of mediation,
conciliation, restitution andcompensation. Its primary aim
is healing, not punishment. In a
restorative justice system, thevictim ceases to be a secondaryor peripheral player and assumes
an active role. He/she becomes a

112TH INTERNATIONAL TRAINING COURSE
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full party in the process. The
study of the impact ofvictimization on the victim, theattitudes and the needs of thevictim are thus essential to asystem of restorative justice(Fattah, 1995).
V. THE INADEQUACY OF THEDISPOSITIONAL THEORIES OFCRIMINALITY
Criminological theories that stressindividual traits or offender pathology failmiserably when the task at hand is toexplain the temporal and spatial patternsof crime, regional, provincial, intercity andintracity variations in crime rates, or thechanges in those rates over time. Theories
seeking the genesis of criminal behaviourin the abnormality or the psychopathologyof the offender ignore the dynamic forcesthat determine, condition, shape or
influence the offender’s behaviour in agiven situation. Not only do they fail toexplain why many of those who shareoffenders’ abnormal or pathologicalcharacteristics do not engage in criminal
behaviour, but they also fail to explain why
it is that most of those who commit incest
or family violence (to give just one example)
confine their sexual coercion or aggression
strictly within the family and rarely, if ever,are violent or sexually preying against
others outside the home. The theories do
not fare any better when it comes to
explaining retaliatory behaviour
committed as a reaction to priorvictimization or in response to provocationor precipitation. This is a serious
shortcoming because:(a) Retaliation is a key principle inviolence (Felson and Steadman, 1983,
p.60; Singer, 1986, pp.61-62) andbecause violence is, in many cases,
situationally determined. In otherwords, it is the result of events andcircumstances that cause a conflict toescalate (Felson and Steadman,
pp.59-60);(b) A non-negligible part of violence andhomicide is victim precipitated(Wolfgang, 1958). In such cases, theviolent response is more a functionof the precipitating behaviour of thevictim and the “situational
determinants” (Felson andSteadman, 1983) than it is a functionof the characteristics and thebackground of the respondent.
Another shortcoming of the “positivist”
approach is the static way in which it views
the personality traits and character
attributes believed to be responsible forcriminal behaviour. Traits such as
aggressiveness, callousness, anddishonesty are neither constant nor
absolute and, thus alone have very little,
if any, explanatory value. Some individuals
become aggressive only when under
extreme stress, have consumed alcohol, or
when provoked. Others may use violence
only when they are humiliated or hurt intheir vanity. Some men become violent insituations where they feel the need toassert their maleness. Some people may
be shy and withdrawn without peer
support, only to become extremely mean
when in the presence of, and underpressure from, their peer group. People
may be scrupulously honest in one
situation and shamelessly dishonest inanother. Many “honest” people, whose
moral scruples would never allow them tocheat or steal from a friend or neighbour, awork partner, or in general another humanbeing, become totally unscrupulous when
it is a matter of cheating the government,a large corporation, or the general public.
They could be today without inhibitions orcompunction when it comes to committinga white collar crime, such as tax or custom
duty evasion, insurance fraud, price fixing,
and so forth (Fattah, 1991).

77

RESOURCE MATERIAL SERIES No. 56
An individual’s attitudes to other are notindiscriminate. Clifford Olson, a serial
killer found guilty of slaying elevenchildren in British Columbia, and whom
the police suspect of having slain evenmore, was proven to be a loving husband
and affectionate father. Yet he had no
sympathy or empathy for the several young
victims he brutally killed to satisfy his
sexual desires.
In view of all these serious problems andshortcomings, one might wonder why it isthat theories of criminals’ psychopathology
have maintained their popularity for overa hundred years. The answer is rather
simple. The attractiveness of the traits/
attributes approach lies in its central(though faulty) premise that criminal anddelinquents are different from the rest of
us. Propagating the view that someindividuals are “bad”, “evil”, or in some way
abnormal, allows the average citizen to
perceive offenders as distinct individuals,
as different beings capable of committing
the terrible crimes that we cannot conceiveof ourselves as capable of perpetrating. It
is a self-assuring approach that allows thedichotomization of people into the good andthe bad, the normal and the abnormal,
those who are criminally inclined and those
not so inclined.
VI. THE SHIFT FROMDISPOSITIONAL THEORIES TOSITUATIONAL THEORIES
Fifty years ago, Sutherland (1947)
suggested that explanations deviance andcrime are either situational or
dispositional, and that of the two,situational explanations might be the more
important. Extensive research on violence,vandalism, and other forms of antisocial
behaviour led Zimbardo (1978, p157) tochallenge the prevailing stereotypes which
locate the source of evil in people. He
insists that we have been programmed by78

our socialization process and basic
institutions to accept doctrines ofindividual guilt, sin, culpability, andfailure, as well as to accept the cult of theego, the strength of character, and thestability of personality. According toZimbardo, contemporary social psychology
maintains that we all overestimate theextent to which behaviour - be it evil, good,or neutral - is dispositionally controlled,
while at the same time we systematicallyunderestimate the degree to which it issituationally controlled (p.159).
The manifest and generally
acknowledged failure of criminologicaltheories (see above) points to the need fora new, dynamic approach that shifts thefocus from predisposing factors toenvironmental, situational, triggering, andcatalytic factors; from the notion ofpropensities and inclinations to the conceptof opportunity. Such a dynamic situational
approach pays great attention to thecontexts in which violent confrontations
occur and analyses these confrontations as
situated transactions (Luckenbill, 1977). It
maintains that many crimes are situationspecific, context-specific, and targetspecific. In contrast to the dispositional
perspective which postulates that theimpulses for crime come from within theindividual and are manifestations of thepsychopathology of the offender, thesituational approach looks upon criminal
behaviour as a response to environmental
stimuli, stimuli that ineluctably include thecharacteristics and the behaviour of thepotential victim (Fattah, 1991).
The situational approach also pays great
attention to victim-offender interactions.
As Felson and Steadman(1983, pp.59-60)
point out:
Outcomes of an aggressive interaction
are not determined by either thecharacteristics or the initial goals of
the participants; rather, they are at

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
least party a function of events that
occur during the incident. In otherwords, violence is in part,
situationally determined - the resultof events and circumstances thatcause a conflict to escalate.
The situational approach posits thatmany crimes of personal violence,
particularly spontaneous, impulsive,
unplanned, and unpremeditated ones, areoutcomes of long or brief interactions
between two or more individuals. As such,these crimes cannot be adequately
explained by static theories of criminal
behaviour that focus on offendercharacteristics but give no consideration to
the dynamic forces unique to eachsituation. It is these dynamic forces that
determine, condition, shape or influence
the offender’s behaviour in that particularsituation. The situational approachhighlights the inherent weaknesses ofdispositional theories of criminal behaviourby showing that everyone is capable ofcommitting a crime in certain situations,when under certain pressures, in thepresence of certain triggering factors.
By their very nature, dispositional
theories (whether of the biological,
consitutional, psychological, or sociologicalvariety) dissociate criminal behaviour fromthe dynamic situational forces that trigger,
provoke, determine, condition, shape thatbehaviour, or in other ways contribute toits occurrence. Violent behaviour, forexample, could hardly be understood
without a thorough analysis of thetransaction that occurs between theparticipants prior to the perpetration ofviolence (Hepburn, 1973). Although thismight seem axiomatic and despite theobvious dynamic and interactionist natureof violent crime, criminological research,with only a few exceptions, has focused on
the perpetrator ’s characteristics andbackground, and has ignored the verbal

exchanges between the participants prior
to the use of physical force.
The situational approach also pays great
attention to the problems of communicationin confrontational encounters, such as rapeand robbery situations. It analyses the
subjective definitions and interpretationsof the participants and see this as a key tounderstanding and explaining their actions
and their responses. It also examines how
victims respond to face-to-facevictimization and the impact of the
response on the final outcome of thevictimization event (Fattah, 1984; 1991).
The finding of this type of research could
be used to provide potential victims withsome guidelines on how to behave in
specific victimization situations tominimize the chances of physical injury
and of the crime being completed.
VII. THE ROLE VICTIMIZATIONPLAYS IN OFFENDING:
INTERCHANGEABLE ROLES OF
VICTIM AND VICTIMIZER
Those among you who are in daily
contact with offenders have surely noticed
that a large number of them feel andbehave like a victim. They suffer fromheightened and acute feelings of injustice.
These feelings of injustice, this firm
conviction that they are victims, whether
the victimization is real (as it is in manycases) or perceived, there seems to be little
doubt that it plays a significant role inoffending.
The transformation of victims into
victimizers is an intriguing, though largely
ignored phenomenon. Examples of thepassage from the state of victim to the stateof offender abound. Among the mostobvious are cases of vendetta, vengeance,
reprisal, retalitation, getting even, paying
back, setting of accounts, as well as casesof self-defence, vigilante action, auto-justice79

RESOURCE MATERIAL SERIES No. 56
or taking the law into one’s own hands, tomention but a few. In all these examples,the victimization is a direct contributor to
the ensuing aggression, the sine qua nonfor it. Although this phenomenon is as old
as the human race itself, it is only recently
that it has attracted some attention,
particularly in cases of battered wives who
kill their battering husbands, of abusive
parents who were themselves abused as
children, of rapists and other sexual
predators who had been sexually molested
or assaulted during their childhood. New
terms such as “the cycle of violence”,“intergenerational abuse” were coined todescribe this curious tendency of humanbeings to subject others the same pain andanguish to which they had been personallysubjected or to inflict upon others the same
victimizations they had suffered.
The phenomenon of role reversal raises
three important issues:(1)

There is a close link between
victimization and offending
behaviour; they are the two sidesof the same coin. Hence it is
impossible to gain a true
understanding of one if we ignore
the other.

(2)

The victim and offender
populations are not, as commonly
believed, two distinct andmutually exclusive populations.
They are homogeneous andoverlap to a large extent.
Yesterday’s victims are often
today’s offenders, and today’s
offenders are frequently thevictims of tomorrow.

(3)

80

The roles of victim and victimizer
are not fixed, assigned, or static.
They are dynamic, mutable, andinterchangeable. The same
individual can move successively,

or even simultaneously, from onerole to the other.
VIII. VICTIMIZAION AS
ANTECEDENT TO VIOLENTBEHAVIOUR
A. From Victim to Offender
The importance of victimization as a
causal factor in violent offending becomes
all too evident when keeping in mind thefact that retaliations is a key ingredient inviolence (Felson and Steadman, 1983), thatrevenge is the most prevalent motive forthe use of force. Gratuitous violence is the
exception rather than the rule. Violencein most instances is an expression of agrievance, a response to an attack, injury,
or provocation. As Black (1983) points out,
violence is a mode of conflict management
resembling the modes used in traditionalsocieties which have little or no formal law.
Homicide, for example, is rarely
predatory in nature. Relatively few
homicides are committed for gain or sexual
gratification. In the vast majority of cases
the killing is a reaction (or rather anoverreaction) to some from of victimization:
the lover reacting to being cheated on or
abandoned, the victim of adultery avenging
the offended honour, the drug dealer
retaliating against the police informer, thehot-blooded young male stabbing the friend
who got his sister pregnant, the landowner
shooting the trespasser, the double-crossedgang member applying his own brand ofjustice, the rape victim attempting toincapacitate the attacker, the drunk
responding to an insult, threat or physicalassault.
When aggression is met with aggression,
when violence is countered with violence,
the roles are simply reversed. The initial
aggressor becomes the victim and theinitial victim ends up being the victimizer.
Labels are applied not on the basis of the112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
original role but on the final outcome. The
violent response, though defined as ‘crime’by the law, is perfectly legitimate in theeyes of the perpetrator who perceives theirretaliation as a justiciary act, as a rightful
reprisal.
The observed link between victimizationand offending is not the least surprising.
The sense of being victim, whether thevictimization is real or perceived, whether
direct or vicarious, whether personal orcollective, provides not only the
motivations and justifications foroffending, but also the necessary
rationalizations and neutralization thatmake it possible for the potential
delinquent to overcome whatever formal
and informal controls may stand in the wayof the offending behaviour, including thedelinquent’s moral inhibitions, religious
convictions, the threat of punishment andso forth. These motivations andjustifications are capable of transforming
the victim into a ruthless victimizer. Casesof store or house owners who, once
victimized, sit waiting with a firearm in
hand for the next robber, burglar, or thief,in order to welcome the victimizer with ahail of bullets, have occurred withincreasing frequency in the past few years.
But these are just the extreme examplesof this transformation. In schools, it is acommon experience to find children whosebooks, articles, or supplies have been stolenby other children taking revenge bystealing the same or similar things fromtheir school mates. Some youthful andadult car owners who have had some pieceor part, such as a hubcap or mirror, stolen,
do not report their victimization to thepolice, but instead, “help themselves” to thesame part from a similar car. In doing sothey feel they are only righting the wrong
done to them.
Debuyst and Joos (1971) relate the storyof a seventeen-year-old boy, Raoul, who hada collection of firearms, one of which wasstolen from him. Sometime later , he broke
into a firearms shop and stole somefirearms. His mother, breaking down intears over her son’s conduct, could notunderstand how such an honest boy, who
was from a well-to-do family, working, andwell considered by everyone, could do sucha thing.
In addition to concrete feelings ofvictimization resulting from a specificincident or incidents in which the person
was actually victimized, individuals orgroups may have sentiments of injustice
and a vague sense of victimization
unrelated to any specific event(s). In many
offenses against property, resentment overeconomic exploitation and social injustices
serves as a means of auto-legitimation.
Many thieves, professional and occasional,
tend to justify their delinquent behaviour
by citing social injustices and bycontrasting the scandalous wealth of theupper social-classes with their own miseryand poverty. White-collar tax evadersconvince themselves that the tax system
is unfair as it victimized and penalized thehard-working, like themselves, whileallowing many others to pay less or notaxes. Cressey (1953) discovered thatperceived injustice and the sense of being
victimized play an important role in thecases of embezzlement, trust violations,and one may add corruption. This may
take the form of feeling underpaid or
overworked, or of feeling unfairly treatedin some other way involving finances.
Cressey points out that it is not the fact of
being maltreated that is important, if sucha fact can be established. Rather, it is thefact that the individual feels maltreated,while, at the same time, for some reason,
feeling obligated to continue in the serviceof the organization.
Feelings of injustice and of victimization
play a crucial role in the acts of political81

RESOURCE MATERIAL SERIES No. 56
terrorists and of other minority groups who
have been historically the targets ofviolence, maltreatment, and exploitation.
It is true that offending is, in many
instances, a reaction to, or a consequenceof, victimization, then it is easy tounderstand why it is that punishment
quite often fails in preventing therepetition of the behaviour being punished.
There can be no doubt that for those
offenders who have been victimized,
punishment can only be seen as an added
victimization, it can only aggravate theproblem that led to offending in the firstplace. Expressions such as “getting even”,“taking it out on society” exemplify the deep
resentment and frustration felt byoffenders who already perceive themselves,
rightly or wrongly, as victims, and who are
deprived of their liberty as a means ofpunishment.
As mentioned earlier, offenders whose
violence is a retaliation against some fromof victimization view their behaviour as
perfectly legitimate, and are boundtherefore to perceive their punishment asunjust and unwarranted. If victimization
is an important factor in offending, and I
strongly believe it is, then one very effective
way of preventing crime, particularly
violent crime, would be to reduce theincidence of victimization, exploitation anddiscrimination.
B. From Offender to Victim
Not only is there a strong link between
victimization and offending, but there isalso a close link between offending andvictimization. Involvement in criminal,
illegal or deviant activity greatly enhances
the chance of becoming a victim. Sampsonand Lauristen (1990) found a significant
relationship between the risk ofvictimization and involvement in violence,vandalism, and theft offending. In otherwords, persons who engage in criminal
offending sharply increase their overall82

risk of victimization (p.120,126). They
further found that offence activity whether of a violent or a minor deviance,such as drinking or drug use - directly
increases the risk of personal victimization.
The inter-relationship between
offending and victimization was reported
in many other studies. Singer (1981) foundthat cohort members who were shot or
stabbed were involved more frequently in
official and self-reported criminal activity.
His findings were corroborated by Savitz,
Lalli, and Rosen (1977). The same pattern
was observed in England by Sparks, Gennand Dodd (1977). Gottfredson (1984)
discovered that for persons with at least
one self-reported violence offence, thelikelihood of personal victimization wasseven times the likelihood of personal
victimization for persons reporting no selfreported violent offences.
Johnson et al. (1973) followed up all
victims of gunshot and stab wounds
admitted to the City of Austin Hospital in
Texas during two years and found that 75%of the male victims had a criminal record,and 54% had a jail record. Canadianhomicide statistics for 1991 (Juristat, 1992)
reveal that almost half of homicide victims(45%) have a criminal record. And in an
American study of gunshot victims, Paul
Friday (personal communication, March
1995) found that 71% of the victims had
their own criminal histories.
Of the 92 assault victims in the hospitalbased sample interviewed by Cretney andDavis (1995, p32), 24 (26%) told theresearchers that they themselves had acriminal record, while 16 (17%) had at least
one previous conviction for assault. Other
offences committed by the sample of‘victims’ included: shoplifting; theft;robbery with violence; and possession anddealing in drugs.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
IX. OFFENDERS’ ATTITUDES TO
THEIR VICTIMS AND HOW TOCHANGE THESE ATTITUDES
Offenders’ attitudes to their victims is
an extremely important area of study incriminology, victimology and penology.
This is so because such attitudes often playa crucial role in the motivational processes
leading to the victimization, and a decisiverole in the process of selecting the victim.
For example, in the case of genocide, of
terrorist activities, of acts of war, thepotential targets are defined and perceived
as the enemy that has to be attacked,
exterminated or annihilated. Enemies
evoke no sympathy, pity or compassion.
The same is equally true in conventional
crimes. Rapists, for instance, havedevalued images of women. They are sex
objects, they are to be used for one’s
pleasure and then discarded or even killed.
In many other offences, the victim is seen
simply as a means to an end. Sutherland(1937) insists that professional thieves
have no consideration whatsoever towards
the victims whose wealth they are trying
to steal. They think of their victims likefishermen think of a place to fish or huntersof a place to hunt.
The slang words often used by offenders
to describe their victims: whore, slut,
faggot, sucker, etc, betray not only theirutter lack of respect, but also thecontemptuous attitude they have vis a vis
the victim. The mental process by which
the victim is denied, blamed, denigrated,devalued, depersonalized may be referred
to as the desensitization process.
A. The Desensitization Process
One of the most important techniquesof offender rehabilitation is to counter what
we call in victimology ‘the desensitization
process’. Criminal victimizations, whether
directed at the victim’s person or his/herproperty, are harmful actions. They cause
physical injury, material loss, psychologicaltrauma or a combination of all three.
Feelings of guilt associated withinternational victimizations are stronger
than those evoked by negligent
victimization.
Most international victimizations
involve the deliberate infliction of pain andsuffering upon a fellow human being.
While a small minority of victimizers may
fit the psychiatric label of the heartless,callous, unfeeling “psychopath”, themajority are not completely insensitive,
apathetic, or impassible and are not totallydevoid of the human feelings of pity andempathy. Thus, unless the victimizer
desensitizes themself in advance, thevictimization is bound to create moral
tension and to elicit feelings of guilt, shame,remorse, reproach in the perpetrator. Since
the source of these negative feelings is thepain and suffering the victimization willcause to the victim, negating this pain andsuffering can be an effective means ofdesensitization. To do so, the victimizer
can use one or more of several techniquesof desensitization. These include thedenial, reification, depersonalization of thevictim, the denial of injury, blaming thevictim, devaluating or denigrating thevictim, and so forth.
The desensitization process in which thevictimizer engages themself prior to thecommission of the act explains better than“psychopathy”, “moral perversion” or“emotional indifference” why certain
offenders show no sense of guilt, remorseor repentance after having committed
brutal and cruel acts. It explains why
certain killers, while exhibiting extreme
cruelty, brutality and callousness toward
their victim, show tender love andcompassion for others, even for animals. In
a case studied by the author (Fattah, 1971)
the murderer, after savagely killing his

83

RESOURCE MATERIAL SERIES No. 56
victim and robbing the house, took utmost
care to feed the victim’s dog and cat, andeven left them enough food for several days,
for fear that nobody would come to thescene of the crime for some time.

is possible that a diminishedawareness of the victim plays animportant part in determining
whether or not this process is set inmotion. (p.668)

There are various techniques that
offenders use to desensitize themselves tothe harm, pain and suffering they are
inflicting on their victims. One of the mostcommon techniques of desensitization is todeny the victim, to mentally turn him/her
into an object, or to try to depersonalize
and dehumanize the victim.

The idea of stealing from or cheating thegovernment or a large organization raises
fewer moral scruples than the idea ofcheating a person or stealing from a family.

Another technique of desensitization
often used by victimizers in their attempt
to shield themselves against the victim’s
plight, to ease their conscience, and to freethemselves of any feeling of guilt, is thedenial of injury. It is a common techniqueamong rapists before and during the act.
But it is also common in property
victimization as well. Impersonal, nonspecific and intangible victims, such as thegovernment, large corporations, andorganizations, are considered by many asappropriate targets for victimization.
Victimizing them is subject to fewer (if any)moral restraints and arouses less guilt thanvictimization directed against a personal,
identifiable victim. The impersonal anddiffuse character of the victim and its
intangibility evoke little moral resistancein the person contemplating thevictimization. Sykes and Matza (1975)
wrote:
Insofar as the victim is physicallyabsent, unknown, or a vague
abstraction (as is often the case indelinquent acts committed against
property), the awareness of thevictim’s existence is weakened.
Internalized norms and anticipationsof the reactions of others must
somehow be activated, if they are toserve as guides for behaviour; and it

84

A third technique is ‘blaming the victim’.
Once victimizers are able to convince
themselves that the victim has done themwrong, that he or she is guilty of someinjustice, they can rid themselves entirelyof any compassion for that victim and of
any sense of personal culpability. By
blaming the victim and transforming him
or her into a person deserving to suffer,
victimizers are able to go ahead with thevictimizaion without conceiving ofthemselves as criminals and whileshielding themselves against postvictimization dissonance.
Theestablishment of the victim’s guilt
beforehand, whether the guilt is real or
imagined, acts as an anaesthetic on the
conscience of the potential victimizers,
enabling them to destroy or injure thevictim without pity or empathy.
Although blaming the victim is acommon and often-used technique ofautolegitimation, neutralization anddesensitization, it is not a process ofinternational distortion. In most cases,
victimizers are actually convinced of their
victim’s guilt. Nowhere is this more evident
than in crimes of passion, in politicalcrimes, and in the crimes of paranoiacs.
Crimes of passion are characterized almost
invariably by a justiciary attitude on thepart of the offender.
Blaming the victim is also the dominantfeature of crimes motivated by revenge, thetypical example of which is the vendetta.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Here the victimization is seen as alegitimate reprisal, a rightful form of
retaliation. The chain reactions resulting
from the use of this type of legimitation isthe development or perpetuation of a
subculture of violence.
Devaluation of the victim is yet anothertechnique of desensitization. In an attempt
to desensitize themselves to the victim’s
plight, victimizers often attribute inferior
qualities to the victim. They may devalue,denigrate and derogate the victim’s worth,so that the victim appears blameworthy
and deserving of the victimization becauseof a behaviour (he or she did something
very bad) or because its their fate as aperson (he or she is a bad person). This
psychological process of devaluating thevictim is not worked out in a logical,
rational or conscious way (Ryan, 1971).
The preparation of the criminal act at
the moral level is done, almost always, withreference to the attributes, personality,
attitude, behaviour, and conduct of thevictim. Certain attributes or qualities ofthe potential victim may be used todiscredit and devaluate him or her in aneffort to present the victim as a legitimiate
and deserving target, and to justify thedelinquent act. Attacks on homosexuals
and on prostitutes are often so legitimized.
Redl and Wineman (1951) found that for
certain adolescents, stealing fromhomosexuals is a perfectly justifiable andlegitimate act. Property crimes committed
against prostitutes are rationalized in asimilar manner. Furthermore, the forcible
rape of a prostitute is also conceived of asa legitimate and guiltless act. Their styleof life is interpreted as denying the rightto dispose of their own body as s/he pleases;
as if, because s/he sells their body towhomever pays the price, s/he no longer
has the right to protest when someone tries
to possess them by force. In such cases,
the attitude toward the potential victim

and the possibility of justifying the act are
undoubtedly important factors in the choiceof the victim.
In cases of property crime, thedishonesty of the victim seems to be seenin the same way as the lifestyle of theprostitute. The businessman is defined asa “monopolistic miser,” or as a “dishonest
merchant” who cheat customers andtherefore deserves to be victimized, and theillegal act is defined as an act of normal
indignation (Schwendinger andSchwendinger, 1967). The repugnancetoward the victim overcomes any thoughtof the victim’s right.
X. VICTIMOLOGICALEXPLANATION OF REOFFENDING
Victimological explanations of recidivism
and reoffending are quite simple and morecommon-sense than science. If
environmental conditions, if situational,
triggering and actualizing factors play animportant role in offending (and there isoverwhelming empirical evidence showingthat they do), then a released offender,
returned to these same conditions andsituations that led to the first offending,will have a very high chance of relapsingand of committing new offences. The besttreatment and rehabilitation programs incustody cannot be successful unless theenvironmental conditions to which theoffender is released have been changed,
and unless the situational, triggering andactualizing factors have been dealt with.
Changing the conditions, controlling thefactors, is generally a much easier andmore effective task than the difficult andelusive task of changing the offender’spersonality, attitudes or behaviour. Afterall, no one, not even the most violent ofoffenders, is dangerous all the time andtowards everyone.
In the vast majority of cases,
dangerousness is episodical and specific. To
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RESOURCE MATERIAL SERIES No. 56
effectively control it, one only needs toknow the conditions and situations inwhich the person becomes dangerous, andthe person or persons against whom theviolence or aggression will be directed. As
explained earlier, many crimes are context
specific, target/victim specific. Because ofthis, the violence is usually strictly
confined. For example, in most cases offamily violence, the violence is strictly
confined to the wife (or the children). In
the case of incest, the father or
grandfather’s sexual predations are strictly
confined to their offspring. If the causes ofthe behaviour are endogenic (that is locatedin the individual himself), why is it thatthey manifest themselves or produce theviolent or sexual behaviours only in these
specific contexts, against these specificvictims?
If the cause of criminal behaviour, as
many criminologists claim, is lack of or
weakened self-control, then how is it thatthe person is perfectly able to control their
behaviour outside of these contexts andthese targets. Good-sounding programs,
such as ‘anger management’, simply ignore
the fact that the individual has no problem
controlling their anger outside of the homeenvironment to which the violence isconfined.
XI. CONCLUSION
Hopefully, this brief and hasty synopsis
of victimology has given you an idea of how
valuable victimological knowledge could be
for those who are involved in corrections
generally, or offender rehabilitation inparticular. Victimological knowledge is not
only essential for understanding theoffender and the offence, for positively andsuccessfully influencing the offender’s,
attitude and behaviour, but also because it
has direct implications and applications forthe task of rehabilitation andresocialization. Understanding the role86

victimization plays in offending, thephenomenon of role reversal, theinterchangeable roles of victim andvictimizer, is bound to change the views
and stereotypes of offenders, help
understand the motives for their behaviour,
assist in establishing a rapport with them,and thus the possibility of influencing theirattitudes and behaviour.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSVICTIM REDRESS AND VICTIM-OFFENDER
RECONCILIATION IN THEORY AND PRACTICE:
SOME PERSONAL REFLECTIONS
Ezzat A. Fattah*
I. INTRODUCTION
For many centuries, redress to the victim
has been the primary, even the sole,
objective of justice. Restorative justicecontinues to be the dominant practice insmall, rural, agrarian societies and incultures that have not been influenced by
the religious principles of Judaism,
Christianity and Islam. Anthropologists
who studied the mechanisms of conflict
resolution in non-state societies haveobserved a development that seems to beuniversal. The primitive and rather
instinctive reactions of vengeance andretaliation, which inevitably result in
weakening the group and eternalizing thefeud, always gave way to the constructive
and reconciliatory practices of composition,
restitution and compensation. In thesesocieties, untouched by western thought
and practices, punishment for the sake ofpunishment, as a means of atonement andexpiation, is totally unknown. Justice has
utilitarian goals.
Indigenous populations in countries thatwere colonized by the powers of western
Europe : Australia, Africa, North and SouthAmerica, had a long tradition of restorative
justice and continue to opt for healing
practices over punitive sanctions. Western
societies are beginning to recognize thesuperiority of restorative justice overretributive justice, and it seems likely thatthe paradigm shift in criminal justice will
occur quite early in the next millennium.
* Professor Emeritus, School of Criminology, Simon
Fraser University, Canada.

In an article I wrote few years ago for a
Festschrift honouring Prof. Koichi
Miyazawa, I tried to compare the twoparadigms and it was obvious at the end of
the comparison that restorative justice isthe way of the future, because it is thenatural way of doing justice.
I was converted to restorative justiceearly in my academic career. In the early
1970’s, I was a visiting professor at the
University of Abidjan in the Ivory Coast
when I decided to do a comparative studyof criminal homicide in Africa and North
America. Once I started examining theofficial statistics and started studying
police files, I was intrigued by the findingthat there were very few homicide cases inrural and remote areas of the country. I
wondered if they were peacefulcommunities, free from conflict?
Unfortunately, this was not the case. It
turned out that there were two parallelsystems of justice operating in the Ivory
Coast: the formal punitive/retributive
system imposed by France (the colonial
power) and the tribal/restorative systemthat solved conflicts and settled disputes
using the traditional, customary practicesof reparation, compensation andreconciliation. The kinship of homicide
victims, getting no satisfaction from theretributive practices of execution andincarceration, deliberately abstained from
reporting the homicides to the police andpreferred to have them dealt with within
the tribe or the community. This was aneye opener that confirmed my long-heldbelief in the superiority of restorative87

RESOURCE MATERIAL SERIES No. 56
justice over the destructive and futile
system of punishment.
II. FROM RESTITUTION TO
RETRIBUTION AND FROMREDRESS TO PUNISHMENT:THE HISTORICAL EVOLUTION
The origins of criminal law can be traced
to the attempts by the kings and feudallords to consolidate their authority, toenhance their powers and generate
revenue for themselves and their estates,by imposing fines and by seizing the lands
and property of convicted persons. As thecommon law developed, criminal law
became a distinct branch of law. Numerous
antisocial acts were seen to be ‘offences
against the state’ or ‘crimes’ rather thanpersonal wrongs or torts. This tendency tocharacterize some wrongs as ‘crimes’ wasencouraged by the practice under which thelands and property of convicted persons
were forfeited to the king or feudal lord;fines, as well, became payable to feudallords and not to the victim. The natural
practice of compensating the victim or theirrelatives was discouraged by making it anoffence to conceal the commission of afelony or convert the crime into a source ofprofit. In time, fines and property thatwould have gone in satisfaction of thevictim’s claims were diverted to the state.
Compounding an offence (that is,
accepting an economic benefit insatisfaction of the wrong done without theconsent of the court or in a manner that iscontrary to the public interest) still remains
a crime under the Canadian Criminal Codeand discourages private settlement or
restitution. It would now seem that
historical developments, however wellintentioned, effectively removed the victim
from sentencing policy and obscured theview that crime was social conflict.

88

A. Crime is Not Different From Tort
Parker ’s (1977, p28) account of thehistorical development that led to theemergence of criminal law shows that thedifferentiation between crimes and torts isof relatively recent origin. Parker states:
At this stage of legal development
there was no differentiation between
what we know as crime or criminal
law and tort or civil liability fordamage inflicted. All injuries topersons of property were consideredas ‘wrongs.’ The seriousness of thewrong depended upon the disruption
caused to the community or the actualor perceived affront to the injured
parties. Slowly, a distinction emerged
between wrongs which were private
disputes and required payment to theinjured party or his kin and wrongs
which had a public quality andrequired compensation to the wholegroup.
This historical fact is often ignored bythose who claim that crime is a unique,exceptional or distinct category of harmful
behaviour. In the not too distant past, allharmful injurious behaviours were civil
torts treated in more or less the samemanner. The emergence of the criminal law
saw the creation of a new category of
behaviour believed to be deserving ofpunishment. The selection of behaviours
to be brought under the realm of thecriminal law was guided by political,
historical and religious considerations, andnot by the unique qualities of the
behaviours that came to be defined as
crimes. As a result, the distinction between
crime and tort, between the criminal andthe civil code, is both artificial andarbitrary, and the demarcation line
separating the two is blurred. Veryfrequently the same act is both a crime anda tort. And yet, as Morris and Hawkins(1969, p46) point out:

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No research projects have been conducted
to search for the primary cause of tort..., no
one inquires what social or psychologicalpathologies underlie the incidence of tort
in our society, [and] no one has suggested
that those who commit torts are biologicallyinferior to their fellows.
They add that a large part of criminal
behaviour is perfectly ‘normal,’ both in thestatistical sense and in the sense that it
occurs naturally.
B. Criminal Behaviour is Not
Qualitatively Distinct
Punitive /retributive justice is based onan erroneous premise (that crime is adistinct or exceptional category of
behaviour) and on a false dichotomy
between the so-called crimes and civil
wrongs. This is a faulty premise because
a comparison of acts made illegal by thecriminal code or by statutes with similar
behaviours that are unregulated by thecriminal law suggests that there is no
qualitative difference between criminal
and non-criminal behaviour.
For every behaviour defined as criminaland sanctioned by law, there are identicalor similar types of behaviour that areneither illegal nor punishable. Even actsthat may, at first glance, appear to be
morally heinous, socially harmful, and,
therefore, condemnable are generally
condoned in certain circumstances and are
required or encouraged in specificconditions. The act of killing is notinvariably criminal. Killing the enemy in
war is not a crime (in fact, refusal to do so
may be a criminal offence); it is an act of
courage and heroism. The killers are notpunished; they receive medals, decorations,awards and citations. Executing aconvicted murderer is considered by manyas an act of ‘justice’ or a ‘proper’ measureof social protection. It enjoys the support
of a majority of the population and was once

so popular that public executions drewhuge crowds to the places where hanging
or beheading took place. Killing a prison
inmate trying to gain freedom or a hold-up
man attempting to escape is considered ajustifiable or excusable homicide in many
jurisdictions. But killing in most othercircumstances is regarded as a very
serious, perhaps the most serious, crime.
The difference does not lie in the nature of
the act itself. Killing is killing. But killingis only defined as a crime if it is committed
under certain conditions or against certain
victims. Shooting and killing East
Germans trying to flee to the West by
crossing the Berlin wall was a legal act
under the laws of the former German
Democratic Republic. After thereunification in 1989, and the replacementof the East German Code by the Criminal
Code of the Federal Republic of Germany,
these killings are being prosecuted as
murders, and the shooters are now charged
with the deliberate taking of a human life.
Until a few years ago, the Canadian
Criminal Code and many others did not
define forcible sexual intercourse with one’s
own wife as a crime. But the same act
perpetrated on a woman who is not the
man’s wife did qualify as a serious crime
punishable by imprisonment for life.
Although the behaviour in the two cases is
identical, in one case it is criminal; in theother, it is not. depending on whether thetwo parties are bound by marriage or not.
The same can be said of statutory rape,where an arbitrarily determined age is thedeciding factor whether the behaviour iscriminal or not, is punishable or not.
Not all types of violent, aggressive, orassaultive behaviour are made criminal by
the law. Many forms of violence arecondoned and tolerated to the extent that
become culturally legitimate. Until
recently, use of the strap in school for
misconduct, using violence to discipline or

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control the behaviour of inmates in penal
institutions, and flogging offenders guiltyof certain crimes were all seen as legitimate
forms of violence, and those on whom suchpunishments were inflicted were seen as
deserving targets. Milder forms of violence
within the family are not criminal in mostjurisdictions. Children are consideredlegitimate targets for the use of physicalforce in the process of training and control,
and for a long time, husband-wife violence
was regarded as legitimate by both thepolice and courts.
The absence of a qualitative difference
between behaviour defined as criminal andbehaviour that is not can also be observedin the areas of property and traffic offences,where the line between what is legal andwhat is illegal is often quite arbitrarily
drawn. Offences like speeding andimpaired driving are determined by speed
limits and blood-alcohol levels set up in anarbitrary fashion. And the line separating
the criminal offences of theft and fraud
from what are normally referred to as‘sharp business practices’ is exceptionallythin.
If crime is not qualitatively different
from civil torts or civil wrongs, then why is
it that we accept redress to the injured or
harmed party in the latter but would notsettle for anything less than criminal
sanctions for the former? And why is it thatin the case of civil torts the damages
ordered by the court go to the victim
whereas in criminal offences the penal finegoes to the public treasury?
C. The Crisis in Penal Law
The penal law in modern industrializedsocieties is in a state of deep crisis. It islagging behind the times. The malaise isfelt by scholars and practitioners alike. The
commissions of reform established in many
countries on a temporary or permanent
basis are the proof that something must90

be done. The needed reform has to be
sweeping and radical. The stage seems to
be set for a scientific revolution or aparadigm shift in the sense proposed byThomas Kuhn (1970). This is because mostof the current problems can be traced
directly to the old paradigm. As Barnett(1977) points out, many, if not most, of theills of the present system stem from errors
in the underlying paradigm. Thus any
attempt to correct these symptomatic
debilities without a reexamination of thetheoretical underpinnings is doomed tofrustration and failure (p.245).
The last fifty years have witnessed majorchanges in many branches of law: corporate
law, labour law, insurance law, etc, to keep
pace with the rapid changes that weretaking place in society. The same could not
be said for penal or criminal law. It is one
branch of law that is least susceptible tochange. As a result, penal law in mostcountries has not kept up with social
evolution, it is lagging behind the times.
It is in a state of crisis and is in urgent
need of reform and modernization.
The Canadian Criminal Code (enacted
in 1892), and many others, date back to thenineteenth century. The kindest thing that
could be said about all these penal codes isthat they are historical documents thatmirror the mentality of the era in which
they were enacted. The piecemeal changes
that they have undergone since they werepassed reflect various social and politicalcircumstances occurring over a century.
The fact that these codes have neither been
overhauled nor replaced by new modern
ones speaks eloquently to the criminal law’s
unmitigated resistance to change. That all
the fundamental principles, all the basic
notions of the criminal law of today, havebeen borrowed from the philosophy andtheology of the 18th and 19th centuries is
hard to understand. Such are the notionsof evil, wickedness, malice, guilt,

112TH INTERNATIONAL TRAINING COURSE
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culpability, retribution, expiation,
atonement, to name but a few.
The time has come to ask whether
notions such as ‘free will’, ‘moral
responsibility’, ‘criminal intent’, ‘mens rea’,‘premeditation’, ‘malice aforethought’, aswell as many others, do have a place in amodern, secular, socially oriented criminal
law, like the one we would like to have inthe 21st century. It is time we ask whether
legal concepts such as ‘insanity’,‘diminished responsibility’ etc, could
withstand the test of science or whether
notions such as retribution, punishment,
just deserts and so forth, have a place in amodern, scientific and secular criminal
policy.
D. The Crisis in Penal Policy
E a r l y i n t h e 2 0 t h c e n t u r y, t h ephilosophical notion that punishment is ameans to pay a debt to society generated
by the offence, and the theological view ofpunishment as a means of inflicting pain
and suffering to atone for, or expiate, amoral fault, were largely discredited andpractically abandoned. Treatment andrehabilitation of offenders, re-education, resocialization and reintegration in society
became the key goals of penal policy. The
word corrections, used to designate theprobation, prison and parole systems, wasused everywhere to emphasize the nonpunitive features and goals of the newpolicies.
The liberal and progressive ideas of the
1960’s and 1970’s gradually lost ground andwere fiercely attacked by the newconservatives who came to power in the
1980’s: Margaret Thatcher in England,
Brian Mulrony in Canada, Ronald Reagan
in the United States. The manifest failureof treatment and rehabilitation programs
to reduce crime or to prevent recidivism
provided right wing politicians with thenecessary ammunition to discredit

corrections and to advocate a return to theharsh punitive policies of the past.
Punishment, as a means of retribution andas an instrument of deterrence, was being
pushed to its absolute limit. In the 1980’s,
both traditionally repressive countries,
such as England and the US, as well as
traditionally progressive countries, such as
Holland, have seen their prison
populations increase, sometimes to newrecords. And yet, none of the salutary
effects promised by right wing politicians
materialized. The bankruptcy of thesepunitive and highly expensive policies canno longer be denied and has been at
tremendous social, human and financial
cost.
In addition to the manifest failure ofpresent policies to curb crime or to reduce
crime rates, there are several otherrealities that illustrate the inconsistencies
and deficiencies of the present system:• As a result of gross under reporting
most of the cases that the system is
supposed to deal with are handled
outside the system.
• As a result of ridiculously low
clearance rates and of the attritionin the criminal justice process, only
a tiny minority of all those who
commit criminal offences face charges
before the courts and an even smaller
minority is punished. Estimates
range between 5 and 10 percent.
• As a result of the widespread practiceof plea bargaining (common in AngloSaxon countries) most of those whoare punished are punished foroffences other than the ones they
have committed, or are offered alenient sentence in exchange for a
guilty plea. Ranish and Shichor’s(1985) estimate that 90% of criminalcases in the US are disposed of91

RESOURCE MATERIAL SERIES No. 56
thorough plea bargaining gives someidea of the magnitude of the problem.
A criminal law system that uses ‘theability to distinguish right from wrong’ as
the prerequisite for criminal responsibility
must rely on psychiatric evidence and calls
upon the forensic psychiatrist to play animportant role in the judicial process. It is
the psychiatrist who supposedly enlightens
the court on issues such as insanity, partial
or diminished responsibility, mentald i s o r d e r, p s y c h i a t r i c d i s a b i l i t y,dangerousness, and so forth. Psychiatry,
however, is not an exact science and is, infact, one of the least developed branches of
medicine.
With the 21st century fast approaching,
many countries are in the process ofchanging and modernizing their criminal
law. While none of the new codes hasabandoned the old paradigm (moral guilt/
moral responsibility/ punishment/
retribution) in favour of the new one (harm/social responsibility/ restitution/compensation), they are deviating more
and more from the old paradigm andintroducing more and more elements of the
new one. This is particularly evident in
the way strict liability is replacing moral
responsibility. It is also visible in someareas where it was imperative to move froma guilt orientation to a consequenceorientation, such as the areas of negligenceand endangerment. Not only is the timeripe for a paradigm shift in the criminal
law, but there are also specific political andsocial developments that are creating acontext conducive to a successful shift. Twodevelopments in particular, are worth
noting:1. Overwhelming Recourse to Insurance
as a Means of Risk Coverage
One dominant feature of life in a modern,i n d u s t r i a l , t e c h n o l o g i c a l , h i g h l y,mechanized society, and of the social policy

92

of the welfare state, is the overwhelming
recourse to insurance (public and private)
as a means of risk reduction and risk
coverage. Recent criminological literature
increasingly stresses the fact that the riskof criminal victimization is a ‘natural’
hazard of modern life, of social interactions.
There is also a growing awareness of a
strange anomaly that currently exists:
whereas most other risks are covered bysome insurance (public or private), the riskof criminal victimization is not. Actually,
one of the ironies of the present system isthat those who face the greatest risks ofcriminal victimization are the ones who canleast afford the insurance, and the ones
most frequently denied coverage by private
insurance companies. Joutsen (1987)
deplores the fact that state insurance
schemes are rarely designed to cover crimerisks. Instead, they generally cover losses
or injuries incurred in certain risky fieldsof activity, regardless of the cause of thisloss or injury, the most notable example
being mandatory traffic insurance
schemes. The insurance covers risks
caused not only by traffic offences per sebut also by any traffic accident. Joutsen
adds that there is usually a national fundcovering parties to a traffic accident who
are not covered by insurance.
Slowly but surely, we are coming torealize that the distinctions that are madebetween victimization by crime and othervictimizations, between the risk of crimeand other social risks, are not only
meaningless but also unfair to those whoare victimized by actions that happen to
be included in the criminal code. This
paves the way for a new paradigm whose
primary focus is restitution andcompensation to the victim.
2. The Victim Movement
F i r s t e s p o u s e d b y t h e w o m e n ’s
movement and then by the politicians of
the new right, the cause of victims of crime112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
has led to the emergence of a powerfulpressure group, the victim lobby. Active inmany countries, including the US andCanada, the victim movement has focused
attention on the plight of crime victims anddemanded the re-examination of criminaland penal policies to render them more
responsive to the needs of the victims.
Persistent efforts at the national andinternational level culminated in the
United Nations Declaration on the Basic
Principles of Justice for Victims of Crimeand the Abuse of Power which was adopted
by the General Assembly on 11 of December
1985. The Declaration contains 21
paragraphs, at least 3 of which (8,9 and
10), are devoted to restitution. The threeparagraphs exemplify the growing
acceptance of at least two basic elementsof the new paradigm: harm and restitution.
Paragraph 8 addresses restitution from theoffender or responsible third parties. It
declares that:
Offenders or third parties responsible
for their behaviour should, whereappropriate, make fair restitution to
victims, their families or dependents.
Such restitution should include thereturn of property or payment for theharm or loss suffered, reimbursementof expenses incurred as a result of thevictimization, the provision of services
and the restoration of rights.
Paragraph 9 of the Declaration
recommends the use of restitution as a
sanction in its own right. It proposes that:
Governments should review theirpractices, regulations and laws to
consider restitution as an available
sentencing option in criminal cases,in addition to other criminal
sanctions.
Joutsen (1987) draws attention to theconfusing wording of this paragraph in that

it first calls for restitution as an option andthen states that this option should be “inaddition to other criminal sanctions”. Healso points out that, at present, few
European countries provide for the
possibility of restiution as the only sanction
in criminal cases, whereas most allow the
courts to order the offender to pay
restitution in addition to the main criminal
sanction.
Paragraph 10 of the Declaration
recognizes the substantial harm that may
be caused by environmental offences andthe primacy of restitution in cases of thistype. It stipulates that:
In cases of substantial harm to theenvironment, restitution, if ordered,should include as far as possible,
restoration of the environment,
reconstruction of the infrastructure,
replacement of community facilities
and reimbursement of the expenses ofrelocation, whenever such harm
results in the dislocation of acommunity.
Joutsen (1987) explains that anenvironmental offence may be so seriousthat the community cannot continue toexist in the same place. The air or water
may be so polluted as to cause a danger tohealth, or may seriously hamper the
livelihood of the whole community. We
might add that it is precisely these
extremely harmful, injurious actions(Bhopal, Chyrnoble, Exxon Valdez, etc)
which very well illustrate the obsolescenceof the old paradigm of the criminal law andthe total inadequacy of conventional
punishments (whether imprisonment ordeath ) as a social reaction or a criminal
sanction to these behaviours.
Christie (1977) has observed that the key
element in a criminal proceeding is thatthe proceeding is converted from something

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between the concrete parties into a conflict
between one of the parties and the state.
He points out that in the modern trial two
important things have happened. First,
the parties are being represented.
Secondly, the one party that is represented
by the state, namely the victim, is so
thoroughly represented that she or he, formost of the proceedings, is pushedcompletely out of the arena, reduced to thetrigger-off of the whole thing. The victim,
Christie argues, is a double loser; first vis
a vis the offender, but secondly and often
in a more crippling manner, by being
denied rights to full participation in whatmight have been one of the more important
rituals encountered in life. The victim has
lost the case to the state.
The criminal law, which does not cease
to broaden its mandate and extend its
boundaries, has declared a monopoly on
every conflict or dispute falling under its
jurisdiction. Joutsen (1987) cites manyfactors which speak in favour of informal,
private settlements. These generally
provide a quick decision at low cost. The
individual features of the conflict can bestudied to an extent not possible for theauthorities of the criminal justice system,and there is considerably more discretionin deciding on the proper solution.
Instead of the ‘all or nothing’ decisionthat is often the only option for the criminal
justice system (and in which one party is
usually held to be the guilty offender, theother, an innocent victim), informal
settlement can seek a compromise decisionthat fits the unique features of the case athand and the parties to the conflict.
Joutsen notes further that the parties canbe directly involved in the search for theproper outcome to an extent that is notpossible in formal criminal proceedings.
Finally, he points out that private
settlements avoid the legal formalism that94

typifies criminal procedure. Rather thanthe black and white approach whichcharacterizes the rules of criminal
procedure, the mediation approach allows
a more far-ranging view of the broad
circumstances underlying the alleged
offence, on the side of both the victim andthe offender. He concludes that the trend
towards private settlements will, in manycases, provide an alternative form ofconflict resolution that can be of moreassistance to the victim than can thecriminal justice system.
Since current criminal law is centered
upon punishment and retribution, andbecause of its avidity to extract revenue
from the wrongdoers (in the form of fines),
it naturally shuns any initiative for disputesettlement or conflict resolution especiallywhen it is done outside the system. As aresult, the criminal justice system has
missed a golden opportunity to reduce its
case load and to stop the repetition ofcertain offences through the reconciliationof the feuding parties.
Jobson (1977) asserts that the criminal
justice system has overextended itself into
conflict situations that are not adequately
solved by existing processes. He estimatesthat almost fifty percent of crimes against
persons and crimes against property
prosecuted in the courts are characterized
by an ongoing relationship between theoffender and the victim. These crimes,
argues Jobson, are not committed bystrangers but by family members,
neighbours, tenants or landlords, or withina customer-seller relationship.
Barnett (1977, 1981) insists that theparadigm of punishment is in a “crisis
period”. This, he believes, is as muchbecause of its practical drawbacks as theuncertainty of its moral status. He further
suggests that the alleged absolute justiceof repaying evil with evil is really an empty

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sophism since Christian moralists havealways preached that an evil is to be put
right only by doing good. Barnett concludes
by admitting his inability to find any theory
which justifies the deliberate, forcefulimposition of punishment within orwithout a system of criminal justice. To
replace the punishment paradigm, Barnett
offers the restitution paradigm. This newparadigm views crime as an offence by one
individual against the rights of another.
The victim has suffered a loss and justiceconsists of the culpable offender making
good the loss s/he has caused. This newparadigm, argues Barnett, calls for acomplete refocusing of our image of crimealong the lines of what Thomas Kuhn calls
a “shift of world view”:
Where we once saw an offence against
society, we now see an offence against
an individual victim. In a way, it is
a common sense view of crime. The
armed robber did not rob society: herobbed the victim. His debt, therefore,
is not to society; it is to the victim(1981, p251).
Barnett proposes two types ofrestitution: punitive restitution and pure
restitution. He also outlines six
advantages that a restitution system hasover a system of punishment. These are:(a) The first and most obvious advantage
is the assistance provided to victims
of crime.
(b) T h e p o s s i b i l i t y o f r e c e i v i n gcompensation would encourage
victims to report crimes and to appear
at trial.
(c) R e s t i t u t i o n w o u l d a i d i n t h erehabilitation of criminals because it
is something the offender does, notsomething done for or to him/her.
(d) Restitution is a self-determinative
sentence.
(e) Savings to tax payers would beenormous.
(f) Crime would no longer pay.
One big advantage of a system centered
upon restitution is that it would enjoy theunqualified support of most victims. Thereis, in fact, overwhelming empiricalevidence indicating that victims preferreparative sanctions (such as restitution)
to punitive sanctions such as imprisonment
or fines.
III. THE RESTORATIVE JUSTICEPARADIGM
Justice paradigms have to change withsocial evolutions in order to remain inharmony with current belief systems andto take stock of whatever advances anddiscoveries are made in the fields ofcriminology and penology. It seems rather
clear that the abstract goals of expiation
and atonement are no longer in harmony
with the realities of the secular, postindustrial society of the 21st century thatis dawning upon us. In the modern, secularsocieties of today, the notions of risk andharm are gradually replacing those of evil,
wickedness, malice, and are bound to
become the central concepts in social andcriminal policy of the future.
Future policies of crime control will belargely based on risk assessment, risk
management, risk coverage, risk reduction,and risk prevention. The measurement ofharm will become a central component ofsocial reaction to crime, and the primaryaims of such a reaction will be redress,
reparation and compensation. My guessis that the artificial distinction between
crime and civil torts will disappear and thatthe artificial boundaries that have been
erected over the years between criminal
courts and civil courts will be removed. All
harmful actions will generate an obligation
to redress, coupled with endeavours toprevent their future occurrence. This will

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be the era of restorative justice.
It is not easy to define restorative justice.
It means different things to different
people. It is a leit-motiv for various policies
and models which can be implemented inpractice in many different ways and forms.
To me personally, restorative justice offersa radically different (and rather refreshing)view of the criminal act. The act is nolonger viewed as an offence against deity
or divinity, nor an offence against the Kingor the Sovereign, not even as an offence
against society. It is rather seen for what
it really is: harmful, injurious behaviour
that causes death, injury, loss, pain andsuffering to the victim. Crime is regarded
as one of the many risks to which we are
daily exposed in the industrial,
technological, mechanized and motorizedsociety in which we live.
IV. IS PUNISHMENT NECESSARY?
If punishment has failed in achieving
any of the utilitarian goals assigned to it,
and empirical research provides ample
proof of this failure, the question is whether
punishment is necessary. The theologicalnotions of expiation and atonement are
inculcated in the minds of children in theirtender age: if you commit sin you will go tohell, if you misbehave you will be caned, if
you hit your sister you will spanked, if you
commit crime you will go to prison. Lateron it becomes extremely difficult to breakthis strong association between crime andpunishment. It becomes almost impossible,
particularly for the average citizen, toconceive of a non-punitive society, a society
without prisons, a community that does not
respond to harmful actions by the inflictionof pain and suffering. Advocating andgaining acceptance for an alternative, nonpunitive, justice paradigm becomes
extremely difficult because the notion of apunishment that has to follow the fault, thewrongdoing, is too deeply anchored in the96

minds of most individuals. The idea of
doing away with punishment altogether is
not even acceptable to most criminologists.
In her presentation of a feminist vision ofjustice, Kay Harris (1991, p94) questions
this unshakeable faith in the need forpunishment. She writes:
Indeed, we need to question andrethink the entire basis of thepunishment system. Virtually all
discussion of change begins and ends
with the premise that punishment
must take place. All of the existing
institutions and structures- thecriminal law, the criminal processing
system, the prisons - are assumed. We
allow ourselves only to entertain
debates about re-arrangements andre-allocations within those powerfully
constraining givens... The sterility ofthe debates and the disturbing ways
they are played out in practiceunderscore the need to explore
alternative visions. We need to stepback to reconsider whether or not weshould punish, not just to argue about
how to punish.
V. DO CRIME VICTIMS WANTREVENGE?
There is no evidence to support the claimthat crime victims want revenge or that
nothing other than the punishment of theoffender will satisfy their thirst for justice.
If anything the evidence clearly shows thatvictims are not as vindictive or as bloodthirsty as some victim groups would want
us to believe. Healing, recovery, redress,
and prevention of future victimization are
the foremost objectives of most crime
victims (Fattah, 1997, p270). Studies by
Boers, by Sessar, by Pfeiffer in Germany,by Umbreit in the United States, and by
many others, show that victims’ primaryconcern is to have redress: to have thestolen property returned, the broken

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
window fixed, the vandalized car repaired,the destroyed bike replaced. Their
expectations and their demands are
realistic, not moralistic (Fattah, p265). But
what about victims of violence? One has tokeep in mind that a high percentage ofviolent crime is committed between people
who know each other or who are related
by some family or other personal
relationship.
Punitive justice ruptures social andfamilial bonds and destroys the chance forreconciliation. It widens the gap that
separates the doer and the sufferer,
generates further animosity andantagonism, and engulfs the parties inbitter, never-ending hostilities. It also
forces others to take sides, thus
contributing to the widening andperpetuation of the conflict (Fattah, 1995,p307). This fact alone shows how essential
it is to have a conflict-resolving mechanismthat settles the dispute and prevents
further violence while maintaining thosevital relationships intact. Moreover, thepunitive, stigmatizing, and ostracizing
nature of criminal sanctions prevents many
victims from reporting their victimization
to the police and from mobilizing a justicesystem that will expropriate the conflict
and take no account of the victim’s wishes.
The result is that they continue to suffer
in silence and try to cope on their own.
Even victims of the most serious andmost heinous crimes of violence are not as
vengeful as they are usually portrayed in
the media or in the manifestos of right wingparties. The powerful television
documentary From Fury to Forgiveness, theexperiences of M. Umbreit in the UnitedStates and Ivo Aertsen in Belgium
demonstrate in a vivid and deeply moving
fashion that even victims who lose their
young children or close relatives tohomicidal killers can show genuine
forgiveness and can plead with the justicesystem for the lives of their victimizers.
The fatal defect of the punishment
paradigm is that it responds to harm withharm, to pain with pain, and its attempt
to alleviate victims’ suffering by inflicting
yet more suffering on the offender. The
flaw in this logic is best summarized in
Ghandi’s famous phrase: “an eye for an eye
makes the whole world blind!”. Or as
Martin Wright said “responding to harmwith harm doubles the amount of harm insociety”. In punitive justice systems there
are at least two losers: the offender getsthe punishment and the victim getsnothing.
Punitive justice neither serves theinterests of crime victims nor does it satisfy
their most obvious needs. Todd Clear(1994) affirms that penal harm does not
actually help the victim. Whilepunishment might be a public statementthat the victim deserved better, it does little
else. Clear insists that while penal harmcannot make the victim whole again, thefocus on getting even with the offender
could in some ways divert the victim fromhis or her personal path of recovery. He
adds:
In this way, the emphasis on penal
harm may actually be a disservice tothe victim, in that it promises that if
the State is only able to impose apenalty severe enough, the victim will
be able to overcome the crime. The
focus is placed on what happens to thelaw violator, not what happens withthe victims. The victim’s victory atsentencing is eventually exposed as apyrrhic conquest, for the problem
faced by the victim does not centre on
the offender (1994, p173).
IX. CONCLUSION
Attempts to exploit the cause of crime
victims for political ends, and to sell the97

RESOURCE MATERIAL SERIES No. 56
policies of law and order under the pretextof doing justice to victims, often required
the portrayal of victims as vengeful,vindictive, retributive, and evenbloodthirsty. Those claiming to represent
and speak on behalf of victims gave theimpression that concern for crime victims
invariably requires harsh, punitive justicepolicies. While the distress of some victims
might be so overwhelming that they will
demand the harshest possible penalty for
their victimizer, this could hardly be saidof the majority of victims. Healing,
recovery, redress, and prevention of future
victimization are the primary objectives ofmost crime victims.
If the primary purpose of social
intervention is to restore the peace, redress
the harm, heal the injury, and stop the
repetition of the offence, then it is easy tounderstand how and why the restorative
system (based on mediation, reconciliation,
restitution, and compensation) succeeds
where the punishment system fails.
Mediation and reconciliation bring thetwo parties together, face-to-face, andensure that they see each other as humanbeings in a state of distress. When facedwith the victim, it becomes impossible forthe victimizer to deny the victim’s existenceor the injury or harm caused. They can nolonger depersonalize, deindividuate,
objectify or reify the victim. They can nolonger avoid post-victimization cognitive
dissonance. The confrontation between theoffender and the victim in a mediation
situation is the surest and most effectivemeans of sensitizing them to the victim’s
plight, of countering and reversing themental process of desensitization that s/he
has gone through in order to avoid guilt
feelings or bad conscience (Fattah, 1991a).
The mediation process, when done
properly, can be very effective in awakening
and activating any positive emotions the98

offender might have lying beneath theircruel and indifferent façade. Emotionss u c h a s p i t y, s y m p a t h y, e m p a t h y,compassion, commiseration, can all be
brought to the surface and reinforced.
On the side of the victim, the mediation
situation can also have salutary effects.
The feared, strong, cruel and unemotional
victimizer is bared to their weak and often
helpless being, a being that evokes morepity than fear, more compassion thananger. Distorted but long held stereotypes
disappear when checked against the real
offender. Both parties end up by gaining arealistic view of one another andreconciliation becomes possible (Fattah,
1995, p312)
Thus in the long run, the interests ofcrime victims and of society at large are
best served by humanity, empathy andcompassion, by tolerance and forgiveness,by the development of conciliatory andforgiving communities rather than hostileand vengeful ones (Fattah, 1986, p13).
Constructive healing, not destructive
punishment, should be the primary andforemost goal of both victim policies andvictim services.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSREFERENCES
Barnett, R.E. (1977), Restitution: A
New Paradigm of Criminal Justice.
Ethics: An International Journal ofSocial, Political and Legal Philosophy.
Vol. 87, No.1, pp.279-301.
Barnett, R.E. (1981), Restitution: A
New Paradigm of Criminal Justice. In
Galaway B., and Hudson J., (eds.)
Perspectives on Crime Victims. St.
Louis; The C.V. Mosby Co. pp. 245-261.
Boers, K. and Sessar, K. (1991), Do
People Really Want Punishment? On
the Relationships Between Acceptanceof Restitution, Needs for Punishment,
and Fear of Crime. In Sessar K., &Kerner H.J., (eds), Developments in
Crime and Crime Control Research.
N.Y.; Springer, pp. 126-149.
Burns, P. (1980), Criminal Injuries
Compensation: Social Remedy or
Political Palliative for Victims of Crime.
Toronto; Butterworths.
Christie, N. (1977), Conflicts as
P r o p e r t y. B r i t i s h J o u r n a l o f
Criminology, Vol. 17, no.1, pp. 1-19.
Clear, T.R. (1994), Harm in American
Penology-Offenders, Victims, and Their
Communities. Albany; State Universityof New York Press.
Dittenhoffer, T. and Ericson, R. (1993),
The Victim/Offender Reconciliation
Programme: A Message to theCorrectional Reformers. University ofToronto Law Journal, Vol.33, pp.31547.
Dittenhoffer, T. and Ericson, R. (1992),
The Victim/Offender Reconciliation
Programme: A Message to theCorrectional Reformers. In Fattah, E.A.

(Ed.), Towards a Critical Victimology.
London; Macmillan.
D o e r n e r, W. ( 1 9 7 8 ) , A Q u a s i Experimental Analysis of Selected
Victim Compensation Programs.
Canadian Journal of Criminology.
Vol.20, no.3, pp. 239-51.
Elias, R. (1983a), Victims of the SystemCrime Victims and Compensation in
American Politics and Criminal
Justice. New Brunswick; Transaction
Books.
Elias, R. (1983b), The Symbolic Politics
of Victim Compensation. Victimology.
Vol.8, no.1-2, pp.213-24.
Fattah, E.A. (1986), On Some Visiblea n d H i d d e n D a n g e r s o f Vi c t i m
Movements. In E.A. Fattah (ed.), From
Crime Policy to Victim Policy. London;
Macmillian.
Fattah, E.A. (1991), Understanding
Criminal Victimization. Scarborough,Ontario; Prentice Hall Canada.
Fattah, E.A. (1992a), The United
Nations Declaration of Basic Principles
of Justice for Victims of Crime andAbuse of Power: A Constructive
Critique. In Fattah E.A., (ed.), Towards
a Critical Victimology. London;
Macmillian.
Fattah, E.A. (1992b), Towards a
C r i t i c a l Vi c t i m o l o g y. L o n d o n ;Macmillian, New York; St. Martins
Press.
Fattah, E.A. (1992c), Beyond
Metaphysics: The Need for a New
Paradigm. On Actual and Potential
Contributions of Criminology andSocial Sciences to the Reform of the
Criminal Law. In Lahti R., and Nuotio

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K., (eds.), Criminal Law Theory inTransition, Finnish and comparative
Perspectives. Finnish Lawyers’ Publ.
Company.
Fattah, E.A. (1993), From a Guilt
Orientation to a Consequence
Orientation: A Proposed New Paradigm
for the Criminal Law in the 21stCentury. In Küper N., and Welp J.,(eds.), Beiträge zur Rechtswissenshaft.
Heidelberg; C.F. Müller Juristischer
Verlag, pp.771-792.
Fattah, E.A. (1995), Restorative andRetributive Justice Models: A
Comparison. In Kühne H.H., (ed.),Festschrift fur Koichi Miyazawa. BadenBaden; Nomos Verlagsgesellschaft.
Fattah, E.A. (1997), Criminology: Past,
Present and Future-A Critical
Overview. London; Macmillan, N.Y.; St,
Martin’s Press.
Fattah, E.A. (1997), Toward a Victim
Policy Aimed at Healing not Suffering.
In Davis R.C., Lurigio A.J., and Skogan
W.G., (eds.), Victims of Crime. Second
Edition, pp. 257-272, Thousand Oakes;
SAGE publications.
Harris, K.M. (1991), Moving into the
New Millenium -Toward a Feminist
Vision of Justice. In Pepinsky H.E., andQuinney R., (eds.), Criminology as
Peacemaking. Bloomington; Indiana
University Press.
Jobson, K.B.(1977), Dismantling the
System. Canadian Journal of
Criminology and Corrections. Vol. 19,
no.3, pp.254-272.
Joutsen, M. (1987), The Role of theVictim of Crime in European Criminal
Justice Systems. Helsinki; Institute for
Crime Prevention and Control.

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Kuhn, T. (1970), The Structure of
Scientific Revolutions. 2nd Edition.
Chicago; University of Chicago Press.
Maguire, M. and Shapland, J. (1997),
Provisions for Vi ctims in an
International Context. In Davis R.C.,
Lurigio A.J., and Skogan W.G., (eds.),
Victims of Crime. Second Edition.
London; Sage Publications.
Miers, D. (1983), Compensation toVictims of Crime. Victimology. Vol.8,
pp.204-12.
Miers, D. (1990), Compensation for
Criminal Injuries. London;
Butterworths.
Morris, N. and Hawkins, G. (1969), The
Honest Politician’s Guide to Crime
Control. Chicago; University of Chicago
Press.
Parker, G. (1977), An Introduction to
Criminal Law. Toronto; Methuen.
Pfeiffer, C. (1993), Opferperspektiven:
Wiedergutmachung und Strafe aus derSicht der Bevölkerung. Manuscript, 22
pages.
Ranish, D. R. and Shichor, D. (1985),
The Victim’s Role in the Penal Process.
Federal Probation. Vol.49, no.1, pp. 5057.
Ranish, D.R. and Schichor, D. (1992),
The Role of the Victim in the Penal
Process. In Fattah, E.A.,(ed.), Towards
a Critical Victimology. London;
Macmillan, N.Y.; St. Martin’s Press.
Sessar, K. (1992), Wiedergutmachungenoder Strafen; Einstellungen in derBevölkerung und der Justiz.
Pfaffenweiler.

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Wright, M. (1991), Justice for Victims
and Offenders- A Restorative Response
to Crime. Milton Keynes; Open
University Press.

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ANCILLARY (ADHESION) PROCEEDINGS IN GERMANY AS
SHAPED BY THE FIRST VICTIM PROTECTION LAW:AN ATTEMPT TO TAKE STOCK
Eberhard Siegismund*
I. INTRODUCTION
Even in the 1970s, an aggrieved person
was still treated as a ‘’forgotten man’’;1 inscientific debate the victim of a crime wasa mere shadow. In the 1980s that situationc h a n g e d f u n d a m e n t a l l y. S p e c i f i camendments were rapidly made to thelegislation of the time, which I shall lookat later, and these changes are particularly
remarkable because at the time no real“pressure group’’ existed to push forchange.2
What victim protection in criminal
proceedings basically aims to do is to stopa person aggrieved because of a criminal
act from being a mere object of theproceedings, whose main function it is tobe a witness in court; s/he should be madea player in the proceedings with rights
which s/he can assert there. Victim
protection also aims to deflect the focus of
the proceedings from the accused ensuring
that, while the proceedings stillconcentrate on establishing the accused’s
guilt, the proceedings also take on board
the interests of the aggrieved person andthe relationship between them and theaccused.3
The concept of victim protection derives
from the principle of the social state.4 The
state complies with that principle only if it
ensures social justice in legislation andgovernment, and helps the weakermembers of society to assert their* Deputy Director General, Judicial System Division,Bonn, Germany.

102

legitimate rights. It is quite obvious thatthe victims of crime are often weakermembers of society and that they need help,
emotional care, social stability and, last but
not least, financial support.5
Finally, it should not be forgotten that
improved victim protection can also
contribute to ensuring effective criminal
prosecution: this can be seen from the factthat in some 90% of cases, crimes are solved
as a result of information provided by
victims. 6 Consequently, if the judicial
authorities take better care of victims ofcrime, this can have positive repercussions
on people’s feeling of well-being. Hence, inthis way victim protection can help tostrengthen the legal order.7
The Declaration of Basic Principles ofJustice for Victims of Crime and Abuse ofPower adopted by the General Assemblyof the United Nations on 29 November 1985
shows that this rediscovery of the aggrieved
person or the victim of crime is not merely
1

Cf. Weigend, ZStW 96 (1984, p.761).
Cf. Riess, Jura 1987, p281, p.283.
3 Cf. Jung, ZStW 93 (1981, p.1147).
4 Cf. inter alia Compendium of Judgments of theFederal Constitutional Court 39, 1 (p.47 f.); 88, 203(p.257 f.)
5 Cf. Goll, ZRP 1988, p.14.
6 Cf. Kirchhoff, in: Das Opfer und die
Kriminalitätsbekämpfung [Victims and the fightagainst crime] published by the Federal Criminal
Investigation Office, 1996, p.48; Cf. also Koch/
Poerting/Störzer, Kriminalstatistik 1996 [Criminal
statistics for 1996], p.2 f.
7 Cf. Goll, op. cit.
2

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
a national phenomenon but aninternational one. As you are aware, theDeclaration contains a range ofrecommendations intended to assist
governments in the international
community to help and assist the victims
of crime and abuse of power of various
levels.
As I shall tell you about ancillary
proceedings as regulated by the German
Code of Criminal Procedure, which governs
compensation for aggrieved parties incriminal proceedings, it appears vital tostart by quoting the basic provision of theaforementioned Declaration, which deals
with asserting claims for damages:“8. Offenders or third parties
responsible for their behaviour should,
where appropriate, make fairrestitution to victims, their families ordependants. Such restitution should
include the return of property or
payment for the harm or loss suffered,reimbursement of expenses incurred asa result of the victimization, theprovision of services and the restorationof rights.’’
Later on we shall be looking at whether- and to what extent - German procedurallaw, as improved by the Victim Protection
Law of 18 December 1986, takes accunt ofthese maxims.
II. ANCILLARY PROCEEDINGS IN
PRACTICE
A. Basic Aims of Criminal
Proceedings Under German Law
Criminal proceedings are not of an
adversarial nature in the same way as civil
proceedings, which are characterised by theparties freedom to shape them.8 The aimof criminal proceedings is to investigate thesubstantive truth behind the criminal act
and to punish the perpetrator of the act.9
The traditional form of criminal
proceedings under English law is that ofan adversarial proceeding with the resultthat representatives of the prosecuting
body and the defendant or their legal
counsel shape the proceedings: if theprosecutor withdraws the charges or theaccused confesses their guilt they can
influence the course of the proceedings. In
this way the judge is merely a neutral
arbiter who delivers judgment on the basisof incriminating or exonerating evidencecollected by the “parties’’.
The duty incumbent on German criminal
judges to establish the substantive truth
rather than formal truth also changes theroles in another way: the judge is masterof the proceedings; s/he has to know what
is in the case files, s/he does not merely
examine the witnesses but is required, on
their own responsibility, to gather all
information which might incriminate orexonerate the accused. The duty to clarify
the facts of the case, which is enshrined in
the Code of Criminal Procedure, canrequire that the court collects evidence
which exonerates the accused even against
their will or that it clarifies incriminating
facts, even if the public prosecutor showsno interest in them. Even if the accusedand the public prosecutor both agree toforgo the further collection of evidence, thatis not sufficient to release the court fromits duty to clarify the facts of the case.
The principle that the court must clarify
the facts of the case renders ancillary
proceedings, which are part of the criminal
proceedings, particularly attractive to
victims of crime: they do not have to
produce evidence themselves but can leaveit to the public prosecutor and the court to9

8

Cf. Federal Court of Justice, NJW 1960, p.2346.

Cf. KK Pfeiffer, Fourth Edition, Introduction,
margin reference 2, with further references.

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RESOURCE MATERIAL SERIES No. 56
bring charges against the accused.
Ancillary proceedings are based on thenotion that proceedings relating to a single
set of circumstances should be handled
together. So, where claims to substantive
or symbolic compensation arise from acriminal act - be it fraud, embezzlement,even assault or slander - then there is muchto be said for dealing with the aggrieved
person’s claim to damage in the criminal
proceedings rather than waiting for asubsequent civil action to be brought,
thereby avoiding duplication of efforts andalso the possibility of contradictory judicial
decisions.
The decision on the application is
actually taken during the main proceeding,not, for example, at a separate, later
hearing. To that extent, the term “ancillary
proceeding’’ is in fact a misnomer. As
already said, the principles of criminal
proceedings - i.e. the inquisitorial maxims- apply to the proceedings. This means thatthe court must clarify the facts of the caseof its own motion and is hence also notbound by the procedural declarations of theaccused. Consequently there is no
judgment of admission of the sort found insection 307 of the Code of Civil Procedure.10
The Victim Protection Law pursues theaim of improving reparation for damages
within the criminal proceeding, primarily
by aiming to broaden use of ancillary
proceedings. This is done in the followingway.
According to the revised version ofsection 403, subsection 1, of the Code of
Criminal Procedure, in proceedings before
the Local Court, the aggrieved person may,without the consent of the accused, also
assert a property claim arising out of thecriminal offence which exceeds the
maximum value applicable to litigation
before the Local Courts (previously DM
5,000, now DM 10,000).
This is important because some 99% of
criminal proceedings at first instance areheld before the Local Courts. 11 In
proceedings before the Local Courts, it ispossible to assert property claims (e.g for
return of stolen assets or for pecuniarycompensation - mainly reparation for pain
and suffering - or claims for reimbursementof funeral expenses or claims resulting fromunjustified enrichment) irrespective of thevalue of the object of litigation.
An amendment to section 406,
subsection 1; 2, subsection 3, of the Codeof Criminal Procedure has made it possible- as proposed in the government’s draft
legislation12 - to produce judgments on the
grounds of the claim or on a portion thereof.
In the draft it was assumed that a decisionon the grounds of the claim (which would
be easier to clarify using the resources of
the criminal proceedings) could in the
future be taken in the ancillary
proceedings. The level of compensation which, as a point of detail, is irrelevant tothe criminal proceedings, and to establish
would delay clarification of the criminal
proceedings - could, if necessary, be dealt
with in later civil proceedings. In this way,so the ‘explanatory’ notes, it would bepossible to avoid taking evidence on the
grounds of the claim more than once.
Moreover, in many cases it would make itpossible to do without further acrimonious
discussion as to the level of compensation.13
Where, however, a decision has beentaken only on the grounds of the claim, the11 Cf. Riess, Jura 1997, p.281, p.289.
12 C f .

10 BGHSt 37, 263, as confirmed by Wendisch, JR 1991,

p.297.

104

E x p l a n a to ry co mme n ts i n B u n d est a g
Publication 10/5305, p.16.
13 Cf. Bundestag Publication, op. cit., p.15.

112TH INTERNATIONAL TRAINING COURSE
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hearing to decide the amount (level of theclaim) takes place, upon application, before
a competent civil court.14 The victim does
not require legal assistance to do this (seesection 404, subsection 1).
According to section 404, subsection 5,of the Code of Criminal Procedure, as
amended by the Victim Protection Law,15
the applicant may receive legal aid for the
ancillary proceeding under the sameprovisions as in civil litigation.16 The effectof this is as follows.
If the victim is unable to meet the costsof the litigation (or part of the costs, or in
instalments), and if the case shows
prospects of success (see sections 119 to
122, Code of Civil Procedure), the criminal
court shall award legal aid once publiccharges have been brought. The decision
is not subject to challenge by the otherparticipants in the proceedings.
Where the court has convicted theaccused and held that the victim is to beindemnified, the following problem in notuncommon. As a conviction means that theoffender must also pay a fine and court
costs, s/he will do all they can to avoid asubstitute prison term (applicable if theydefaulted) by using their available assets
primarily to pay off the fine (and the costs)
before indemnifying the aggrieved person.17
The new rule introduced into the second
sentence of section 459a, subsection 1, of
the Code of Criminal Procedure is intended
to prevent that from happening and to
14 Cf. section 406, subsection 3, third sentence, Codeof Criminal Procedure, in conjunction with section
304, subsection 2, Code of Civil Procedure.
15 Version pursuant to the Bundesrat proposal, cf.
Bundestag Publication 10/5305, page 15, 29 no. 11,
page 33.
16 Sections 114 f., Code of Civil Procedure.
17 Cf. Riess, Jura 1987, 281, 289; Riess/Hilger, NStZ
1987, 145, 157.

promote indemnification for damage by theoffender. In effect, the execution agency
may facilitate payment of costs or a fine(by delaying payment or the granting of
payment by instalments) if, without sucheasier payment terms, the indemnification
would be consiberably endangered. Thismight be the case even if the offender wereable to pay the fine promptly but, given the
primacy of the fine, s/he would
subsequently be compensating the victim
only much later.18
In summary, it can be seen that the law
offers victims of crime the following options
for initiating ancillary proceedings:(i) Ancillary proceedings allow for thecriminal and civil-law consequencesof a criminal offence to be dealt within a single set of proceedings. Hencethey would allow the victim to assert
their rights quickly and simply.
(ii) Normally speaking, even lawyers
should be happy about the existenceof these proceedings: they spare thejudge and legal counsel from going
through civil proceedings; they
reduce the time spent in court
because there is no need to bring thecase before several different courts
and so judicial decisions are not likely
to become contradictory.
The interests of the aggrieved person or
their heirs are taken on board in a numberof ways:(i) S/he is supposed to be informed of
their option to assert a claim, evenin criminal proceedings, at an earlystage (section 403, subsection 2, Codeof Criminal Procedure).
(ii) Claims must not take any particular
18 Cf. Riess/ Hilger, NStZ, op.cit.

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RESOURCE MATERIAL SERIES No. 56
form - it can be made (even orally) at
the main hearing before thebeginning of the closing arguments(first sentence of section 404,
subsection 1, Code of Criminal
Procedure). S/he does not require alawyer to file the claim.
(iii)If the victim is unable to meet thecosts - in part or in instalments - ofbringing the case, and if the case has
sufficient prospects of success, theyreceive legal aid and a legal
representative is appointed.
(iv) The victim has the right to be present
and to be heard. As a participant in
the proceedings, s/he must be heard
at the main hearing.19 The victim
may apply for evidence to be taken,20
has the right to ask questions
pursuant to section 240 of the Codeof Criminal Procedure, and isauthorised under section 238,
subsection 2, Code of Criminal
Procedure, to challenge orders of thepresiding judge concerning the way
in which the hearing is conducted.
Finally, in line with section 257, Codeof Criminal Procedure, the victim has
the right to make statements after
the defendant has been examined andafter each individual taking ofevidence. In the main hearing,
victims enjoy these rights, however,
only insofar as they are relevant tothe civil claim. 21 Finally, and ofparticular significance, is the right toconsult the case files, which all
aggrieved persons may assert
through their lawyer.

proceedings is particularly
advantageous for the aggrieved party
as it means that the principles of thecriminal proceedings are applicable.
Hence, unlike in civil proceedings, thecourt is required to establish the factsof the case (section 244, subsection
2, Code of Criminal Procedure).
Consequently it must, of its own
motion, extend the taking of evidence
to all facts and evidence which areimportant for the decision. Unlike incivil proceedings, the aggrieved party
is therefore not required to produce
evidence; it can leave it to the publicprosecutor and the court to establish
the facts. However, the court’s duty
to establish the facts is limited bysection 405 of the Code of Criminal
Procedure: if an examination of thefacts would protract the criminal
proceedings disproportionately,
section 405 requires the court toabstain from a decision.22 I shall belooking at this provision in more
depth later.
(vi) Finally, the aggrieved party still has
the possibility of asserting before thecivil courts claims asserted
unsuccessfully before the criminal
courts. In principle, therefore, theaggrieved party can only emerge fromancillary proceedings as a winner, nota loser.23
Thus, at first sight, it would appear thatthe catalogue of rights and entitlements
enjoyed by the victims of crime takes full
22 Cf. LR Hilger, 25th Edition, section 405, margin

reference 11, with further references.

(v) T h e f a c t t h a t t h e a n c i l l a r y
proceedings are part of the criminal
19 Cf. LR Hilger, op. cit.
20 Federal Court of Justice, NJW 1956, p.1767.
21 Cf. LR Hilger, op. cit.

106

23 Cf. Riess, Die Rechtsstellung des Verletzten im

Strafverfahren, Gutachten für den 55. Deutschen
Juristentag [Legal status of the aggrieved party incriminal proceedings; expert report to the 55th
Conference of German Lawyers], Volume 1, PartC, margin reference 42.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
account of the basic principles of justice forvictims of crime and abuse of power
adopted by the United Nations’ General
Assembly.
However, things look different inpractice. Only a couple of weeks after theVictim Protection Law came into force, thisattempt by Parliament to increase theaggrieved party’s chance of obtaining
reparation for damage suffered within
ancillary proceedings was criticallyappraised in the literature. 24 The
amendments which it introduced to the law
were pejoratively described as “cosmetic’’and there was said to be much doubt as totheir ability to incriease the “enthusiasm’’felt for ancillary proceedings in practice.25
Regret was expressed that no attempt
had been made to deprive the courts of thepossibility of abstaining from a decision on
the substitute claim within the frameworkof the second sentence of section 405.26 The
latter provision allows the judge to abstain
from a decision “in the event the motion
cannot be properly settled in a criminal
proceeding, in particular, if its examination
would protract the proceedings or if the
motion is not permissible’’. This was afacility of which the courts had made all
too frequent use for a substantial period oftime.
Criticism was also voiced that the law
had failed to resolve the tug of war between
the state’s action to enforce pecuniary fines
and the legitimate indemnity claims of theaggrieved party in a way which favoured
the aggrieved party. This belies the factthat in many cases it becomes impossible
to assert the aggrieved party’s indemnity

claims because the offender simply does nothave sufficient resources. As alreadymentioned, in the face of a substitute prison
sentence, the offender will first attempt to
pay a fine. The solution identified by
Parliament, i.e, to facilitate payment by theoffender under the second sentence ofsection 459a, subsection 1 of the Code of
Criminal Procedure, if, without such
facility, the indemnification by theconvicted person for damage caused as aresult of the offence would be considerably
endangered, was described as anunsatisfactory minimum and a “faltering
first step’’.27
From the victim’s point of view, it would
certainly have been more satisfactory to
refrain from collecting the fine if theoffender complied with a duty to makereparation for damages or to satisfy the
aggrieved party’s claim from the proceeds
o f t h e f i n e . 28 A s t h i s m a n n e r o fcompensating victims would, however,
have caused the state coffers to sufferconsiderable financial loss, the chance ofpushing it through were rather slim fromthe outset.
As was to be feared, given the criticisms
expressed in the literature, theimprovement which Parliament expected
to see in the settlement of victims’ claims
for damages from criminal acts, and the
expected extension in the use of ancillary
proceedings, 29 failed to materialise.
Despite the fact that ancillary proceedings
have formed part of the criminal
proceedings since as far back as 1943 andthat they are familiar to all lawyers, theiruse continues to be infrequent as thefollowing figures illustrate.

24 Cf. Riess, Jura 1987, p.281, p.290; Weigend, NJW

1987, p.1170, p.1176.

27 Cf. Weigend, op. cit., Riess, Jura 1987, op. cit.

25 Cf. Jung, JuS 1987, p.159; Weigend, NJW 1987,

28 Cf. Wiegend, op. cit., with further references, cf.

p.1170, p.1176.
26 Cf. Weigend, op. cit.

29 Cf. Bundestag Publication 10/5305, p.8.

Weigend, ZStW 96 (1984) p.761, p.793.

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RESOURCE MATERIAL SERIES No. 56
In 1997 Germany’s Local Courts handed
down 2,951 judgments in ancillary
proceedings. Of these, 2,840 were final
judgments and 111 judgments on the
grounds;30 142 judgments were handed
down in ancillary proceedings by firstinstance Regional Courts - 119 as final
judgments and 23 as judgments on the
grounds. 31 By contrast, over the same
period the Local Courts handed down atotal of 395,179 32 judgments and theRegional Courts handed down 10,823 33
judgments overall. These figures show how
seldom ancillary proceedings are
conducted; as a proportion of all judgments
delivered, ancillary proceedings made up
only about 1% of proceedings before theRegional Courts and 0.75% of proceedings
at the Local Courts.

but more like 15 to 25%.
The reasons why people are less thankeen to use ancillary proceedings inpractice, than Parliament would havewished are well known. A wide-ranging
study of legal trends carried out in the early
1990s demonstrated 36 that there was“broad’’ rejection of ancillary proceedings
by judges, public prosecutors and legal
professionals overall and proved thataggrieved persons are generally unfamiliar
with this type of proceeding.37 The low
practical significance of ancillary
proceedings in also decried by Germany’s
European neighbours, insofar as the legal
prerequisites are comparable there.38

That said, it has been estimated in somecompetent studies that it would have beenpossible to bring ancillary proceedings injust about 70% of all cases in which a
judgment was handed down.34 In about
65% of those possible cases, reparation had
yet to be made for damage caused. Given
that in about a quarter of all such cases a
civil action had already been brought or alawyer had already issued a claim for theamount at issue, it can be assumed that
there was a genuine need for ancillary
proceedings to be conducted in about 35%of the eligible cases. 35 Had, therefore,
ancillary proceedings been used asenvisaged by Parliament, the proportion
would not have been around 1% or 0.75%

The reason given in the study for why
Germany’s judges, public prosecutors andlegal professionals tend to shy away fromancillary proceedings is that they consider
them to be “anathema to criminal
proceedings’’. 39 The reason for this ispossibly that the strict separation between
criminal and civil law instilled during legal
studies, and the mental distinction
between punishment and reparation, run
deep; also criminal judges might fear thatthey will be put under pressure andoverburdened by having to deal withcomplex issues of civil law.40 The reason
for this may well be that the conditions
attaching to culpability under the criminal
law and those applicable to claims fordamages under civil law are too dissimilarin German law: the causality obtaining

30 Federal Statistical Office, Wiesbaden, Criminal

36 Cf.

Courts, 1997, working documents, p.12.
31 Federal Statistical Office, Wiesbaden, Criminal
Courts, 1997, working documents, p.46.
32 Federal Statistical Office, Wiesbaden, Criminal
Courts, 1997, working documents, p.16.
33 Federal Statistical Office, Wiesbaden, Criminal
Courts, 1997, working documents, p.50.
34 Cf. Kaiser, op. cit., p. 276.
35 Cf. Kaiser, op. cit., p. 276.

108

Kaiser, Die Stellung des Verletzten im
Strafverfahren, Implementation und Evaluation
des Opferschutzgesetzes [Status of the aggrieved
person in criminal proceedings, implementationand evaluation of the Victim Protection Law],
Freiburg/Breisgau, 1992.
37 Cf. op. cit., p.278.
38 Cf. Kintzi, DriZ 1998, p.65, p.72.
39 Op. cit., p.278.
40 Cf. Kintzi, op. cit.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
under the criminal law is one ofequivalence, under civil law it is one ofadequacy; liability under criminal law isrestricted to actual guilt, under civil law
exposure to risk is also taken into account;
finally, there are major differences as to the
distribution of the burden of proof and the
duty to tell the truth (the defendant has
the right to lie whereas respondents (undercivil law) and witnesses are required to tell
the truth41).
Moreover, the case-law of the Federal
Court of Justice, which increasingly feels
bound to reverse erroneous decisions inancillary proceedings, is not apt toencourage the judiciary to make more useof this special type of proceeding.42 Thisshows that, from the viewpoint of theFederal Court of Justice, the grounds thatjudges take for establishing compensation
for pain and suffering in ancillary
proceedings are not infrequently erroneous.
Often there is insufficient detail on judicial
findings on the facts and the reasoning
used. If such shortcomings lead tojudgments being reversed, the judge
concerned is hardly likely to continue
wanting to make decisions in ancillary
proceedings.
However, not only legal difficulties cause
lawyers to be shy of ancillary proceedings.
Many people support claims that ancillary
proceedings place an unnecessary burden
on criminal judges. It is claimed that a
considerable amount of additional work canstem from the ancillary proceedings. 43
41 Cf. LR Hilger, op. cit., introductory comment tosection 403, margin reference 9.
42 Cf. Kintzi, op. cit., with reference to the decisionsof 27 March 1987 (2 StR 106/87); 9 August 1999 (4StR 342/88); 25 August 1989 (3 StR 159/89); 13
December 1990 (4 StR 519/90); 14 August 1991 (3StR 37/91); 30 October 1992 (3 StR 478/92); 30 April
1993 (3 StR 169/93); 9 June 1993 (2 StR 232/93).
43 Cf. Kaiser, op. cit., p.265.

First and foremost, judges and lawyers feelthat the procedural delays resulting fromthe taking of additional evidence areconsiderable.44 All professional groups
agree that ancillary proceedings are theone source of rights for aggrieved persons
causing the longest delays in criminal
proceedings.45
The view of judges, public prosecutors
and lawyers are in stark contradiction to
the results of surveys of aggrieved parties:
these surveys generally revealed a great
deal of interest in active participation incriminal proceedings. 96.9% of all victims
of crime favoured the possibility of dealing
with the question of damages as part of thecriminal proceedings.46
It must therefore be concluded thatancillary proceedings, which were createdmore than fifty years ago to reflect theinterest of victims of crime and which havebeen improved by a number of provisions
in the Victim Protection Law, areconsidered by those victims of crime toreflect their concerns, yet they have found
few friends in the judiciary.
B. What Needs to be Done?
On this point, the Grand Criminal Law
Commission of the Association of German
Judges was appointed in the mid-1990s by
the Federal Ministry of Justice to produce
an expert report on improving victim
protection in criminal proceedings. It took
the view that (further) attempts at
legislating would have no real prospect ofbreathing new life into ancillary
proceedings.47 They conceded that thought
should be given to a mandatory provision
requiring, upon application of the victim,
the civil law aspects of establishing
44 Cf. Kaiser, op. cit.
45 Cf. Kaiser, op. cit.
46 Cf. Kaiser, op. cit. p.276.
47 Cf. Kaiser, op. cit.

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RESOURCE MATERIAL SERIES No. 56
damages always to form part of thecriminal proceedings. Yet, as not all
primary claims for damages under civil law
are suitable for being dealt with in criminal
proceedings, a statutory provision of thattype could not be implemented in the faceof opposition from practitioners. This
would mean that ancillary proceedings willprobably continue to be of minimal
significance.48
Against the background of these - in myview, convincing - arguments, it is no
surprise that current legislative work by
the Länder aimed at breathing new life into
ancillary proceedings (ancillary settlement
before the courts between the victim of thecrime and the accused) have necessarily
been doomed to failure.49
It continues to be doubtful whether
reorganising ancillary proceedings more to
the benefit of victims can bring about theirrenaissance. It would seem to go without
saying that the judicial authorities must
adopt a less reticent stance here if, incriminal proceedings, large numbers ofvictims of a crime can associate and press
for a decision in ancillary proceedings. 50
Thought could be given to reducing thealready low threshold for access to ancillary
proceedings further, so that when theparties concerned - who, in any case,contribute to about 90% in solving crime lay a criminal information before the police,
they could be given a form which they could
complete within a few minutes,
constituting a full and proper application
for the opening of ancillary proceedings.51
In so doing, it could be possible to assist
the parties by providing standard text,
which applicants would have only to tick48 Cf. Kintzi, op. cit., p.72.
49 Cf, Bundesrat Publications, 50/95; 70/96; Bundestagor supplement, for run-of-the-mill casessuch as reparation for damage,compensation for pain and suffering, andthe return of specific objects.
Even if such attempts at revitalisingwhat might almost be considered “dead’’law appear wholly praiseworthy, theycannot prevent judges, where necessary,from pulling on the handbrake by applying
section 405 of the Code of Criminal
procedure and abstaining from a decsion
because dealing with the application for
ancillary proceedings might considerably
protract the criminal proceedings, e.g.
because a motion by the victim for further
clarification of the events at issue mightcause new witnesses to be heard.52
In Germany, practice has shown thateven organisational improvements (ortraining and increased publicity) have been
unable to increase the use of ancillary
proceedings. This is borne out by the factthat the above-mentioned proposals, whichwere tabled in the summer of 1996, havefailed to have a positive effect on thenumbers of cases involving ancillary
proceedings. In the year thereafter, theLocal Courts handed down very nearly four
hundred fewer judgments in ancillary
proceedings than in 1995; before theRegional Courts the number of judgements
was reduced from 186 to 142. There canbe no clearer proof of a trend away fromancillary proceedings in practice.
III. USING VICTIM-OFFENDERMEDIATION TO TAKE ACCOUNTOF THE VICTIM’S INTERESTS
While my comments might have shownthat Parliament’s attempts to improve thelot of victims of crime within the ancillary
proceedings have not been entirely

Publication 13/6899.
50 Cf. here Rössner/Klaus, NJ 1996, p.288, p.292.
51 Cf. Rössner/Klaus, op. cit., p.293.

110

52 Cf. LR Hilger, op. cit., section 405, margin reference

11, with numerous references.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
successful, it should however be pointed outthat the Victim Protection Law has set an
important signal for the (further) extensionof victim-offender mediation in Germany.
Among the detailed list of factors listed
in section 46, subsection 2, of the German
Criminal Code, which help exonerate theoffender when criminal tariffs arecalculated, an “attempt by the offender toarrive at a settlement with the aggrievedparty’’ was included almost as a flag for
future legislative action.53 Its inclusion isintended to indicate that when fixing
punishment, the courts should have special
regard to an attempt by the offender tosatisfy the aggrieved party’s claim forreparation in ways other than by material
reparation for damage. This provides an
incentive for the accused to take on board
the victim’s interests - where possible
before the hearing takes plase - to enable
the court to impose a more lenient
sentence.
That such facilities to improve thepossibility of arriving at a settlement
between perpetrator and victim were
initially made practically possible, andlater enshrined, in normative texts is oneof the most significant criminal policy
developments in Germany over the past
years. In this connection, projects designed
to allow for a settlement between
perpetrators and victims were first set up
under the criminal law relating to young
people. Such projects under general law
were included later. Their aim is to provide
help for victims in coming to terms withthe consequences of a criminal act. Under
the supervision of a third party not
involved in the conflict, a speciallyregulated mediation process aims toachieve a comprehensive settlement
between perpetrator and victim. The
53 Cf. here Riess, Jura 1987, p.281, p.290; Weigend,

NJW 1987, p.1170, p.1176.

settlement is centred upon an agreement
arrived at during a mediation session bywhich the perpetrator commits themself tomake good the damage caused. Given the
manifold difficulties which suchagreements may encompass, they areconcluded only under the supervision ofrecognised experts (psychologists, socialeducation experts, social workers).
The settlement focuses not only on
substantive reparations but, as far as
possible, also aims to achieve genuine
reconciliation between perpetrator andvictim. This is why reparations are not
restricted to replacing material damage;other - non-material acts - can also be
considered, e.g, the perpetrator apologising
to the victim.
While in 1989, 2,100 cases were handled
in this way, in 1992 the figure rose to 5,100.
In 1995 settlements were sought with morethan 9,000 perpetrators and 8,000
victims,54 i.e, more than three times the
judgments handed down in ancillary
proceedings. The most important classes
of offence in terms of attempted
settlements include:
•
•
•
•
•

bodily injury - 63.6%
theft/fraud - 11.3%
damage to property - 14.5%
robbery and blackmail - 9%
defamation - 9.3%

54 Cf. Wandrey/Weitekamp, Die organisatorische

Umsetzung des Täter-Opfer-Ausgleichs in der
Bundesrepublik Deutschland - eine vorläufige
Einschätzung der Entwicklung im Zeitraum von1989 bis 1995 [Organisational implementation of
victim-offender mediation in the Federal Republicof Germany - an initial estimation of developmentsfrom 1989 to 1995], in “Täter-Opfer-Ausgleich in
Deutschland, Bestandsaufnahme und Perspektive’’[Victim-offender mediation in Germany - taking
stock and looking forward], published by theFederal Ministry of Justice, Bonn 1998, p.131.

111

RESOURCE MATERIAL SERIES No. 56
It is surprising to see how willing
aggrieved parties are to arrive at asettlement:••••

bodily injury - 78.1%
theft/fraud - 82.5%
damage to property - 84.9%
robbery and blackmail - 62.6%.55

The most important criterion forassessing the success of victim-offender
mediation is the settlement between
aggrieved party, and the accused. The
number of successful settlements issurprisingly high, broken down here byclasses of offence:••••

bodily injury - 86%
theft/fraud - 91.3%
damage to property - 92.4%
robbery/blackmail - 94.3%.56

The content of the settlements is also ofgreat interest. Looking at the actions
agreed between the accused and aggrievedparty, as part of the victim-offender
mediation, the following picture emerges.
Actions agreed included:
•
•
•
•
•
•
•

apology - 72.4%
giving a present - 6.8%
return of property - 2.1%
money for pain and suffering - 21.5%
job of work - 6.6%
joint activities with the victim - 8.4%
compensation - 27.3%

As this assessment takes account of all thedifferent possible actions, the total arrived
at is in excess of 100%57.
55 Hartmann/Stroezel,

Die bundesweite TAOStatistik [German national statistics on victimoffender mediation] in “Täter-Opfer-Ausgleich in
Deutschland’’ [Victim-offender mediation inGermany], op. cit., p.175.
56 Hartmann/Stroezel, op. cit., p.187.
57 Cf. Hartmann/Stroezel, op. cit., p.186.

112

As regards the, sums of money, thepicture obtained is as follws:
Reparation for Damages Payments
up to DM 250
54.4%
from DM 251 to DM 2,000
39.8%from DM 2,001 to DM 4,200
4.2%
in excess of DM 4,200
1.8%58
Payment for Pain and Suffering
up to DM 500
62.3%
from DM 501 to DM 1,000
17.7%
from DM 1,001 to DM 35,000 20.0%
The evaluations so far have related tothe agreement that services are to beprovided. This sort of solution makes sense
only if there is compliance, as otherwise
the aggrieved person is merely
disappointed yet again. It is pleasing tonote that in about 80% of cases, the sumsof money agreed were paid in full.59
As a result of the positive experience
gained with victim-offender mediation, thisfacility became specifically enshrined ingeneral criminal law as part of the Law toCombat Crime, which entered into force on
1 Decemer 1994. Section 46a of theGerman Criminal Code permits the courts
to reduce penalties or - if the penalty
imposed does not go beyond imprisonment
not exceeding one year or a fine of not morethan 360 daily increments - to refrain
wholly from punishment if, in the attempt
to achieve a settlement with the aggrievedparty, the perpetrator has made reparationin full - or to a considerable degree - fortheir actions or has made a serious attempt
at making reparation for their act.
By introducing this rule, Parliament
attempted to focus greater attention on
those of the victim’s interests which canbest be dealt with under victim-offender
58 Hartmann/Stroezel, op. cit., p.187.
59 Cf. Hartmann/Stroezel, op. cit., p.188.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
mediation using forms of material and nonmaterial assistance - compensating fordamage and allaying fears. The
explanatory memorandum to thelegislation states that this approach is also
more apt than simple punishment to gain
the perpetrator’s understanding of thereprehensible nature of their actions andto accept responsibility for theconsequences of the crime committed.60
In cases where the court would beallowed to abstain from punishment, thepublic prosecutor - with the consent of thecompetent court - can even refrain frombringing public charges; in cases of thatnature, there is not even a need for the caseto come before the courts.
As the law currently stands, it is entirely
up to the accused to decide whether s/hewishes to try and achieve a settlement withthe aggrieved party and to make up for loss
suffered as a result of the crime. Thismeans that those accused persons who
have competent legal counsel and sufficient
resources are more likely to see theirpunishment reduced or to escapepunishment than those accused persons
who are unfamiliar with such possibilities.
As this circumstance does not square with
the German Government’s concern toensure comprehensive support for theinterests of victims of crime, the Federal
Ministry of Justice is currently considering
enshrining victim-offender mediation incriminal procedural law. It is intended thatthe basic provision, which was drafted by
the Ministry only a couple of months ago,should be worded as follows:“At all stages in the proceedings, thepublic prosecutor and the court shall
examine the possibility of achieving asettlement between the accused and theaggrieved person and, in suitable cases,

take steps to achieve this.’’This “appellate norm’’ is intended tobring about more widespread use of victimoffender mediation in practice by ensuringthat the public prosecutor and the court
must - except in manifestly unsuitablecases - examine whether a settlement
between the accused and the aggrieved
person can be achieved. Yet this still leaves
it for the court and the public prosecutor
to decide how intensive that examination
will be and how to bring about themediation. There is a range of possibilities,
from distributing a leaflet with abstract
information to making oral
recommendations in specific cases
concerning how the damage might berepaired.
This provision has been supplemented
by a further provision allowing the publicprosecutor to instruct the accused “to takeserious steps to achieve a settlement withthe aggrieved party’’. Once that has
happened, the public prosecutor has theoption of discontinuing the proceedings.
While it is true that the aforementioned
draft legislation, which aims to enshrine
victim-offender mediation, has yet toovercome all the various Parliamentary
hurdles, hardly anyone in Germany worth
taking seriously would consider calling into
question an extension of victim-offender
mediation. Consequently, everything
seems to support the view that victimoffender mediation, which it is now
impossible to dissociate from the systemof criminal law sanctions as a conceivable
reaction to criminal acts, will continue - toa greater degree than hitherto - to help
victims of crime to escape the psychological,
social and financial problems which can
result from crime.

60 Cf. Bundestag Publication 12/6853, p.21.

113

RESOURCE MATERIAL SERIES No. 56

THE FUNCTION OF HONORARY JUDGES IN CRIMINALPROCEEDINGS IN GERMANY
Eberhard Siegismund*
I. INTRODUCTION
In the following I shall attempt to give
you an overview of the law relating tohonorary judges in criminal jurisdiction inGermany and to explain the role played bylay judges in criminal proceedings. The
participation of laymen and laywomen incriminal jurisdiction is one of thosecontroversial topics in criminal law where
opinions part ways. Whereas one groupsees the participation of laymen andwomen as a guarantee of the democratic
process in court1, others are fundamentally
sceptical about lay participation2 or wantto further curtail lay influence3 . I will startby outlining the activities performed by lay
judges, thereafter I will set out therequirements for appointing lay judges,
describe their rights and duties and thecourse of deliberations in the court
deliberations room. Finally, I will go into
the question of whether lay judges should
be dispensed with.
II. FIELD OF ACTIVITY OF LAY
JUDGES IN GERMANY
Participation of lay judges in thecriminal justice system is based on reform
ideas and demands during the last century,
parallel to the desire for popularparticipation in legislation andadministration 4. The original rule, forwhich provision was made in the Code of
Criminal Procedure and the Law
Concerning the Constitution of the Courts,
which entered into force on 1 October 1879,
assigned the decision on serious crimes ofa severe and of a most severe nature to thejury court, which was characterised by thedivision of the bench into a judicial bench
and a jurors’ bench: the 12 jurors wereassigned the decision on culpability and the
3 professional judges the decision on
punishment, i.e. sentence. Other serious
crimes and most less serious crimes weredealt with by the criminal chamber,composed solely of professional judges; lessserious crimes of a minor nature fell within
the jurisdiction of the jury court, where the
2 lay judges decided on culpability andsentence together with the professional
judge5.
Partly following the wide-ranging
amendments to the law on lay judges particularly during the thirties - the use ofhonorary judges in criminal jurisdiction
today is as follows. Since the importanceof the office of lay judge is governed, on the
one hand, by their use in the various court
instances and, on the other, by theirdiffering numerical proportion to theprofessional judges, it would seem
expedient to subdivide according to thevarious instances.
A. Courts of First Instance
Courts composed of several judges withjurisdiction at first instance are the Jury
Court at the Local Court and the Grand
Criminal Chamber at the Regional Court.
12
34* Deputy Director General, Judicial System Division,Bonn, Germany.

114

5cf. Wassermann, RuP 1982, p.117, p.120.
cf. Kühne, ZAP 1985, p.237.
cf. Michaelsen, Kriminalistik 1983, p.445.
cf. LR Schäfer, 24th ed., introduction chapter 15
margin reference 2.
cf. LR Schäfer, ibid.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The Jury Court, which used to be the first
instance for very serious crimes, is now onlya criminal chamber with special
jurisdiction, but has retained its old name.
The Higher Regional Court, whichfunctions as a court of first instance inregard to crimes against the state, iscomposed of professional judges only.

or 3 professional judges and 2 lay judges
in all cases of serious crimes that do not
fall within the jurisdiction of the Local
Court or of the Higher Regional Court; italso has jurisdiction over all criminal
offences where the sentencing powers of the
Local Court are insufficient.

At the Local Court, the jury court decides
in criminal proceedings relating to serious
and less serious crimes in cases where thecriminal judge does not have jurisdiction;
the sentencing range of the Jury Court
extends to a maximum of 4 years
imprisonment.

The so-called Jury Court constitutes a
special Criminal Chamber for serious
crimes of the greatest gravity, particularly
homicide crimes listed in a conclusive
catalogue of jurisdiction in section 74
subsection 2 CCL. This Chamber has thesame composition as the general Grand
Criminal Chamber.

The Jury Court is composed on principleof one professional judge as presiding judge
and two lay judges (section 29 subsection
1, Courts Constitution Law - CCL). Where
the scope of the matter so requires, the Jury
Court may also - upon application by the
public prosecutor - function in thecomposition of 2 professional judges and 2
lay judges (section 29 subsection 2, CCL).

The Youth Chambers of the Regional
Court have the same composition as thenormal criminal chambers. They decide at
first instance on homicide crimes
committed by juveniles and young adults.
They also have jurisdiction in proceedings
where juveniles and young adults areprosecuted together, and where the Local
Court’s sentencing range is insufficient.

The Jury Court for youth matters is
composed of one professional judge, aspresiding judge, and 2 lay judges for youth
matters. Criminal offences are prosecutedin this court if youth imprisonment, whichis enforced in a youth prison, may be
imposed as the sentence. If the anticipatedsentence is less severe, as for instance inthe case of youth detention, the prosecution
is brought before a judge sitting alone withjurisdiction over youth matters. By theway, youth courts decide in criminal
proceedings against juveniles and young
adults, i.e, delinquents who were aged
between 14 and 18, and between 18 and20 years respectively, at the time the crime
was committed.

The Youth Chamber of the Regional
Court has jurisdiction, at first instance, inyouth protection matters as well. These
are cases where adults are prosecuted for
criminal offences that caused injury to achild or a juvenile (e.g, maltreatment orsexual criminal offences) or where children
or juveniles are required as witnesses.

As a court of first instance at theRegional Court, the Grand Criminal
Chamber decides in the composition of 2

B. Appellate Instance on Fact andLaw
Lay judges also participate at theappellate instance at the Regional Court.
Given that there is a review of facts andlaw on appeal, it would certainly seem
expedient for lay judges to be brought in.
The Appeal Chamber at the Regional
Court reviews Local Court judgements inthe composition of one professional judge
and 2 lay judges - i.e, with the same115

RESOURCE MATERIAL SERIES No. 56
composition as the Local Court.
In proceedings on appeals on facts andlaw against judgements of the Youth Court
sitting with lay judges, the Youth Chamberis composed of 3 professional judges and 2
lay judges, and in proceedings on appeals
on facts and law against judgements of ajudge sitting alone in youth matters it iscomposed of the presiding professional
judge and 2 lay judges in youth matters.
In Germany, we have about 61,000 lay
judges at the courts with jurisdiction overmatters relating to young people and over
adults. This is an impressive figure when
set in relation to the figure of 4,000 judges
in criminal jurisdiction.

B. Improving the Quality ofJurisprudence
In this connection, one often hears theslogans: popular orientation, present-day
relevance, sense of justice, and plausibility
control8. It is said that the lay judge brings
in a popular orientation by their sense of
the popular mood, hence preventing theprofessional judge from sinking into aroutine9. Through lay participation, theprofessional judge is forced to measure andclarify the accuracy of their observations
and conceptions and the persuasive powerof their ideas by being confronted with
objections issuing from an untested senseof justice10. S/he is forced to formulate whats/he wishes to say in a clear and intelligible
manner, in other words, in a mannerconducive to popular comprehension.

III. PUBLIC PARTICIPATION
There are basically three arguments
supporting the participation of laymen andwomen in criminal proceedings, i.e, thedemocracy principle, the quality ofjurisprudence and the popular educative
effect6.
A. Democracy Principle
By acting as a lay judge, the ordinary
citizen can take part in the dispensation ofjustice and obtain experience of what
happens in the deliberations room as well
as of the difficulties, doubts and even theconflicts of conscience that may arise incoming to a just decision. Co-responsibility
for the decision given counteracts thecriticism that might otherwise easily arise,
namely that judgements are delivered“from an ivory tower”7. Nevertheless, when
considering this aspect, it must not be
forgotten that laymen and women have thesame statutory duty as professional judges
to uphold the secrecy of judicial
deliberations, i.e, to remain silent about thecourse of deliberations.
6

On this see Kühne, ZRP 1985, p.237, p.238

116

By contrast, the following arguments areused to controvert this. Assuming thatlegal professionals articulate their ideas ina manner incomprehensible to laymen andwomen, lay judges would have to rectify
this by self-confidently posing further
questions. But, so the argument goes, thiswould be rather unlikely since lay judges
are mostly only passive participants andthey are overburdened by the task of
examining the professional judge’s proposal
for a decision11, especially as a lay judge
does not have a command of specialist legal
terminology.
Against this backdrop, there is a needfor more intensive discussion of thequestion of whether the sense of justice thatthe lay judge brings to bear and their senseof plausibility are suited to improving the
7

cf. LR Schäfer, ibid., margin reference 8.
cf. Kühne, ibid., p.238.
9 cf. LR Schäfer, ibid.
10 cf. LR Schäfer, ibid.
11 cf. Volk in: Festschrift für Dünnebier, 1982, p.373,
p.377; Casper-Zeisel, Der Laienrichter im
Strafprozeß, 1979, p.84.
8

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
quality of jurisprudence.
C. Popular Educative EffectFinally, the use of lay judges is also
linked to the expectation that these judges
will increase people’s acceptance of court
decisions, that they will improve popular
legal knowledge, hence contributing toinner appreciation of criminal law norms
and, at the same time, that they will havea general preventive impact12.
But critics opposed to this notion saythat this effect could only be achieved if
lay judges were to be active in effective
instruction of the public outside their court
activity; however, this is said to be notnormally the case 13. Judging from myprofessional observations over a period of
more than 10 years, this is negated by thefact that lay judges consistently performtheir duties with great eagerness and pride
so that we can assume that there is
feedback in the lay judge’s family and intheir circle of friends and acquaintances.
Whether, however, lay judges enjoy morecredibility and have greater power of
persuasion than professional judges - whoare similarly in a position to report on theirexperience - must remain an open question.
IV. WHO CAN BECOME A LAY
JUDGE?
A. General Prerequisites
Section 31, second sentence, CCL
stipulates that a lay judge must possess
German nationality. If a non-German lay
judge takes part in criminal proceedings,
the bench will not have been properly
constituted with the result that this will
present an absolute ground for an appeal
on law14.

Seen against the background of the large
number of foreigners whose lives have been
centred in Germany for a considerable
length of time, and who are largely
integrated in German life, but who shy
away from acquiring German nationality
for a variety of reasons, the question is
being discussed as to whether nonGermans are to be admitted to the office oflay judge as well15. Hence it has currently
been suggested that where a foreigner has
lived in the country for a specified lengthof time, has the necessary linguisticcompetence and fulfils the personalprerequisites, s/he should be admitted as
an honorary judge16. Grounds for admitting
foreigners as honorary judges are said tobe: integration of the foreign populationand greater acceptance of court
jurisprudence.
Admittedly, the fact that a certain
integrative effect may follow from such ameasure must not be overlooked. But it
seems clear that an integrative effect would
probably only arise in relation to those on
whom the office of honorary judge had been
conferred.
However, there are misgivings about theassumption that court jurisprudence would
enjoy greater acceptance as a result ofparticipation on the part of foreigners. This
would only be possible if, in individual
cases, special lay judges from a specificregion could be chosen for a particulardefendant, i.e. Turkish lay judges for
Turkish defendants and so on. Apart fromthe fact that this would be linked to therisk of abuse and manipulation - which
would hardly be conducive to acceptanceof court jurisprudence - choosing lay judges
for specific individual cases is not feasible
14 cf. Section 338 no. 1 StPO; cf. LR Schäfer, 24thed., Section 31 margin reference 4.
12 cf. Kühne, ibid. with numerous references.

15 cf. Röper, DriZ 1998, p.195; Jutzi, DriZ 1997, p.377.

13 cf. Kühne, ibid., p.239.

16 cf. Röper, ibid.

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RESOURCE MATERIAL SERIES No. 56
seeing that only about 30% of the suspectedcriminal offenders found by the police in1997 did not have German nationality. In
the end, it is likely that in the future too
there will be no criminal courts composedof non-German lay judges17.
The question of whether a lay judge
should be male or female does not arise
because equality for women is alreadyanchored in the constitution (Article 3 of
the Basic Law). More than 70 years ago,
however, a speaker at the German
Congress of Lawyers in Leipzig (in 1921)
expressed his emphatic opposition to
women acting as lay judges as follows:“The reputation of the courts calls forjudges for whom the defendant has
respect. In the light of the actual
conditions still pertaining here ... men
often do not yet have the necessary
respect for a woman. So admitting
women would mean lowering respect forthe court and therefore respect for thelaw. But this must be avoided
particularly at the present time...”18.
Another question to look at is thequestion of whether women actually makeup 50% of lay judges. Here we findinteresting results when we compare
benches handling matters relating toadults with those handling youth matters.
Whereas women at courts handling adultmatters were under-represented(compared with their share of the
population), accounting for a figure of about
30% in 1975, of about 20% in 1981, of about
10% in 1989 and, in 1997, of just 3%. The
result is quite different in respect of lay
judges at youth courts: here women are alittle over-represented - in 1975 by about
6% and in 1997 by about 1%.

The almost equal composition of the Jury
Court for youth matters is based on theYouth Courts Law; there section 33
provides that a man and a woman should
be brought in as lay judges at every mainproceeding conducted by a bench.
Parliament assumed that women, in theirrole as mothers and rearers of the young,would generally be able to understandyoung criminal offenders better and would
be more likely to choose the appropriate
sanction for the wrong committed. In
actual fact, there are female lay judges
particularly at the youth courts who arestrongly committed in the educative sense
as teachers, social workers or persons
responsible for training others.
So as to ensure that lay judges have thenecessary experience of life, the Law
prescribes a minimum age limit of 25 years(section 33 no. 1 CCL). Since most citizens
are already pursuing an occupation at thisage, they will usually have a general
understanding of the life situations to be
adjudicated in criminal proceedings. On
the other hand, the maximum age limit of
70 years is designed to ensure that people
who are no longer capable of matching up
to the physical and mental rigours of theoffice of lay judge are not appointed to that
office19.
Familiarity with local conditions (section
33 no. 3), as required by the law, allows
regional views regarding the importanceand circumstances of a criminal offence tohave some influence on the judgement20.
It seems obvious that that a prospective
lay judge must be in full possession of theircivil rights and must be eligible to holdpublic office, if s/he is to be appointed tothe office of lay judge (cf. section 32 no. 1).

17 cf. Wassermann, NJW 1996, 1253, 1254, Jutzi, DriZ

19 cf. Schäfer, ibid., Section 33 margin reference 1.

1997, p.377.
18 cf. von Hasseln, DriZ 1984, p.12, p.14.

20 cf. Benz, Zur Rolle der Laienrichter im Strafprozeß,118

1982, p.67.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
B. Grounds for Exclusion
To prevent incompetent or unsuitablepeople from holding the office of lay judge,
the Law makes provision for a number ofgrounds for exclusion. People who havebeen sentenced to a term of imprisonmentof more than 6 months’ duration forcommission of an offence with intent are
excluded, and so are those in respect ofwhom investigation proceedings are
pending for an offence that might lead toloss of eligibility to hold public office(section 32 nos. 1 and 2).
Section 33 no. 3 (restriction of disposition
by virtue of a court order) refers to all casesof restricted disposition in connection withproperty as a whole, as with all persons
deprived of legal capacity on account ofm e n t a l i l l n e s s , m e n t a l d e f i c i e n c y,
prodigality, alcoholism or drug addiction,or with those placed under temporary
guardianship21.
Finally, the cases of unsuitability on the
ground of a person’s occupation (section 32
nos. 1 to 6) are also of interest. This isdesigned to avoid taking people performing
functions that are important in public life
away from their full-time work, as well as
to avoid tensions between defendants andlay judges which might lead to mutual
prejudices as far as people working in theadministration of justice are concerned22.
C. Grounds for Refusal
The office of lay judge is admittedly anhonorary one (section 31, first sentence,
CCL) but selection for this office isnevertheless a duty from which the person
concerned can obtain an exemption only on
the strict conditions laid down in section
35 CCL. The following persons can refuse
appointment to the office of lay judge:
21 cf. LR Schäfer, ibid., Section 32 margin reference11.
22 cf. Benz, ibid., p.70.

• Members of the German Federal
Parliament and Federal Council, ofa Land Parliament or of a second
chamber;• People who, in the preceding term ofoffice, performed the duties ofhonorary judge for 40 days or who are
already performing the duties ofhonorary judge;• Members of the medical professions;• People who have reached the age of
65 years or who will have done so at
the end of the term of office.
An additional case for exemption has
recently been introduced: it covers thosecases where acting as a lay judge would
seriously endanger the economic existenceof the person concerned or of a third person.
It is true to say that cases of exemption
are usually already taken into accountwhen the list of candidates and lay judges
is being drawn up; they are otherwise only
recognised if the lay judge concerned
asserts them within one week after s/he has
been informed of their assignment. Where
such grounds arose or become known later,
the time limit shall start to run from thattime (section 53 subsection 1 CCL).
D. Selection of Lay Judges
Lay judges are selected every four years.
The Regional or Local Court director
determines the required number ofprincipal and assistant lay judges(substitute lay judges) for the Jury Courts
and Criminal Chambers on thepresumption that principal lay judges will
not be brought in more than 12 times onsitting days every year, and s/he will informthe municipalities of the figures allocatedto them. Pursuant to section 36 subsection
1 CCL, the municipalities draw up uniform
lists of lay judge candidates for the Local

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RESOURCE MATERIAL SERIES No. 56
Court and the Regional Court. Candidates
can be nominated by parties and charitableassociations, although any interested
citizen can indicate this to their municipal
administration. In spite of the obligation
under section 36 subsection 2 CCL to takerepresentative account of all populationgroups, this means that predominantly
politically active members of themunicipality - i.e, mainly middle-classpeople - are proposed for selection in linewith the ratio of party representation in
the municipal bodies23. If there are notenough candidates, municipalities
occasionally take their candidates for thelist from the register of residents inaccordance with the principle of random
selection24.
The municipal council approves by 2/3
majority the list of lay judge candidates
from the preliminary lists of candidates.
The list should contain at least twice as
many names as the number of persons
determined by the President of theRegional Court or of the Local Court(section 36 subsection 4 CCL). Since it
seems wholly impossible in cities with listsof candidates containing about 2,5000
names to “select” individual persons in thesense of weighing up the personal
characteristics of individual candidates,
candidates for the office of lay judge areoccasionally selected by mere counting or
at random, and are then approved by 2/3
majority25.
After the list has been displayed inpublic for one week (section 36, 37, 38 CCL)
the lay judge selection committee, set up
at the Local Court, will select the lay judges
for the next term of office from this list.
The same applies to lay judges for the23 cf. Kühne, ZRP 1985, p.237, p.238
24 cf. Lieber, Der praktische Ratgeber für Schöffen,

1st ed., p.86.
25 cf. Jasper, MDR 1985, p.110, p.111.

120

Criminal Chambers (section 77 CCL).
There is special selection procedure forlay judges at the Youth Courts. In order toobtain citizens who have a special
educational aptitude or who have had longexperience in the education of young
people, the lists of candidates for the officeof lay judge are drawn up by the youth
welfare committees, bodies set up at themunicipality whose members are experts
on matters of child and juvenile education.
The Youth Court judge will take the placeof the Local Court judge at the lay judge
selection committee.
V. RIGHTS AND OBLIGATIONS OFLAY JUDGES
As mentioned above, every citizen who
has been appointed as a lay judge must
perform the duties of this office properly,
even where it is considered burdensome inthe circumstances of the individual case.
Pursuant to section 56 CCL, the judge isentitled to impose a regulatory fine on alay judge who, without sufficient excuse,fails to appear at sittings on time or who
seeks to evade their responsibilities in someother way, e.g, by refusing to participate
in a vote26.
This provision is not without its
problems, considering that section 30 CCL
provides that during the main proceedings
the lay judge exercises judicial office andenjoys the same voting rights as theprofessional judge. The equality of lay
judge and professional judge establishedunder the aforementioned provision isdefinitely restricted by granting theprofessional judge explicit rights over lay
judges.
A. Participation of Lay Judge in theMain Proceeding
In accordance with the aforementioned
26 cf. Schäfer, ibid., Section 56 margin reference 3.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
provision of section 30 subsection 1 CCL,
during the main proceedings the lay judges
fully exercise judicial office and enjoy thesame voting rights as the professional
judges and, as a matter of principle, theyalso participate in decisions to be taken
during the main proceeding.
Before dealing with the decision-making
powers of professional judges and lay
judges, it would seem to be indispensable
to describe the function of the Criminal
Court judge in Germany, which is notcomparable to the function of the Criminal
Court judge in English-speaking systems.
In the adversarial system, as a matterof principle, the court has to make its
decision solely on the basis of the evidence
presented to it by the parties. This system
is based on the idea that the court
proceedings should be structured in theform of a dispute between two equal
adversaries before an arbiter who also has
to decide the outcome of the duel. If theparties agree to resolve their dispute by thenotorious “plea bargaining”, or by reducing
the charges from a serious crime to a lessserious offence, the judge will usually bebound by such an arrangement. In thisdispute, the public prosecutor is not an
impartial authority, but party to theproceedings. This is the role imposed onthem. The judge is, so to speak, only theintermediary or arbiter who sees to it thatthe parties stick to the rules of the game.
Even if the court would want to learn thewhole truth, it has no procedural means totake action to this effect, given thedispositive powers of the parties. In fact,
the court might have to decide on the basisof insufficient evidence.
The system operated in Germany isdifferent. When the police or the publicprosecution office in Germany learn abouta criminal offence, they are obliged toascertain the facts thoroughly, i.e, they also

have to investigate any exonerating
circumstances. Where an indictment ispreferred, this duty to investigate is all themore incumbent upon the judge (section
244 subsection 2 Code of Criminal
Procedure). This provision reads as follows:“In order to determine the truth, thecourt shall, upon its own motion, extend
the taking of evidence to all facts andevidence which are important for thedecision.”
The duty to investigate extends to all
facts which need to be proven, no matter
whether these facts are directly or
indirectly relevant to the question of guilt,
to the question of legal consequences or toprocedural questions. So the duty toinvestigate applies, in particular, also withrespect to the facts which are relevant to
the determination of sentence, no matter
whether these facts concern the offence or
the offender.
The duty to investigate is first of allincumbent upon the court. It extends inevery direction, in favor of the defendant
and against them, and it is not subject toany motions, suggestions or requests by theparticipants. So it can happen that the
court will proceed to take exonerating
evidence even against the defendant’s willor to investigate incriminating
circumstances, even if the publicprosecution office shows no interest. Even
where the defendant and the publicprosecutor both agree to dispense with thetaking of further evidence, the court will
not be released from its duty to investigate.
As has been outlined before, during themain proceedings the lay judges perform
judicial functions to the full extent and withthe same right to vote as the professional
judges; this means that when I am
speaking of “the court” this includes the lay
judges as well. They participate in any

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RESOURCE MATERIAL SERIES No. 56
order, decision and voting unless the law
expressly assigns certain tasks to thepresiding judge or the professional judges.
The most important decision is a
judgement which consists of a conviction
and a sentence, as well as other decisions
ending the proceedings, such as
termination of proceedings. It is important
to note that the conviction and a sentence
are pronounced in one single decision, likethe following: “The defendant is guilty oftheft. He is sentenced to 6 months
imprisonment. He is ordered to pay thecosts of the proceedings.” Orders preceding
the judgement, such as a decision on a
motion for the admission of evidence, arealso made in co-operation with the lay
judges.
In order to be sufficiently informed - withregard to the court’s official duty toinvestigate as mentioned before - the lay
judge is entitled to question the defendantas well as witnesses and experts (section
240 subsection 2 Code of Criminal
Procedure). The lay judges put questions
directly; they only have to ask the presiding
judge formally to be granted the right tospeak. They are not obliged to disclose to
the presiding judge the content of thequestion in advance or to ask forpermission to pose questions. In practice,
however, lay judges seldom make use of
their right to ask questions. Such restraint
on the part of lay judges is something thatthe professional judges do not mind inpractice. Awkward, ill-considered or even
unfair questions from lay judges may
considerably impair the proper course of
criminal proceedings. For instance, a lay
judge asking the defendant why s/hedoesn’t finally confess since the evidence
available provided sufficient proof mightlead to a defence counsel motion ofchallenge on grounds of bias. If suchmotion is successful, the lay judge will be
excluded from the proceedings, whichmeans that the trial has to be started again

122

unless a substitute lay judge is available.
A similar risk for the course of the trial liesin thoughtless remarks from lay judges
concerning the outcome of the proceedingsin the presence of defence counsel or publicprosecutors. Against this background, it
is easily understandable that the
professional judges prefer lay judges who
do not ask questions in the main proceeding
and refrain from making any remarks
concerning the proceedings - whether in themain proceeding or outside. It is obviousthat this is not compatible with thefunction of the lay judge to contribute to
the decision-making in the same way as aprofessional judge.
VI. DELIBERATIONS AND VOTING
In the deliberations and in the voting,which usually follow the hearing, lay
judges and professional judges have thesame vote. The manner in which thedeliberations take place is defined bystatute in two rules only (section 194 CCL):• The presiding judge chairs thedeliberations, poses questions andcollects the votes.
• Differences of opinion concerning the
subject, the formulation and the orderof questions or concerning the resultof the voting are decided by the court,
i.e, the professional judges and thelay judges together.
Usually the secret deliberations startwith the question as to which facts areproven. At the Local Court, the presiding
judge will give their version of the facts anddiscuss it with the lay judges; at theRegional Court, where two or threeprofessional judges are involved, thisfunction will in most cases be performedby the rapporteur.
Subsequently, the deliberations will deal
with the question as to which of the facts
constitute the elements of an offence, i.e,

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
which offence has been committed. Thenthe court will discuss any mitigating or
aggravating circumstances. Finally - andthis is more often than not highly
controversial - the sentence will be
determined.
If consensus cannot be achieved on
individual points, formal voting is required.
The order of voting is regulated by section
197 CCL: first the youngest lay judge will
cast their vote, then the older one. The
professional judges vote after them, first
the rapporteur, the others in the order of
their length of service, the youngest first.
The presiding judge is the last one to casttheir vote. This is meant to ensure thatthe lay judges do not feel inhibited before
the professional judges, or the younger
judges before the older ones.
A n y d e c i s i o n t o t h e d e f e n d a n t ’s
disadvantage concerning culpability andthe legal consequences of the offence
requires a two-thirds majority (section 263
Code of Criminal Procedure). This meansthat the two lay judges - at least in theory- can take advantage of their power not onlyat the Local Court but also at the Regional
Court against the three professional
judges. However, in my experience of morethan ten years at various penal chambers,
I have never seen lay judges actually takethis option. This is certainly due to thefact that the presiding judge, who chairs
the deliberations with the lay judges,
performs an advisory function concerning
legal issues and can skilfully steer the
result27. This applies in any case to the
Local Court; the situation is different withthe chambers of the Regional Court: here
it may indeed happen that a “stubborn”
professional judge and a lay judge enforce
a more lenient decision.
Since the lay judge as well as theprofessional judge have to preserve secrecy
regarding the deliberations - also after theterm of service has ended - (section 44
subsection 1 German Judiciary Act) suchprocesses are hardly ever discussed inpublic, and for good reason. The secrecy ofdeliberations ensures open discussion in
the administration of justice28, so that noprofessional or lay judge needs to fear that
their opinion might be revealed to the
public. Hence, under German law, publicannouncement of a dissenting vote is notallowed. An exception applies to theFederal Constitutional Court, the highest
German court. If a lay judge discloses thesecrecy of deliberations, a regulatory fine
may be imposed pursuant to section 56
CCL.
VII. SHOULD LAY JUDGES BEDISPENSED WITH?
Meaningful participation of lay judges
in the administration of criminal justice isconceivable only if they are capable ofassisting the professional judge in theapplication of the law. Since lay judges are
barred from inspecting the files, they can
only rely on the result of the oral hearing.
But they will not be able to gain an
adequate basis for decision-making unlessthe professional judge directs theproceeding in such a way that it is generally
understandable and, if necessary, also uses
recesses in order to explain technical terms
to the lay judges, comment on expert
opinions or recapitulate the taking ofevidence step by step29.
As my own experience has shown, it isextremely rare for a lay judge to contributeto the clarification of facts, unless forexample when s/he happens to have specificknowledge of the subject or where s/he isable to contribute professional experienceor experience of life in the field concerned.
27 cf. Benz, ibid., p.84.
28 cf. Schmidt-Räntsch, JZ 1958, p.329.
29 cf. Benz, ibid., p. 90.

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RESOURCE MATERIAL SERIES No. 56
But it would nevertheless be short-sighted
to dispense with the participation of lay
judges. An empirical and psychologicaltheoretical study of existing law concerning
lay participation in criminal jurisdiction
has shown that lay judges can indeed copewith the tasks assigned to them30.
There is no qualitative difference
between the decision-making processes oflay judges and those of professional judges;
the process of judging by lay judges is arational one, too. It is governed roughly
by the same factors as the process of
judging by legally trained persons and it is
not affected, to any major degree, by
sympathy for, or dislike of, the defendant.
In addition, lay judges do not have any
stronger tendencies towards extremely
harsh or lenient decisions than therespective presiding judges. The attitudeof lay judges, therefore, is not appreciably
more repressive or more lenient than thatof presiding judges.
Nor is there anything wrong with theability of lay judges to understand what isgoing on. As a rule, lay judges are able tofollow an average main proceeding easily.
Most lay judges are able to understandwhat is happening in the main proceeding
and what it is all about. There are certain
problems of comprehension, though, which
lay judges may have and which may beunderstandable in the particular case, butwhich must not be ignored. Indeed, theyoccur too often simply to be tolerated. A
classical problem, for example, is theparticipation of lay judges in cases
involving economic offences. In such cases,
people with no special training will find it
difficult, in particular, to comprehend
economic processes31. Although there are
no practical approaches in sight so far to30 cf. Rennig, Die Entscheidungsfindung durch

Schöffen und Berufsrichter in rechtlicher undpsychologischer Sicht, 1993, p.570 et seq.

124

solve this specific problem, the key
statement remains true, namely, that
acting as a lay judge, in general, is notasking too much of the person concerned.
Nevertheless, it seems advisable for lay
judges to be given some assistance in thefulfilment of their tasks-whether throughspecific information to be provided by theprofessional judge or through regulartraining32.
For lay judges it is very important that
judicial decisions should reflect what the
public feels is right or wrong. This is what
they regard as the main purpose of theiroffice. During the deliberations, therefore,
most lay judges strive to voice popularconvictions of what is right or wrong32. As
the results of the aforementioned study
show, this leads rather frequently todifferences of opinion between lay judges
and professional judges33. Surprisingly,
however - and this is also what I haveexperienced - it rather seldom happens thatlay judges exert influence with respect tothe outcome of proceeding. The question
as to the reasons for this must be left open;
it would seem possible that a quite
substantial number of lay judges
endeavour to avoid disagreement with thepresiding judges34.
Lay judges are often purported to behighly susceptible to media influence.
According to the aforementioned study,
which is based on interviews withprofessional judges, there is no indicationthat the attitudes of lay judges are
influenced by public or published opinion
to any extent worth mentioning. It is true,
31 cf. Katholnigg, Wistra 1982, p.91; Michaelsen,

Kriminalistik 1983, p.445; Wassermann, JVBI.
1970, p.145, p.148.
32 cf. Rennig, ibid., p.572.
32 cf. Rennig, ibid., p.572.
33 cf. Rennig, ibid., p.573.
34 cf. Rennig, ibid.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
though, that it cannot be ruled out
completely that media reports may havesome effect on the opinions of lay judges,
but for the same good reason this could also
be said of professional judges35. In any caseit should be noted that the belief that lay
judges are highly susceptible to media
influence must finally be abandoned36.
In conclusion, it should be pointed outthat the participation of lay judges in theadministration of criminal justice has moreadvantages than many of its opponents
expect. In addition to increasing popularconfidence in the justice system, in ensures,
above all, that criminal proceedings - and,in particular, the verdict - remain easily
understandable and comprehensible toeverybody. This seems to be all the more
important as criminal law, after all, is amatter not only for the professionals
involved, but for society as a whole.37

35 cf. Rennig, ibid.
36 cf. Rennig, ibid.
37 cf. Rennig, ibid.
38 cf. Geerds, Schiedsmannzeitung 1980, p.86.

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COMMUNITY POLICING IN THE CONTEXT OF SINGAPORE
Jarmal Singh*
I. INTRODUCTION
Singapore has grown in many ways overthe last 40 years to become a city-state thatenjoys a high level of economic growth,
political stability and most importantly, a
sense of safety and security. It was not asmooth journey, as the country experienced
its turbulent periods in the 1950s and the1960s, characterised by problems ofpolitical instability, communist insurgency,
secret societies, unemployment andcommunal riots.
Today, Singapore’s crime rate is low byinternational standards and has declined
successively for 9 years from 1989 till 1997.
Crime rate has only edged up slightly by
5.2% in 1998 when the entire South East
Asia region plunged into financial andeconomic crisis. The rise was mostly
attributed to theft of handphones and cash
cards, and immigration offences.
Amidst the rapid modernisation ofsociety, much of the transformation fromthe old crime-ridden town to a safe city
today can be attributed to the Singaporean
government’s tough stance towards
criminals and criminality in the form ofstrict laws and heavy penalties.
Apart from the strict laws and rigorous
enforcement, the improvement of the socialand economic situation helped to control
crime. Over the past 15 years, theSingapore Police Force (SPF) has made two
significant innovations in the area ofpolicing in light of social and economicchanges. The first being the introduction* Deputy Director Operations, Police Headquarters,
Singapore Police Force, Republic of Singapore.

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of a community-based policing strategy
through the Neighbourhood Police Post
(NPP) system in 1983 and the shift towards
community-focused policing through thecreation of Neighbourhood Police Centres(NPCs) in 1997.
Prior to 1983, policing strategies werereactive in nature. Police services weredispensed centrally, mainly through the 8
police stations existing at the time. Eachpolice station served a very large area andthese areas were patrolled by cars.
Impacted by urbanisation, social andeconomic transformations, the police were
faced with rising crime and a loss of publiccontact and support. The SPF thenrealised the importance of fostering closer
police-community relations in an effort toprevent crime. By re-orienting a patrol
strategy that was skewed towards the
motorised mode to one that was community
oriented and emphasised foot patrol, it isfelt that the police could create aheightened sense of presence and visibility
to deter crimes.
The Neighbouhood Police Post (NPP)
system, adapted from the Japanese Koban
System, was introduced in 1983. Eight
NPPs were set up as a pilot in aconstituency, with a view to assess theimpact and success of the system in
Singapore’s environment. The trial was a
success. By 1993, the entire set of 91 NPPs
was set up throughout the island. This was
accompanied by falling crime and increased
sense of safety and security amongst the
public.
However, in view of rising expectationsof both the public and police officers, andthe need to address new challenges arising

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
from various developments, the police have
now embarked on revamping the NPP
system into the NPC system. The aim of
this paper is to share the SPF’s experiencein its adoption of community policing as theprincipal policing strategy. In addition, the
NPP and NPC systems, which are theoperating structures to carry out thisstrategy, will be discussed.
II. CONCEPT OF COMMUNITYPOLICING
The basic premise of community policing
is that the police and the members of the
public should work together to eliminate,suppress and prevent crime in society. Thisis an extension of the realisation that crime
is a community problem created by societal
issues and failures, and not just a police
issue or an indication of its effectiveness.
Police effectiveness and public order cannot
be greatly enhanced unless the community
can be persuaded to do more for itself.

and effects within the society. It actively
seeks to mobilize the various sections of thecommunity such as public organizations,private firms, governmental agencies andthe general population in crime
elimination, prevention and control. By
educating the community in these areas,
community policing hopes to reduce crime
rates and at the same time, stimulate thesociety to self-poIice.
III. COMMUNITY POLICINGVERSUS TRADITIONAL POLICING

Community policing seeks to inform andeducate the public about crime, its causes

As opposed to the traditional reactive,l e g a l i s t i c c r i m e f i g h t i n g s t r a t e g y,community policing advocates acommunity-oriented policing strategy. It
is based on the assumption that the
problem of crime cannot be adequately met
with law enforcement. Instead, itemphasizes proactive policing tactics andthe mobilization of the community in theareas of crime elimination, prevention anddetection. The key differences between
Community Policing and Traditional
Policing are as listed below.

Traditional Policing

Community Policing• Reactive to incidents.

• Pro-active in solving community related
problems. Discuss possible solutions with thecommunity.

• Roles of police officers are limited to incident
response.
• Random patrols in cars to respond to crimes.

• Roles of police officers are broadened to include
identification and solving of problems.

• Focus on internal resources.
• Limited linkages with the commuity.

• Leverage on community resources. Police workwith extensive co-operative links with thecommunity.

• Information from the community is limited.

• Information from the community comes frommany sources.

• Supervision is control-oriented; authoritative
style or command and control style.

• Decentralisation of authority and autonomy
given to front-line officers.

• Rewards based on solving of cases.

• Performance evaluation rewards based onservice activities; crime prevention, satisfaction
and sense of safety of the community.

• Visible patrols to interact with the community,
i.e foot patrols, bicycle patrols, scooter patrols.

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RESOURCE MATERIAL SERIES No. 56
IV. SPF’S ADOPTION OF THE
COMMUNITY POLICINGSTRATEGY
The key strategic driver for the SPF’s
adoption of the community-oriented
policing model was to establish andleverage community support for our own
law enforcement policies and strategies in
the face of a changing operating
environment. The key changes in theoperating environment were as follows.

The SPF could no longer simply rely on
the 8 divisional police stations for efficientand speedy service. There was a pressing
need to develop a new, efficient response
system that could cope with the changing
operating environment and at the sametime, offer opportunities for meaningfulpolice-public interaction in a densely
populated, urban environment. This
spurred the SPF to develop thedecentralised system of the NPP to serve
the needs of the urban population better.

A. Increasing Crime Trend (1974 to
1983)
Firstly, although the crime rate inSingapore was low by world standards,
there was a disturbing trend of an overall
increase in all types of crime (except violent
property crimes) for the period 1974 to
1983. Analysis revealed that 70% of suchcrimes were house-breaking, theft ofvehicles, and robbery which could havebeen prevented. The promotion ofcommunity-oriented policing would help
the SPF to battle crime, as improved policepublic relationships should result in ahigher level of crime prevention awarenessand greater public co-operation with thepolice.

C. Rising Public Expectations
Thirdly, the general population wasincreasingly affluent and educated. This
raised two challenges for the SPF. One wasto meet rising public expectations of thepolice service. The other was stiffcompetition from the public and private
sectors for quality recruits. The nature andprospects of police work was deemed by theyounger generation as comparatively
unappealing. Community-oriented
policing addressed these two challenges byraising the quality of police services
through attracting better quality officers
seeking job challenge and satisfaction in
the enhanced job scope.

B. Change in Population
Distribution
Secondly, the population distribution
was changing. In the 1960s, before thecreation of the Housing Development
Board (HDB), the bulk of Singapore’s
population was concentrated in the centreof the city. However, as a result of the HDB
success in providing low cost public
housing, about 84% of Singapore’s
population shifted from the city area to newtowns and estates all over the island.
These new public housing estatescomprised mainly of high rise buildings andthese lessened the opportunities for the
public to interact with the police.

D. Learning From the Japanese
Koban System
At this stage, the SPF was in search of a
successful community policing model. Thiswas found in the form of the Japanese
Koban (or police post) system. In Japan,
the high crime clearance rate of 60% was
due to the trust and co-operation that the
public had with the police. Statistics also
indicated that 80% of the Japanese public
readily provided information to help thepolice arrest offenders. The desire to learn
from the Japanese experience and toemulate the success of the Koben system
led to the institutionalisation of community
policing as the new policing strategy andphilosophy of the SPF.

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112TH INTERNATIONAL TRAINING COURSE
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V. THE NEIGHBOURHOOD POLICEPOST (NPP) SYSTEM
A. Study TeamIn November 1981, a team of Japaneseexperts was invited to help implement the
Koban System in Singapore. The Koban
system was to be adapted for use in the
Singaporean environment, with varying
social settings and attitudes of the
populace.
With the recommendation of the Study
Te a m t o e s t a b l i s h o n e N P P p e r
constituency, 8 NPPs were first establishedon 1 June 1983 in the 8 constituencies in
one police division. The second phase of
implementation began with the setting upof several NPPs in two other police
divisions. Positive public response to the
NPP system lead to the acceleration of the
final implementation phase ending in
December 1994. There are now 91 NPPs
throughout the island. One division was
merged with neighbouring divisions so that
manpower saved could be deployed to thefrontline, to meet the needs of the new
system.
B. Purpose of the NPP system
The NPP system was implemented in
Singapore with the following objectives:• To i m p r o v e p o l i c e - c o m m u n i t yrelations in Singapore;• To prevent and suppress crime
through the co-operation of andsupport from the community; and• To project a better police image andwin the confidence of the public in thepolice with more community-oriented
services.
C. Infrastructure / Location
NPPs are the most familiar police
contacts of the community within theirneighbourhood. They are kept small to bepersonal, but big enough to make an impact

in the community. The area of coverage ofeach NPP is based largely on the politicalboundaries. The average population
covered by each NPP is about 35,000.
Being the most familiar police contacts,
the NPPs have been located where theirservices will be demanded most. Factors
such as the number of households andpopulation are taken into consideration insetting up and locating NPPs, to reach out
to the widest possible section of the
population.
D. Oganisational Structure
A NPP is manned by a team of about 12
to 16 police officers who provide round-theclock service by working in 3 eight hour
shifts. The Deputy Officer-in-Charge (OC)of the NPP, is tasked to lead and manage
the NPPs with guidance and support
provided by the operations staff units inthe land division headquarters.
NPPs are also grouped in fives or sixes
and placed under the charge of an OC NPP
for better management and coordination
between the different shifts. This allows
for the transfer and movement of officers
among NPPs in the same group. Officers
in neighbouring NPPs supplement eachother through joint night patrols andcovering the duties of absent officers.
Flexible working hours and shift have also
been introduced in the NPP system.
E. NPP Function & Duties
The establishment of NPPs enables thesmooth execution and running of various
functions and activities. The key functionsof the NPPs, which ultimately must result
in better police-community relationships,
more arrests and effective crime
prevention, are as follows:• High profile police presence (or highvisibility patrols)• Provide efficient counter service

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RESOURCE MATERIAL SERIES No. 56
•
•
•
•
•

Respond to incidents
House visits
Crime prevention
Community liaison
Security coverage/crowd control
dutiesbetween the residents and the NPP officers
not only improve police-community
relations, but also lead to increased public
co-operation and support for the SPF’s
efforts at preventing and suppressing
crimes in Singapore.

F. High Visibility Patrols
NPP officers are required to patrol in thearea under the jurisdiction of their NPP.
The officers conduct foot patrols, bicycle
patrols and scooter patrols so as to be able
to interact with the community andenhance their rapport with the residents.

J. Crime Prevention
The NPP also function as a crime
prevention centre where crime prevention
advice is given and where services such as
the engraving of names on personal
property is provided free for the residents.
To enhance the community’s awareness oncrime prevention, the NPP officers conduct
crime prevention exhibitions, school talks,crime risk surveys, as well as the
distribution of crime prevention pamphlets
and newsletters to the residents.

G. Counter Services
NPP officers provide a wide array ofcounter services in order to attract thecommunity to visit the NPP and thusincrease the opportunity of interaction withthe public. The counter services provided
by the NPP officers are:
•
•
•
•
•
•

Lodging of Police Reports
Traffic Accident Reports
Lost & Found Reports
Change of Address
Reporting of Deaths
Enquiry

H. Incident Response
NPP officers attend to non-urgent cases
only. Urgent cases are attended to by theFast Response Cars (FRC) from the Land
Divisional Headquarters. However, NPP
officers will still respond to urgent cases toassist the FRC officers.

K. Community Liaison
Before the NPP system was
implemented, there was no dedicatedofficer assigned to liaise with communityand grassroots organisations. With the
NPP system, NPP officers were assigned
to attend meetings of organisations in theirareas of jurisdiction and this improved
markedly the co-ordination and cooperation between the police and thecommunity organisations. The NPP
system also accelerated the formation of
Neighbourhood Watch Groups (NWG) for
residential areas and Crime Prevention
Committees for industrial estates andshopping complexes.
VI. RESULTS OF THE NPP SYSTEM

I. House Visits
NPP officers are also required to conduct
house visits to residents within theconstituency. The rationale of such house
visits is to enable the NPP officers todevelop rapport with the residents. These
House visits also help the residents to get
to know the NPP officers personally as wellas the services provided by them and the
NPP. The close rapport and interaction

130

The introduction of community policing
through the NPP system has certainly
brought revolutionary changes within therealm of policing. Firstly, it has changed
the SPF’s from a reactive or incident-driven
policing approach to a proactive approachthat attempts to prevent the possibility ofcrime before it can occur. The community
is now mobilised to play an important role

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
in crime prevention.
Another effect of the NPP system is thedecentralisation of police functions fromthe divisional level to neighbourhood level.
The police at the frontline are more
empowered with greater autonomy anddiscretion to discharge their duties. This
has expedited police response to crime
incidents and improved quality service.
The decentralisation principle has alsoenabled the police to penetrate deeper into
the society and thereby effectively pre-empt
criminogenic conditions. It is possible forthe police to tap valuable information about
the people and the conditions that are
causing criminality.
Community policing has shifted its
emphasis from car patrols to foot andbicycle patrolling. Together with house
visits, this has brought the police verymuch closer to the community. The
increased visibility of the police in theneighbourhoods has helped to deter crimes
and eliminate the general fear of crime insociety. This is also noted in the decreasing
crime rates each year.
With community policing, the public has
also become more aware of its role andresponsibility in crime prevention anddetection. The number of public-assistedarrests had steadily increased from 33.6%
in 1992 to 34.8% in 1993 and 36.1% in 1994.
That is about 1/3 of the total arrests made!
The close co-operation is not only reflectiveof the high level of public spiritedness but
also the evolving partnership between the
public and the police in crime busting. The
SPF has strengthened the trust of the
public in the police.
Two surveys conducted in 1987 and 1991
confirmed that:• NPPs have created more and closer

contact with the public;• NPP system has increased theconfidence of the general public in thepolice;• NPP system has had a positive
impact on the image of the police.
Community policing and the NPP
system has brought the police services tothe community, helped Singapore achievea low crime environment, and enabled
SPF’s to reach out to the public.
There is ample evidence that thecommunity policing strategy and the NPP
system in Singapore is a success. The 1996
Global Competitiveness Report ranks
Singapore the safest city in the world interms of its resident’s confidence that theirperson and property are protected.
VII. BUILDING ON THE
COMMUNITY POLICINGSTRATEGY
The NPP based system of community
policing has served the SPF well for 14
years from 1983 to 1997. In 1996, the SPF
initiated a review of its operational
strategy. The review was driven by therealisation that the future would not bebuilt through perfecting the past, no matter
how successful it had been. More
importantly, the SPF must ensure that thesuccess of the NPP system itself does not
become a limiting force that stifles growthand innovation in meeting new policing
challenges and public needs.
As the SPF enters the new millennium,
being the sole provider of policing services,
the organisation owes its fellow citizens tofurther improve the already low-crime
environment and strive to make Singapore
even safer than it already is. Policing must
be done smarter and more effectively than
before. It is also clear in the SPF’s vision
to become a strong service organisation by

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RESOURCE MATERIAL SERIES No. 56
making continuous improvement to work
processes to meet rising public
expectations. At the same time, the SPF
wants to offer every officer within theorganisation a more enriching job scopeand experience that stretches the officer’s
abilities and helps maximise theirpotential.
Since the implementation of the NPP
system, the SPF has retained its
traditional, reactive policing capabilities(namely, fast response patrols andinvestigation teams) in its 7 land divisions.
Only the 91 NPPs that report to thesepolice divisions have evolved along thedirection of developing community-based
policing capabilities.
Community-based policing has also beenrefined incrementally over the past 14
years. One recent innovation is thedoctrine of ‘problem-solving’, under which
NPPs initiate the resolution of certain
community law and order problems thatarise from simple systemic causes. The
problem-solving approach makes
community policing more effective because
it is proactive and pools the wholecommunity together in a concerted effort
to ensure a safe, peaceful and cohesivesociety.
An example of a good problem-solvingcase is that by Hong Kah South NPP. The
NPP used to receive many complaints
about coffee-shop patrons consuming beer,
after midnight, even when the coffee-shops
in question were closed. Residents
complained about the incessant noise
pullution, littering, vandalism (often
vulgar words written on walls), urinatingin public places, and fighting. The coffeeshop patrons’ unruly behaviour caused
sleep deprivation to the residents, dirtied
the neighbourhood and created a sense of
public unease (especially to young ladies
returning home late at night). Aware that132

repeated one-off responses to such
incidents is not an operationally effective
solution to the problem, Hong Kah SouthNPP adopted the following solution.
A. Co-operation with Coffee-shop
OwnersMindful of the need to maintain good
rapport and act in partnership with
community resources to resolve local
community problems, Hong Kah SouthNPP officers sought the co-operation of theowners of the problematic coffee-shops in
the following areas:(1) Stop the sale of beer and start
preparations to close half-an-hour
before the end of the stipulated
licensing time, so that ample time isgiven to the patrons to finish theirdrinks.
(2) Stack up the chairs and chain themup, before closing the coffee-shop.
(3) Remove all empty bottles from thetables to prevent their use as
weapons.
B. Dialogue Sessions with Coffeeshop Owners
Based on the recommendation of Hong
Kah South NPP, regular dialogue sessions
with the coffee-shop owners are conductedat the Division Headquarters. Besides
crime prevention advice and police
recommendations, there is also sharing of
good practices between the coffee-shop
owners. This is effective in exerting peergroup pressure on the owners ofproblematic coffee-shops to follow the good
example set by their counterparts.
The above measures were successful incurbing the problem. Residents now enjoy
restful nights, the neighbourhood ispristine in appearance, and a sense of peaceand security prevails.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
VIII. NEW OPERATINGENVIRONMENTThe SPF is expected to work in an
increasingly complex environment, withforces that affect community safety andsecurity arising from a multiplicity of
causes. These complex social ills arecharacterised by seemingly intractableproblems such as juvenile delinquency,
spousal violence, the link between
substance abuse and property crime, or thelaw and order problems posed by foreigners
working in Singapore.
The SPF’s traditional tool of effective
enforcement can no longer, by itself,
adequately address these challenges. The
doctrine of problem-solving, which istargeted at simple systemic causes, andanalysed and solved at the level of the NPP,
is also impotent in the face of higher-ordersocial dysfunction.
In addition, the SPF must continue tomeet the rising public expectations of its
service standards, as well as its ability toenhance safety and security. A recent
survey, commissioned by the Service
Improvement Unit (SIU), revealed that one
area where the SPF failed to provide highlevels of satisfaction, but which was highly
important to the public, was the ability ofthe police to help solve the problems thathave been brought to the attention of the
NPPs.
In October 1997, the SPF made anothersignificant and bold move to re-design the
NPP system in a bid to strengthen its
community policing approach, in light ofthe changing environment and factors. A
system that can carry the strengths of theprevious NPP system, like tapping on local
knowledge to solve crimes, and at the sametime can enable the SPF to grow andaddress key policing needs, ensures its
continued relevance. The Neighbourhood

Policing Centres (NPCs) system has beencreated to enhance the community policing
approach by:• Strengthening the SPF’s front-line
operating system;• Building a strong service
organisation;• Increasing community involvement
and responsibility for its own safety
and security; and• Optimising the value contributed byeach police officer to the policing
process.
IX. NEIGHBOURHOOD POLICECENTRESA. Changes to NPP System
In order to deliver decentralised, flexible,
integrated and community-focused
capabilities, the existing structure of land
divisions and NPPs will be modified. At
the centre of the new operating system is
the Neighbourhood Police Centre (NPC).
The existing seven police land division will
be reconfigured into six policing regions.
Reporting to each of these regionalcommands will be the NPCs.
NPCs will be the sole vehicle for frontline policing to ensure the community’ssafety and security. In the redesigned
system, NPCs will be accountable for the
total outcome of policing in the community.
A short summary of the key differences
between the NPP system and the NPC
system is given in the below figure.

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RESOURCE MATERIAL SERIES No. 56
NPP System

NPC System• Community policing post with limited services• One-stop total policing centre provding the fullrange of policing services• Disparity in workload due to electoral based
boundaries• More efficient pooling of manpower resources
to serve the community• General services to attract residents andestablish points of contact• Focused on services that are critical to safety
and security• Low value tasks and narrow job scope• High value, board job challenge, better quality
officers• Compartmentalisation of services with many
officers each performing a separate task
• Lower priority on proactive work

• Integrated service process with one NPC officer
handling the entire service process• Community-based policing• Community-focused policing

B. One-Stop Total Policing Centre
Today, the areas policed by NPPs varysignificantly. Some NPPs have jurisdiction
over areas with 2,000 households, whileother NPPs serve up to 5,000 households.
NPCs will however serve areas of similar
residential population sizes.
On average, each NPC will serve about
100,000 residents. The size of each NPC
is kept to between 100-120 officers, withadministrative overheads, such as
personnel and logistical support borne by
the Regional Command Headquarters. It
also ensures that the NPCs are not so large
as to present a cold and impersonal image
to the public.
A total of 32 NPCs will be created by theyear 2001 to serve an indigenous
population of 3.2 million in Singapore.
NPCs, as centres of total policing, have avariety of policing options, ranging fromreactive patrols and investigations, to proactive policing activities. These 32 NPCs
islandwide will be supplemented by at least
another 66 NPPs, with each NPC
managing between 1 to 4 NPPs.
With the creation of NPCs, the current
91 NPPs would be re-distributed to achievea balance of easy accessibility to police134• Dedicated resources for proactive workcounter services for the public and an
optimal number of NPPs to be deployed in
the NPC system. The emergence of the
NPC as the sole vehicle for the provision ofpolicing services means that NPPs cease
to be sub-units of a larger police unit. The
officers manning each NPP will come fromthe NPC itself. NPPs therefore represent
service points only, with the deployment ofpatrol, investigative and pro-active policing
resources based on the overall needs of theentire NPC area of operations.
Each of the six policing regions will havea dedicated Regional Command
Headquarters to oversee police operations.
Six Regional Commands will replace theexisting seven police divisions. These
Regional Commands will comprise thecommand and support elements for theregion. They will also include specialist
investigation units, focusing on
investigations into serious crimes andother investigations likely to lead toprosecution in court. Each Regional
Command will house a NPC to serve as thefrontline service point for public
interaction.
1

A DGP is a development plan that defines andbuilds a particular township. In the plan, eachtown’s boundaries are clearly mapped out.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
C. Relationship to Development
Guide Plans (DGPs)
Unlike the current NPP boundaries
which are linked to political constituencies
that may change after a General Election,
NPC boundaries are based on Urban
R e d e v e l o p m e n t A u t h o r i t y ’s ( U R A )Development Guide Plan1 (DGP) areas forthe following reasons:(a) The DGP areas, being geographicallybased, provide additional leverage by
creating a sense of territorial
ownership for the community. This
will enhance the community’s
identity.
(b) Each DGP area also has an expressedvision, which further reinforces a
coherent identity for the communities
living within that area.
(c) DGP areas are permanent, unlike
electoral boundaries. Over time,
distinct identities can emerge fordifferent communities, without being
interrupted by changes inconstituency boundaries.
Each NPC operates out of police facilities
sited within its area of operation. Facilities
for the NPCs could be co-located with othercommunity agencies. A single edifice,representing all the community agencies
for that area, will further reinforce thesense of community identity andpermanence. As NPCs or NPPs are themeans through which the SPF engages incommunity-focused policing, they caneasily blend into a building thatencompasses community clubs, community
libraries, and service points for othercommunity agencies. Most NPCs would besited at the heart of the residential area inthe DGP and remain easily accessible via
public transport.

D. Strengthening SPF’s Front-Line
Operating System
The front-line operating system refer tothe way the SPF organises and discharges
its policing duties that impact the public
every day : fast response patrols,
investigations, counter service andproactive functions such as house visits. A
key feature of the NPP system is thecompartmentalisation of its functions. A
typical minor crime case is attended to bya fast response crew, then by NPP officers
who guard the scene until a Divisional
Headquarters investigator arrives.
Frequently, the Scene of Crime officer may
even arrive separately to take photographsof the scene and dust for finger-prints. The
case and the victim are thus handed fromone officer to another.
The present system has many
drawbacks. Firstly, each officer handles
only a small piece of the entire service
process. This unnecessarily limits thecontributions and job challenge open to
officers. Secondly, it also dilutes theownership over the case. The sense ofownership diminishes when one officer
passes the case over to another to complete
the service delivery process. Thirdly, the
NPP officers’ local knowledge is not tappedin the cases, as their participation at thecrime scene is only transient. Lastly, thecrime victim is inconvenienced and may
even get confused with the service delivery
due to the internal inefficiencies in police
work processes.
The NPC system aims to integrate theentire service process : where fast response,
general investigations and basic scene ofcrime work are launched from the NPCs.
Officers are trained, supported and enabled
to carry out all the previously
compartmentalised functions in one single
service delivery. They will also take over
the ownership of cases, which are of aneighbourhood character, and pursue

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RESOURCE MATERIAL SERIES No. 56
follow-up investigations. Complex cases
will still be handled by the Regional
Headquarters and the Criminal
Investigation Department (CID).
The NPC officers are also rotated amonga wider and more challenging range of
duties as compared to the NPP sstem : fast
response and counter service during whichs/he will take over the investigations of thecases that s/he attends to; follow-up
investigations; and proactive policing suchas community patrols, house visits,
community liaison, school visits etc.
More attention and time is accorded toproactive functions as the NPC systemseeks to reach out to the community evenfurther. Officers on such duties will not be
re-deployed to attend to other cases unlessthe case is urgent and involves life anddeath.
E. Building a Strong Service
Organisation
Although the SPF’s primary goal willremain to ensure safety and security, it
must, in order to continue to win
widespread community support and trust,
respond to the community’s needs in thisarea through high service standards.
However, over the years, the NPPs havetake on more services. Some of these were
justified on the grounds that police officers
need to interact and reach out to the public.
The SPF realised that in order to succeed
in strengthening the sense of safety andsecurity of the communities the police
serve, there is a need to refocus efforts on
those services that directly affect this senseof safety and security. These core services
include responding to and detecting crimes,
maintaining the peace and preventing
disorder.
Another change in the NPC system isthe conscious matching of police resources

136

to the demand for police services. For
example, the number of fast response carsvaries with the demand throughout thewhole day. One may see a higher numberof patrol cars during the peak morning andevening hours, where incidents are usuallyhigh. In addition, some of the NPPs areclosed partially at night from 11 pm to 8
am, where the demand for counter service
is low and the police officers could be redeployed to perform more effective moblie
patrols.
A major quality service programme wasalso initiated to help officers internalise astrong service mindset.
F. Enhancing Community
Involvement and Responsibility
The need to enhance community
involvement and responsibility is
consistent with the need for the SPF toexpand beyond its traditional areas, so as
to best tackle the impact of deep-seatedsocial ills on law and order. By leveraging
on the involvement and sense of ownershipof individuals living within the community,
the resources available to address suchsocial dysfunction are also far greater thanif the NPPs, grassroots organisations orother community agencies attempted tosolve them on their own.
This marks a key shift from communitybased policing to community-focusedpolicing. Community-based policing is, at
its heart, concerned with how thecommunity can help the police do its job
better. In the new model, the focus isentirely on the community, as thecustomers to which the police add value.
The police, together with the community,
will strive to provide total solutions to thecommunity’s safety and security needs.
This is the next natural stage in thedevelopment of policing in Singapore. It
builds on the trust and goodwill the police
have secured through community policing.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The shift to a community-focused model
fundamentally alters the SPF’s operating
strategy. Successful policing will no longer
be measured solely in terms of falling crime
rates. As the focus shifts from the police tothe community, what matters to thecommunity, for example, its level of safety
and security, will determine the success orotherwise of the police mission.
Arising from this, it will no longer beappropriate for formulaic approaches to be
applied uniformly across the different
communities. Police units operating indifferent communities must develop
customised solutions tailored to meet theneeds of, and which take into account theconstraints on, each community. The needfor specific, custom-made and workable
solutions will redefine the required levelsof operational competence. These demands
will fuel the need to develop, at theorganisational level, learning competencies
so that each customised solution enhances
the quality of the future solutions.
An operating strategy that is focused on
the community also entails a skillfulmanagement of relationships between thepolice and the individuals, grassroots
organisations and volunteer groups thatform part of the community. Structurally,
the SPF will be empowered anddecentralised, so that at the front-line,
police officers can ‘broker’ for total solutions
in response to community law and orderconcerns.
Such an approach also has otherbenefits, in particular, by providing
opportunities for individual participationin improving the quality of life in theircommunity, so that emotional bonds to thecommunity are strengthened. It therefore
forms an inportant element in the overall
Singapore 21 vision to build a civil society
with strong community ties and active
citizenry. It is also an integral part of theGovernment’s strategy to gradually lower
the community’s level of dependency on theauthorities and to engender shared
responsibility for social problems and theirsolutions.
This is done through a new initiative
known as the Community Safety andSecurity Programme (CSSP). A CSSP isan action programme jointly drawn up by
the grassroots leaders, residents and thepolice. It consists of the profile of thecommunity and its needs, the key agencies
involved and the action plans to tackle thecommunity problems affecting the safety
and security of the neighbourhood.
Through CSSPs, the NPC system aims toshift the community’s mindset from what
the police are doing about safety andsecurity to what we can do together.
One CSSP is crafted for each precinct /constituency and each differs from another,since different communities in different
neighbourhoods might not share the same
concerns. The CSSP aims to get theresidents more involved and be responsible
in taking actions to address the safety andsecurity concerns affecting theirneighbourhoods. The driving belief is thateach citizen can make a difference tosociety.
G. Optimising the Contribution ofEach Police Officer
The SPF currently has a regularcomponent of nearly 8,000 officers and
1,000 civilian staff. With falling birth rates,
the size of new cohorts joining theworkforce grows smaller each year. As anorganisation competing within a limited
pool of labour resources, the SPF must be
attractive and challenging to bring in thebest talents. Whilst the SPF may face thechallenge of attracting the best talent tojoin the organisation, it has to contend withretaining officers over the medium to long
term.

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RESOURCE MATERIAL SERIES No. 56
SPF Commissioner, Khoo Boon Hui,during one of his dialogue sessions with
NPC officers said “...That is why not only
do we have to take care of those who arewith us, but to get the best people to join us...one of the main motivations of why weare going into the NPC system, ... is to bringour officers to match the expectations of thejob, and to be proud of what we do.’’Through the NPC system, the SPF isable to redesign its front-line jobs so thatit can continue to recruit quality manpowerfrom each graduating cohort. At the sametime, in line with the national policy ofcontinuous upgrading, the SPF also needs
to upgrade the qualifications of its officers
after they have entered the service. Redesigning jobs to create viable andattractive front-line careers in the NPC
system will serve to enhance the credibilityof the SPF as an institution, and instill
trust in the ability of the police to carryout their tasks effectively.
The educational profile of police officers
serving the community must be kept highto match the broad rise in educational
qualification of the society. This will enable
the SPF to meet new job demands, greater
challenges and the expectations of the
public.
H. Organisational Structure
In order to fulfil its role as being
community-focused, and responsive andflexible to the needs of the community,
police officers in the NPC operate in anempowered and self-directed fashion. They
work as a team, rather than as individual
officers.
The basic unit in the NPC is a group of
three front-line officers, led by one groupleader. This group of four officers is selfdirected, and undertake the entire rangeof policing responsibilities of the NPC.
Each group is also responsible for138

nurturing and building a network ofcommunity relationships within a precinctof about 1,200 - 1,500 households. As thisgroup is deployed as an operational entity,
it will facilitate the process of teamlearning, a key lever of change andinnovation in the redesigned system.
An average of 5-6 such groups form one
team, which is led by a team leader andone assistant team leader. Each NPC havefour teams, reporting to an NPC
commander. Each NPC comprise, on
average, 100 regular officers. With another15 full-time national servicemen attachedto the NPP, the total strength of the NPC
will be about 115 officers.
X. NPC IMPLEMENTATIONPHASESAs the NPC system is a major change
for the entire the SPF. It involves major
re-organisation. Many of these changes
will take some time to implement. A
phased implementation approach has been
adopted:
Pilot Phase
Oct 1997
1st pilot: Queenstown NPC
created in Central West
Region.
Apr 1998
Another 3 NPCs, namely
Bukit Timah NPC, Bukit
Merah West NPC andJurong East NPC werecreated in same region.
Phase I
Jun 1999

Phase IIJun 2000

6 NPCs in West Region to
be created.

14 NPCs to be created in
North, North-Eastern andEast Regions.

112TH INTERNATIONAL TRAINING COURSE
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Phase IIIJun 2001

8 NPCs to be created inCentral-Western Region.

In Commissioner Khoo’s words, “A pilot
is not to test whether the system will succeed
or not. It is a pilot in the sense that weallow officers more leeway to improve thesystem, to share experiences, resolve
operational problems and tell us what iswrong.’’SPF believes that its policing changes are
set in the right direction. Our success will
depend on our willingness to learn andchange the way we operate. Ourcommitment and passion to learn
collectively as a team, from the top police
chief to the front-line officer, may turn out
to be the most significant success factor in
our journey into the new policing
environment presented by the next
millennium.

XI. PRELIMINARY NPC’S RESULTS
A recent review of the pilot phase
implementation has shown positive results
and all the NPC objectives are largely met.
A large majority of the officers felt that they
had stronger working relationships with
their team mates, between teams,
supervisors and key officers. 74% of theofficers were confident of their abilities in
performing the various aspects of NPC
duties (information technology systems,
procedures and investigative duties). 81%of the officers rated the facilities in the NPC
to be much better than their previous
workplace (NPPs and Land Divisions).
Compared to one year before the NPC
was set up, one-third of the residents inthe precincts felt that the safety in theneighbourhood now was “much better”.
Two-thirds of the residents felt that thepolice had at least made some
improvements to increase security in theneighbourhood with the creation of NPCs.
XII. CONCLUSION
The community policing framework in
Singapore has been shifted to uplift the
professionalism in front-line jobs andgetting the community more involved insafety and security matters. The re-designof the NPP system builds on theachievements the SPF has made over the
past few years - community policing,empowerment and quality service. The

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CRIME PREVENTION-THE SINGAPORE APPROACH
Jarmal Singh*
I. INTRODUCTION
Singapore, being a city state dependanton trade and with business links to all partsof the world, is a very open country.
Further, its strategic location makes it anatural hub for airlines and ships. In viewof the very many varied cultures andhistorical attractions in the region
surrounding it, large numbers of tourists
and business travelers pass through it. It
is hence open to varied influences, and isalso vulnerable to passing crooks who caneasily pass of as locals or tourists.
As most of its occupants are descendents
of immigration stock, mainly from thePeninsula Malaysia, the Indonesia
archipelago, China, India and Europe, it
is heterogeneous. There are hence
sensitivities relating to race, religion,
language and nationality. These need tobe safeguarded against exploitation by
bigots and anti-national elements.
Nevertheless, their common destiny andthe need to work among and with eachother have led to the establishment of agenerally similar outlook relating to their
physical self and property. As all value
these rights, crime which attacks theserights is obviously abhorred and is always
a highly topical subject of concern inspiteof Singapore having one of the lowest crime
rates in the world.
The low crime rate has been achievedby the combination of deterrence,
enforcement and rehabilitation under avery effective criminal justice system.
Deterrence is provided by tough laws,* Deputy Director Operations, Police Headquarters,
Singapore Police Force, Republic of Singapore.

140

pushed by a strong executive and enacted
by a very responsive legislature; a very
robust and efficient world class court
system; a police force also aspiring to beworld class in its total policing capabilities,
which includes at its bedrock, community
policing in a strong, symbiotic partnershipwith the community it polices, strong
enforcement by incorruptible officers andan austere but humane correctional system
which aids rehabilitation wheneverpossible.
The main thrust of the police-community
partnership is based on mutual help, withthe public being persuaded and encouraged
to take personal responsibility bothindividually and in partnership with others
in safeguarding themselves, their property
and their neighbourhood with the advice
and assistance of the police. It is based on
the principle that prevention is acommunity responsibility and crime
prevention measures taken by thecommunity can limit and reduce
opportunities for the commission of crime.
Further, the community has a role inmitigating the impact of crime on
unintended victims, such as thedependents of victims, offenders and others
who suffer collateral damage from thesecrimes. The community also has a role inreintegrating people into society.
Since 1988, Singapore has been enjoying
a decreasing crime rate for 9 consecutive
years. This would not have been possible
if not for cooperation from the public,
brought about by community-policing.
About 1/3 of all arrest cases are solved as aresult of public-spiritedness shown bymembers of the public, assisting or giving
vital information leading to the112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
apprehension of the criminal.
In the last two decades, Singapore has
become highly industrialised andurbanised. The SPF has become anorganisation fully committed to serving theneeds of and protecting the people livingin Singapore. In response to these changes,
the SPF has also undergone a period oftransformation in terms of its
organisational structure and policing
strategies.
The SPF has moved from reactive
policing to proactive policing based on theconcept of community policing and adaptedfrom the very successful Japanese Koban
model. This led to the establishment of 91
neighbourhood police posts (NPPs) under
the supervision of 7 land division
headquarters. The NPPs primary role iscreating a sense of security in theneighbourhood through easily accessible
counter service, close liaison with the
public, high visibility patrols, house visits
and crime prevention education.
II. CRIME PREVENTION
CONCEPTS AND STRUCTURES
A. Concepts
Accompanying community policing, isthe development of a proactive approachto crime prevention. The most strenuous
efforts by the police alone will not produce
the desired results if the community stands
by passively in the erroneous belief thatcrime is purely a police responsibility. The
community must accept that the task ofcrime prevention is as much a community
responsibility as it is a police responsibility,
and must join hands with the police tomake crime prevention effective. The
failure of public involvement in crime
prevention may be attributed to ignorance.
It is the police responsibility to overcome
this ignorance through a sustained
programme of education that brings about
crime prevention awareness throughout

the community. Crime prevention
education make people aware that:(i)

They are personally responsible
for the safety of their property
and themselves, and for thesafety of their neighbourhoods.
(ii) Many crimes are opportunistic innature and are committed
through the negligence andcarelessness of the victims.
Crime is prevented if theopportunity is denied or delayed.
(iii) They can prevent crimes bytaking simple and effective
measures on their own or in cooperation with their neighbours.
Crime prevention measures must
be commensurate with the threat.
Effective protection will not comefrom any single measure but fromthe sum total of all practical andpossible measures.
B. Formation of a Crime Prevention
BranchThe Crime Prevention Branch of the SPF
was formed in 1977 under the Criminal
Investigation Department (CID) to caterfor the needs of a specialised branch
devoted exclusively to crime prevention
activities. The main task of the branch was
to inform the public that they have asignificant role to play in safeguarding
themselves and their properties against
crime. For that purpose, the branchembarked on an extensive programme ofcrime prevention activities, which includes
talks, exhibitions and personal calls todisseminate advice on measures that could
be adopted to prevent crime.
In view of the economic growth andindustrial development in Singapore, thebranch was expanded to that of a Crime
Prevention Division (CPD) in 1981, so as
to provide a more thorough and efficientcrime prevention programme for the public.

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RESOURCE MATERIAL SERIES No. 56
The formation of the CPD signaled the
beginning of the community-oriented
policing strategy in Singapore. Since its
inception, the CPD has initiated several
projects in crime prevention, namely the
Neighbourhood Watch Scheme (NWS),
Crime Prevention Committees (CPCs),
Crime Risk Surveys, Operation
Identification, crime prevention
exhibitions, crime prevention campaigns;
and youth programmes like the Crime
Proficiency Badge Scheme for uniformedgroups like the National Police Cadet
Corps, Scouts and Girl Guides etc.
The Division was later to work closelywith the National Crime Prevention
Council (NCPC) which was formed on 4
July 1981. The formation of the Council
marked an extremely important event in
the history of crime prevention work anddevelopment in Singapore.
C. National Crime Prevention
Council
The National Crime Prevention Council(NCPC) was set up in 1981 to act as acatalyst and partner to mobilise thesupport of groups and individuals from thecommunity to work closely with the policeon crime prevention. It is a non-profit
making organisation which depends
entirely on donations to run their activities.
The NCPC objectives are:(i)

To raise the level of publicawareness and concern about
crime;(ii) To encourage self-help in crime
prevention;(iii) To study, develop and improvecrime prevention measures
suitable for adoption by the
public; and(iv) To co-ordinate the efforts oforganisations interested in suchactivities.

142

The NCPC comprises of persons fromboth the private and public sector.
Members include business and social
leaders, professionals and police officers.
It is involved with other organisations andgovernment departments in promoting
crime prevention. It works closely with thepolice and organises exhibitions,workshops, courses, contests and talks toinvolve and educate individuals andorganisations on crime prevention. It also
conducts research into various aspects ofcrime prevention. Research is also
commissioned to measure the effectivenessof crime prevention programmes. Various
subcommittees are also formed under the
NCPC to address problems related to crime
within various trades and concerns. They
include:(i) Hotel Security Committee(ii) S e c u r i t y a t C o n s t r u c t i o n
Worksites Committee(iii) Children & Youth Committee(iv) Security at Commercial Premises
Committee(v) Security in Housing Committee(vi) Focus Group Committee
III. CRIME PREVENTIONSCHEMESA. Neighbourhood Watch Scheme(NWS)
In 1981, the SPF introduced the
Neighbourhood Watch Scheme (NWS) to
tap on the resources of the community,
especially the residents of high-riseapartments, in line with its community,
policing concept. The Scheme wasoriginally conceived to encourage mutualcare and help among neighbours, throughresidents keeping an eye out for eachother’s premises, and it was hoped that
civic-mindedness, neighbourliness andsocial responsibility in the context of crime
prevention would be enhanced. This would
contribute to keeping neighbourhoods safe
from crime.

112TH INTERNATIONAL TRAINING COURSE
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By 1993, the NWS had 10,000 groups ofabout 5 households located on the same
floor of a block of apartments, and led by agroup leader. Such a group is called a
Neighbourhood Watch Group (NWG). The
goals of the NWG are:(i)

To encourage residents to keep an
eye for their neighbours’
premises, so as to enhance thephysical security of their estate.
(ii) To disseminate, through the
NWG leader, awareness ofpotential threats to resident’s
safety in their estate.
(iii) Instill, through the NWG leader,an awareness of potential threats
to residents’ safety in that estate.
Despite the large number of NWGs
formed, the scheme met with limited
success. The activities of the NWGs havebeen minimal or, in some cases, nonexistent. This is due to the following
factors:(i)

Lack of leadership by NWG
leaders;(ii) Lack of participation by NWG
members;(iii) Limited scope of activity for
NWGs;(iv) Existence of alternative channelsof communication.
In the light of the above factors, a reviewof the NWS in 1996 was made with a viewto ensuring that it continues to remain
effective and to complement the work of the
Residents Committees (RCs), Residents
Associations (RAs) and the police. The RCs
and RAs are grassroots community-based
civic organisations that are all over
Singapore. The principal considerations on
the revised NWS form an integral part ofthe police’s overall strategy of community
policing, working in conjunction withattempts to reach out to the community-

at-large (through initiatives such asproblem-solving ), and to the individual(through house visits ). In order to achievethis, the following was addressed:(i)

The need for the aims, structure
and activities of the revised NWS
to be congruent with the priorities
of community agencies, thus
underscoring the relevance ofcommunity-based cooperation at
the grassroots level.
(ii) The need to leverage on thestrengths of the existinggrassroots network such as
Residents Committees (RCs) /Residents Associations (RAs).
(iii) The need for activities under therevised NWS to cause individuals
to develop a greater sense of
belonging to and responsible forthe neighbourhood they live in.
B. Neighbourhood Watch Zone
(NWZ)
The new model for the Neighbourhood
Watch Scheme envisages a strategic
partnership between the SPF andResidents’ Committee (RC) for Public
Housing and Resident’s Association (RA)for Private Housing (the key community
agency at the grassroots level). The SPF
no longer attempts to build up a networkof community relationships in isolation.
Instead, it will work with and through theRCs and RAs, in order to achieve theobjective of the Neighbourhood Watch
Scheme. This is done primarily throughthe creation of “Neighbourhood Watch
Zones” in each of the 456 RC and 65 RA
Zones. NWZs will form an integral part of
the RC and RA structure, and will be ledby the Liaison Officer (LO) of the RC or RA
Zone, assisted by their Assistance Liaison
Officers (ALOs). They can be the vehicle
through which the RC’s and RA’s aim ofengendering a strong community spirit canbe achieved. Their focus, unlike the NWGs,

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RESOURCE MATERIAL SERIES No. 56
is not on crime-related concerns alone, but
on all issues that interest or affect thecommunity.
RCs and RAs have been strengthened
as the pre-eminent community
organisations at the precinct level. They
have the mandate not only to discuss, butalso to deal with all aspects of concerns thathave crime or law and order implications.
Key areas of community concern will befocused on the RCs and RAs. This gives
the community an identity to rally to. Since
the RCs and RAs have more substantial
areas of focus, the possibility of active andmeaningful participation in RC/RA
activities by residents will be raised.
The transformation from Neighbourhood
Watch Groups to Neighbourhood Watch
Zones (NWZ) is a move from quantity toquality. With a more manageable number
of NWZs to work with, NPPs canconcentrate on working more closely witheach NWZ, thus strengthening its
leadership and administration. A total of
25 NWZs were launched at the pilot phasein April 1997. To date the SPF hasestablished 191 NWZs. A typical NWZ ismade up of a Liaison Officer (LO) and is
assisted by Assistant Liaison Officers(ALOs). The LOs and ALOs of the NWZ
work very closely with the NPP officers tocoordinate crime prevention activities andprogrammes to foster community bonding.
They will also disseminate information to
the residents and channel feedback fromresidents to Resident Committees (RCs)/
Resident Associations (RAs) and NPPs.
The role of our NPP officers in NWzs are
to work in close partnership with themembers of RCs/RAs in promoting
neighbourhood watch. Typically, they will:(i)

Actively support RC and RA
activities;(ii) Disseminate crime prevention
information through house visits,

144

leaflets and posters;(iii) Work jointly with RC and RA
members to discuss and propose
solutions to crime concerns;(iv) Seek residents’ feedback on police
issues during house visits;(v) Meet NWZ LOs for information
on RC/RA events;(vi) Identify RC/RA activities as
platforms to promote crime
prevention awareness;(vii) Organise activities at a ‘small
group’ level to provide
opportunities for NWZ members
to meet and get to know eachother;(viii) Customise police publications
with community level messages
for dissemination to residents;
and(ix) Work with the community on
crime prevention publications.
The role of Liaison Officers (LOs) in
NWZs are as follows:(i)

Promote neighbourliness,harmony and cohesiveness within
the NWZ;(ii) Conduct NWZ programmes toraise the crime prevention
awareness of the residents;(iii) A c t i n g t h r o u g h t h e A L O s ,disseminate information to andchannel feedback from theresidents to the neighbourhood
police post/RC/RA.
(iv) Coordinate and promote a wide
range of activities eg, social andcultural, etc, to engender a strong
community spirit amongresidents and to raise crime
prevention awareness;(v) Attend to neighbourhood andcommunity crime prevention
matters;(vi) Promote and encourage resident
participation in crime awareness112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
programmes;(vii) Mobilise community resources toaddress residents’ crime concerns(viii) Resolve, with the support of
NPPs, disputes among residents;
and(ix) F o s t e r c i v i c c o n s c i o u s n e s samongst residents.
The SPF, in building a strong community
support, had created the Neighbourhood
Watch Zones in 25 RC Zones for its pilot
scheme launched in April 1997. A survey
was conducted a year later to find out thelevel of awareness of the NWZ scheme andand the crime prevention knowledge of theresidents. The findings were that morethan 90% of the respondents wanted thescheme to continue or be implemented intheir estates. They also felt that thescheme was effective in helping to prevent
crime. With the success of this scheme, the
SPF is embarking to expand it island-wide.
To date, the SPF has established 191
NWZs.
IV. CRIME PREVENTIONPROGRAMMES AND PROJECTSWith community policing firmly in place,and strategic networks established withpublic organisations such as grassroots
organisations, and private bodies such as
various trade associations, it becomes
possible to leverage on their cooperationand expertise in crime prevention. The
reach of crime prevention programmes
initiated by the SPF is greatly enhanced
through these collaborations with leading
public and private organisations that aim
to enhance security-awareness andsecurity within their respective trades andspheres of operation. The following aresome of the crime prevention programmes
being implemented by the police incollaboration with the community.

V. CRIME PREVENTION FOR THE
GENERAL PUBLIC
A. Crime Prevention Exhibitions
and Talks
To stimulate greater public interest andinstill crime prevention awareness, crime
prevention exhibitions are held throughout
the year at shopping centres, community
centres and void decks of apartments toreach out to the general public. The police
also conduct talks at grassroots and privateorganisations. Crime prevention
phamplets, posters and handbooks are also
produced and distributed to the generalpublic during exhibitions or talks and areeasily available at the Neighbourhood
Police Centres/Posts.
B. Annual Crime Prevention
Campaign
To focus attention on crimes which affectthe public at large, the police, together with
the NCPC, jointly organise the Year-End
Festive Season Crime Prevention
Campaign. The mass media such as
television, cinema, posters etc, would also
be employed to communicate crime
prevention messages to the general public.
C. Crime Risk Surveys
To determine security weaknesses, thepolice conduct Crime Risks Surveys forboth residential and commercial premises
upon request (by appointment orregistration at crime prevention
exhibitions). The police also visit scenes ofcrime to advise the victims of means ofimproving the structural security featuresof their premises. The aims of the surveys
are:
(i)

To provide specialised advisory
services on crime prevention to
the public at no cost;(ii) To help improve the physicalsecurity features of premises; and145

RESOURCE MATERIAL SERIES No. 56(iii) To encourage the use of various
crime prevention measures anddevices to enhance the security ofpremises.
D. Crime Watch TV Progamme
To educate the general public throughthe television, the police and the NCPC also
jointly produce the Crime Watch TV
Programme Series. The programmefeatures crime awareness including solved
and unsolved cases, appealing for
information and witnesses and public
education segments on crime prevention
measures or road safety. This TV
programme is shown monthly during
prime-time in both the English andChinese languages.
E. Crime Prevention for Senior
Citizens
Senior citizens being vulnerable andtrusting, can easily become victims of
unscrupulous criminals. Crime Prevention
Talks are conducted by Crime Prevention
Officers (CPOs) to various senior citizen
associations or groups. This also involves
police liaison with the People’s Association
and related organisations on the organisingof crime prevention programmes andexhibitions.
F. Crime Prevention for the Youngand Youths
1. School Security Committees (SSCs)
The Committee is headed by teachers inthe schools themselves. The programme
was formed to enhance crime prevention
and fire safety in the schools. The police
officers at the NPPs act as liaison officers
to these SSCs. Meetings are held with
SSCs to update them on the latest crime
trends and advice. The police also renderassistance, such as arranging andconducting crime prevention talks to thestudents.

146

2. Crime Prevention for Uniformed
GroupsTo reinforce crime prevention messages
among uniformed youth groups in schools
such as the National Police Cadet Corps,
the Scouts and Girl Guides, participationin crime prevention activities areencouraged. These activities include crime
prevention knowledge tests, visits to NPPs
and the Crime Prevention Display Room.
Upon completion of these activities,
students would be awarded the Crime
Prevention Proficiency Badge. The police
intend to extend the award to all otheruniformed groups in schools.
3. Textbook for Students
To educate our students on crime
prevention, a series of crime prevention
textbooks called “Dear Mr Policeman” werebrought into the school curriculums in 1986
to teach students from upper primary tolower secondary levels the importance ofcrime prevention. This series, which is still
currently being taught, will soon be
replaced in 1999 by an enhanced series
called “Safe and Secure: That’s Our
Singapore”, which will carry not only crime
prevention messages from the police, butalso road safety, and fire safety messages
from the Singapore Civil Defence Force,and drug abuse prevention messages fromthe Central Narcotics Bureau.
4. Crime Prevention CDs for Schools
A crime prevention interactive multimedia CD targeting students and youths
have been developed. The CD contains themessages of crime prevention, fire safety/
emergency preparedness, anti-drug abuse
and road safety, from the police, Singapore
Civil Defence Force and the Central
Narcotics Bureau respectively. The CDcomes complete with digitised images andgood audio and visual animation to makelearning fun and interactive for students
and youths alike.

112TH INTERNATIONAL TRAINING COURSE
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5. Crime Prevention Videos
An educational video called “Gangfile”
warning teenagers of the dangers of joining
gangs; and a handbook called “Say No To
Gangs”, has been produced and distributed
to all schools. Another video, entitled“Prison Me? No Way!” has been produced
for students and youths to steer them awayfrom crime. The video recounts the prison
life of 2 youth offenders, and conveys theseverity, harshness and consequences of a
prison sentence. The video, which is
distributed to all schools, comes completewith a teachers’ guide.
6. Joint School Talks on Crime and Drug
Abuse Prevention
To maximise the benefits of combined
preventive drug and crime education
among students, the police and the Central
Narcotics Bureau (CNB) have integrated
and coordinated joint school talks on crime,
secret society activities and drug abuse
prevention. The police, CNB and Ministryof Education (MOE) also work together todraw up a year-long lecture schedule forschools. This schedule ensures that every
school will be visited by the officers andbenefit from their talks. Apart from theschedule, schools can also request special
talks to small group of students who havebeen singled-out for any kind of infractions.
This helps the police and CNB to establish
better ties with discipline masters and withschools in general.

academic and recreation support;and(iii) Voluntary curfew.
Participants in the voluntary curfew
scheme will have to undertake not to visit
certain entertainment outlets and likely
gang hangouts. They must also stay athome during certain times of the day. Theirparents will have to agree to supervise
them and ensure that they observe thecurfew for the duration of the programme.
8. Visits to Penal Institutions
The police and CNB will continue toorganise institutional visits for youths
identified to be involved in petty crimes andother delinquent activities at the prisonsand Drug Rehabilitation Centres
respectively. This would enable the youths
to have direct exposure to the deprivationsin the drug and penal regimes.
9. Organisation of Police Youth Camps
Youth camps for high-risk students will
be organised by the police to serve as anoutlet for energy and imagination, to steer
youths away from crime or associating withbad elements. This will also instill someconfidence as well as social skills in them.

7. Streetwise Programme
In addition to preventive education inschools, the National Youth Council (NYC)
has initiated the “StreetWise Programme”-a programme designed to change thebehaviour of youths who have unwittingly
drifted into gang activities. Three key
components in the programme are:10. H o n o r a r y Vo l u n t e e r S p e c i a lConstabulary (VSC) Scheme
As juvenile delinquents have become
increasingly defiant and aggressive over
the years, the police alone cannot tackle
the problem effectively. The Honorary VSC
scheme was introduced in 1997 tostrengthen the links between schools andthe police in an effort to keep juvenile
delinquency problems and youth-gang
influences away from schools. Teachers areappointed as Honorary VSC Senior
Officers.

(i) Counselling;(ii) D e v e l o p m e n t t r a i n i n g t oinculcate life skills and provide

The appointment symbolises police
presence and authority in schools andenhances teachers’ position as the overseer

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RESOURCE MATERIAL SERIES No. 56
of school discipline. The Honorary VSC
Senior Officers carry warrant cards whichenables them to make arrests when there
are serious breaches of the peace within,or in the immediate vicinity of, the school
compound or during school activities.
The Honorary VSC Senior Officers play
the role of the liaison officer between therespective schools and the police. Police
will work closely with them to curb juvenile
delinquency. They will contact the police
should the need arise and assist inscheduling talks on topics related to secretsociety activities or crime prevention. They
also help to organise police-youth activities
such as visits to prisons and monitor the
behaviour of delinquent students inschools.
As they are part of the SPF, they are
conferred powers of arrest, and can offer
advice on police procedures and policerelated matters to staff and students intheir schools. They also counsel
recalcitrant students on the consequencesof criminal or gang activities.
G. Commercial and Industrial
Sectors
1. C r i m e P r e s e n t a t i o n f o r C r i m ePrevention Committees (CPCs)
To look after the commercial andindustrial sectors, the police in 1982
introduced Crime Prevention Committees(CPCs). CPCs serve as an organised bodywhere the police can work closely with boththe commercial and industrial sectors on
crime prevention. They are equivalent to
the Neighbourhood Watch Scheme inpublic/private residential estates and are
responsible for monitoring and looking
after the security of their respective
commercial/shopping or industrial
complexes; organising crime prevention
activities and implementing therecommended security measures in
consultation with police representatives.

148

To date, 145 CPCs have been formed allover Singapore.
2. Crime Prevention for Construction
Sites
Security audits of construction sites are
conducted jointly by the Singapore
Contractors Association Limited (SCAL),
the NCPC and the police. The objectives
are to promote and encourage crime
prevention awareness, enhance work site
security and to deter unauthorised visitors
and illegal immigrants. To educate foreign
workers, a crime prevention video for
construction workers in 7 different
languages was also produced andincorporated as part of the orientation
programme for foreign workers. Every
year, seminars on construction safety andsecurity are also jointly organised by thepolice, NCPC and SCAL.
3. Crime Prevention for Hotels
The Singapore Hotel Association (SHA),
the NCPC and the police work closely inorganising the annual Hotel Security
Conference and Awards Presentation.
Together with SHA, the police also conduct
security audits at hotels to ensure theirstandard of security. The objectives are topromote an urgent sense of security in the
hotels, to encourage and assist installationof mechanised security systems such as
closed-circuit television (CCTV) and toendorse security training programmes forthe hotels.
VI. EVALUATING THE
EFFECTIVENESS OF THE
COMMUNITY POLICINGSTRATEGY / CRIME PREVENTIONPROGRAMMESThe effectiveness of any country’s
policing strategy and crime prevention
programmes is best gauged by a public
perception survey on the overall crimelevels, sense of security and police

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
presence. To this end, such a survey was
conducted by the police in 1997. Of thosesurveyed, 62% of the respondents believedthat major crimes were declining, and 46%
perceived that minor crimes were
declining. Comparing the general securityof Singapore with most countries in theworld, 93% of the respondents felt it was
better. 86% of the respondents also felt thatthe security in Singapore at present (1996)
was better than 5 years ago (1991). Morethan 95% of respondents felt that, on thewhole, the NPP system, and the police ingeneral have met their expectations.
In terms of the effectiveness of crime
prevention programmes, television
programmes such as crime watch continue
to top the list, with 93% of respondents
having known of it. Of the respondents who
expressed knowledge of the crime watch
programmes, 75% have watched it before.
Other crime prevention activities which the
public are aware of include posters (73%),
leaflets and newsletters (69%), andexhibitions (68%).
VII. FUTURE CHALLENGES
A. Expansion of Neighbourhood
Watch Zones
The strategy of engaging the community
in crime prevention awareness willcontinue. The police are looking into the
expansion of the NWZ Scheme. The aim is
to foster the idea of neighbourhood watch
and the concept of self-help in crime
prevention to residents via the Residents’Committee (RC) and the Residents’
Association (RA). With close partnershipin the community, the NWZ Scheme will
become more effective in reaching out toresidents island-wide.
B. Enhancing Strategic Allianceswith Community Groups
The SPF intends to enhance thestrategic alliances with community groups

and grassroots organisations to raise crime
prevention awareness. To do this, thepolice will continue to establish close
partnerships with community-basedorganisations and self-help groups toleverage on mutual strengths and expertiseto combat crime.
C. Enhancing Crime Prevention
Awareness among Police Officers
To continue enhancing crime prevention
awareness among its officers, the SPF aims
to further enhance the expertise of Crime
Prevention Officers, by upgrading thegeneral crime prevention knowledge(including technical and highly specialised
aspects) and awareness of officers throughtraining. Police will, together with the
NCPC, generate initiatives for crime
prevention and build strategic allianceswith organisations in the private andpublic sector to raise crime prevention
awareness in their respective fields.
VIII. CONCLUSION
To manage the expectations of the public,
and to meet the challenges of the 21 st
century, the police will continue to improveand fine-tune the system of community
policing and to continuously involve thepublic. Internally, the police willcontinuously hone and improve the existing
infrastructure of community policing tokeep in step with the complexity of thecrime scene in the years to come. No effort
is spared as our officers are continuously
trained with the latest technology andknow how. Laterally, the police will also
venture to establish strategic alliances andpartnerships with grassroots bodies,
private organisations, various tradeassociations, public institutions, etc, to curb
crime. In this regard, work on the NWZ
Scheme will be carried out in earnest sothat it is implemented island-wide. The
future of our policing strategy is embodiedin our crime prevention slogan for 1998/

149

RESOURCE MATERIAL SERIES No. 56
99, which is “Together We Can Prevent
Crime”. Thus, as we enter into the 21st
century, the police-public partnership willremain a vital chemistry for any successin combating crime.

150

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

CRIMINAL VICTIMISATION ACROSS THE GLOBE
Ugljesa Zvekic*
I. WHY THE INTERNATIONALCRIME VICTIM SURVEY
The potential of victim surveys forcomparative purposes led to the carryingout of the first International Crime Victim
Survey (ICS at the time, later renamed
ICVS), in 1989. A first proposal to organise
an international victimisation survey waslaunched by the OECD in the 1970s. Pilot
studies were carried out in the USA, theNetherlands and Finland. Further to ameeting of the Standing Conference ofLocal and Regional Authorities of theCouncil of Europe, held in 1987 inBarcelona, a working group was createdand started developing the survey
methodology and questionnaire. Sometwenty countries were invited toparticipate in a standardised victimisation
survey.
There were three main reasons forsetting up the ICVS. The first was related
to the enormous problems with offences
recorded by the police for comparing crime
in different countries. The second was thelack of any alternative standardised
measure, and the third was the promotionof the victim survey in countries that haveno, or only a meagre experience of it. All
the above-mentioned reasons are fully
applicable to countries in transition.
Police figures are inadequate forcomparative purposes because the majority
of incidents that the police become awareof are brought to their attention by victims,
and any differences in propensity to reportin different countries will influence thecomparability of the amount of crime
known by the police. Police figures varybecause of differences in legal definitions,recording practices, and precise rules forclassifying and counting incidents. Theselimitations are well known.
A number of industrialised countries
have launched crime or “victimisation”
surveys to gain a wider and betterknowledge of national crime problems and, to a great extent, the ICVS reflects
their approach and experience. Suchsurveys ask representative population
samples about selected offences they haveexperienced over a given time. They deal
with incidents that have, or have not, beenreported to the police and in particular,
with the reasons why people do or do notchoose to report them to the police. They
provide a more realistic record of the
population affected by crime and - if thesurveys are repeated - a measure of trends
in crime unaffected by changes in thevictims’ reporting behaviour, or byadministrative changes in recording crime.
Social and demographic information on the
respondents also provide an opportunity toanalyse types of crime risks and the way
they vary for different groups according toa number of factors, such as social status,
age, gender, etc.
The experience gained with national andlocal surveys called for a comparativeinternational survey in view of the fact thatthe number of countries with appropriate
surveys were limited, and the surveys useddifferent methods, thus making
comparison far from straightforward.1* Deputy Director, United Nations Interregional
Crime and Justice Research Institute, UNICRI.

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RESOURCE MATERIAL SERIES No. 56
II. THE ICVS TO DATE
There have been three rounds of the
ICVS. The first was developed by a
Working Group set up in 1987, leading tofieldwork early in 1989. Thereafter theWorking Group reformed, consisting of Jan
van Dijk (Ministry of Justice/ Universityof Leiden, the Netherlands; overall coordinator), Pat Mayhew (Home Office,United Kingdom), and Ugljesa Zvekic andAnna Alvazzi del Frate of the United
Nations Interregional Criminal Justice
Research Institute (UNICRI) in Rome.
The second ICVS took place in 1992/94,
and the third in 1996/97. In theindustrialised countries, each country met
its own survey costs, although much of theadministrative overheads of the ICVS
programme were borne by the Dutch
Ministry of Justice, which has alsosponsored survey activities in almost all
the developing countries and countries intransition. Further financial assistance
was provided by the Dutch Ministry ofForeign Affairs; the Home Office, UK; theDepartment of Justice Canada; theEuropean Institute for Crime Prevention
and Control (HEUNI); and UNDP. The
Working Group managed oversight of thesurveys, although a co-ordinator in eachcountry was responsible for the conduct offieldwork and, where necessary, for
ensuring a sound translation of thequestionnaire. The technical managementof most of the surveys in the industrialised
countries was carried out by InterView, aDutch survey company. InterView subcontracted fieldwork to survey companies
1

Differences in survey design and administrationinfluence both the amount and type of victimisation
measured. The technical differences at issue
include: the number of people interviewed in thehousehold; sampling frame and age range; mode ofinterviewer, “screening” methods and number of“screeners”, “recall” period; and respose rates.

152

in the participating countries, while
maintaining responsibility for thequestionnaire, sample selection andinterview procedures. UNICRI was
responsible for the face-to-facequestionnaire and for monitoring of the
ICVS in the developing countries andcountries in transition. The data from thesurveys were integrated and processed byJohn van Kesteren of the Criminological
Institute, Faculty of Law of the Universityof Leiden in the Netherlands.
Fifteen countries took part in the first(1989) ICVS, including the cities of Warsaw(Poland) and Surabaya (Indonesia). The
second (1992/94) ICVS covered elevenindustrialised countries, thirteen
developing countries and six countries intransition. Eight of the countries had taken
part in 1989. Full details of the 1989 and1992 surveys in industrialised countries
are reported in van Dijk et al., (1990) andin van Dijk and Mayhew (1992). Further
information and reports on the 1992 ICVS,
including six countries in transition, arepresented in Alvazzi del Frate et al. (1993).
The second (1992/94) round of the ICVS
expanded to include standardised surveys
in thirteen developing countries and six
countries in transition, mainly at the citylevel. These were taken forward largely by
UNICRI, which was keen to sensitise
governments of developing countries andcountries in transition on the dimensions
and extent of crime in their urban areas especially as police data on crime was often
poor. Results from the developing world arereported in Zvekic and Alvazzi del Frate(1995). After the second ICVS, aprogramme of standardised surveys ofcrime against businesses was also mounted
in nine countries. Comparative results arepresented in van Dijk and Terlouw (1996).
The third round of the ICVS was carriedout in 1996 and 1997 and encompassed

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
eleven industrialised countries, thirteen
developing countries and twenty countries
in transition. Two volumes (Zvekic, 1998,
and Hatalak, Alvazzi del Frate and Zvekic,
1998) report the findings related tocountries in transition, while the resultsof the 1996 ICVS for industrialised

countries are reported in Mayhew and van
Dijk (1997) and, for developing countries,
in Alvazzi del Frate (1998). All in all, withthe 1996/97 ICVS, more than 130,000
people were interviewed in 40 languages
around the world.

TABLE 1
International Crime Victim Survey - Overview of Participation in
the 1989, 1992-94 and 1996-97 “Sweeps”
Industrialised Countries
Australia
Austria
Belgium
CanadaEngland & Wales
FinlandFranceGermany
Italy
Japan
Malta
The Netherlands
New Zealand
Northern Ireland
NorwayScotland
Spain
SwedenSwitzerland
USA

1989
＊

1992-94
＊

＊
＊
＊
＊
＊
＊
＊
＊

＊
＊
＊
＊

＊

＊
＊

＊
＊

＊

Countries in Transition
Albania
Belarus
Bulgaria
Croatia
Czech Republic
Estonia
F. R. of Yugoslavia
FYR of Macedonia
Georgia
Hungary
Kyrgyzstan
LatviaLithuania
Mongolia
PolandRomania
RussiaSlovak Republic
Slovenia
Ukraine1989

1992-94

1996-97
＊

＊
＊
＊
＊

＊
＊
＊
＊

＊
＊

＊
＊
＊

＊

＊
＊
＊
＊

＊
＊
＊
＊

＊
＊
＊
1996-97
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊

153

RESOURCE MATERIAL SERIES No. 56
TABLE 1 (continued)
Developing Countries
Argentina
Bolivia
Botswana
BrazilChina
Colombia
Costa Rica
Egypt
India
Indonesia
Papua New Guinea
Paraguay
The Philippines
South Africa
Tanzania
Tunisia
UgandaZimbabwe

1989

1992-94
＊
＊
＊

＊

＊
＊
＊
＊
＊(°)
＊
＊
＊
＊
＊

1996-97
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊
＊

(°)Data set not available

III. SURVEY METHODSinterviewers of what happened. Therefore,
the ICVS accepts a broader definition ofcrime than the police who, once incidents
are reported to them, are likely to selectthose which merit the attention of thecriminal justice system, or meetorganisational demands and parameters toallow for further processing.

The ICVS was carried out by using two
main survey methods: computer assisted
telephone interviewing (CATI) and face-toface. As a rule, CATI was adopted in theindustrialised countries, with the exceptionof Northern Ireland (1989 and 1996), Spain(1993) and Malta (1997), and face-to-face
was used in the developing countries andEleven main forms of victimisation are
countries in transition, with the only
covered by the ICVS, three of which allow
exception being Slovenia (1992 and 1997).
for further grouping. Household crimes arethose which can be seen as affecting theA. Samplinghousehold at large, and respondents report
In all developed countries and in someon all incidents known to them. For
countries in transition, a national sample
personal crimes, they report on what
ranging between 1000 to 2000 respondents
happened to them personally.
was used, while in most developing
countries and countries in transition a city
Household Property Crimes:
sample of 1000 was used.
• theft of car• theft from cars
B. The Count of Crime• vandalism to cars
The ICVS enquires were about crimes• theft of motorcycles
against clearly identifiable individuals,• theft of bicycles
excluding children. While the ICVS looks• burglary with entry
into incidents which, by and large, accord• attempted burglary
with legal definitions of offences, in essence• robberyit accepts the accounts that the
respondents are prepared to give to the154112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
additional questions about what happened.

Personal Crime:• theft of personal• property pickpocketing• non-contact personal thefts• sexual incidents• sexual assaults• offensive behaviour• assaults/threats• assaults with force• assaults without force
In the surveys in developing countries
and countries in transition, consumer fraudand corruption were also covered.
Consumer fraud was asked about in theindustrialised countries in 1992 and 1996,
and corruption in 1996/97.
The respondents are asked first about
their experience of crime over the last five
years. Those who mention an incident ofany particular type are asked when it
occurred, and if in the last year, how manytimes. All victims reporting incidents overthe past five years are asked some

C. Translation of Questionnaire
In some countries the interviewers,
having to work in several local dialects,
were provided with the translation in thelanguage of the majority linguistic group;
while translations into dialects were
provided on the spot, that is to say, during
the interviewing process. It is difficult toassess to what extent this affected the
responses, but it does indicate the need for
closer monitoring and control of thetranslation procedure and reliability. Backand forth translation from the original
English into and from the language inquestion was carried out in a number ofcountries, both to ensure the adequacy oftranslation as well as to provide for themost appropriate native wording.
D. Carrying Out of the Full-fledged
SurveyData collection lasted from eight to ten
weeks in each country and was followed by

TABLE 2Aggregate Victimisation Rates by World Regions
ICVS (urban five year rates: 1988-96)
Total
Car crime
Burglary/attempt
Other theft
Violent crime
Violence (females)
Violence (males)
Any crime
Consumer fraud
Corruption

29.7
20.4
32.3
20.4
7.4
6.2
63.7
29.4
11.0

Western New
Latin
Europe World America
36.8
14.4
27.1
15.8
5.0
5.0
61.2
12.5
1.1

44.6
23.3
26.6
20.2
8.0
8.4
65.3
7.9
1.0

29.9
32.4
42.4
36.1
14.3
8.0
76.6
24.4
19.5

Countries
In
Transition
27.8
17.3
31.9
17.3
6.0
6.5
62.0
39.8
12.6

Asia

Africa

7.5
11.3
30.3
13.0
4.8
2.4
45.0
27.6
20.2

22.4
35.4
41.7
31.8
12.6
7.9
74.0
48.7
13.5

Note: Table elaborated from J.J.M. van Dijk. “Criminal victimisation: a global view”, paper presented
at the International Conference on Surveying Crime: A Global Perspective, Rome, 1998.

155

RESOURCE MATERIAL SERIES No. 56
the data entry and logical validation
process. On average, fieldwork lasted fourmonths including translation of thequestionnaire, sampling, data collection
and preparation of the dataset for delivery.
A final report was prepared by eachnational co-ordinator.
The results are based on data whichhave been weighted to make the samples
as representative as possible of national
populations aged 16 or more in terms ofgender, regional population distribution,age, and household composition.
E. Face-to-face Interviewing
In most countries, the survey was
carried out by an ad hoc team ofinterviewers. On average, face-to-faceinterviews lasted thirty minutes and could
generally be understood by illiterate
respondents.
IV. CRIMINAL VICTIMISATION: AN
OVERVIEW
Criminal victimisation is a widespreadfeature of urban areas across the globe:
t h e r e i s n o c r i m e - f r e e c o u n t r y.
Victimisation by conventional crime iscommonly experienced by all nations andin particular, the inhabitants of large cities.
In this sense, criminal victimisation is a
global statistical norm. It is not a distinct
property of some countries only.
Irrespective of the part of the world, overa five year period, two out of threeinhabitants of large cities are victimisedby crime. It is particularly significant tonote that the victimisation rates arehighest in Latin America and Africa, while
they are the lowest in Asia. Countries intransition show rates remarkably similar
to those of Western Europe.
Specific crime victimisation rates suchas those for burglary, other theft andviolent crime are highest in Latin America
156

and Africa. In these two regions, the levelof violence is more than twice as high as
elsewhere but it is also high in the New
World (Australia, Canada, New Zealandand the USA); Western Europe and Asia
are less exposed to violent crime. Different
is the global pattern of distribution for car
related crimes for which the highest rates
are in the industrialised world. However,car owners risk of having their cars stolen,
burglarised and/ or vandalised are similar
across the globe (with the exception of Asia
where it is the lowest) but somewhat higher
in Africa. 2 Furthermore, the rates ofproperty crime have gone down orstabilised in several of the mostindustrialised countries. However, the riskof being victimised by violence across theworld is at least one in five.
As regards consumer fraud andcorruption in public administration it ismuch higher in the developing world andcountries in transition, adding additionalburden and cost of overall criminal
victimisation to people in less affluent
societies.3
Certain residential, age and gendergroups, as well as life styles, run higher
risks of criminal victimisation. While muchof it is circumscribed, gender differences
do appear to show somewhat more stabledifferential patterns. In the industrialised
world, men and women run similar levelof risk for assault. In other parts of theworld there are clear gender differences
putting women at a much higher risk ofbeing victimised by violence. Thus, while
men across the globe run a similar level ofrisk of being assaulted, the risks for womenin Latin America, Africa and Asia are fifty
percent higher 4. Furthermore, assaults on
women tend to be familial or domestic in
2
3

Van Dijk. “Criminal...”, ibid, table 2 note.
U. Zvekic, Criminal Victimisation in Countries inTransition. UNICRI Publ. No. 61, 1998.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSTABLE 3
Crimes Reported to the Police in Three Global Regions: ICVS (1992-96)

Theft of car
Burglary
Theft from car
Assault with force
Robbery
Theft of Personal
Property
Sexual assault

Industrialised Countries
92.6
84.5
56.9
48.1
46.9
43.8

Countries in Transition
87.5
64.9
44.3
34.1
32.7
21.9

developing countries
89.5
47.4
41.8
36.2
34.2
19.2

26.8

21.3

22.4

the sense that in a third of the cases ofviolence against women, the offender was
known (even by name) to the victim.
Domestic violence is most often reported
by women in the New World and Western
Europe.5
Crime rates based on officials statistics
are universally lower than survey-based
victimisation rates. Therefore, differences
in officials crime rates among countries
have much to do, in addition to the crime
type, with the propensity to report crimes
to the police, and further down the criminal
justice road, police capacity to record them,and then the prosecution and courts
capacity to process the cases and charge/
sentence offenders. The attrition rates(capacity) of the criminal justice system iswidespread, and filtering out is a universal
process present in both mandatory as well
as discretionary criminal justice systems.
The first filtering out is to be looked for in
the relationship between citizens and thepolice. In no part of the world are all crimes
reported to or detected by the police, nor
are all those that are known to the police
passed on further down the road to resultin a criminal charge and court sentence.
In the majority of countries, around half ofthe suspects or those criminally indicted
are found guilty and subsequently
sentenced.6
In all the parts of the world, the mostfrequently reported crime is that of theftof car, with the reporting rates around 90%.
With the exception of burglary in theindustrialised world and countries intransition, as well as of theft from cars in
the industrialised world, all other crimes
in all three developmental categories arereported by less than half of the victims.
Particularly low are the reporting rates forsexual assault. In other words, less than
one in three female victims of violence
report their victimisation to the police.
It is evident that national and global
crime levels, as reported by the UNCJS(official statistics), are much lower than the“true” levels of crime, mainly due toreporting patterns. On average, crime
reported to the police continued to rise in
1980s and 1990s. “The most commonly
6

4

Van Dijk. “Criminal...”, supra.
5 A. Alvazzi del Frate, Victims of Crime in theDeveloping World, UNICRI Publ. No.57, 1998, pp.
69-71.

G. Newman, “Advance in Comparative
Criminology: The United Nations Global Report on
Crime and Justice” paper presented at theInternational Conference on Surveying Crime: A
Global Perspective, Rome, 1998.

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RESOURCE MATERIAL SERIES No. 56
TABLE 4
Percentage of Victims Satisfied with the Police upon Reporting an Incident
ICVS (1992-96)
Western Europe New World Countries in transition Asia
Burglary
67.8
74.4
37.8
42.2
Contact crimes
64.0
69.7
39.8
61.7
reported crime was theft, followed byburglary. Violent crime made up some 1015% of all reported crime” 7 . The
established reporting pattern is thatirrespective of crime type, there are muchhigher police reporting levels in theindustrialised world as compared withother parts of the world. This propensity
to report is related to a number of factors,
including as regards property crimes,
insurance coverage. The ICVS has clearly
demonstrated that the ratio between
average insurance coverage for theindustrialised world, on the one hand, andthe rest of the world, on the other, is thatof 70%: 10-15% (although the situation has
improved recently in countries intransition).
The propensity to report also has to dowith citizens’ evaluation of police
performance. This type of information is
not provided by the official criminal justicestatistics. The ICVS explored this issue tofind that there is proportionately more
victims of crime from the industrialised
world satisfied with the police upon
reprting a crime than it is the case withthe victims from other world regions whoreported an incident to the police.
Satisfaction with reporting to the police
shows a similar pattern of generalsatisfaction with the police in controlling
crime. The highest levels of satisfaction
with the police in controlling crime areexpressed by the citizens from the New
7

Van Dijk, “Criminal...”, supra.

158

Africa29.4
46.8

Latin America
24.6
34.2

World, Western Europe and Asia (74%, 50%
and 60% respectively). Much lower levelsof satisfaction are expressed by citizens
from Africa (41%) and particularly
dissatisfied are citizens from Latin America
and countries in transition (just around
20% are satisfied).
The analysis of the results of the United
Nations Survey of Crime Trends and the
Operation of Criminal Justice Systems 8shows that most countries tend to imprison
those offenders who were sentenced forserious crimes. Prison is the universal
sanction applied for serious offences, more
the any other sanction. This is regardlessof the type of legal system or level ofdevelopment of a country. There are also
wide variations in the prison rates ofvarious countries. However, thesevariations do not appear to be dependent
on the amount of crime in the society. Nordoes the use of non-custodial sanctions, theavailability and use of which are policy
choices. As a general pattern, greater useof non-custodial sanctions does not lead toless use of prison, or vice-versa. In thedeveloping world and countries intransition, the public displays a marked
preference for prison as a punishment.
There appears to be, however, a certain
similarity in comparative perspective
between the amount of prison actually used
and the preferences for types of8

H. Shinkai and U. Zvekic. “Punishment” in G.
Newman (Ed.) Global Report on Crime and Justice.
New York-Oxford, UN & Oxford University Press,
1999.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
punishment. Punishment practice andpolicy do not appear to be grossly
determined by the developmental level ofthe country.
V. CRIME AND DEVELOPMENT IN
GLOBAL PERSPECTIVE
Without entering into by now acriminological common knowledge
regarding the main theories of crime anddevelopment, and in particular crime andmodernisation, the afore considerations
regarding crime levels and punishment
issue have clearly demonstrated that muchof the discussion on the relationshipbetween crime and development needs tobe revisited.
Much of the previous debate on crimeand development, originating with
Durkheim, was tested with official criminal
justice data on crime levels. In short (andwith a certain degree of simplification) they
appeared to confirm that the levels ofproperty crime are higher in moredeveloped societies than those of violent
crimes in less developed societies. Indeed,earlier UN reports based on UNCS also
supported this interpretation. However,integration of the UNCS and the ICVS data
casts serious doubt as to the above
relationship.
The first analysis of the ICVS results in1993 9 and 1995 10, when data from thedeveloping world and countries intransition were made available for the firsttime ever, indicated that the traditional
9

U. Zvekic, A. Alvazzi del Frate. “Victimisation in
the Developing World: An Overview” in A. Alvazzidel Frate, U. Zvekic, J.J.M. van Dijk (eds.)
Understanding Crime: Experiences of Crime andCrime Control, UNICRI Publ. No. 49, 1993.
10 U. Zvekic and A. Alvazzi del Frate. “Comparative
Perspective” in U. Zvekic and A. Alvazzi del Frate(eds.) Criminal Victimisation in the Developing
World. UNICRI Publ. No. 55, Part One, 1995.

interpretation of the relationship between
crime and development needs revisiting.
Subsequent analyses and in particular themost recent one by Van Dijk 11 of motivationand opportunity factors based on ICVS
showed that the levels of contact (violent)
crimes and thefts are higher in the
countries where a high proportion of people
feel economically deprived and that thelower affluence was associated with higher
risk of victimisation by more serious
crimes.
The ICVS data on victimisation rates fortheft of personal property, burglary andassault all reveal a negative correlation
with the UNDP Human Development
Index. The more developed the country, theless frequent victimisation for theft (-0.560
N=53), burglary (-0.422 N=53) and, to amuch lesser extent, assault (-0.113 N=53).
The Fifth UNICJS provides compatible
data for 1994 on intentional homicide andtheft12 from 28 countries ranging from themost to the least developed according to the
Human Development Index (HDI).13 By
correlating data for homicide and theft with
the HDI for the respective countries, apositive correlation with theft rates isfound (0.596 N=28), while a negative
correlation between homicide rates and
HDI is also found, although weaker (-0.204
N=28). 14

11 van Dijk, “Criminal...”, supra.
12 The UN Crime Survey categories used here are“total intentional homicide” and “total theft”.
13 The 1994 Human Development Index for the

responding countries is taken from Human
Development Report 1997,United Nations
Development Programme, Oxford University Press,
Oxford / New York, 1997.
14 The analysis of the correlation between data fromthe ICVS, the Fifth UN Crimes Survey and Human
Development Index is presented in A. Alvazzi delFrate, Victims of Crime in the Developing World,
UNICRI Publ. No. 57, 1998, pp. 133-138.

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RESOURCE MATERIAL SERIES No. 56
TABLE 5
United Nations Survey of Crime Trends and Operations of Criminal Justice
Systems, Homicide and Theft Rates (1994) and UNDP Human Development
Index (1994)
Country NameJapan
England&Wales
Singpore
CanadaScotland
Malta
BelguinAustlia
Slovakia
Hungary
Denmark
Italy
Slovenia
IsraelRomania
India
Azerbaijan
Rep of Moldova
Costa Rica
Kyrgyzstan
Georgia
Kazakstan
Ecuador
Bolivia
Nicaragua
JamaicaKuawitColonbia

Homicide
Theft
Rates×100,000 pop. Rates×100,000 pop.
1.4
1,049.8
1.4
4,863.6
1.7
919.6
2.0
3,430.4
2.2
4,641.8
3.0
1,125.0
3.4
2,733.0
3.5
1,582.3
3.8
1,099.8
4.7
1,321.7
5.1
3,963.1
5.3
2,330.9
5.7
811.7
7.2
182.3
7.6
457.6
7.9
33.1
8.9
65.0
9.5
334.1
9.7
520.8
12.3
238.4
14.4
109.7
15.7
591.6
18.5
239.6
23.3
392.4
25.6
173.9
29.8
520.5
58.0
10.6
78.6
233.3

HDI 1994
0.940
0.931*
0.900
0.960
0.931*
0.887
0.932
0.932
0.873
0.857
0.927
0.921
0.886
0.913
0.748
0.446
0.636
0.612
0.889
0.635
0.637
0.709
0.775
0.589
0.530
0.736
0.844
0.848

Sources: Fifth United Nations Survey on Crime Trends and the Operations of Criminal Justice System,
UNICJIN (rates elaborated by UNICRI); Human Development Report 1997, United Nations
Development Programme, Oxford University Press, Oxford/New York, 1997.

160

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSTABLE 6
Correlation with the Human Development Index (HDI)
Homicide-0.204Assault-0.113

Theft

0.596

Theft
Burglary

0.560-0.422

VI. CONCLUDING REMARKS
The above referred to results andconsiderations seriously challenge themodernisation theory, which as statedearlier, was empirically tested with police
reported figures, which are normally much
lower in less developed societies. The
empirical base for testing themodernisation theory was exclusively
composed of official criminal justicestatistics. The ICVS empirical base, whichis composed of victimisation data on
experiences with crime and reporting to thepolice, undermines the very foundations of
the prevalent crime and development
explanatory perspective.
Crime and justice appear to have adegree of independence from levels ofdevelopment more than previously
thought15. This is particularly evident withrespect to the following:• there is no strong evidence thatdeveloping countries have higher
violent crime rates than developed
countries; either they never had thembut data was restricted or in recent
years the levels have become quite
similar;• the assumption that the developed
world exhibits higher property crime
rates than developing countries
seems not to hold true, at least as
regards the urban areas;• all countries use imprisonment for
15 Newman, “Advances...”, supra.

serious offenders and the prison rates
are not generally related to crime
rates, the levels of socio-economic
development or to the use of noncustodial sanctions; yet, punishment
preference still reflects to a great
extent the affluence levels, the actualuse of imprisonment or shared belief
in “just deserts”.
Much of the previous discussion andrevisited modernisation theory is based oninterpretative integration of UNCS (official
criminal justice statistics) and ICVS
(victimisation survey-based data).
However, this is not sufficient to reveal
with any degree of reliability the “true”
empirically based historical relationshipbetween crime and development, since
there are no comparative international
historical victimisation survey data thatwould match those available through theofficial criminal justice statistics and theUNCS. Thus, one is tempted to credit the
globalisation process with effects reflected
in a certain degree of levelling off crime andjustice across the globe. While this mightprove to be true, in view of the fact that
the ICVS data used for comparative
analysis relate to urban areas only, andthus embedding urbanisation, (which
certainly is the trade-mark ofmodernisation all over the world). There
still is much to be desired in exploring the
globalisation-related conventional crime
effects.
REFERENCES

161

RESOURCE MATERIAL SERIES No. 56
Alvazzi del Frate, A., Zvekic, U. and van
Dijk, J.J.M. (Eds.) (1993).
Understanding Crime: Experience of
Crime and Crime Control. Rome:UNICRI.
Alvazzi del Frate, A. (1996). Manual, Faceto-face International Crime (Victim)
Survey. UNICRI.
Alvazzi del Frate, A. (1998). Victims of
Crime in the Developing World. Rome:UNICRI.
Hatalak, O., Alvazzi del Frate, A. andZvekic, U. (Eds.) (1998). International
Crime Victim Survey in Countries inTransition: National Reports. Rome:UNICRI.
Mayhew, P. and van Dijk, J.J.M. (1997).
Criminal Victimisation in Eleven
Industrialised Countries. The Hague:
WODC.
Van Dijk, J.J.M. and Mayhew, P. (1992).
C r i m i n a l Vi c t i m i s a t i o n i n t h eIndustrialised World: Key Findings ofthe 1989 and 1992 International Crime
Surveys. The Hague: Ministry ofJustice of the Netherlands.
Van Dijk, J.J.M., Mayhew, P. and Killias,M. (1990). Experiences of Crime Acrossthe World: Key Findings from the 1989
International Crime Survey. Deventer:
Kluwer Law and Taxation.
Van Dijk, J.J.M. and Terlouw, G.J. (1996).
‘An international perspective of thebusiness community as victims of fraudand crime’. Security Journal, October:157-167.
Zvekic, U. and Alvazzi del Frate, A. (1995).
Criminal Victimisation in Countries inthe Developing World. Rome: UNICRI.
Zvekic, U. (1998). Criminal Victimisation
162

in Countries in Transition. Rome:UNICRI.
Va n D i j k J . J . M . ( 1 9 9 8 ) ‘ C r i m i n a l
Vi c t i m i s a t i o n : A G l o b a l Vi e w ’ .
International Conference on Surveying
Crime: A Global Perspective. Rome, 1921 November 1998.
Newman, G. (1998) ‘Advanced inComparative Criminology: The United
Nations Global Report on Crime andJustice’. International Conference on
Surveying Crime: A Global Perspective,
Rome, 19-21 November 1998.
H. Shinkai and U. Zvekic. (1999)‘Punishment’ in G. Newman (Ed.)
Global Report on Crime and Justice.
New York-Oxford, UN & Oxford
University Press.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

CITIZENS’ EXPERIENCE WITH CRIME PREVENTION
Ugljesa Zvekic*
I. THEORETICAL BACKGROUND
Among the criminological theories
specifically applicable to crime prevention,
the economic theory of crime proposed byBecker in1968 1 asserts that potential
offenders constantly move between
legitimate and illegitimate activities,
depending on the results of a cost-benefit
assessment. While making the decision,as whether or not to undertake illegitimate
actions, they calculate the risk of being
apprehended as costs against the economic
benefit if the action is successfully
concluded. This theory starts from theassumption that the offender’s behaviour
is induced by the desire of economic gain.
In order for a crime of this type to becommitted, three elements are
determinant: the presence of a suitabletarget, skill and opportunity.
According to his theory, further
developed by Ehrlich 2 , the offender
represents the supply side of the crimemarket. The supply of crime will be basedon the costs (the probability of beingcaught, the amount of sanction envisaged
for that particular crime and all possible
intervening variables). Depending on thelevel of the cost, more or less crimes will
occur. Such “costs” very much depend on
deterrence determined by effective law
enforcement.

also envisages a “crime market”, but thepresence of motivated offenders is definedas the demand side and the availability ofsuitable and poorly protected targets as the
supply side.
Although motivated by the same
assumption of the existence of a “crimemarket” as was the case for Becker andEhrlich, van Dijk reverses the parties anddescribes the victims as “reluctant
suppliers” of opportunities for crime: “Thecriminal opportunities offered by potential
victims are an undesired side-effect of theirpossession of certain goods”.
The theory keeps the focus on theoffender’s behaviour and the cost-benefit
analysis which motivates the decision ofwhether or not to commit a crime.
However, in this paradigm, higher
opportunity costs for the offender are
determined by better protection of suitabletargets and increased self-precautionary
measures adopted by potential victims(target hardening), rather than effective
law enforcement alone. In this respect,more attention is paid to the prevention ofcrime rather than the punishment of theoffender once a crime has already occurred.
Potential victims are involved in thescheme, thus shifting from a specialisedrole for the police in crime prevention to1

In more recent years, the rationalinteractionist model developed by van Dijk3* Deputy Director, United Nations Interregional
Crime and Justice Research Institute, UNICRI.
**Authored by Dr. Anna Alavazzi del Frate, Research
Officer, UNICRI. Presented by Ugljesa Zvekic,
Deputy Director, UNICRI.

G. Becker, “Crime and Punishment: An Economic
Approach”, Journal of Political Economy, 76:2, 1968,
pp. 169-217.
2 I. Ehrlich, “Participation in Illegitimate Activities:
A Theoretical and Empirical Investigation”, Journalof Political Economy, May 1973, pp. 521-565.
3 J.J.M. van Dijk, “Understanding Crime Rates”,
British Journal of Criminology 34:2, 1994, pp. 105121.

163

RESOURCE MATERIAL SERIES No. 56
community-based crime prevention.
The rational-interactionist model helps
to understand crime phenomena, which aresimilar in many countries and are of highconcern to the international community.
this model is applicable to crimes against
the household, but also to property andeconomic crimes in which shops, officebuildings and corporations are increasingly
becoming the victim. In both cases - crimes
against individuals or households andcrimes against business - target hardening
is up to the potential victims.
However, an involvement of the “formal”
structures in crime prevention activities isstill necessary to address the problems
which are at the basis of the offender’sbehaviour. Issues to be addressed include
urbanization, migration flows, educationand opportunities for employment,
especially for young males. Furthermore,
urban design, especially in newly built
residential areas, should be improved toprovide the necessary infrastructure (e.g,schools, shops, recreational areas) as well
as services (e.g, street lights, public
transport and telephones), which would
assist in improving the quality of life in theneighbourhood and of the people who live
there.
II. URBAN DESIGN AND TYPE
DWELLING
The International Crime (Victim) Survey
was carried out on national samples inWestern Europe and the New World, whilein other participating countries samples
were drawn from large cities.
The type of dwelling most frequently
found in the survey was a house, either
isolated, semi-detached or in a row. For
example, the popular formula of houses ina row represents the absolute majority ofcases in Northern Europe.
Apartments rank first as the type ofdwelling, except in the group of countries
in transition, where the former-socialist
model based on extensive urbanization
predominates. In these cities the large
majority of people live in apartmentbuildings. In Africa, Asia and Latin
America, the large majority of the
respondents live either in houses or indifferent types of dwellings. Shanties
account for 17% in Africa and 13% in Asia,and the inclusion of respondents from theseareas in the ICVS sample may also reflect
on victimisation rates.
However, it should be noted that the
ICVS classification by types of dwelling wasmeant to identify the type of housing rather
than assessing the residential status of the
respondent. Obviously, different types ofdwelling require different crime prevention
devices.
The concept of an isolated or semidetached house may represent different
realities in developed and developing
countries. For example, high-income areas

Table 1
Type of Dwelling of ICVS Respondents, by Regions (1996)

Apartment
House
Other

164

WesternEurope
29.3
69.2
1.5

New
World
21.2
73.4
5.4

Countries inTransition
62.6
33.1
4.3

Africa

Asia

9.2
70.7
20.1

19.9
66.3
13.8

Latin
America
25.6
70.4
4.0

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
in some developing countries often consist
in compounds that are extremely well
protected from the outside by fences, watch
dogs and patrols. It was reported by someICVS national co-ordinators that it was
sometimes difficult for the interviewers to
obtain access to houses selected for thesurvey because of the high level of security
at the entrance of the compound. The
corresponding type of housing will mostprobably be less protected and patrolled inWestern Europe or the New World, where
this type of security is less common.
III. BURGLARY
Burglary is the typical household crime.
The ICVS questionnaire included questions
on victimisation experiences for burglary
and attempted burglary. Table 3 shows
one-year prevalence victimisation rates atthe country and regional levels for burglary
and attempted burglary.
The regions in which survey respondents
were often affected by these types of crimewere Latin America and Africa. Medium
risk was observed in the New World andcountries in transition, while Western
Europe and Asia showed the lowest levelsof risk. In most regions, the 1996 one-year
burglary rates were either equal to or lower
than those observed in 1992. At thecountry level, both types of crime increasedin The Netherlands, Georgia, Russia, India,
and in all three Latin American countries
which were involved in both sweeps of the
ICVS. Rates for burglary and attemptedburglary are very close to each other inmost regions.
People who live in rural contexts
apparently run lower risks ofhousebreaking in comparison with citydwellers. Higher percentages of residents
of urban areas were victims of burglary
than respondents from villages and rural
areas. However, as van Dijk observed withreference to the 1992 sweep of the ICVS4,
the type of housing, more than thesurounding context, is correlated withburglary. Actually, a positive correlation
was found between being a victim ofburglary and living in a house rather thanan apartment. As Table 3 shows, in all
regions - with the exception of countries intransition - respondents living in a houserun risks of burglary higher than the
average.
Very often a break-in also involved
damage to doors, locks or windows. This
happened more frequently in Western
Europe, in Africa and in the New World. A
possible explanation for the lower
frequency of damage found in countries intransition, Asia and Latin America is thathouseholds are less often protected bycrime prevention devices, thus making iteasier for the burglar to access the house.
Another aspect which was taken into
account was whether anything had
actually been stolen when the burglary
occurred. Actual theft during burglaries
happened more frequently in countries intransition and in developing countries.
This finding may suggest that the type ofobjects stolen is different in Western
Europe and the New World to those in otherregions. According to national coordinators from developing countries,
stolen goods often included money, food andsimple household objects such as cutlery
or linen, which were most probably stolen
for the personal use of the burglar. In rural
areas, cattle were often stolen.

4

J.J.M. van Dijk “Opportunities of Crime: A Test of
the Rational-Interactionist Model”, in Crime andEconomy - Reports Presented to the 11th
Criminological Colloquium (1994), Council ofEurope, Criminological Research, Vol. XXXII, 1995,
pp. 97-145.

165

RESOURCE MATERIAL SERIES No. 56
Table 2
One Year Prevalence Rates for Burglary and Attempted Burglary, byCountries and by Regions, 1992 and 1996, and Risk of Burglary for Type ofArea and Type of Dwelling, by Regions, 1996
Burglary Attempted Burglary Attempted Burglary Burglary Burglary Burglary
Burglary
Burglary Rural
Urban Apartment House
Areas
Areas
Austria
Belgium
England and Wales
Italy
FinlandFranceN. Ireland
Netherlands
Scotland
Spain
SwedenSwitzerland
Western Europe

1992
n.a.
2.3
3.2
2.4
0.6
n.a.
n.a.
2.0
n.a.
2.7
1.5
n.a.
2.1

1992
n.a.
1.8
3.0
1.7
0.5
n.a.
n.a.
3.0
n.a.
4.9
0.8
n.a.
2.2

1996
0.8
n.a.
3.0
n.a.
0.6
2.2
1.6
2.6
1.5
n.a.
1.4
1.7
1.7

1996
0.6
n.a.
3.4
n.a.
0.7
2.1
1.1
3.2
2.4
n.a.
1.2
1.3
1.8

Australia
CanadaNew Zealand
USA
New World

4.1
3.4
4.4
3.2
3.8

4.0
2.9
3.6
3.9
3.6

n.a.
3.4
n.a.
2.7
3.0

Albania
Czech Republic
Estonia
Georgia
Hungary
Kyrgyzstan
LatviaMacedonia
Mongolia
PolandRomania
RussiaSlovak Republic
Slovenia
Yugoslavia
Countries in Transition

n.a.
4.7
5.9
2.5
n.a.
n.a.
n.a.
n.a
n.a.
2.2
n.a.
1.8
3.4
1.8
n.a
3.2

n.a.
1.6
3.1
2.0
n.a.
n.a.
n.a.
n.a.
n.a.
2.7
n.a.
3.6
1.6
2.5
n.a.
2.4

Egypt
South Africa
Tanzania
Tunisia
UgandaZimbabwe
Africa

3.0
7.2
21.2
7.4
14.2
n.a.
10.6

China
India
Indonesia
Philippines
Asia
Argentina
Bolivia
Brazil
Costa Rica
Latin America

166

1996

1996

1996

1996

1.5

2.0

1.6

1.7

n.a.
2.8
n.a.
3.5
3.2

2.8

4.0

2.4

3.5
2.2
4.0
4.0
2.6
4.6
2.6
2.0
9.3
2.0
1.2
2.9
n.a.
n.a.
2.9
3.4

2.9
2.7
3.9
3.1
1.9
4.3
5.3
1.6
6.1
1.7
2.0
4.6
n.a.
n.a.
2.7
3.3

2.8

3.5

3.3

2.6

3.8
3.9
13.3
4.5
13.0
n.a.
7.7

n.a.
6.8
n.a.
n.a.
8.1
10.2
8.4

n.a.
3.7
n.a.
n.a.
10.4
7.2
7.1

5.5

8.5

5.8

9.0

1.5
1.2
4.6
2.9
2.6

0.4
1.3
2.0
2.1
1.5

n.a.
2.2
4.5
1.7
2.8

n.a.
3.0
2.9
0.9
2.3

3.2

2.7

2.1

2.8

2.9
n.a.
1.4
4.4
2.9

3.9
n.a.
2.4
6.1
4.1

7.5
7.1
2.6
7.6
6.2

6.9
9.0
3.5
9.3
7.2

5.4

6.3

5.2

6.3

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Table 3
Percentages of Burglaries Involving Damage and Actual Theft, by Regions - 1996

Apartment
Objects Stolen

WesternEurope
58.4
74.9

New
World
50.0
72.6

Countries inTransition
42.2
77.9

Vice versa, in the more affluent regions,where most people keep their money in theblank, and often jewelry and other valuableobjects are kept in safes and security
lockers, burglars take what is available andgive preference to objects which are easily
re-sold. In this respect, the most frequently
stolen objects are those which are easier toplace on the market of stolen goods, suchas electrical appliances, TV and radio sets,
VCRs, hi-fi equipment, as well as furnitureand objects of art. The difference in objects
stolen between the affluent and poor
regions is opportunity determined, in termsof the type of objects available, or the levelof protection.
A. Fear of Burglary
The respondents were asked whether
they felt that a burglary was likely to occur
in their household in the next twelve
months. Table 5 shows that the majorityof the respondents from Western Europe,
the New World and Asia were notconcerned about the possibility of a breakin in the near future, while the opposite
was the case with the majority of the
respondents from Latin America and morethan 40% of those from countries intransition and Africa. The higher the rates
of victimisation for burglary and attemptedburglary, the higher the fear of this type ofcrime. There is a strong correlation at theregional level between the perceived
likelihood of burglary and burglary(0.8232), and even more with attemptedburglary (0.9111). Within the regions,similar levels of fear of burglary wereperceived by those living in houses andthose living in apartments.

Africa

Asia

55.7
89.1

28.9
91.5

Latin
America
32.8
85.9

B. Crime-prevention at theHousehold Level
The costs related to burglary may
greatly be increased if a household is
protected by crime prevention devices.
Deterrence is put in place by creating
physical or psychological barriers between
the offender and the target.
It appears that the patterns ofcommitting burglaries in isolated houses
or flats in condominiums are different. Anapartment may be better protected fromattacks from outside than a house, but oncea burglar gets in, he/she is more likely towork undisturbed because of the higher
level of anonymity which is found in acondominium.
Crime prevention measures suggested
for the two types of dwelling are also
different: while a burglar alarm can beadvisable in both situations, its
effectiveness can be greatly reduced if thehouse is isolated and the alarm is notconnected, for example, to the local police
station. Otherwise, if the alarm consistsof an acoustic deterrent, it can only work if
it is likely to be heard by somebody in theneighbourhood.
Three main types of crime prevention
measure are commonly used to protect
households and were identified by the
ICVS questionnaire. The first type consistsof behaviours adopted by the household
members in order to prevent crimes. For
example, keeping a watch dog, making thehouse look and sound occupied while away
by leaving curtains and shades in their167

RESOURCE MATERIAL SERIES No. 56
Table 4
Likelihood of Burglary in the Next Twelve Months, by Regions (1996)

Very likely/likely
Not likely
Don’t knowWesternEuropeNew
WorldCountries inTransition

AfricaAsia

Latin
America

29.6
63.0
7.5

26.8
67.5
5.7

41.1
35.6
23.3

43.7
33.2
23.1

21.3
51.7
27.1

56.6
31.4
12.0

normal position or lights on, or asking aneighbour or a caretaker to look after thehouse. In many cultures, households are
rarely left unattended and relatives orfriends may come along and take care of
the home.
A second type consists of physical devices
which are put in place in order to makeaccess of unauthorized persons to thehousehold more difficult. This typeincludes the simplest and more diffusedcrime prevention devices such as door
locks, window grills and fences. Burglar
alarms installed to protect the householdfrom break-ins also belong to this category.
Finally, a third type exists at thecommunity level and consists of theestablishment of community-based
initiatives involving other parties in crime
prevention (such as other citizens, but also
the police, the municipality or the schools).
For example, “neighbourhood watch”
schemes involving the residents of aparticular area.
Table 5 shows the rates of crime
prevention measures observed by the 1996
ICVS. It should be noted that the adoptionof crime prevention measures very muchdepends on the type of dwelling (acorrelation of 0.835 was found between an
aggregate index of crime prevention
measures and living in a house rather thanan apartment). In fact, most of the devices
or precautions listed in Table 6 are moresuitable for a house than an apartment. It

168

therefore appears that crime prevention
measures are least used in countries intransition, the region in which most
respondents lived in apartments. In
addition, the cost of crime prevention
devices that are more suitable forapartments (e.g, burglar alarms) arehigher and therefore less in use in lessaffluent countries even if apartments are
more diffused dwelling places for city
inhabitants.
It should also be noted that thepercentage of those who declared that they
did not use any of the measures listed by
the ICVS ranged from 11.9% in the New
World to 36.5% in the countries intransition, reflecting both the suitability oftypes of devices for types of dwellings, aswell as the level of expenditure for crime
prevention.
The ICVS revealed that various types ofcrime prevention measures exist in all
world regions, although their use is more
frequent where affluence is higher. The
most popular crime prevention measure
was asking the neighbours to look after thehouse in case of absence. A minimum of
25% of the respondents in Russia to a
maximum of 83% in Northern Ireland andIndia normally ask their neighbours to lookafter the household when away.
The second most diffused method was
the use of door locks and ownership/use ofwatch dogs. Keeping a watch dog was
mentioned by approximately a quarter of

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Table 5
Crime Prevention Measures at the Household Level, by Regions (1996)

Ask neighbours tolook after the house
Door locks
Watch dog
Windows grills
Neighbourhood watch
Fence
Burglar alarm
Caretaker
None

WesternEuropeNew
WorldCountries inTransition

AfricaAsia

Latin
America

59.2
46.2
20.4
14.5
17.7
16.2
13.4
4.0
27.5

97.1
54.7
34.7
20.9
36.2
17.5
20.5
8.3
11.9

48.6
26.9
20.7
8.6
8.4
5.2
4.4
0.9
36.5

47.7
31.9
18.9
34.2
10.3
38.6
5.9
7.5
27.2

76.7
42.0
19.7
30.0
22.9
4.2
1.7
10.6
21.3

60.5
41.8
39.7
34.2
12.1
20.7
12.3
10.4
15.4

the respondents, with peaks of 65% in
Bolivia, 39% in the USA and 38% in The
Philippines.
Asking the neighbours and keeping awatch dog are two widely used types ofprotection by the respondents from all theregions, including more than 20% in
countries in transition. It is interesting toobserve that watch dogs are not only
frequently found in houses, but are alsofrequently kept in apartments: it appears
that even a pet might do some crime
prevention work.
Employing a caretaker to prevent crime
was indicated by 10% of the respondents
in Asia and Latin America. This measure
is very much related to the urban and social
structure of the country, as well as its
habits. It therefore appears that rates varydepending on the local situation. In a few
countries, including Costa Rica, Argentina.
India, Zimbabwe, Finland and France,
rates of employment of caretakers aremuch higher than in the rest of theparticipating countries. In all regions,
respondents who declared the presence ofa caretaker showed a significantly lower

fear of burglary than the average.
Data from the ICVS reveal that “simple”
crime prevention measures such as door
locks and window grills are used in all theparticipating countries. The countries inwhich such devices are less used are thosein which there is a low incidence of crime
prevention measures in general, as is thecase in Finland, Estonia, Albania, Latvia,
Poland, Russia, Mongolia and Yugoslavia.
As regards Finland, low crime rates may
be a possible explanation for a lesser useof household protection. In the othercountries, all belonging to the group ofcountries in transition, it appears that theprocess of increased protection of residence
is much slower than the spread of property
crime.
As expected, window grills and fences
are very frequent in all regions where themost popular type of dwelling is a house,
with the exception of Asia. An aggregate
index of crime prevention measures reveals
that they are more frequently used in theregions in which burglary rates are higher.
These findings suggest that crime
prevention measures are adopted where

169

RESOURCE MATERIAL SERIES No. 56
Table 6
Burglar Alarms, by Countries - 1992 and 1996
England & WalesThe Netherlands
FinlandSwedenCanadaEstonia
PolandRussiaGeorgia
Czech Republic
India
Indonesia
The Philippines
UgandaSouth Africa
Costa Rica
Argentina
Brazil

1992
22.1
7.6
1.0
5.4
13.0
0.8
1.4
5.9
3.7
2.9
2.7
3.9
2.3
5.5
9.4
9.1
15.8
2.9

and when burglary occurs more frequently.
Once adopted, the crime prevention devices
tend to reduce the feeling of insecurity, atleast initially: the respondents who
adopted crime prevention measures more
frequently perceived that burglary in thenext twelve months is unlikely.
It therefore appears that respondents
from high-crime regions feel safer(unlikelihood of burglary) if they use crime
prevention measures, while the same
feeling of safety is expressed byrespondents from low-crime areas who did
not adopt any of the crime prevention
measures identified by the survey.
C. Burglar Alarms
Table 6 shows the percentages of
respondents who owned burglar alarms in

170

1996
27.2
10.1
1.0
6.7
20.0
3.1
1.4
7.2
3.5
6.9
1.7
0.9
1.8
4.6
8.0
8.3
26.7
0.1

% Difference
+5.1
+2.5
0.0
+1.3
+7.0
+2.3
0.0
+1.3
-0.2
+4.0
-1.0
-3.0
-0.5
-0.9
-1.4
-0.8
+10.9
-2.8

1992 and 1996 in the participating
countries. In general, burglar alarms are
more frequently installed to protect houses
than apartments. Alarms are morediffused in the more affluent regions, i.e,
the New World and Western Europe.
However, within these regions they are notvery popular in Switzerland, Finland,
Sweden and Austria, which are also thecountries with the lowest burglary rates.
The apparently high incidence of burglar
alarms in Latin America is mostly due totheir spread in apparently high incidenceof burglar alarms in Latin America ismostly due to their spread in Buenos Aires,
where 26% of the respondents owned sucha device in 1996.
Between 1992 and 1996 the use or
installation of burglar alarms increased in112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
most countries in Western Europe, the New
World and countries in transition. It is
hard to tell whether a wider use of burglar
alarms can be related to the increase or
decrease of burglary rates, although it
appears that the majority of the
respondents who owned an alarm in 1996
were not victims of burglary in the past five
years. Respondents with a burglar alarm
who were not victims of burglary in the past
five years showed the percentages of fearof burglary were markedly lower than the
average for the sample.
It thus appears that the respondents
believe that alarm systems actually deter
burglars. Nevertheless, in ten
industrialised countries participating in
the 1996 ICVS, an experimental question
was posed to victims of burglary who werealso owners of burglar alarms to assess
whether their alarm was installed before
or after the burglary occurred. Results
show that the majority of victims who
declared that their household is protectedby a burglar alarm decided to install it only
after the burglary occurred.
Finally, for comparative purposes, it
should be taken into account that in several
countries insurance companies encouragea wider use of burglar alarms by offering
reductions on the cost of household
insurance if an alarm system has been
installed.
D. Neighbourhood Watch Schemes
and Examples of Partnership in
Crime Prevention
Neighbourhood watch schemes are quite
popular in the New World, Asia andWestern Europe, but much less so in theother regions. These schemes imply acertain level of social cohesion and that all
the participating residents share theobjective of preventing and reducing crimeby increasing the level of “natural
surveillance” in a specific area, thus

promoting informal crime control. Thisapproach, if co-ordinated with the police,
helps to limit the use of self-defense and to
improve the quality of life in the area.
The ICVS identified huge differences in
the country-by-country rates of the use ofneighbourhood watch schemes within thesix observed regions, and even at the subregional level between countries that areotherwise similar to each other. For
example, while in England and Wales morethan 48% of the respondents said they
belonged to such schemes, this was the casewith only 28.3% in Scotland and 1.6% inNorthern Ireland. This data suggest that“neighbourhood watch” very much depends
on programme implementation at the local
level.
IX. POSSESSION OF FIREARMSFOR CRIME PREVENTION
The perception that a gun can beconsidered an effective crime prevention
device is frequent in some countries andmany people depend on a firearm forprotection.
Table 7 shows that rates of ownership offirearms very much vary from region toregion. The highest ownership rates wereobserved in the New World and Western
Europe, followed by Latin America andcountries in transition. However, thereasons for gun ownership are different andvary very much from country to country.
Not all the firearms are meant to be used
for crime prevention purposes.
In countries in transition and developing
countries hand guns were more widespreadthan long guns. It should be observed that
handguns - which are mostly owned forcrime prevention purposes - were more
frequently found in large cities than inrural areas and in some cities, especiallyin Latin America, they represented the171

RESOURCE MATERIAL SERIES No. 56
absolute majority of the firearms owned by
the respondents.
In the United States, 57% of the
respondents said they owned a weapon for
hunting, while another 39% said that the
purpose of ownership was self-protection
and prevention of crime. Although it waspossible to provide multiple responses, this
proportion of respondents believing in guns
for crime prevention is among the highest
reported to the survey.
In countries such as Canada andFinland, the relatively high ownershiprates were explained by the respondents
as being for hunting purposes as theysometimes need to be ready to face wild
animals which may attack isolated houses.
In these countries, ownership with the
purpose of crime prevention was mentioned
in less than 1% of the cases.
In Switzerland, 64% of the respondents
declared that a firearm was in theirhousehold because they belong to the army.
This is because the military system in
Switzerland envisages that all malecitizens remain enrolled with the army
until they are 55 years old, thus
participating in periodical re-training andtaking care of their own military weapon,
which is normally kept in the household.
The purpose of crime prevention was
mentioned by 7 % of the owners only.
The Federal Republic of Yugoslavia
represents a different situation. There isa tradition of ownership of firearms in thiscountry and furthermore it has recently
emerged from a period of disintegration of
the former Yugoslavia. War was spreading
all around and contributed to increased
feelings of fear, on the one hand, and to
more availability of weapons on the other.
According to the Yugoslav survey coordinator, the ownership rate of 30% is anunderestimate of the actual number of
weapons existing in Belgrade. The main
purpose for ownership was reported as
being for the prevention of crime, followedby the statement that a weapon has always
been in the respondent’s family.
Finally, in Argentina the large majorityof gun-owners (65%) declared that theyowned it to protect themselves from crime.
This was the case with most of the firearmowners from Latin America, Asia andAfrica, although actual rates of ownershipvaried, the lowest being in Asia and Africa.
The above examples show different
patterns of ownership and use of weapons.
While it appears that there is no correlation
between burglary and gun ownership as
such, a strong correlation was foundbetween both burglary and attemptedburglary and ownership with a purpose ofcrime prevention (.962 and .926
respectively).
Finally, respondents who declaredowning a weapon for crime prevention
purposes also perceived high chances ofburglary (very likely and likely) within thenext twelve months (correlation = .728419).

Table 7Firearms: Rates of Ownership and Crime Prevention Purpose, by Regions (1996)

Gun ownershipc.p. purpose

172

WesternEuropeNew
WorldCountries inTransition

AfricaAsia

Latin
America

17.8
8.6

36.5
21.8

11.7
28.7

63.6
79.4

4.1
34.6

15.9
65.7

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
V. CRIME PREVENTIONSTRATEGIES: BETWEEN FORMALAND INFORMALThe ICVS data shows that crime
prevention measures at the individual level
was not a major concern of the respondents
from the participating countries. Althoughburglary in the next twelve months isperceived as likely or very likely by morethan 40% of the respondents in mostdeveloping countries and in countries intransition, only some basic measures toprevent crime are put in place by those who
fear that their household will be broken
into soon.
It is hard to assess whether this meansthat there is not enough protection put inplace by individuals or whether crime
prevention policies in different countries
are based on different strategies which give
more or less room to “self-help”. “Self-help”
may be considered the most informal typeof crime control, and is therefore
individualised. The “social” mechanisms
for crime prevention, such as nighbourhood
watch schemes, require the citizens toparticipate in crime prevention activities
organised by groups of peers who work inagreement with the agencies of formal
control for the benefit of the community.
It therefore appears that a desirable
development would include a broader
participation of citizens in crime prevention
programmes which would involve several
counterparts and tackle various aspects ofeveryday life.
A. International Work
Within the framework of the Ninth
United Nations Congress on the Preventionof Crime and the Treatment of Offenders,
held in Cairo, Egypt, in 1995, a workshop
on “Urban Policy and Crime Prevention”
was organized. Its final report reflected
the indissoluble links established between

urban policies and crime prevention, andstressed that only a global and partnershipbased approach may be effective inembracing all the causes of crime, with theparticipation of all the agents concerned.5
The principle of sharing crime
prevention responsibilities with thecommunity has been widely accepted andmany governments place crime prevention
programmes involving citizens, law
enforcement and all relevant components
of society among the highest national
priorities. This implies a significant effort
to be jointly undertaken by all the partners
involved, including setting an agenda
which should focus on local needs withoutloosing track of the experience gained at
the national and international level, clearly
identifying its objectives and timing,
assigning roles and appointing leaders toco-ordinate action, adopt common
standards and include proper evaluationof the results achieved.
Long-term plans may not be primarily
aimed at the reduction of crime, which is a
desirable side-effect. For example,
improving the design of the urban
environment by providing more street
illumination is likely, primarily, to improve
the quality of life and secondarily, reduce
opportunities for crime.
The International Centre for thePrevention of Crime (ICPC) has promoted
a review of best practices in the field ofurban crime prevention.6 This resulted ina collection of model programmes put inplace in various cities and local
5

United Nations, Report of the Ninth United Nations
Congress on the Prevention of Crime and theTreatment of Offenders, A/CONF. 169/16, 12 May
1995, p. 82.
6 The collection of best practices is accessible fromthe Internet at the ICPC World Wide Web address<www.crime-prevention.org/ipc.>173

RESOURCE MATERIAL SERIES No. 56
communities around the world. Threemain areas for effective prevention havebeen identified:(a) reducing risks of victimization and revictimization of citizens by increasing
formal and informal control;(b) preventing offending and re-offending,by targeting groups at risk andproviding them with educational andrecreational opportunities, as well as
possibilities for housing andemployment;(c) specific target-hardening, through theencouragement of a broader use of selfprecautionary measures.

situation and trends in crime prevention.
It also provides an opportunity to analyse
particular contexts and to makesuggestions as to specific crime prevention
programmes. In 1994 UNICRI, in cooperation with the Research Institute of the
Ministry of the Interior of the RussianFederation, recommended a model crime
prevention programme for the city of
Moscow.9 A comprehensive model of thecomponents of crime prevention
highlighted the particular problems of acountry in transition towards a market
economy. The transition process involves
higher rates of crime (in particularproperty crime), whilst there are scarcefinancial resources to combat it. The crime
prevention strategy should include sevenelements:

It should be noted, however, that the vast
majority of crime prevention programmes
have been established in Western Europe
and the New World.7 Very few cases havebeen found in developing countries andcountries in transition. Among them, one
has been reported from Colombia 8 andconsisted of setting up groups of “peace
promoters” who assisted in theidentification of problematic situations andpotential offenders, thus leading to thecreation of programmes in law
enforcement, public education and social
development.

1. The promotion of active crime
prevention policies to accompany law
enforcement and criminal justice,based on international experienceobtained through effective projects
developed by the United Nations andother relevant internationalorganisations.
2. The development of long-term plans,even though public opinion might ask
for short-term responses to crime.
3. Improved coordination of crime
prevention activities at the national,
regional and local levels.

The ICVS is not only useful for providing
an informed overview of the international
7

For a comprehensive collection and analysis ofcrime prevention programmes in Europe and North
America, see J. Graham, T. Bennett, Crime
Prevention Strategies in Europe and North America,
European Institute for Crime Prevention andControl, affiliated with the United Nations(HEUNI), 1995.
8 The programme is called DESEPAZ, Programma
Desarrollo Seguridad y Paz (Urban Development,
Safety and Peace Programme) and is based in Cali,
Colombia.

174

4. The encouragement of the public to
be involved in crime prevention, bystrengthening the community’s
confidence in the police.
5. The promotion by law enforcement
and criminal justice of the safety and9M. Alexeyeva, A. Patrignani (eds.), Crime andCrime Prevention in Moscow, UNCRI Publ. No.52,
1994.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
security of persons and property.
6. The treatment of victims with respect
and understanding of their needs,
and the provision of prompt
assistance and information about
their rights.
7. The regular monitoring of crime
prevention programmes, based onreliable information, analysis andpublic discussion with all parties
involved.
The Moscow model, which was also
based on the extensive analysis of theresults of the 1992 ICVS in Moscow,
confirms the potentials of the ICVS as atool to promote community and victimcentred crime prevention strategies.
Furthermore, improved policecommunity relations, which may result
from a better knowledge of victimisation
experiences, will lead to an increased useof crime prevention measures at theindividual/household level, as well as
within the framework of “social” crime
prevention programmes.

175

RESOURCE MATERIAL SERIES No. 56

CITIZEN’S APPRAISAL OF SECURITY AND CRIMINALJUSTICE: AN INTERNATIONAL PERSPECTIVE
Ugljesa Zvekic*
I. INTRODUCTION
People tend to appraise security andcriminal justice on the basis of their own
experience or by stories told, written or
seen on TV. This appraisal is a mixture ofrational and irrational elements, including
fear for security and moral values as towhat is just and what is not. This paper
discusses people’s reactions to crime, topolice, victim support and punishment. In
other words, reactions, expectations andvalues as related to different componentsof the crime process based on the results of
the International Crime Victim Survey(ICVS).
Several interrelated considerations andexperiences prompted the launching of theInternational Crime Victim Survey (ICVS).
First, an increased interest in and concern
with the victims of crime both at thenational as well as the international level(the United Nations (UN) in particular).
Second, increased scepticism about thereliability of official criminal justicestatistics, mainly in terms of their focus on
criminal justice system concerns, its
operation and offenders. Third, a perennialcriminological concern with dark figures.
Fourth, the official criminal justicestatistics provide quite a restrictedmeasure of the functioning of the criminal
justice agencies, excluding performanceappreciation by the citizens, and thus, theaccountability issue. Fifth, on the one
hand, difficulties with international
comparisons based on official criminal
justice statistics (as evidentiated by the* Deputy Director, United Nations Interregoinal
Crime and Justice Research Institute, UNICRI.

176

United Nations Survey of Trends in Crimeand the Operation of Criminal Justice
Systems and INTERPOL), and on theother, a wealth of experience gained
through national victimisation surveys
carried out in a few industrialised
countries, gave impetus for an attempt toprovide an alternative international
measurement of crime.
The ICVS started in 1989 by the
Ministry of Justice of the Netherlands, andsubsequently (1991) was further developedwith the involvement of UNICRI. It
reached its third “sweep’’ in 1996-97. It
received major financial support from the
Ministries of Justice and Foreign Affairsof The Netherlands, the UK Home Office
Research and Statistics Directorate, andthe UNDP for selected countries, as well
as from local funding as regards thedeveloping countries and countries intransition, and on a self-funding basis forthe majority of the participating
industrialised countries.
It can be stated without exaggerationthat this was one of the major empiricalinternational comparative projects in thearea of crime prevention and criminal
justice, with particular emphasis on
victimisation risks and experiences ofcitizens all over the world. This is evident
from the number of participating countries
with an average sample ranging from 1,000
to 2,000 respondents from eachparticipating site, resulting in more than
130,000 people from all over the world
being interviewed about their victimisation
experience, contacts with law enforcement
and evaluation thereof; patterns and112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSCountries Participating in the Three Sweeps of the ICVS: 1989; 1992-94; 1996-97
Industrialised

Countries in Transition

Developing

Australia
Austria
Belgium
CanadaEngland & Wales
FinlandFranceGermany
Italy
Japan
Malta
The Netherlands
New Zealand
Northern Ireland
NorwayScotland
Spain
SwedenSwitzerland
USA

Albania
Belarus
Bulgaria
Croatia
Czech Republic
Estonia
Federal Republicof Yugoslavia
FYR of Macedonia
Georgia
Hungary
Kyrgyzstan
LatviaLithuania
Mongolia
PolandRomania
RussiaSlovak Republic
Slovenia
UkraineArgentina
Bolivia
Botswana
BrazilChina
Colombia
Costa Rica
Egypt
India
Indonesia
Papua New Guinea
Paraguay
The Philippines
South Africa
Tanzania
Tunisia
UgandaZimbabwemethods of crime prevention; and attitudes
towards punishment.
The 1989 sweep involved 15
industrialised countries, one developing
country (Indonesia) and one EasternCentral European country (Poland). The
second round of the ICVS involved: 12
industrialised countries, 13 developing
countries and 7 countries in transition. Thet h i r d s w e e p o f I C V S i n c l u d e d : 11
industrialised countries, 14 developing
countries and 20 countries in transition.
All together, 58 countries participated in
the sweeps of the ICVS, with 7
participating three times, 22 participating

twice and 19 participating for the first timein 1996-97. It should be noted that theparticipation of developing countries andcountries in transition increased from 2 in1989 through to 20 in 1992-94 to 34 in 199697. It should be also noted that in allindustrialised countries, the ICVS was
carried out on a national level by using
CATI, while in almost all developing
countries and countries in transition it was
carried out on a sample of population fromthe largest city through face-to-faceinterviewing. International comparative
analysis was thus restricted to urban areas
only. The results of the ICVS are presented
in numerous publications and at various

177

RESOURCE MATERIAL SERIES No. 56
international fora, including the two majorinternational conferences held in Rome in1992 and 1998 respectively :Understanding Crime: Experiences of
Crime and Crime Control, and Surverying
Crime: A Global Perspective.
II. CRIME CONCERNS
Fear of crime is one concern. In thisstudy it was measured by two indicators:
feeling safe after dark and avoiding goingout alone. Only data related to feeling safe
after dark is presented here. The
respondents were asked how safe they feel
when walking alone in their area afterdark.
The data reveals that street safety isperceived to be highest by citizens in Asia,
followed by Western Europe and the New
World. In Africa a bit less than 60% of thecitizens feel safe. Just about half of thecitizens in Latin America feel very andfairly safe when walking alone after dark.
The citizens that feel least safe are thosein countries in transition, where 46% saythey feel safe, while 54% say they feel a bit
unsafe or very unsafe. Among the world
regions, the lowest percentage of citizens
from countries in transition (13%) say they
feel “very safe” in streets after dark.

III. REPORTING TO THE POLICE
The “police crime story’’ is the amountand type of crime known to them. It will
differ from the “real crime story” dependingon citizens’ propensity to inform the police
about crime. To this reported crime, thepolice can add crimes detected by them but
not reported, and they can deduct somecriminal activities which do not figure in
the “police crime story” because of specificinvestigative, technical, procedural, socialand political reasons. There are, however,important variations across countries as tothe volume and type of crime known to thepolice and admitted into police
administrative records.
Not surprisingly, the propensity to reportto the police depends heavily on theseriousness of the crime, whether tangible
or intangible. However, reporting is also
influenced by other factors: previous
personal experiences of reporting; otheracquired experience with, or attitudes tothe police; expectations; factors related tothe particular victimisation experience at
hand; the existence of alternative ways ofdealing with this; the relationship with theoffender; and the “privacy” of the issue.
Crime reporting, as mentioned above,differs according to the crime in question.

Table 2Street Safety in World Regions

Western Europe
New worldCountries in Transition
Asia
AfricaLatin America

178

Very
safe
28.0
26.9
13.2
25.2
24.4
18.9

Fairly
safe
42.2
40.7
33.3
53.5
33.9
32.5

A bit
unsafe
19.6
18.5
35.8
13.6
22.0
26.6

Very
unsafe
9.6
13.5
17.1
7.7
19.2
21.7

Do not
know
0.6
0.4
0.6
0.0
0.4
0.3

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
It is evident that car theft is more reported
than any other crime, while sexual
incidents, corruption and consumer fraudare, on average, the least reported.
However, reporting rates also differ fromcountry to country, as well as dependingon the developmental level. It is also
claimed that the reporting rates have to
do with the crime level in the society
irrespective of the above-mentioned factors
or as a baseline from which other factors
influence the levels of reporting. For
illustrative purposes, reporting rates forburglary, robbery and assault based on all
sweeps of the ICVS are presented in Table
3.
Among the three crimes, the highest
reporting level is for burglary, followed byrobbery. Less than one third of the victimsof assault reported it to the police. For all
three crimes, the highest reporting levels
are in the industrialised world, both Old
and New. From among the group of nonindustrialised countries, burglary isreported the most in countries in transition
and in Africa, and the least in Asia; whilefrom among the non-industrialised groupless than one third of the victims reported
assault and somewhat more than a third
reported robbery to the police. Therefore,in terms of the “reporting ranks”, countries

in transition rank third on burglary, fifthon robbery and fourth on assault. There isthen a clear difference in reporting levels
between, on the one hand, theindustrialised world and, on the other, therest of the world.
Comparing the two data sets
(victimisation rates and reporting rates) it
becomes clear that the highest level ofcorrespondence between the victimisation
and reporting rates for all three crime types
is found in Asia. From a comparative
perspective, Asia has both the lowest
victimisation as well as the lowest
reporting rates. On the other hand, thehighest reporting rates of the New Worlddo not correspond to the victimisationlevels reported for the New World.
Generally speaking, it appears that thereporting levels do not reflect thevictimisation levels. This seems to support
the hypothesis that the victimisation levelis not the most important factor in
conditioning the reporting practice, andthat it cannot be considered even a solid
baseline for predicting propensity to reportto the police. High crime does not
automatically and necessarily lead to highdisclosures of crime. Other factors appear
to have more weight on the propensity toreport to the police.

Table 3
Percentage of Burglary, Robbery and Assault Reported to the Police in Six
Global Regions, 1989, 1992 and 1996 ICVS (1 year)

Western Europe
New WorldCountries in Transition
Asia
AfricaLatin America
Total

Burglary
79.6
85.3
63.2
40.8
57.7
44.1
61.8

Robbery
45.5
75.9
25.1
33.3
33.5
20.7
39.0

Assault
28.5
45.3
20.4
31.0
20.4
23.6
28.2

179

RESOURCE MATERIAL SERIES No. 56
Why do people report crimes to thepolice? The reasons are divided into: senseof civic duty (“should be reported”; “to stopit”); need for assistance (“to get help”);
recovery/compensation of damage(“recovery of property”; “insurance”).
“Want the offender caught/punished” lies
somewhere between means for recovering
property and damage, and expectation forthe law enforcement agency to effectively
deal with offenders.
Civic duty related reasons are prominentacross the board independently of crime
type and developmental groupings. While
this is true for “should be reported”,
reporting crime for preventive purposes “tostop it happening again” is of particularsignificance for threats/assaults or robbery,
while less so for burglary. This is quite arational attitude on the part of the victims
who also consider that reporting violent
crimes has more chance of inducing
preventive action by the police whileburglary prevention is becoming much
more the citizen’s own prevention activity.
“To get help” as a reason for reporting ismore frequently mentioned with relation
to threats/assaults and robbery.
Recovery of property and insurance areboth mentioned with respect to burglary
and robbery. It is interesting to note thatreporting for the reason of recovering
property for both crimes is much morepresent among victims from countries intransition and the developing world thanfrom the industrialised world. Inversely,
insurance reasons are much more
important in the industrialised world.
There is a very clearly established pattern,
according to which high insurance coverage
results in high reporting rates in order to
get the insurance premiums. Where
insurance coverage is low, expectations
related to reporting are to “recover” stolen
property. Since the level of insurance
coverage is much higher in the180

industrialised world than in countries intransition, the reasons for reporting inorder to compensate for damage will reflect
this discrepancy. “At the individual level,
those without insurance are less likely toreport burglaries to the police... At theaggregate level, there is always a strong
association between the insurance coverage
and reporting of burglaries to the police’’(van Dijk, 1994). Indeed, the countries andregions with low insurance coverage tend
to display low reporting rates of burglaries
to the police.
“Want the offender caught/punished” asa reason for reporting figures prominently
for all three crimes. However, differencesin the importance of this particular reason
between the regions are less pronounced
when it comes to assault and robbery, andmore pronounced when it comes toburglary. Most probably, the level of
insurance coverage again is at play in asense that for the victims of insured
households to get the offender caught/
punished is of less importance in terms ofreporting to the police. On the other hand,
if there is no household insurance, in orderto recover property it is also important tofind and punish the offender. In addition,
there is a more punitive orientation in thedeveloping countries and countries intransition (Zvekic, 1997), which also
indicates the importance of this reason forreporting crime to the police.
It was noted that, on average, there are
more non-reported crimes - in particularrobberies and threats/assaults - in all theregions of the world and especially incountries in transition.
That the “police could do nothing” wasfrequently given as a reason for notreporting property crimes - thefts ofpersonal property, thefts from cars, etc.
This may signify a belief that the police
would be unable to recover property, find

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Table 4
Reasons for Reporting Crime to the Police, 1996
Recover Insurance Should be Wantproperty reasons reported offendercaughtBurglary
Western Europe
New WorldCountries inTransition
Asia
AfricaLatin America
Total

To stopit

To gethelp

Otherreasons

32.2
17.4
57.5

43.2
22.8
15.0

46.0
51.1
37.4

31.9
27.2
51.4

18.2
13.0
27.0

8.4
8.7
12.5

11.9
15.2
2.5

82.2
72.6
53.2
52.4

4.4
13.1
26.2
20.8

48.9
26.8
19.5
38.3

64.4
53.9
42.9
45.3

64.4
20.8
34.8
29.7

26.7
16.7
8.6
13.6

1.2
3.1
6.8

Western Europe

35.2

13.6

40.9

36.4

21.6

17.0

18.2

New World

23.3

13.3

56.7

46.7

26.7

20.0

16.7

Countries in

43.2

12.4

33.9

54.1

33.6

21.1

7.7

Asia

80.6

2.8

47.2

69.4

41.7

25.0

2.8

Africa

57.6

10.1

36.4

55.6

20.2

17.2

2.0

Latin America

39.0

32.0

23.0

54.0

40.5

17.0

3.0

Total

46.5

14.0

39.7

52.7

30.7

19.6

8.4

Western Europe

4.5

5.6

35.0

32.2

31.6

22.0

23.7

New World

6.9

6.9

36.2

39.7

39.7

24.1

22.4

Countries in

8.5

12.2

31.8

41.1

44.0

25.6

7.5

Asia

16.2

10.8

43.2

48.6

73.0

40.5

-

Africa

3.5

-

34.1

56.5

45.9

1.6

3.5

Latin America

18.0

42.4

18.7

38.8

44.6

22.3

7.2

Total

9.6

15.6

33.2

42.8

46.5

25.4

12.9

Robbery

Transition

Assault/Threat

Transtion181

RESOURCE MATERIAL SERIES No. 56

Burglary
Western Europe
New WorldCountries inTransition
Asia
AfricaLatin America
Total
Robbery
Western Europe
New WorldCountries inTransition
Asia
AfricaLatin America
Total
Threat/Assault
Western Europe
New WorldCountries inTransition
Asia
AfricaLatin America
Total

Not
seriousenoughSolveditmyselfInappropriate
Other
for the police authorities

My
familysolved itNoinsurance

26.2
30.8
27.0

21.4
15.4
13.3

4.8
7.7
13.2

6.6

7.1
9.0

4.8
7.7
6.5

52.4
17.4
24.0
29.6

13.3
12.3
10.8
14.4

14.3
10.7
2.9
8.9

2.9
7.1
5.5

3.8
5.5
5.9
6.3

2.9
2.4
5.3
4.9

35.7
5.9
23.4

10.7
41.2
12.7

17.9
11.8
10.3

1.8
11.8
1.7

5.4
6.4

8.0

30.4
14.7
18.1
21.4

10.1
9.6
6.3
15.1

18.8
10.9
5.5
12.5

4.3
0.5
4.0

10.1
1.9
0.5
4.9

1.4
0.6
2.0
3.0

38.6
25.6
26.2

13.6
17.9
19.5

8.0
7.7
14.5

4.7
6.4
6.3

2.7
2.6
6.8

6.7

36.4
22.5
17.4
27.8

33.9
18.1
30.7
22.3

8.3
25.2
21.8
14.3

8.3
2.5
0.7
4.8

17.4
6.0
4.2
6.6

0.8
1.6
3.0

Didn'tdare

Otherreasons

Don't
know

Police could Police won't
Fear/
do nothing do anything dislike ofpoliceBurglary
Western Europe
New WorldCountries inTransition
Asia
AfricaLatin America
Total
Robbery
Western Europe
New WorldCountries inTransition
Asia
AfricaLatin America
Total
Threat/Assault
Western Europe
New WorldCountries inTransition
Asia
AfricaLatin America
Total

182

16.7
28.4

2.4
15.4
16.7

5.6

2.4
6.8

21.4
38.5
8.6

8.1
9.4

14.3
35.2
21.1
23.1

5.7
12.3
42.1
15.8

11.5
2.8
7.7
6.9

6.3
2.6
4.5

3.8
14.2
13.7
16.7

3.8
4.3
2.4
5.6

25.0
5.9
30.9

7.1
27.7

5.4
11.8
13.5

7.1
17.6
9.9

16.1
23.5
9.7

2.7
6.5

30.4
46.8
34.0
28.8

17.4
14.7
53.9
24.2

9.1
5.1
24.4
11.6

10.1
12.2
3.9
10.1

4.3
16.7
3.9
12.4

1.9
0.9
3.0

15.0
6.4
21.1

10.9
15.4
18.2

2.9
5.1
23.1

7.4
5.1
9.6

16.5
28.2
7.8

2.4
5.1
3.8

31.4
19.9
14.9
18.1

20.7
12.7
26.1
17.3

33.3
2.7
6.9
12.3

20.7
15.2
9.6
11.3

3.3
9.4
6.2
11.9

3.9
1.6
1.8
3.1

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the offender, or do anything else of benefit.
It could also signify a fairly realistic
judgement about the liability of the police
to do much about something on which they
have little information to act. In essence,
though, it is an expression of resignation.
In contrast, “the police wouldn’t doanything” may carry a more explicit
criticism that the police would be reluctant
to take action, even though they might be
expected to do so. “Fear/dislike of police”
certainly signifies a negative attitude
towards the police, either of a generalnature, or related in some way to theparticular offence in hand. As might be
expected, fear and/or dislike of the police
was often mentioned in relation to violent
crimes and sexual incidents. These might
involve a close relationship with theoffender(s), or sometimes even a lifestylethat may lead the police to treat the victims
as accomplices, or people “who deserve
what they got”. That women victims ofsexual incidents are often treatedunsympathetically by the police is also now
well recognised.
Table 4 presents reasons for notreporting. Crimes are mainly not reported
because they are not considered “serious
enough”. Since this section deals with thepolice, it is worth looking more clearly atpolice related reasons: “police could do
nothing”; “police won’t do anything” and“fear/dislike of police”.
It should be noted that around 30% of
the victims of burglary from the New Worldand even 52% from Asia thought that theburglary which took place in theirhousehold was “not serious enough’’. This
reason, together with “inappropriate forpolice’’, indicates the characteristics of theevent itself. As regards robbery, “notserious enough’’ is mentioned as a reason
for not reporting by 36%, 30% and 23% of
the victims from Western Europe, Asia andcountries in transition respectively. On theother hand, 22%, 26% and 15% of victimsof assault/threats from Latin America,
Africa and countries in transition
mentioned the “inappropriateness’’ of thecase for the police as reasons for nonreporting.
The resigned attitude towards the police(“police could do nothing’’) is particularly
prominent among the victims of all threecrimes dealt herewith from all but theindustrialised world. As will be seen later,
this has much to do with the expectations
citizens have about the police, as well aswith the satisfaction with the police incontrolling and preventing crime.
The two more implicit criticisms of thepolice are also more pronounced reasonsfor not reporting the three crimes provided
by victims from countries in transition.
This is, however, more related to “police
won’t do anything’’. It should be noted thatthe implicit criticism that the police would
be reluctant to take action is, on average,
more highly related to robbery and assault/
threats than to burglary. “Fear/dislike’’ ofpolice is mentioned significantly as areason for not reporting robbery in Latin
America and the New World, as well as for
assault/threats in Asia.
A. Satisfaction with the Police
The ICVS also indicates the strength ofpolice-community relations in showing:(i) the degree of satisfaction victims feel
when they report to the police; and(ii) the reasons why victims weredissatisfied with the way the police
handle cases once reported.
Among the reasons for dissatisfaction
with the police once burglary was reported,the most frequently mentioned were “thepolice did not do enough” and “were notinterested”. The first reason was identified
by more than 40% of the burglary victims

183

RESOURCE MATERIAL SERIES No. 56
Table 5
Reasons for Dissatisfaction with the Police (1996)
Did not Were not Did not Did not Gave no Incorrect Slow todointerested findrecover inform- /Impolite arrive
enoughoffender goods
ation

Other
Do notreasons know

Burglary
Western Europe

44.0

34.7

30.7

18.7

28.0

10.7

16.0

14.7

-

New World

75.0

25.0

25.0

20.0

25.0

10.0

20.0

20.0

-

Countries in

41.5

34.0

46.8

46.4

16.0

12.8

11.2

7.1

1.0

Asia

50.0

20.6

52.9

55.9

14.7

17.6

17.6

2.9

-

Africa

51.5

21.8

38.4

44.1

20.5

5.7

18.8

6.1

-

Latin America

55.8

41.4

34.5

32.1

26.1

20.9

4.8

3.6

0.8

Total

53.0

29.6

38.1

36.2

21.7

13.0

14.7

9.1

0.9

Western Europe

50.0

41.2

14.7

20.6

8.8

20.6

11.8

11.8

-

New World

40.0

40.0

40.0

6.7

13.3

20.0

13.3

6.7

-

Countries in

38.7

41.1

44.3

32.5

18.0

20.1

12.0

11.9

2.2

46.7

33.3

73.3

73.3

33.3

13.3

33.3

6.7

-

Transition

Robbery

Transition
Asia
Africa

40.0

21.7

40.0

38.3

18.3

11.7

16.7

6.7

1.7

Latin America

56.0

53.6

44.0

26.4

29.6

18.4

9.6

0.8

-

Total

45.2

38.5

42.7

33.0

20.2

17.4

16.1

7.4

2.0

21.1

15.3

9.3

1.0

9.4

5.8

7.8

13.6

-

Assault/ThreatWestern Europe
New World

23.4

14.3

10.0

-

14.3

-

10.0

12.2

-

Countries in

45.3

42.1

24.2

9.5

13.5

21.7

12.7

9.8

0.6

Transition
Asia

31.3

25.0

37.5

12.5

31.3

25.0

18.8

-

-

Africa

44.7

17.0

34.0

10.6

14.9

17.0

12.8

19.1

-

Latin America

50.0

44.9

34.6

6.4

25.6

29.5

11.5

2.6

-

Total

36.0

26.4

24.9

8.0

18.2

19.8

12.3

11.5

0.6

184

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
in countries in transition and up to 75% of
those from the New World. Disinterest on
the part of the police was mentioned by 41%of the victims in Latin America and one
third of the victims in countries intransition and Western Europe.
A substantial portion (ranging from one
third to more than a half) of the victims ofburglary from the countries in transition
also highlighted that the police “did not findthe offender” or “did not recover goods”.
Indeed, in countries in transition, “wantoffender caught/punished’’ and “recovery ofproperty’’ were among the principal reasons
for reporting burglary to the police.
Therefore, if these expectations are not met
by the police, victims who reported
burglaries express dissatisfaction,highlighting unmet expectations. As
mentioned earlier, in this part of the world,
where insurance coverage is low, victims
will have a substantial economic stake inreporting in order to retrieve stolen
property or receive some compensationfrom the offender who needs to be identified
and brought to justice.1
Victims of burglary from the developed
world are more sensitive to other indicatorsof police performance, such as providing
appropriate information and speed or
slowness of the police in arriving at theplace of the crime.
Victims of robbery across the globe tend
to emphasise that the police “did not doenough’’ (ranging from 40% in the New
World and in countries in transition up to
56% in Latin America) and “were notinterested’’ (from a peak of 54% in Latin
America to 22% in Africa). More than 70%of the victims of robbery in Asia aredissatisfied with the police because theoffender was not found and the goods were1

For the preliminary analysis related to a restricted
sample of countries in transition, see Zvekic (1996).

not recovered. Around 40% of the victimsof robbery from Africa, Latin America andcountries in transition express the sameview. These two reasons for dissatisfaction
are less prominent among the victims ofrobbery from Western Europe and the New
World, although the latter give more
importance to the offender being caught
rather than to the goods being recovered.
The victims of assault/threats,
particularly in countries in transition,
single out that the reasons fordissatisfaction with the police reaction toreporting crime have to do with the police
not doing enough and not finding theoffender. In addition, victims complain thatthe police were incorrect/impolite, which ismore characteristic of the victims’evaluation of police attitudes in countries
in transition. This factor indicates certain
features of police culture that lack respect
for the particular needs and expectationsof the victims of violence.
On the global level, less than half of the
respondents are satisfied with the police
in controlling crime locally, even thoughthose who are satisfied are more than those
who are not (Table 6). In the New World, alarge majority of the respondents (76%) aresatisfied with the police in controlling
crime; this is also the case with citizens
from Western Europe (54%) and Asia (58%).
On the other hand, more than half of the
respondents from Africa (52%), 40% fromcountries in transition and as many as 70%
from Latin America are not satisfied withthe police job in controlling crime locally.
It should be noted that the lowest levelsof citizens’ satisfaction with the police are
exhibited in Latin America and in countries
in transition. However, it should also be
noted that the largest percentage of “don’t
knows’’ is found in countries in transition.
This can be explained by the fact that,during the period in which the 1992 ICVS

185

RESOURCE MATERIAL SERIES No. 56
Table 6
Satisfaction with Police in Controlling Crime Locally, by Regions (1996)

Western Europe
New WorldCountries in Transition
Asia
AfricaLatin America
Total

Yes, good job
54.0
76.0
23.2
58.3
41.1
21.9
45.8

was carried out, and - in some countries also during the period when the 1996 ICVS
was administered, the police were
undergoing changes as to their mandates
and organisation.
Other factors related to police
performance also have a lot to do withcitizens’ satisfaction. There is a moderate
positive correlation between satisfaction
with the police in controlling crime locallyand the frequency in local patrolling(0.349), although it is higher in both thedeveloping world (0.382) and countries intransition (0.376) than in the industrialised
world (0.165). In all likelihood,
respondents in those parts of the world
attach more importance to the presence ofpolice locally in eveluating theirperformance in controlling crime locally. It
might be the case that the citizens of thedeveloping world and countries intransition consider that frequent police
patrolling would deter crime and meet anumber of their expectations, such as
finding and arresting offenders, recoveringstolen goods and arriving speedily at theplace of the crime.
In addition, the citizens in countries intransition (to a larger extent than citizens
from the industrialised world) areconcerned that a burglary will occur within
the next year. Therefore, fear of burglary186

No, not a good job
25.6
15.1
40.0
30.7
51.7
69.6
38.8

Don’t know
20.4
8.9
36.7
11.0
7.2
8.5
16.8

in the near future also contributes todissatisfaction with the police in controlling
crime locally, and supports the view that
more frequent patrolling might be both adeterrent, as well as effective in “stopping
crime’’, finding the offender and recovering
the stolen property.
B. Victim AssistanceVictims of crime who had reported thesecrimes to the police were asked whether
they received support from a specialised
victim support scheme. Furthermore, they
were asked whether a specialised victim
support agency would have been useful.
As expected, on average, only a few
victims obtained any assistance, which wasgiven mainly to victims of sexual offences
and robbery in the New World and Western
Europe. In the developed world, victims
also expressed greater appreciation for theestablishment of specialised victim support
agencies. Such support is more evident in
Latin America than in countries intransition and the rest of the developingworld.
C. Punishment Orientation
Punishment is at the end of the criminal
justice system. It can be seen as indicating
societal reactions to crime; whether these
are those of the state or people’s notions ofwhen, how and who should be punished.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Yet, the range of sanctioning options in agiven society is usually limited to a few thatare selected by the legislator and a few
which may fall outside the official
sanctioning range (e.g. various forms of
moral condemnation, or other forms ofpunishment which are neither recognised
nor approved by the official penal code).
Some of these alternatives may be harsher
and some milder than those applied by thestate-centred criminal justice system.
The ICVS asked respondents about
sanctioning options, which are usuallypresent in most criminal justice systems.2
However, some options were not available
in all the countries, and some that wereavailable were not offered for comment.
Another major limitation in measuring
people’s attitudes towards punishment
stemmed from the hypothetical burglary
scenario use. It contained sufficientelements to help form a lay opinion, butlacked the most important details toprovide for informed professional opinion.3
Yet, it was felt that for the public at large,
the particular details that may mitigate or
aggravate the offender ’s position were
unnecessary. There were, however,problems of interpretation linked with thetarget of theft: namely, a colour TV set, thevalue of which varies across countries.
2

The question was as follows: "People have different
ideas about the sentences which should be given to
offenders. Take for instance the case of a man 21
years old who is found guilty of a burglary for thesecond time. This time he stole a colour TV. Whichof the following sentences do you consider the mostappropriate for such a case: fine, prison, community
service, suspended sentence or any other sentence".
If the interviewee opted for imprisonment, he/she
was asked to specify the length.
3 There are serious doubts as to whether aprofessional judge would be able to state what
would be the most appropriate punishment basedon the elements provided by the ICVS
questionnaire.

Indeed, as noted, the recovery of stolen
goods is one driving factor in the evaluationof the police performance in less affluent
economies. Nonetheless, certain patterns
in punishment orientation emerged, inparticular regarding differences between
the more and less affluent societies.
On a regional level, more than half ofthe respondents in the New World andLatin America, and almost three-quarters
in Asia and Africa, opted for imprisonment.
On the other hand, some 40% of the
respondents from countries in transitionand somewhat less than a third from
Western Europe favoured imprisonment.
Following imprisonment, the next most
preferred sentencing option wascommunity service, which was favoured byalmost one third of the respondents. In
Western Europe, community service was
the preferred sentence by almost half of the
respondents, followed by approximately
one third each in Latin America and incountries in transition. Only 10% of the
respondents from Asia and Africa opted forsome sort of community service.
Regional variations regarding a fine asa favoured sentencing option for a young
recidivist burglar are not pronounced andaverage 9% of the respondents. A
suspended sentence is thought to be themost approprate sentence by 5% of the
respondents; ranging however from 2% in
Asia and Africa respectively, to 7% in the
countries in transition and Western
Europe.
Both the 1992 ICVS (Kuhn, 1993) and1996 ICVS (Zvekic, 1997) support Kuhn’sfinding that those who had been victimised
were no more in favour of a prison sentence
than others, both at the global and regional
level. There is no significant difference inpreferences for sentencing options between
victims and non-victims of any crime. A

187

RESOURCE MATERIAL SERIES No. 56
Figure 1
Attitudes to Punishment, Imprisonmentas Preferred Sanction, by Regions
80.0
70.0
60.0
50.0
40.0
30.0
20.0
10.0
0.0
WesternEuropeNew Countries inWorld Transition

Asia

group of special interest as regards thepunishment of the burglar is that of those
who had been burgled themselves.
However, there is no substantial difference
between the victims and non-victims ofburglary, with the exception of burglary
victims from the New World who appear
to be stronger supporters of imprisonment
than non-burglary victims, still within theprevaling prison-centric orientation in thatpart of the world. Further analyses carriedout on victims and non-victims of contact
crimes and vehicle-related crimes also
confirmed the above-mentioned finding.
The demand for severe punishment,
then, is stronger in the more crime-ridden
nations or in those in which there is a lackof alternative solutions, including adequate
insurance coverage. There, ideas about
preventive approaches to sentencing may
appear less appropriate. Deterrent
sentencing, regardless of whether or not it
is effective, may have more appeal.

Africa188

Total

and the predominant actual use of noncustodial sanctions and imprisonment, on
the other. This seems to indicate at least
two things: first, a degree of independence
in types of sentencing from the geo-politicaland development position; second, thatpublic attitudes do reflect, to a certain
degree, the actual availability of sentencing
options and their use in practice.4 In otherwords, public attitudes are influenced bypenal systems and penal practice, althoughneither exclusively nor in a clearly predeterministic manner (Zvekic, 1997b).
In many countries much work is stillneeded to promote credible non-custodial
sanctions and in particular, to overcome
difficulties in implementation following
conviction. In fact, public attitudes often
lag behind sentencing reform and time isneeded to convey the message thatpunishment is implemented seriously, inorder to ensure public acceptance. Support
4

There is a certain level of correspondence
in the regional patterns based on public
attitudes to punishment, on the one hand,

Latin
America

H. Shinkai and U. Zvekic. “Punishment’’ in G.
Newman (Ed.) Global Report on Crime and Justice.
New York-Oxford, UN & Oxford University Press.
1999.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
for imprisonment is often formed byvicarious information, traditional belief
systems and socio-legal heritage. Fear ofcrime also appears to support harsher
sentencing. All of this is not an irrational
response to urgent crime problems. Where
the replacement of stolen property isrelatively easy, either through insurance
coverage or through the ability to buy newcommodities, severe punishment is not theobvious cure. However, where - as is thecase in the majority of countries intransition and in the developing world hardship precludes replacing stolen
property, calls for more severe punishment,
bringing offenders to justice and therecovery of stolen goods are rational
responses to crime problems.

Zvekic, U. (1997b). ‘International trends
in non-custodial sanctions’. In, Villé, R,
Zvekic, U. and Klaus, J., Promoting
Probation Internationally. Rome: UNICRI.
Shinkai, H. and Zvekic. U. (1999)“Punishment’’ in G. Newman (Ed.) Global
Report on Crime and Justice. New YorkOxford, UN & Oxford University Press.

REFERENCES
Kuhn, A. (1993). ‘Attitudes towards
punishment’. In, Alvazzi del Frate, A.,
Zvekic, U. and van Dijk, J.J.M. (Eds.),
Understanding Crime: Experiences of
Crime and Crime Control. Rome: UNICRI.
Van Dijk, J.J.M. (1994). ‘Who is afraidof the crime victim: criminal victimisation,
fear of crime and opinions on crime in aninternational perspective’. Paper
presented at the World Society ofVictimology Symposium. Adelaide,
Australia, 21-26 August 1994.
Zekic, U. (1996). ‘Policing and attitudes
towards police in countries in transition’.
In, Pagon, M. (Ed.), Policing in Central andEastern Europe, Proceedings of theInternational Conference. Ljubljana,
Slovenia, 14-16 November 1996.
Zvekic, U. (1997). ‘Les attitudes desvictimes envers la police et la punitivité:
résultats des sondages internationaux devictimisation’. Revue internationale decriminologie et de police technique, Vol. I,
Janvier-Mars.

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INCLUDING VICTIMS IN THE AMERICAN CRIMINALJUSTICE PROCESS
Heather L. Cartwright*
I. INTRODUCTION: WHY DO WE
NEED VICTIMS’ RIGHTS LAWS?
“I will never forget being raped,
kidnapped, and robbed at gunpoint.
However, my sense of disillusionmentof the judicial system is many times
more painful. I could not in good faithurge anyone to participate in thishellish process.”
A victim (as quoted in the President’s
Task Force Report at p. 5 (1982)).
“To be a victim at the hands of thecriminal is an unforgettablenightmare. But to then become avictim at the hands of the criminal
justice system is an unforgivable
travesty. It makes the criminal andthe criminal justice system partners
in crime.”
Robert Grayson (as quoted in the
President’s Task Force Report at p. 9
(1982)).
Dire descriptions of the American
criminal justice system such as these andothers were heard at public hearings
conducted by the Presidential Task Forceon Victims of Crime in 1982. The hearingsand subsequent report issued by the Task
Force motivated a dramatic change in theway the criminal justice system in the
United States treats victims of crime at theFederal and local level. Although we havemade some progress in the past 17 years* Attorney Adviser for Director, Office of Victims of
Crime, Office of Justice Programs, Department ofJustice, United States of America.

190

in making the criminal justice process more
responsive to victims of crime, we in the
United States still think we have someways to go to become a system that treats
all participants in the process fairly.
The United States has a very serious
crime problem. Millions of citizens become
victims of crime every year. We are stilllearning what long term impacts crime
victimization has on individuals andcommunities. Crime victimization can
negatively affect a victims’ views of theirgovernment and community, their senseof safety, and mental health. Indeed, withsome types of victimization, especiallycrimes against children, there is some link
between those who have been victims andthose who become victimizers. For thehealth and safety of our communities
therefore, it is important to treat crime
victims in a manner that will promotehealing and recovery from the experience.
For the health and future of our criminal
justice system it is also important to treat
victims well. Victims who survive theirexperience, and are brave enough to report
the crime, turn to their government
expecting it to do what a good government
should do, protect the innocent. The
American criminal justice system isabsolutely dependent on crime victims’
cooperation. Without the cooperation of
victims and witnesses in reporting andtestifying about crime it is impossible in afree society to hold criminals accountable.
When victims come forward in our country
to perform this vital service, however, theyoften find little assistance and protection.
There is a sense experienced by many

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
victims that the system is out of balance,that there are many rights and protections
for offenders, but none for victims. To
continue to encourage victim participationin the system, and to make thatparticipation as helpful as possible both tothe victim and the system, it is vital thatcertain essential victims rights areincorporated into the process.
Finally, providing basic victims rights is
the right thing to do. Our justice system
must be fair to all involved to reallydispense justice. If victims walk away fromthe experience feeling that they were notrespected, listened to, consulted, or
protected, the system really has failed themin a significant way. Regardless of what
moral code we as individuals adhere to, theway our systems treat crime victims, someof the most wronged members of oursocieties, is a true measure of the moralityof our societies.
II. WHAT DO VICTIMS WANT?
Of course, as with all people, victims
want to be treated with dignity and respect.
This is difficult to legislate, but should be
used as a guiding principle. In terms ofactual, enforceable rights, victims
generally report that they want to be
informed and participate. Being informed
usually encompasses getting notice of what
is happening in the case and having someability to observe proceedings.
Participation centers around having thevictims’ side of the story heard andvalidated, especially the extent of the harmcaused by the crime. Another very
important need for victims, and indeed themost urgent one I encountered as a publicprosecutor, is the need to feel safe as thevictim participates in the criminal justiceprocess. Victims more than anyone knowhow destructive the offender can be and areunderstandably concerned about theirsafety as they participate in the process.

The one thing victims want more thanany other, however, we have no power togive. Ultimately, victims want the crime
not to have happened. Because this is
impossible for the criminal justice system
to provide, many victims are going to bedisappointed at the end of the process. If
the process has been fair, however, mostvictims will eventually be satisfied with thesystem, even if the result is not what theywanted.
III. VICTIMS’ RIGHTS IN THE
AMERICAN SYSTEM
As you may already know, we have two
major justice systems in our country: thestates and the Federal government. Eachstate has its own system, with its own
constitution, laws, and governmental
structure. States have jurisdiction over all
crimes occurring in that state. The Federal
system encompasses only certain limited
crimes, usually those having an impact
beyond a single state. In our country, thestates have really been the leaders in thearea of victims’ rights, although thoserights vary from state to state. The Federal
system’s first victims’ rights statute waspassed in 1982, in the aftermath of the
President’s Task Force on Victims of Crime.
Since that time, several additional laws
have been passed that have expanded andstrengthened the Federal crime victims’rights. Even today, we have new legislation
pending in our Congress to further expand
the rights of Federal crime victims. In
addition, for several years our Congress has
been debating adding a provision forvictims rights to our Federal constitution.
That constitutional amendment is
supported by the President and theAttorney General.

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IV. TYPES OF VICTIMS RIGHTS
LAWS
A. Definition of Victim
Interestingly enough, one of the mostcontentious issues when establishing
victims’ rights laws is deciding who should
qualify as a victim. Some suggest that therights, or at least stronger or morecomprehensive rights, should be limited toviolent crime victims. This policy excludes
victims of economic and property crimes
like fraud. Some of the states limit victims’rights to situations involving physicalinjury to the victim, however, the Federal
stature includes victims of all crimes. It
should be noted that some economic crimes
have devastating impacts on their victims,
especially if the victim is particularly
vulnerable like an elderly person.
In the case of a homicide, incapacitatedor child victim, most statutes allow for afamily member such as a spouse or parent
to be considered the victim. It is important
to make sure that anyone who is culpablefor the crime is not designated the victim
under this provision.
This raises another difficult issue,
whether someone who is culpable in someway for the crime being investigated orprosecuted, or some other crime, is entitled
to receive victims’ rights. Although ourFederal statutory definition of victim issilent about this question, as a policy
matter our Federal Justice Department
has decided that those individuals who areculpable in the crime being investigated orprosecuted will not be treated as victims.
This means that victims who may be
culpable for some other crime are treatedas victims. Examples of such persons are:illegal aliens who are involuntary servitude
victims, inmates who are victimized inprison, and victims of witness intimidation.
This policy prevents someone who is an
injured participant in the crime from being192

considered a victim for purposes ofreceiving victims’ rights.
One final important issue that any
drafter of victims’ rights provisions needs
to consider is the line to draw between
direct and indirect victims. There must be
some point at which a person’s injury froma crime is too attenuated to entitle them tovictims’ right. Certainly, most people whoare physically injured should be consideredvictims. In addition, some people who
suffer emotional harm and trauma should
be included, but it is more difficult to draw
a line when you talk about emotional harm.
Take the example of a bank robbery crime.
Typically, the bank, which suffers thefinancial harm, is considered the primary
victim. The question presented is whether
the tellers, bank employees, and customers
present in the bank at the time of therobbery are also “direct” victims of thecrime. The answer to this question will
depend to a great extent on the facts of eachspecific case. If, for example, a robber
points a gun at a teller as part of therobbery and, as a result, the teller suffers
psychological trauma (and may be a trial
witness), the harm is a direct result of thecrime and the teller probably should betreated as a victim, even though s/he may
not have suffered any physical injury (theteller is actually the direct victim of anarmed assault which may not be separately
charged).
In comparison, a bank employee who
was in another room and only heard people
talking about the robbery may also suffer
some trauma, but is much more indirectly
harmed and usually should not be
considered a victim for purposes of victims’rights and services. In between those two
examples are a variety of different factual
situations requiring law enforcement
personnel to use their judgement and drawlines just as they do in other contexts.

112TH INTERNATIONAL TRAINING COURSE
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There may be cases that involve
hundreds or even thousands of direct
victims. For example, in a terrorist
bombing or a mass violence shooting, there
may be a large number of persons who are
killed, injured, or suffer extreme emotionalharm such that they would be considereddirect victims. Indeed, in a terrorist
incident, the terrorist targets a large
number of people with the intent of
inducing fear and other emotional harm.
Just because there is a large number ofvictims does not mean that victim services
should not be provided. It just means thatyou have to be more creative about how toprovide them.
B. Right to Notice
Perhaps the most fundamental right ofa crime victim is the right to be kept
informed by the criminal justice system.
The other rights and services that may beavailable to a crime victim are meaninglessunless the victim knows they exist. For
example, a victim’s right to attend
proceedings or to be heard at proceedings
can have no effect unless the victim is
notified in advance of those proceedings.
The right to be notified can be divided into
two classifications: the right to general
information which is of interest to all crime
victims, and the right to be kept informed
about proceedings and events relating tothe offense against that particular victim.
Our state criminal justice systems often
provide much general information ofinterest to all victims. Such general
information includes: notice of theavailability of crime victim compensation
money; referrals to victim services such asrape crisis centers, homicide survivor
groups, and general victim service
agencies; information about the steps
involved in a criminal prosecution; andnotification about victims’ rights. In theFederal system, many of our investigative
agencies have brochures which they handout to victims containing some of the same
information. Our Federal prosecutors havea book called the “Victim Witness
Handbook” which contains information
about the stages of the criminal justiceprocess.
The other type of notice, notice of eventsand proceedings in the criminal justiceprocess, is one of the most time consuming
and expensive of the victims rights forgovernment to provide. Keeping victims
informed throughout the criminal justiceprocess, however, is a very important rightbecause it is a recognition that victims are
more than mere pieces of evidence in thegovernment’s case; that they as individuals
have a real interest in the progress of thecriminal case and the current status of theoffender. There are dozens of events orproceedings in the ordinary criminal justiceprocess for which notice may be requiredby our state and Federal statutes. The
types of proceedings and events that are
most frequently included are: scheduled
court proceedings and any cancelled or
rescheduled dates, dismissal or droppingof case, plea bargains, appeals, release fromprison (including conditional releases), andparole hearings. In the Federal system weprovide victims with notice of the status of
the investigation, the arrest of the offender,
the filing of charges, the scheduling of
public court proceedings, the release ordetention status of the offender, theacceptance of a plea of guilty or the trial
verdict, the sentence, any scheduled parole
hearing, any release of the offender(including escape, work release, andfurlough), and the death of the offender ifs/he dies while in custody.
The procedures that the state andFederal governments use to notify victims
vary widely. In the Federal JusticeDepartment, we encourage personal
contact with and notice to victims if
possible. Many notifications are

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accomplished through phone calls andletters. With some notices, such as a
notification that an offender has escapedfrom prison, immediate notification by
telephone can be a matter of life or death.
Increasingly, states are using technology
to assist with victim notification. With
automated notification systems, victims’
names and addresses are entered into a
computer that can automatically issue
notification letters when some particular
event occurs. These systems also have thecapability to call a victim in an emergency,such as when an offender escapes fromprison. The Federal system is presently
considering adopting such a system.
Notification presents a particularchallenge in cases with large numbers ofvictims. Some cases may involve
thousands of victims. Our Federal JusticeDepartment’s policy provides that in caseswith large numbers of victims, Department
employees should use the practical means
best calculated to achieve actual contact
with and notice to victims. A variety oftechniques are available to enable law
enforcement personnel to provide adequate
notice and assistance to victims in larger
cases. The determination of what efforts
are sufficient and what types of notice andassistance are appropriate depends largelyon the anticipated needs of the crime
victims. In addition, law enforcement
personnel need to carefully evaluate thetype of information relayed and the methodof communicating the information to seethat notification efforts do not compromise
investigations or inadvertently invade
victims’ privacy.
Identifying the nature of the harmsuffered by crime victims is essential todetermining the appropriate method ofeffectuating notice and providing
assistance. Victims of violent crimes, forexample, may have a high level of need fora wide range of victim services in almost194

every instance, and so in almost every
instance a substantial effort to identify andpersonally contact victims of violent crime
will be warranted, regardless of thenumber of victims involved. Indeed, law
enforcement field offices should consider
assessing the possibility of a large scaleviolent crime occurring within theirjurisdictions, identifying the resources
currently available to provide victim
assistance (government resources andprivate resources such as the Red Cross)and those resources needed but notavailable, and developing contingency
plans for contacting and providing
assistance to mass crime victims should theneed arise.
As another example, victims of financial
crimes such as telemarketing fraud often
suffer significant (to them) harm and havea high degree of need for notice and referral
services. Names and addresses of victims
of financial crimes can often be obtained
from offenders’ records, and even insituations where thousands of victims exist
it may be appropriate to send individual
victims an initial notification letter
informing them of the nature of the offense
and assessing their interest in receiving
future notice and consultation services.
Under one Federal law, defendants who
have been convicted of offenses involving
fraud may be ordered by the court to spend
up to $20,000 to provide notice to victims
explaining the conviction (18 U.S.C. §3555).
Offices that frequently deal with cases
involving large numbers of identifiablefraud victims may wish to develop theability to conduct mass mailings in-house,
while offices that do not should locate
private companies who can handle
sensitive government information and who
can assist with the provision of suchservices when needed.
In other cases involving large numbersof victims, circumstances may require other112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
methods to provide notice and assistanceto the victims. When a crime results in alarge number of victims who are likely havesuffered significant harm and cannot bereadily identified, but who reside in alimited geographic area, a well-publicized
town meeting may be an effective way toidentify victims, provide victims with noticeand pertinent information, and consult
with victims concerning the crime and thegovernment’s investigation. Still othercases may present a situation where a verylarge number of victims (spread out over alarge geographic area) have likely suffered
only minor (to them) financial losses.
Under theses circumstances, the use ofrepresentative victims, victim proxies (suchas organizations that represent theinterests of the victim class or actual classaction representatives) or even the generalmedia may be the most efficient method toprovide victims with notice andinformation concerning the crime.
Other techniques, beyond thosementioned above, also exist that can, in
certain situations, assist law enforcement
personnel to provide large numbers ofvictims with information concerning theongoing status of an investigation,prosecution, or detention. For example,
toll-free telephone numbers can beestablished that not only permit victims tocall in and get recorded information
concerning the status of a matter, but that
actually call the victims to alert them to achange in status. With individuals’
increasing ability to access the Internet,
web sites can be created that contain
information concerning the progress ofinvestigations and prosecutions (keeping in
mind, of course, that any information thatis not for public dissemination should not
be posted on the Internet. Items that would
normally be appropriate for a press release,such as dates for public court proceedings,
are appropriate for the Internet.) Also,
private groups that have within theirmembership a significant number ofvictims of a particular violation may havenewsletters or other methods of informing
their members that can be used to provide
information about the ongoing progress ofa case. Some victims themselves may bewilling to assist with preparing anddisseminating a newsletter or participating
in a phone tree.
C. Right to Attend the Trial
The ability of victims to attend trial
proceedings is one of the most significant
in the eyes of victims, and one that is very
important to ensuring victim satisfaction
with the system. In the American judicial
system, however, this is a very troublesome
right if the victim will also be a trial
witness. Under most rules of evidence,
there is a rule commonly referred to as the“rule on witnesses”. The rule provides thatwitnesses should be excluded from thecourtroom during trial proceedings except
when they are testifying. The rule isdesigned to prevent witnesses from hearing
other evidence in the case and thenintentionally or unintentionally changing
their testimony to conform with the otherevidence. Defendants are exempt from thisrule.
The states and the Federal government
have taken a variety of approaches to try
to harmonize the rule on witnesses with thevictims’ right to attend trial. Some states
mandate the exclusion of all witnesses fromall proceedings. On the other extreme,some states specifically exempt victims
from the rule on witnesses in much thesame way that the defendant is exempt.
Some states take a middle route, forexample, allowing the victim to sit in on
the trial after the victim has testified.
Overall, the majority of states that give
victims the right to attend the trial also
give the judge discretion to exclude thevictim, either as a witness or to preserve
the defendant’s right to a fair trial

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generally. The defendant’s right to a fairtrial is guaranteed by the US Constitution,
the highest law of the United States, whilethe victims’ right to attend is a matter ofsubordinate state law. In the Federal
courts, victims have a “qualified” right toattend that is, they have the right to bepresent at all public court proceedings
related to the offense, unless the court
determines that testimony by the victim
would be materially affected if the victim
heard other testimony at trial. In 1996,
new legislation gave Federal victims anadditional attendance right. Federal law
now provides that a Federal judge can not
exclude any victim from trial if the victims’
only role as a witness is testifying at thesentencing hearing. Interestingly enough,this statute was passed specifically toaddress the attendance issue in a highprofile case, the Oklahoma City bombing
trial. In that case the victims hired theirown attorney and lobbied Congress for
permission to attend the trial, even thoughsome of them planned to be sentencing
witnesses.
The Oklahoma City bombing trial also
was the first to use a closed circuit
television link to broadcast the trial to anauditorium so that any victims who wanted
to could watch proceedings. That caseinvolved over 2,000 victims and there
wasn’t enough room in the courtroom for
all the victims to observe the trial. In
addition, the trial venue was moved from
Oklahoma City to Denver, Colorado, somedistance away. Many of the victims could
not afford, nor did they want to, travel toattend the trial in Denver. So the judge
authorized a closed circuit television link
between the courtroom in Denver and anauditorium in Oklahoma City. The
auditorium was treated like a courtroom
and was presided over by a retired
magistrate. Grief counselors wereavailable at the site. By all accounts thisprocedure was highly successful.

196

D. Right to be Heard
The primary proactive way victims canparticipate in the criminal justice process
is by speaking or submitting a written
statement to the court. The mostimportant proceeding for this participation
is at the sentencing hearing. Generally,
all states recognize that victim input has aproper place in the sentencing process. Our
United States Supreme Court, the highest
court in the land, has stated:“It is an affront to the civilized
members of the human race to saythat at sentencing ... a parade ofwitnesses may praise the background,character and good deeds of the
Defendant ... without limitation as torelevancy, but nothing may be said
that bears upon the character of, or
the harm imposed, upon the victims.”
Payne v. Tennessee, 111 S. Ct. 2597, 2609,
quoting Payne v. Tennessee, 791 S. W. 2d 10, 19(Tn. 1990)
As of 1995, every state allows victim
impact evidence at sentencing, either
through input into the presentence reportor through presentation of a written or oral
statement at the sentencing hearing in fact,
most states allow both forms. The majorityof those states also require the court toconsider the victim’s statement in making
the sentencing determination. Federal
statutes require probation officers to
prepare presentence investigation reports
which include a section on the impact of
the crime on the victims.
In a few states, allowing a victim totestify at sentencing rests solely with thediscretion of the trial judge, while in thevast majority of states, victim participation
through oral impact statements is a matterof right. Many states specifically delineate
the information to be included. Typically,
states allow evidence of the physical,

112TH INTERNATIONAL TRAINING COURSE
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mental/emotional, social and economic
harm caused to the victim and/or thevictim’s family. They may also allow theinclusion of the victim’s of family’s views
concerning both the offense and/or offender,in addition to their opinions regarding theappropriate punishment.
In general, victim impact statements
may be given by the victim, homicide
survivors, or the parent or guardian of aminor victim. Children can submit victim
impact statements in a format that is age
and developmental level appropriate.
Some courts have developed forms forchildren to fill out with places for children
to draw pictures and circle smiley faces or
sad faces.
Other stages where states provide forvictim impact include the parole releasedecision, pretrial release decisions, andplea bargain acceptance proceedings. Most
states allow victims to present a written
or oral statement to the parole board forconsideration at the parole hearing. A few
states specifically authorize the use ofaudio or videotaped statements at theparole hearing. Victims’ rights toparticipate at the other stages are much
more limited. One of the more
controversial proceedings is the plea
bargain acceptance proceeding. It is
important to note, moreover, that victims’rights laws only afford victims a voice atsuch proceedings, not a veto.
E. Right to Confer with theProsecutor
In 1982, the President’s Task Force on
Victims of Crime recommended thatprosecutors consult with the victim during
the various stages of the prosecution as oneof the objectives included in its proposed
guidelines for fair treatment of crime
victims and witnesses. Whether it involves
the reduction of charges to a lesser offense,
dismissal of the case, consideration of

pretrial diversion or entry into a plea
agreement, giving the victim an
opportunity to offer his or her views andconcerns assists the prosecutor informulating an appropriate disposition.
The definition of the term “consultation”
anticipates an interactive dialogue between
two parties. Its usage by the Task Force
reflects an intention that victims beprovided with more than just information
concerning developments in their cases; it
instead encourages prosecutors to actively
solicit and consider victims’ input before
taking dispositive action. Many, but not
all states, have attempted to address thisissue by adopting statutory provisions
mandating meaningful interaction throughconsultation in accordance with thisbroader Task Force objective. For example,
several states have adopted laws requiring
the prosecutor to obtain the views of thevictim before a disposition is final and evengo so far as to require the prosecutor tocertify to the court that he or she hascomplied with the consultation mandate.
However, almost as many states havec h o s e n t o l i m i t t h e p r o s e c u t o r ’s
responsibilities to informing, notifying, oradvising a victim of the action to be taken.
It should be noted, however, that in no state
has the right to confer been equated to theright to direct the prosecution of the caseor veto prosecutorial decisions.
In the Federal system, Federal
prosecutors are to use their “best efforts”
to see that victims are accorded their rightto confer with an attorney for thegovernment. New Justice Department
policy, which will go into effect thissummer, requires Federal prosecutors to
use reasonable efforts to notify victims ofand consider their views about proposedplea bargains. In deciding what isreasonable, prosecutors can look at a seriesof factors including whether the plea
bargain contains confidential provisions

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such as a cooperation agreement, thenumber of victims, public safety, andwhether the victim may be a witness in thecase if the plea bargain falls through.
H o p e f u l l y, t h e s e g u i d e l i n e s w i l l
encourage prosecutors to consult withvictims in more cases, while preserving thediscretion to withhold that information fora legitimate law enforcement reason.
F. Child Victims and Witnesses
Unfortunately, children are direct
victims of a variety of crimes including
physical abuse, sexual abuse, exploitationand pornography. Additionally, children
witness a broad range of crimes including
violent crimes. Too often in the past ourcriminal justice system has not paid
sufficient attention to the needs andwelfare of child victims and witnesses,
causing serious consequences. Contact
with the system aggravated the trauma
that the child had already experienced,
making it more difficult for the child toparticipate in the investigation andprosecution of the case and ultimately,
making it more difficult to prosecute thecase. Basic victims’ rights laws apply
equally to child victims. In addition, manystates and the Federal government haveenacted laws to specifically address theissues raised by children’s participation in
the criminal justice process.
Children receive enhanced protection insome states and the Federal system. For
example, in many jurisdictions, the nameand identifying information about a childvictim is confidential and is not to bedisclosed, except in limited situations. All
court papers identifying a child victim mustbe filed under seal. It is a crime of
misdemeanor contempt to violate this rule.
In some jurisdictions the court may appointa guardian ad litem for a child victim or
witness. A guardian ad litem may attend
all the depositions, hearings, and trial

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proceedings in which a child participates,
and make recommendations to the court
concerning the welfare of the child.
Most states have multidisciplinary childabuse teams. These teams are professional
units composed of representatives fromheath, social service, law enforcement, andlegal service agencies to coordinate theassistance needed to handle cases of childabuse. The purpose of multidisciplinary
teams is to maintain the credibility andreliability of the child’s testimony, as wellas to monitor the child’s safety and wellbeing throughout the case. The goals of
the multidisciplinary team are:(1) t o m i n i m i z e t h e n u m b e r o finterviews to which the child issubjected, to reduce the risk ofsuggestibility in the interviewing
process;(2) to provide needed services to thechild; and(3) to monitor the child’s safety and wellbeing.
In some situations, the trauma ofparticipating in the trial process can be sogreat that the child is unable to testify orthere is a substantial likelihood that thechild would suffer emotional harm fromtestifying in open court. Technology cancome to the rescue in such a situation. In
Federal courts, there are two alternatives
to live, in-court testimony that can be used
when a child is unable to testify because offear or emotional trauma. In somesituations, a child can testify by 2-way
closed circuit television. The attorney forthe government and the attorney for the
defendant are present with the child in aroom outside the courtroom. The child’s
testimony is transmitted into thecourtroom for viewing by the defendant,
jury, judge and public. The defendant isprovided with the means to/ofcommunication with their attorney and the112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
television transmits the defendant’s image
into the room where the child is testifying.
Another alternative to live, in-court
testimony is a videotaped deposition of thechild. A judge presides at the deposition
and rules on all questions of law just likeat trial. The defendant is permitted to bepresent unless the court finds that the childis unable to testify with the defendant there
and orders that the defendant be excluded.
The tape can then be played at trial.
G. Restitution
In 1982, the President’s Task Force on
Victims of Crime called for mandatory
restitution in all criminal cases, unless thepresiding judge could offer compelling
reasons to the contrary. As the Task Forcenoted, “the concept of personalaccountability for the consequences of one’s
conduct, and the allied notion that theperson who causes the damage should bear
the cost, is at the heart of civil law. It should
be no less true in criminal law.” Studies
indicate that restitution is one of the mostsignificant factors influencing victims’satisfaction with the criminal justiceprocess. Although restitution has always
been available via statute or common law,
it remains one of the most underutilizedmeans of providing crime victims with ameasurable degree of justice.
Restitution laws have been broadenedin recent years and made more mandatory.
Historically, only those persons who havesuffered physical injury or financial loss asa direct result of a crime have been eligible
to receive restitution from the perpetrator
for their out of pocket expenses. But as
restitution statutes have evolved,
definitions of who qualifies and the kind oflosses covered have broadened
considerably. Today, not only do victims
themselves qualify for restitution, but, insome states, family members, victims’
estates, private entities, victim service
agencies, and private organizations who

provide assistance to victims can seek
restitution as well. Definitions forcompensable losses under state restitution
laws have also expanded to include
psychological treatment, sexual assault
exams, HIV testing, occupational/
rehabilitative therapy, lost profits, moving
and meal expenses, case-related travel
expenses, and burial expenses.
Most states are making restitution
mandatory as part of a criminal sentence.
Aside from the direct benefits to crime
victims and society that come fromrestoring the victims’ financial losses, there
is a growing recognition that holding
offenders directly accountable to their
victims as part of a sentence has arehabilitative effect on the offenders
themselves. In a recent revision to its
restitution laws, the California Legislature
noted that “Restitution is recognized to havea rehabilitative effect on criminals ... [and]restitution is recognized as a deterrent tofuture criminality.” The Federal system
now has mandatory restitution for mostFederal crimes.
Although the law has been in effect since
1996, it has been a challenge to get Federal
prosecutors and judges to comply with it.
In fact, a recent report by the US General
Accounting Office found that lessrestitution was being ordered in Federal
courts after the Mandatory Victim
Restitution Act than before the Act. The
reason for this situation is not clear but
presents us with a challenge for the future.
H. Right to Protection from the
OffenderIn recent years, reports from the media
and law enforcement officials suggest that
intimidation of victims and witnesses is on
the rise. In addition, the proliferation ofyouth gangs appears to directly correlate
to a dramatic rise in acts of intimidation, as wellas acts of violence, against those victims and199

RESOURCE MATERIAL SERIES No. 56
witnesses who testify against fellow gangmembers. Prosecutors and victim
advocates have recognized the relationshipbetween measures to enhance a victims’
feelings of security and greater willingnessof crime victims to cooperate with criminal
justice officials and criminal prosecutions.
Measures to protect crime victims takevarying forms. Many states grant victims
a right to protection from the offender, or
they provide information regarding theprotective measures available. Other
approaches include amendment of bailprovisions, providing separate or secure
waiting areas in court, and various
measures to protect victims through thediscovery process. Recent bail provisions
now include danger to a victim or to thecommunity as a reason to deny release
pending trial. In addition, prosecutors
have historically requested high bail as ameans of keeping intimidators behind bars.
In addition to these legislative measures,
many law enforcement and prosecution
agencies have developed comprehensive
witness security programs. These
programs evaluate threats and take actions
to improve the security of the victim or
witness. It should be noted that the
government can not guarantee anyone’s
complete safety. The government can,however, take steps designed to reduce therisk of intimidation and harassment. Someof these steps include relocating an
intimidated witness, preventing
intimidation in courtrooms and jails, andreducing community-wide intimidation, In
addition, there are many steps that victims
and witnesses can take themselves toenhance their security, such as getting anunlisted phone number. Government
personnel can assist victims and witnesses
with identifying actions that will help.
Relocating intimidated victims andwitnesses is one of the more extreme
measures that the government can take,200

however, it is also considered to be one of
the most effective. Relocation programs
generally fall into three categories: longterm, short term, and emergency. Probably
the most secure program that exists is theFederal Marshal’s Service’s Witness
Security Program. The Program has very
strict entrance requirements and entails acomplete change in the participant’s
identity. Many victims and witnesses areunwilling to enter this program because it
may mean that they can never contact
family members again. Other permanentmeasures include relocating a victim’s
residence. If the victim lives in public
housing, the government can request thatthe public housing authority transfer thevictim to another location far away fromthe victim’s present home. If the victim
does not then return to the original abode,some measure of safety is achieved. Shortterm relocation procedures include placing
a victim in a hotel, motel, or with out of
town family or friends for the duration of
the investigation or trial (or perhaps evenlonger). Emergency relocation usually
involves an immediate placement of a
victim or witness into a safe house or hotel
until more permanent location is secured.
The relocation program should be tailoredto the individual and the nature of thethreat. It is very important that the victim
understand that once relocated, he or she
can not return to the area where the threat
exists.
Gang members and associates ofdefendants often appear in court to frighten
witnesses into not testifying. Because thethreat may be very subtle and because
judges often feel that the constitutional
requirement of a public trial prevents themfrom removing such individuals from thecourtroom, it is often difficult to stop thiskind of intimidation. Nevertheless, anumber of judges have taken steps toremove gang members from the courtroom,
to segregate gang members and other112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
intimidating spectators, or to close thecourtroom entirely to spectators.
Incarcerated witnesses who are targets
for intimidation in gang, drug-related cases
require special protection, including
separation from the defendant within thesame correctional facility or transfer to a
nearby correctional facility, and separatetransportation to court to testify.

(2) check on case file documentation;(3) evaluate the level of services
provided;(4) resolve any outstanding victim
complaints;(5) gather any available statistics fromany tracking or reporting systems inplace; and(6) review the background and trainingof personnel who are in direct contact
with victims.

V. COMPLIANCE
All of these victims’ rights statutes aremeaningless, however, if law enforcement
personnel and the courts do not follow
them. States and the Federal government
have struggled with the issue of ensuring
compliance with the victims’ rights laws.
Two unique state programs, the audit
program and the ombudsman program
offer some ideas about how to encourage
compliance.
A. Audit Program
The State of Arizona has a victims’ rights
State constitutional amendment as well as
several victims’ rights statutes. The State
Attorney General’s Office has a component
called the Office of Victim Services whichis responsible for distributing State victims’rights funds monies and monitoring stateand local compliance with the victims’rights laws. By statue, the State Attorney
General’s Office must report to theGovernor and the State Assembly each year
on the status of the victims’ rights program,the Attorney General’s compliance with theprogram, including the level of service, andthe expenditure of all monies. To satisfy
this reporting requirement, the Arizona
Attorney General’s Office developed an
audit system to gather complianceinformation.
The Audit is designed to examine:(1) the policies and procedures in place
in a particular criminal justice office;

The Audit process begins with a noticeletter sent to particular agency informing
it of the date and expected length of theaudit (usually one day). Enclosed with thenotice is a “pre-audit packet” which asks
detailed questions about the agency’s
policies and procedures, personnel,
training and other matters. The agency isrequired to complete the packet before theday of the audit. The actual audit isconducted at a site visit to the agency.
During the site visit, the auditors meetwith personnel, conduct file reviews, andperform an exit interview where they
discuss their findings. In conjunction with
an audit, the Attorney General’s Officesends a Victims’ Rights Survey to selectedvictims who have been assisted by theagency. The Survey asks the victims, theconsumers of the agency’s “product”, toindicate whether they received all thevictims rights to which they are entitled.
Any problems identified through thesurvey can be addressed during the audit
meetings. Finally, the Attorney General’s
Office prepares an audit report that canbe provided to the Governor to satisfy themonitoring requirement. The report also
contains recommendations on improving
services from that office.
B. Compliance Committee orOmbudsman
Another interesting example are thecompliance programs in Colorado,
Minnesota, and Wisconsin. Each state has

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RESOURCE MATERIAL SERIES No. 56
a slightly different approach toaccomplishing the same task; providing
recourse to crime victims who feel that
their rights have been violated. The
differences in the three States’ programs
are found in their structure and powers.
Colorado uses a Victims’ Compensation andAssistance Coordinating Committee, which
receives complaints from victims. The
Committee has power to investigate
violations of victims’ rights under theState’s constitutional amendment and torecommend action with which the agency
at issue must comply to rectify victims’complaints. The Committee may also
monitor the implementation of thesuggestions. When agencies do not comply
with the Committee’s directives, the matter
may be referred to the Governor and/or theState Attorney General for review.
Minnesota has placed oversight in the
Office of the Crime Victims Ombudsman.
The ombudsman investigates both
statutory violations of victims’ rights laws
and alleged mistreatment by criminal
justice practitioners. The ombudsman
approaches the enforcement of victims’rights in a neutral and objective manner;
acting not as victims’ advocates but asadvocates of fair government. In addition
to responding to requests for investigations
by citizens, the ombudsman has thediscretion to inspect the actions of agencies
on its own initiative and may pursue cases
based on reports in the press. Theo m b u d s m a n ’s p o w e r i s l i m i t e d t oinvestigating alleged abuses and proposing
remedies when appropriate. The
ombudsman may make public - to both thepress and the legislature - his or herfindings after an investigation.
Wisconsin has a State level victims
service office called the Victim Resource
Center. One of the Center’s charges is toact as a liaison between criminal justiceagencies and victims in resolving

202

complaints concerning unlawful orinappropriate agency action. Center
officials may not prescribe remedies forviolations of victims’ constitutional
protections. The scope of their ability to
act allows them to investigate complaints
and present the victims’ concerns to theofficial whose actions are in question.
VI. VICTIM ASSISTANCE
PROFESSIONALS
In addition to the statutory victims’rights that legislatures have been focusing
on, the emergence of victim assistanceprofessionals has really improved victims’
treatment in the criminal justice process.
Many government agencies, especially law
enforcement, prosecutor ’s offices, andparole agencies have created victim andwitness assistance units, whose mission is
to assist victims through the criminal
justice process. Some private agencies also
perform this function, particularly insexual offenses, domestic violence, andhomicide cases. There is a real effort inthis country to professionalize the victim
assistance positions and make sure thatthe personnel have adequate training toprovide needed assistance. A further
improvement in child cases includes thehiring of a child interview specialist who
can assist law enforcement and prosecutors
in a forensic interview of a child that takes
i n t o c o n s i d e r a t i o n t h e c h i l d ’s
developmental level and psychologicalstate.
VII. THE OFFICE FOR VICTIMS OF
CRIME
In 1982, the United States Congresscreated the Office for Victims of Crime(OVC) to be the national advocate for crime
victim’s issues. Congress also created afund, composed of fines from convicted
Federal offenders, special assessments andforfeited bail bonds. This money isadministered by OVC and primarily

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
distributed back to the states pursuant toa Congressional formula. Part of the states’
money goes to pay direct compensation to
victims of violent crime for medical
expenses, lost wages, and burial costs. The
other part of the states’ money goes tosupport state level victim assistanceprograms such as rape crisis centers, childadvocacy centers, domestic violence
shelters and homicide support groups. The
remaining money that is not sent to thestates is used by OVC to support theFederal government’s victim assistanceprograms in Federal law enforcement
agencies and for discretionary grants by the
OVC Director. Recently, Congress createda special terrorism fund for use in providing
emergency services for terrorism victims
which also came out of the fund. These
programs are vital as a supplement to thevictims’ rights provisions that govern thecriminal justice system.
VIII. CONCLUSION
Although we have made great strides in
the past 17 years in incorporating victims’rights into our criminal justice system, we
still have far to go to make the system fairfor crime victims. Some provisions work
well and some need much more
improvement. The task is an importantone, however, and essential to maintaining
a fair and just criminal justice system.

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PARTICIPANTS’ PAPERSRESOURCE MATERIAL SERIES No. 56

THE FRAMEWORK AND CURRENT SITUATION OF CHINA’SCRIME PREVENTION
Wang Ping*
I. INTRODUCTION
The increase of crimes is a challenge theworld faces today. How to prevent andreduce crimes is also an important issue
for the Chinese government to tackle. It isalso an important issue regarding how tomake the offenders, who are under punitive
sanction due to their violation of law,completely correct their deviant behavior
and conscience, and help them take on thecorrect ideological and life track to return
to society, so as to prevent them fromrecommitting crimes. This not only
requires the government’s effort but also
the participation of the whole society.
China has 580 million juveniles under
the age of 25, accounting for about half ofthe country’s population. The problem withadolescents has always been a focal pointin overall control of social public security.
Juvenile delinquency has made up 70-80%
of all the criminal crimes, which is very
serious. Surveys indicate that at the
begining of the 1990s, the age of the subjectof crime has tended to become younger.
Juveniles aged around 18 have become themain body of offenders, most of whom band
together to commit crimes and employ
similar means to those of adults. How totake effective measures and prevent
juvenile delinquency is an urgent problem
the Chinese government should solve.
Therefore, this paprer shall also discuss theprevention of juvenile delinquency andprotection of adolescents in China.

* Judge, No. 1 Criminal Adjudication Division of
Beijing Higher People’s Court, Peoples’ Republic ofChina.

204

II. THE PREVENTION OF CRIMESAND PUBLIC PARTICIPATION
China mainly executes the policy ofoverall control of social public security inthe prevention of crimes. That ispreventing, controlling and punishingcriminal crimes, under the leadership of
the government and participated in by all
the people of society, by using economic,
administrative, legal, cultural andeducational means.
To mobilize society to prevent crimes, themost important thing is to have a common
understanding. People are prompted to beaware that crimes occur due to extensivesocial causes. The sole effort of law
enforcement is by no means enough toprevent and curb crimes. Only bymobilizing the whole society can this work
be done effectively. Second, China hasestablished a complete, systematic andeffective mechanism of overall social public
security at various levels of theadministrative jurisdiction. As amechanism, it is a macro-social project
involving various systems anddepartments. The departments concerned,
which are relatively independent but interrelated, have specific work targets, tasks
and methods.
The overall control of social public
security is a theory which is promoted by
the Chinese government and has been
proved correct in practice. An operationalframework has been formed on the basisof this theory. Naturally, the great
importance attached to this policy by thegovernments at the central and lower
levels, and the extensive participation of

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
the people, are the premise and basis forestablishing and improving thismechanism.

unfavourable impact on society andoptimize the social environment. Methods
to do this are:III. MOBILIZING SOCIETY(i) Intensify control over the cultural
market to prevent vulgar, low-taste
and pornographic books and journals
from flowing into society, whiledeveloping and building healthy
cultural establishments;(ii) Strengthen the management of theartistic market, conduct a clean-up
and rectification of the ballrooms,
film and video halls, game halls andbilliard halls;(iii) Mobilize the whole society to show
concern for the growth of youngsters;organize outstanding figures in theolder-generation to form associations
or groups caring for the younger
generation; make use of various
forms to enhance the moral educationof them;(iv) I m p r o v e t h e c o n t r o l o f o v e r population. The judicial organs shallobtain information about school
dropouts, students with misdeeds,
juvenile delinquents and offenders
released from labour camps; keep arecord about them and determine thekey targets who are to be helped andeducated on preventing crimes. The
transient population shall also be
included in this management.

Joint efforts of the police and the masses,
China’s judicial system is composed of the
public security bureaux, procuratorates
and courts. The public security bodies aremost closely connected with society. The
grass-roots organs of the public security
bureaux are the local police stations andthe police, which are most closely linked
with the local people.
Each street community and village haveneighbourhood (villagers’) committees,
which are the grass-roots public ordermaintaining organizations joined in by thepeople. The residents of theseorganizations co-operate with the police
and are jointly responsible for social
stability. In case any sign of crime isdetected, most of the initial information of
it is provided by these residential
organizations. At the same time, legal
publicity and law promotion education,
especially for youngsters, are done by thesegrass-roots organizations in co-operation
with the public security organs,procuratorates and courts. As a result, theefforts of the police and the participationof the whole society are more systemized
and legalized in China.
A. Strengthening Culture andEthicsMoral education, strict control of social
order and purpose management make animportant line of defence to prevent crimes.
Various measures should be taken to
conduct moral education on the premisethat persistent efforts must be put on thereform policy and the building of thesocialist market economy, in a bid toovercome the negative effect and factors oft h e m a r k e t e c o n o m y, r e d u c e i t s

B. Strengthen Education andManagement of Adolescents
Effective prevention of crime begins withthe prevention of juvenile delinquency. The
education of adolescents is a matter
concerning the country’s future and theflourishing or decline of a nation. Everyone
bears his/her share of the responsibility foreducating adolescents. One’s growthcannot occur without the family, schools
and society, which affect early educationand growth. Good work in these three
aspects would result in the effective

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prevention of juvenile delinquency.
1. Attach Importance to the Role of the
FamilyThe Chinese government has been
attaching great importance to family
construction and improving the quality ofparents. The family is what a child firstencounters and forms the first line ofdefence for juvenile delinquency. Family
background and parents’ speech and image
exercise invisible and formative influence
over the child’s psychology, character,hobbies and even morality. Therefore, theparents should undertake their first
responsibility to society, i.e learning how
to become good parents and teachers of
their children. Family ethical education
is of important significance in preventing
juvenile delinquency. The specificmeasures are:(i) In the countryside, such activities
shall be conducted as to encourage
farmers to acquire elementary
education, learn technologies andshare with each other in performanceand contributions. In the urban
areas, activities to be carried out suchas giving commendation to advanced
parents and setting up typical model
parents;(ii) Social guidance shall be offered toparents’ role in the family to
encourage a civilized, healthy andscientific way of life;(iii) A c t i v i t i e s o f r i c h v a r i e t y a r e
conducted for family ethicaleducation;(iv) Spare-time parent schools are built
so parents shall receive training andlearn the correct ways to educate
children and have their sense offamily education enhanced.
2. Emphasis on Legal Education in
Schools
The function of schools is to educate the206

people. The cultural and ethical educationin the schools is of especially importantsignificance. Schools are the second lineof defence to prevent juvenile delinquency.
At present, most of the college and middle
schools are devoting much attention tointensifying legal education and increasing
the legal awareness of the students. Legalknowledge has become an indispensable
part of the moral education and curriculain the colleges and universities. The
purpose of spreading legal knowledge is not
only to let the youth know what constitutes
crime, but to encourage them to fightagainst crimes and unhealthy habits andpractices. The State Education
Commission required that the schools
should transfer their purposes of educationfrom examination-oriented to quality
education. Now schools have began tostress the students’ ethical and moral
education in a bid to publicize legal
knowledge and prevent and reduce juvenile
delinquency.
Through contact with various types ofjuvenile delinquents, we know that a large
number become ‘the accused’ as a result of
their complete ignorance of the law. The
people’s courts, at various levels, haveactively participated in the work of overall
control of social public order andpublicizing legal knowledge, and exert
great efforts in preventing juvenile
delinquency in the following two aspects:(i) Judicial personnel have gone to theschools and communities to givelectures. In Beijing alone, theadjudication personnel of the juvenile
courts have given more than 300
lectures to more than 170,000 people
in middle and primary schools in thepast decade. Some of them have alsogone to the parks and streets duringholidays to answer people’s questions
concerning law.

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(ii) Courts take part in the activities ofbroadening and enriching thestudents’ legal knowledge in schools.
The schools invite judicial
functionaries as the judicial
propagandists to explain legal
knowledge, help and educate thestudents involved in illegal activities.
The courts offer legal consulting on
an irregular basis to assist schools inorganizing and drafting plans for law
publicity work.
IV. PUBLIC PARTICIPATION IN
THE CRIMINAL PROCEEDINGS
A. The Improvement and Perfectionof China’s Criminal Procedure
Legislature
In 1996, China made necessary revisionof the Criminal Procedure Law passed in
1979, so as to probe criminal facts moreaccurately and timely. The revision wasmade on perfecting enforcement measures,investigative measures, terms of custodyand for guaranteeing the rights ofparticipants in proceedings. The revision
further clarifies the position and role,division of work and restrictions of public
security bodies, procuratorates and courtsin the criminal proceedings.
The court hearing methods have been
perfected to intensify the defence of the twoparties so that the three functions of theprocedure - accusing, defending andadjudication - can be better played andensure that the facts are objectively andfairly judged, and that laws are applied
accurately. Let us take a look at therevision of the 1996 Criminal Procedure
Law on the system of advocacy. According
to Article 33 of the Criminal Procedure law:“A criminal suspect in a case of publicprosecution shall have the right toentrust persons as his defenders, fromthe date on which the case istransferred for examination before
prosecution. A defendant in a case ofprivate prosecution shall have theright to entrust persons as his
defenders at any time. A people’s
procuratorate shall, within three days
from the date of receiving the filerecord of a case transferred for
examination before prosecution,
inform the criminal suspect that hehas the right to entrust his defenders.
A people’s court shall, within threedays from the date of accepting a caseof private prosecution, inform thedefendant that he has the right toentrust his defenders.”
Article 96 stipulates:“After the criminal suspect isinterrogated by an investigation bodyfor the first time or from the day on
which enforcement measures are
adopted against him, he may appointa lawyer to provide him legal advice,or to act as his attorney to filecomplaints or charges. Whenever thecriminal suspect is arrested, theappointed lawyer may apply on hisbehalf for obtaining a guarantor andawaiting trial out of custody.”
In accordance with these stipulations,the lawyer may, in a case of publicprosecution, be involved in the procedure
as a defender as early as on the date theprocuratorate receives the file record of acase transferred by the public security bodyor its investigation organs. While in a caseof private prosecution, the lawyer may be
involved in the procedure within three days
from the date of the people’s court’s
accepting the case. In addition, the lawyers
in a public prosecution can also be
appointed by the criminal suspects to be
the legal adviser, so that s/he may be
involved at the stage of investigation andoffer legal aid to the criminal suspects.

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This is greatly advanced compared with the1979 Criminal Procedure Law. These
revisions push a great leap forward for
China’s system of advocacy. From thelegislative point of view, we can see thecurrent law has greatly enhanced openness
and transparency in the pre-adjudication
activities such as crime detection, casereview and decision-making forprosecution; and has increased thepossibilities for public participation to meetthe purpose of punishing criminals andprotecting the innocent.
B. Mobilizing the Public to Control
CrimesChina’s Criminal Procedure Law
stipulates that: the governmental
departments, organizations, enterprises,
institutions and critics have the right andare obliged to find out the criminal facts or
criminal suspects and bring charges
against them to the public security bodies,
people’s procuratorates and people’s courts.
These three bodies should accept the
charges, accusations and voluntary
surrender of the offenders. In each city,and even each district in China, there are
mail boxes for accusation reports andhotlines. Once the public discover criminal
phenomena, they can report it to the public
security bodies, procuratorates and courtsin the most convenient way. Since thismeasure was adopted, many major cases
have been detected and adjudicated thanks
to reports from the public. At the sametime, the strict policy and measures toprotect witnesses have guaranteed thesafety of witnesses to a maximum degree.
In China, few cases have been reported
concerning witnesses’ injury by the clients.
The departments have been set up in thep u b l i c s e c u r i t y b o d i e s , p e o p l e ’s
procuratorates and people’s courts to accept
the reporting of information from thepublic. If the information is found true,
investigation shall begin right away. The

208

reporters shall be given an award. In thisway, all the people are encouraged toprevent and punish crimes.
C. Openness and Impartiality of
Administration of Justice
According to the current Criminal
Procedure Law, the people’s courts shallreview cases in public. What China’s
criminal adjudication stresses is theprinciple of impartiality of theadministration of justice and a public trial
system. All the criminal judicial
proceedings and all the processes anddetails are open to the public. Residents,
with their identity cards, can present at
the court as an observer to hear any casebeing trialed (except those which are notheard in the public). This move, placing
China’s judicial proceedings under thesupervision of the public, is beneficial tojudicial openness and impartiality. It isalso a good way to spread legal knowledge
among the public, which plays an indirectrole in preventing crimes. The open trial
has increased the transparency of trial
work, helped enhance the legal awarenessof the citizens and helped democratize thecountry’s judicial system. Reporters canalso cover the cases being tried in public.
D. The Trial Procedure for Juvenile
Delinquents
The prevention of crimes shall now focus
on juvenile delinquency, which has beenrecognized in many countries of the world.
Much has been done and good results havebeen achieved in this regard in China. Thispart deals with the participation of courts,
society and parents in the trial of juvenile
delinquents.
The basic principle of China’s dealing
with juvenile delinquency is “stressing
education while making punishment as thesubsidiary measure.” This principle has
been reflected in Chinese law and thespecial provisions concerning cases of

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
juvenile delinquency. China’s Supreme
Peoples Court in its Provisions on Dealing
with Juvenile Criminal Cases emphasizedthat “if the appearance in court of a juvenile
defendant’s adult relatives is beneficial to
the trial work and education of the juvenile
defendant, they shall be permitted orinvited to the court upon approval of the
President of the Adjudication division.”
These relatives shall participate in the
education of the juvenile defendant. The
Judicial Interpretation of the Supreme
People’s Court on the Applicable Laws on
Handling Criminal Cases Involving
Juveniles stipulates that for juvenile
offenders who are sentenced to criminal
detention or imprisonment of less than
three years, if they: behave and mend theirways after committing crimes; theirfamilies have the conditions forguardianship or the social education
measures can be carried out; and theoffenders are believed not to harm thesociety after probation, probation shall beapplied to these delinquents. It is quite
clear that the public is playing a decisiverole in the criminal procedure for juvenile
delinquents. The specific measures are:(i)

Set up special adjudication division
to handle juvenile criminal cases;(ii) The trial of the courts shall reflect the
principle of “stressing education
while making punishment as thesubsidiary measure”;(iii) Make trials a medium of education,
which runs through the trial process;(iv) Guarantee to appoint defenders andtry to invite the agents ad litem totake part in the procedure.
The agents ad litem are usually thejuvenile defendant’s parents, adopted
parents or guardians, who bring up or havecustody of the juvenile defandants. They
mostly have blood relationships or
guardianship. They care about the possible
punishment the defendants may receive

and are keen on saving and educating thedefendants. In the trial of a theft caseinvolving a juvenile, one defender said tothe defendant: “You turn around and takea look at your father who has pined away
because of you.” Hearing this, thedefendant sobbed too bitterly to speak.
Then, the legal agents educated thedefendants with strong affection. The
education during the trial achieved goodresults.
V. SOCIETY’S PARTICIPATION IN
THE REHABILITATION OF
OFFENDERS
A. Widening the Way to Their
Return to Society
How to help an offender get back on theright track of life mentally and physicallywhen they are released from the prison(after serving the full term of a sentence)is an important aspect for preventing andreducing recommitted crimes. Since China
adopted a reform and opening-up policy, theeconomic and social structure has
undergone great changes. This hasbrought both opportunities and newchallenges to the released prisoners. The
challenge is mainly reflected in theiremployment and the form and content of
their education. Merely relying on
governments to find them jobs can nolonger suit the new situation under themarket economy. New channels must be
found for employment.
It is the experience of China that, in lightof the principle of educating, rehabilitating
and redeeming the offender, the released
personnel’s dignity, morality througheducation and ability to solve theirproblems in life are improved. Take Beijing
for example, the settlement rate of the
returned prisoners has reached 84.6%. The
rate in Tianjin is 90%, while in Liaoning
Province, the rate is more than 90%. The‘education through helping’ has greatly
reduced the recommittal rate.
209

RESOURCE MATERIAL SERIES No. 56
1. Perfecting Legislature and Offering
Guarantees
Starting from the 1950s, China has
worked out clear stipulations on theemployment of returned prisoners. In the
1990s, China established very complete
legislative provisions in this respect. Not
only has the central government worked
out a series of regulations in this respect,
the provincial and municipal government
also have done the same according to theirrespective situations. Many townships andvillages have also formulated their own
rules on settling the released prisoners.
The State enterprises have also set rules
on employing them. All these measures
have provided legal guarantees to thesettlement and education of the returned
prisoners.
2. Leaders Assume Responsibility to
Ensure Participation of Departments
The Chinese government regards thesettlement and education of the released
prisoner as an important part of work
evaluation for regional and department
leaders. A leaders’ responsibility system
has been adopted, linking theirperformance with their promotion, award
or punishment. In Liaoning Provincealone, more than 2,500 leaders above thecounty and division level are engaged inthis work. So far, 16 provinces in the
country have built provincial-levelcompetent departments to settle andeducate returned prisoners.
3. Exploring New Ways for Employment
Under great employment pressure, thegovernment is still requiring local
governments to explore new ways for theemployment of released people. The main
measures are:(i) Intensifying technical training before
they return to society, so that they canacquire one or two practical skills for
employment;

210(ii) Build bases for the temporary
settlement of returned prisoners. In
Shanghai, two transportationcompanies have been built, settling
more than 5,000 returned prisoners;(iii) Give proper preferential treatment tothese people;(iv) Use market fairs to offer employment
opportunities. For example,
Shenyang has fully employed market
fairs as the main channel for offering
employment to the returned
prisoners. The industrial andcommercial administration
departments have actively provided
convenience and conditions for themto find jobs. In the past three years,
the city’s various types of markets
have employed 2,408 such personnel,
who have since then lived a selfreliant and ‘getting-rich-throughlabour’ life.
B. Relatives’ Participation in the
Rehabilitation of Offenders
The offenders’ relatives are encouraged
to and supported in keeping contact withthe offenders serving a sentence; and cooperate with the educators so that those
offenders, especially the juveniles, can feelthe warmth of the family. Lots of cases
indicate that the family factor is an
important factor that leads youngsters tocommit crimes, and that also reforms the
young offenders. As families emerge in thehuman society, the attachment to thefamily has become a common psychologicalcharacteristics of human beings; thedegrees varying among people of different
age groups as well as individuals of thesame age group. After being imprisoned
to serve a sentence, they lose their freedom
and are separated from their families,
leading to stronger attachment to theirfamilies. Whether the family members
care about or visit them will, to a great
extent, affect their feelings andpsychological state. Therefore, to correct

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
their anti-social psychology, the prisons andreformatories shall try their best to
encourage, support and instruct theoffenders’ relatives to join in the
rehabilitation work, to keep close contact
with their children, who would feel thisconcern and warmth from them.
This is greatly beneficial to weakening
and eliminating anti-social psychology.
Many persistent offenders andrecommitters have thus mended their ways
and started new lives. Gao, a young farmer,
was sentenced to a three-year-and-sixmonth imprisonment for theft, later eight
years imprisonment was imposed on him
for the offence of fleeing and theft. His wife
divorced him after he was imprisoned,leaving him a one-year old child, andmarried another man living far away fromher native village. At the time of extreme
despair, Gao’s brother and his wife
frequently came to see him, encouraging
him to actively reform himself. They also
helped him raise his child, although they
had already had two children. Later, hisbrother died in a traffic accident. Hissister-in-law, the widow had to foster thethree children on her own. She kept on
visiting her brother-in-law confined inprison. Moved by the care from therelatives and educators, Gao devoted
himself heart and soul to his reform. In
the prison, he was awarded as “excellent
cook,” “excellent stockman” and “reform
activist.” According to the verdict of theintermediate people’s court, he wasreleased on probation and later married his
sister-in-law. With the help of the villagers,
he was hardworking and became well-off.
They said: “Gao has changed to a
hardworking, honest and helpful man.”
C. Proper Penalty Methods for
Juvenile Offenders.
1. Penalty is Not the Aim
When conditions permit, probation ismore frequently adopted in juvenile

delinquency cases so the juvenile offenders
can return to society after serving part ofa term of sentence and reduce unfavourable
factors. The probation system is a method
to execute punishment on the offenders
according to the Criminal Law. Probation
is applied to the offenders who aresentenced to criminal detention or to a
fixed-term imprisonment of less than three
years. Probation may be granted tooffenders according to the circumstancesof their crime and extent of repentance, andthe condition that they shall not do any
harm to society after they are put underprobation.
Probation for juvenile delinquents canyield more positive effects than for adultoffenders. First, they are not isolated fromsociety and their families so that they canadapt themselves to society after long-time
imprisonment. Second, families, units,
enterprises and communities can also bemobilized to educate and help them. Third,
they shall be free from “cross-infection” inthe prison, which is helpful to theirrehabilitation. From 1987 to 1997, thecourts at various levels in Beijing
sentenced 9,045 juvenile delinquents. A
total of 2,014 of them, who were sentenced
to criminal detention or a fixed-term
imprisonment of less than three years,
were put under probation. They accounted
for 22% of the sentenced juveniles, which
was more than 10 percentage points higher
than the adult offenders.
2. M o b i l i z e S o c i e t y i n F o l l o w - u p
Education of Juvenile DelinquentsDuring probation, the courts at various
levels shall continue to educate juvenile
delinquents, although they are not within
the jurisdiction of the courts. Most of thecourts have set up files for education andregularly hear reports about the progressof their rehabilitation. By way of practice,not a single case of recommitment of crime
has occured if the rehabilitation of juvenile211

RESOURCE MATERIAL SERIES No. 56
delinquents is reported to the court
monthly.
Before the verdict for probation is given
to the juvenile delinquent, the courts shallcontact the school and community where
the juvenile is to settle in their employment
or schooling. At the same time, they shallhelp the receiving units to build education
organizations so that the juveniles underprobation can study or work in a goodenvironment. According to the statistics
for the past 10 years, of the courts in
Beijing, with the help of juvenile courts,
75 of the delinquents under probation wereenrolled in colleges or academic schools,
and one became a postgraduate student.
207 went to senior high schools, vocational
high schools or secondary professional
schools.
3. Joint Efforts In and Outside Prison to
Educate Juvenile Delinquents
In light of the policy of educating andredeeming young offenders and helping
them to change, the courts and prisons cooperate with each other to do educational
work. The adjudication personnel also pay
regular visits to the prisons and award gooddeeds done by the offenders in the courseof their rehabilitation. In 1991, a major
flooding occurred in East China. More than
60 juvenile delinquents at Beijing’s Qinghe
Farm each donated RMB 30 yuan to thevictims there. The people’s court of Xicheng
District in the city of Zhengzhou held ameeting where local leaders had a good talkwith the juvenile delinquents andencouraged them to become useful persons
in society. The 12 juvenile offenders weremoved to tears and said: “We committed
crimes, but the court and people from ourhometown have not abandoned us. They
cared about us and arranged visits for us.
We shall redouble our efforts in reform andtry to perform meritorious service so we canget commutation and probation, and return
to society as soon as possible, to make our212

contribution to the four modernizations of
our country.” On the occasion of festivals
and public holidays, the adjudication
personnel send the juveniles stationary andother gifts to help them to change. As aresult, the juvenile offenders are more
confident about their rehabilitation now
that society has not forgetten about them.
The crime recommitment rate in the pastten years in Beijing is around 2%.
V. AID TO VICTIMS AND VICTIMS’PARTICIPATION IN CRIMINALPROCEEDINGS
China’s Criminal Procedure Law regards
the victim as a party who is bestowed an
independent position in the proceedings.
This is to ensure the victim’s proceduralrights are completely protected. The
victim’s procedural rights are characterized
by independence, transformation,completeness and restriction.
A. Independence
The right to prosecute is an important
procedural right of the victim. This rightis relatively independent in the criminal
procedure. The public prosecution body
exercises the power to prosecute so as tosafeguard the interests of the State, society
and the victim. But it cannot exclude theright of the victim to independently
safeguard their own interest on the basisof their individual stand. This point is ofgreat significance to the judicial bodies
intensifying the protection of victim’s
procedural rights.
B. Transformation of the Right
In a case of public prosecution, the righto f a c t i o n r e s t s w i t h t h e p e o p l e ’s
procuratorate. The victim has the right torequest the bringing of an action. This
right means that the victim enjoys the rightto, over the facts of crime which infringes
upon their personal and property rights,
bring a charge and request the judicial

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
organ to investigate the criminal
responsibility of the suspect. If the victim
has any objection to the judicial bodybringing an action in a case, the victim may
use their legal capacity to sue for the rightof applying for reconsideration; right tosupervise the filing of a case; and directright of bringing an action. Thistransformation can be regarded astransforming the right of publicprosecution to the right of private
prosecution.
C. Completeness of the Right
Whether a victim’s procedural right iscompletely bestowed is an important aspectin evaluating the criminal proceduremechanism. China’s current Criminal
Procedure, Law reflects the proceduralright of the victim all through the criminal
procedure, and embodies the completenessof the right. For instance, the law has clear
stipulations on the victim’s reporting of acase, accusing and private prosecution;bringing supplementary civil action;
applying for withdrawal; appointing anagent ad litem; appearing in court; lodging
an appeal and requesting a counterappeal.
China adheres to the principle of State
prosecution, and the principle of victim’s
prosecution is concurrently adopted so thatt h e v i c t i m ’s r i g h t t o p r o s e c u t e i sguaranteed. At the same time, amechanism was set up for the right ofprivate prosecution to supervise the rightof public prosecution. The stipulation on
application for withdrawal can ensure theimpartiality of the criminal procedure. The
agent ad litem system not only further
improves China’s legal system, but also
plays an important role in protecting thevictim’s legal rights.
D. Restriction of the Right
The Criminal Procedure Law has,necessarily, restrictive stipulations over thevictim’s procedural rights. In a case of
public prosecution, if the victim does notagree with a judgement made at the first
instance of the local people’s court, s/he hast h e r i g h t t o r e q u e s t t h e p e o p l e ’s
procuratorate (at the same level) to propose
a counterappeal, but has no right to lodge
an appeal to the people’s court at a higher
level.
E. Strengthening Protection of theVictim’s Procedural Rights
The victim’s independent rights toprosecute are guaranteed in the following
aspects. First, in the court hearing, thevictim may make a procedural request andproposals different from that of the publicprosecutor. The reason is; the victim’s
independent right make a litigant claim
embodies their status as a party in thecriminal procedure. Now that the victim
is recognized as a party in the procedureand enjoys the independent right toprosecute, therefore s/he shall be permitted
to independently make litigant claims
favourable or unfavourable to thedefendant if s/he believes the publicprosecutior makes improper accusations
against the crime. This is an important
aspect for the victim to completely exercise
their power to prosecute. In this way, thevictim can join the public prosecution to
expose and accuse the crimes more
effectively.
Second, an independent seat is arranged
for the victims. This not only reflects thevictim’s procedural position, but also
guarantees the victim full exercise of theirprocedural rights. The victim is seated to
the right of the public prosecutor, facing
the bar. They are seated on the side of the
public prosecutor, not the defendent, toindicate the confrontation between thevictim and the accused. Finally, in theprivate prosecution cases of our country,
the victim is responsible for giving
evidence. The burden of proof for private
prosecution lies with the private
prosecutor. This is of positive significance213

RESOURCE MATERIAL SERIES No. 56
to increasing the confrontation between
accuser and defender, and ensuring thatthe adjudication body is in the middle.
F. Right to Obtain Legal Remedy
In China, the victim can entrust thelawyer to offer legal remedy. The agent of
the victim can fully enjoy the right to act
as an agent ad litem. This is one of theimportant ways for the victim to obtainlegal remedy. In reference to the Criminal
Law concerning the rights and duties of the
defence lawyer of the accused, the agent of
the victim can consult, extract andduplicate the materials concerned at thepeople’s procuratorate. Upon approval of
the witness or other units or individuals,s/he can also collect the materials relating
to the case from them. They can also apply
to the people’s procuratorate and people’s
court for collecting and obtaining evidence,or requesting the people’s court to notify awitness to appear before court.
In China, the attorney-in-fact of thevictims, especially the attorney at law,attach great importance to the work of anagent ad litem for the victim in cases ofprivate prosecution. Their work helps toensure the realization of the protection of
the victim’s rights granted by the Criminal
Procedure Law and plays an important rolein enhancing the activities of the criminal
proceedings.
G. Right of the Victim to Take Partin the Court Hearing
China’s Criminal Procedure Law allows
the victim to exercise their procedural rightduring the court hearing. According to thelaw, the people’s court shall, within at least
three days before a court is opened, servea summons to the victim and a notice ofappearance is also served to the attorneyin-fact of the victim. As for the right of thevictim to apply for withdrawal, application
can be made to the Chief Judge for thewithdrawal of members of the collegiate

214

bench, the clerks, public prosecutor,
appraisers and interpreters. As for thevictims’ right of locus standi, statement canbe made on the crime accused by theindictment. As for the victims’ right to ask,
the victim may, upon approval of the Chief
Judge, address questions to the accused,
the witness and appraisers. As for right ofthe victim to air their views over evidence,s/he may put forward their views on; thetestimony of the witness who fails to
appear before the court; conclusion of theappraisal; record of investigation and otherevidentiary documents; apply for obtaining
new evidence through appearance at the
court by a new witness or apply forreappraisal or investigation. In a private
prosecution cases, the victim also enjoys
the right to reconcile with the accused on
their own or to withdraw the private
prosecution.
VI. CONCLUSION
To sum up, this paper, in four parts crime prevention, criminal proceedings,
rehabilitation of the offenders andguaranteeing the rights of the victim - deals
with crime prevention, corrections andprotection of the offenders, public
participation and the joint effort of thewhole society in China. The aim is toinform you of the framework and current
situation of crime prevention in China, andto study and discuss issues of common
interest with friends from various
countries, to improve public security.

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERSCOMMUNITY INVOLVEMENT IN CORRECTIONSIN HONG KONG
Tai Kin-man*
I. INTRODUCTION
This paper proposes to outline andevaluate the current community
involvement in corrections in Hong Kong.
It will focus on corrections under the penal
jurisdiction i.e. the Correctional Services
Department, and the community based
corrections like probation and community
service orders, which come under the Social
Welfare Department in Hong Kong.
There are at any time over twenty NonGovernment Organizations involved in thework of the correctional system in HongKong. They are dominated by religiousorganizations which mostly engage inevangelistic activities. There are others
which provide reintegration support,
prison visits and counseling services. The
Society for the Rehabilitation of Offenders
in particular is dedicated to help exprisoners’ reintegration. It bridges a
service gap for adult prisoners most ofwhom, unlike the young offenders or drug
addicts, do not have the benefit of statutory
aftercare supervision. The Prisoners’
Friends’ Association on the other hand isdedicated to providing prison visits
primarily to those prisoners who do notreceive visits from relatives or friends.
There are some 80 members, of whom some
two-thirds come from the expatriate
community. They can only cater for afraction of the total demand.
Apart from Non-Government
Organizations, private individuals from thecommunity also involve themselves in* Superintendent of Hong Kong Correctional Services
Department, Hong Kong.

diverse ways. Services and activities range
from evening education classes, hobby
classes, sports training, recreation,
presentation of certificates and character
training. Most involve the young offender
programmes which place great emphasison character training and reintegration.
The powerful media has a role too. It has
a lot to contribute in promoting publicawareness of and influencing public
attitudes towards the goals of offenders’rehabilitation. The Hong Kong
Correctional Service does recognize thepotential for the community to become
involved in the work of corrections. It
welcomes and actively seeks such
involvement.
A. Background
The Correctional Services Department
in Hong Kong now operates 21 penal
institutions of all types. These include
male and female prisons, reception centres,
training centres for boys and girls,
detention centre for young males, and drug
addiction treatment centres. There are
currently some 11,423 inmates in all
categories.
Inmates discharged from training
centres, detention centres and drug
addiction treatment centres, as well as
young prisoners discharged from prison,
are subject to statutory supervision.
Aftercare officers provide throughcare
during custody and supervision. Aftercare
service is available to adult prisoners on amore limited basis under two statutory
schemes.1
Welfare officers are available in every

215

RESOURCE MATERIAL SERIES No. 56
prison and reception centre to look after
the welfare needs of all convicted andremand prisoners. Apart from the limited
minority who are placed under statutory
supervision schemes, adult prisoners
having completed their sentence do nothave the benefit of an aftercare service.
The service gap is basically filled by nongovernment organizations.
II. COMMUNITY INVOLVEMENT IN
CORRECTIONAL WORK
A. Non-Government Organizations(NGOs)
There are at any time over twenty NGOs
involved in the work of the correctional
system in Hong Kong. A few are dedicatedto providing services to offenders. Many
have a religious background. A list of theNGOs currently involved is annexed to thispaper. Services provided by the NGOs
range from practical reintegration support
to prisoner visits, or evangelistic activities.
It is noteworthy that the field isdominated by religious bodies. They
include various Christian, Catholic,
Buddhist and Islamic denominations.
After all, offenders are more in need ofspiritual guidance for their reform, as wellas the spiritual strength, to cope with life
in custody. These religious bodies primarily
1

One is the Release Under Supervision Scheme, aparole scheme, which came into operation in 1988.
So far, less than 300 have been released under thisscheme. The other is the Post Release Supervision
Scheme, which has come into operation since
December 1996. This scheme is aimed at helping
the reintegration of certain categories of prisoners
who have completed their sentence. The prisoners
have either been sentenced to six years or more, orto a shorter term for specific gang related or sexual
or violent offences. A total of 1,142 prisoners havebeen brought under this scheme as at 15/3/1999
and the success rate of those expired cases is
97.46%.

216

engage in evangelistic activities, theirmembers visiting various institutions on aregular basis to hold religious services andseeing individual prisoners. Some alsoorganize recreation and entertainment for
the general prison community on holidays
and festive occasions.
One of the largest NGO’s dedicated to
the field of corrections is the Hong Kong
Society for the Rehabilitation of Offenders(SRO). This is a government subventedorganization with a long history of
association with the system of corrections.
Its stated aims are to provide a professionalsocial work service for offenders anddischarged prisoners, as well as to establish
and maintain centres for case work,
counseling, accommodation, employment
rehabilitation and recreation for its
clientele. Its workers regularly visit
various penal institutions to introduce its
service to prisoners, especially those prior
to discharge. It is by far the single mostimportant NGO filling the service gap in
the reintegration of adult prisoners.
B. Prison Visitors
Under the Prison Rules, theCommissioner of Correctional Services
may, from time to time, appoint any person
interested in the welfare, reform andaftercare of prisoners to be a prison visitor.
Indeed, regular visitors from the NGOs are
so appointed and issued with prison passes.
Worthy of mention are members of the
Prisoners’ Friends’ Association. The
Association was first established in theearly eighties with the support of theCorrectional Services Department. The
object was to provide a service of regular
visits for prisoners who are in need offriendship with members of the outsidecommunity; basically those who do notreceive visits from relatives or friends.
Members of the Association come fromdifferent walks of life. Interestingly, some

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
two-thirds are expatriates of different
nationalities. This in part has to do with
its history. It more or less began withconcerns for expatriate prisoners who had
no visits and who were sociallyhandicapped amongst the local prisoners
because of the language barrier. The key
founding members also came from theexpatriate community. With an active
membership of some 80 persons, they canstill only meet with a fraction of the total
demand.2
There is perhaps also a cultural factor
in the lack of enthusiasm in the local
community for this kind of voluntary work.
Prisons and prisoners are still taboo tomany local people, let alone to go on prison
visits. Nonetheless, members of the
Association have been doing acommendable service in providing desolate
prisoners a link with community, and afriendship that helps ease the deprivationsof prison life. Such interactions areperhaps of greater benefit to the social andpsychological bearing of the prisoners than
one may readily recognize.
Another kind of prison visitor is the more
officious Justices of the Peace. It isprovided in the Prison Rules that two
visiting justices (one official and one
unofficial) shall visit each prison at least
once a fortnight. The official justices areappointed by virtue of their public office,normally of at least assistant director levelin various government branches anddepartments. The unofficial justices arepeople of good character and social
standing, appointed from a wide spectrumof the community.

2

A survey towards the end of 1998 found some 1,781
prisoners were not receiving visits from theirrelatives or friends, and about a third of thisnumber were catered for by members of the
Prisoners’ Friends’ Association.

Visiting justices are charged with duties
to promote the efficiency of the service, toreport abuses, to hear and investigate
complaints, to protect the general wellbeing of prisoners and to advise on theindustrial employment and occupation,with particular relation to theiremployment on discharge.
The regular visits by justices havebecome an established part of prison life.
Not only do they present a channel for
prisoners to ventilate grievances, they also
demonstrate a kind of community interest
and presence. Given the diverse
background and experience of the justices,
their advice is highly valued and often
provides the spur for improvement in thework of corrections.
C. Personal Encounters with
Prisoners
The objectives of the scheme of personalencounters with prisoners are two-fold:through exposure to personal experiencesof serving prisoners, the “youth at risk”
may develop insight which will become new
guidelines for their behaviour. The project
may also serve the reciprocal purpose of
inducing positive changes amongst theprisoners concerned and may, in the longrun, facilitate their rehabilitation.
Target groups participating in thisproject include students between Form 2
and Form 6, or aged between 13 and 18;
clients of outreach social work teams; andyoungsters displaying maladjusted
behaviour. The project represents a
concerted effort in preventing juvenile
delinquency. The support of schools, youth
centres and parents to the project are
determinant factors to its success.
D. Community Services
Other activities to encourage community
involvement include community service
programmes for young inmates, such as the217

RESOURCE MATERIAL SERIES No. 56
Duke of Edinburgh Awards Scheme,
Outward Bound, Scouting, etc. Continuous
efforts are being made to involve moretraining centre inmates in these activities
as community reintegration programmesof the department. In addition, CSD has
been arranging for more inmates to takepart in personalised social services for theelderly and the mentally or physicallydisabled before discharge. The Department
has also sought assistance from the Hong
Kong Council of Social Services to identify
more interested welfare agencies forsupport. The scouts training was set up a
decade ago with the personal and financial
support of a few dedicated individuals who
have maintained their sterling support tothis date.
III. CREATING AND SUSTAININGTHE INTEREST OF THE
COMMUNITY AND GOVERNMENT
IN CORRECTIONS
A. General
Correctional services in Hong Kong aims
to provide a disciplined but humane
environment where inmates can receive
appropriate counseling, educational andvocational training, and where they can
prepare themselves to return to society as
law-abiding citizens upon release. Since ittakes time for the community to see howmuch the correctional programmes canachieve, the positive aspects of correctional
work has often been under-assessed, if not
totally ignored. In the worst case,correctional work often encounters adverse
criticism where the public tends toassociate correctional services with media
reports on prison riots and escapes.
There are some ideas on soliciting public
interest and support for correctional
services in Hong Kong. This has a lot to dowith promoting public awareness of andinfluencing public attitudes towards theobjective of rehabilitating offenders.

218

Means of achieving this end include thedevelopment and enhancement of
rehabilitation based programmes, adopting
measures to improve correctionscommunity relations and encouraging
community involvement in correctionalwork.
B. Development and Enhancementof Rehabilitation Based
Programmes
The commitment on the part of theCorrectional Services Department (CSD) of
the Hong Kong Special Administrative
Region to rehabilitation is clearly
demonstrated by the level of resources thathas gone into prison workshops,
educational and vocational training, andparole systems. In the financial year 19971998, HK$434.1 million has been allocatedto rehabilitation programmes, representing
17.4% of the total expenditure of the
Department.
1. Rehabilitation Programmes of CSD
The Department has developed a whole
range of rehabilitation programmes andservices for offenders which are being
implemented. Different rehabilitation
programmes and supervision schemes
address the rehabilitative needs ofoffenders in different kinds of institutions,such as prisons, detention centres, training
centres and drug addiction treatment
centres. Education programmes not only
provide intellectual training to prisoners,
but also serves as a channel for them totouch base with the community. These
programmes include evening education
classes, correspondence courses and selfstudy programmes which lead to accredited
academic qualifications. Aftercare service
is another major aspect of therehabilitation programmes whichfacilitates released inmates’ smoothtransition from custody to freedom,through strict supervision conditions, job
placement and guidance to strengthen the

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
confidence of the offenders. At present, therehabilitation programme is carried out by
200 professionally qualified CSD officers
in different institutions. Over the years,
the rehabilitation programmes have
evolved and developed. The Department
also has its prison chaplains who pay
regular visits to prisoners to provide themwith spiritual guidance and reintegration
support.
2. Research on the Effectiveness of
Rehabilitation for Young Offenders
In April 1996, the City University ofHong Kong was commissioned by theStanding Committee on Young Offenders(SCOYO) of the Fight Crime Committee(FCC) to conduct a one-year evaluation on
the effectiveness of rehabilitation
programmes for young offenders, an areaof considerable public interest. The
evaluation covers rehabilitation
programmes currently run by CSD and theSocial Welfare Department (SWD). Areasof study relating to CSD includes detention
centres, training centres, youth prisons andhalfway houses. The overall objectives are:• to estimate the functions,characteristics, content, duration andresource input of existing
rehabilitation programmes for young
offenders;• to measure the programmes’
effectiveness upon the young
offenders’ completion of treatment;• to identity factors relating to thesuccess or failure of the programmes;• to find out favourable or unfavourable
conditions in the implementation ofrehabilitation programmes; and• to assess the quality, effect andservice gaps in existing rehabilitation
programmes based on the responsesof young offenders and theprofessionals involved in providing
the programmes and in sentencing
offenders.

The research found, on the whole, highsatisfaction levels in areas including
aftercare services and officers, throughcare
services, education, vocational/prevocational training, physical, social andmental health. The research has,nevertheless, recommended 30 sets ofrecommendations to strengthen areas,
including educational training, vocational
training, services for the families of young
offenders, community reintegration,
throughcare, half-way houses and a
proposed short-term residential
programme. These recommendations are
now being followed through by the newly
established Rehabilitation Division of theCSD, which formulates strategies for the
long-term development of rehabilitation
programmes and aftercare services, and tobetter co-ordinate the provision of these
programmes and services for both young
and adult offenders.
C. Measures to Improve
Corrections-Community
Relations
1. The Public Relations Unit
The inception of the Public Relations
Unit (PRU) in CSD has played a significant
role in improving corrections-community
relations. A better public information
service, with greater transparency, has
become the norm in the public sector. It is
recognised that the public has the right toknow, though sometimes only out of
curiosity, the process of rehabilitation. On
the other hand, the department is also
making use of every opportunity to informthe public of its operations in order toenhance departmental image.
The functions of the PR Unit include
disseminating information to the media via
press releases, arranging interviews withsenior management staff on specific topics
relating to the Department, and organisingpress visits to penal institutions. Media
contribution in shaping public opinion,

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RESOURCE MATERIAL SERIES No. 56
values and attitudes (towards creating a
positive image of the Department) arenotable. CSD is well aware of this potential
and so works closely with the local media
through its PR Unit.
Press conferences, press statements andmedia visits to penal institutions are themeans to inform the community on thework of corrections, and help promote a
more positive public image of the
Department. On the other hand, major PR
events such as the Department’s annual
parade, autumn fair, scout rally and Staff
Training Institute (STI) open day, whichforms part of the recruitment campaign,
are organised for the public. The openingof new facilities, education certificate
presentation ceremonies, and prison visitsby prominent public figures also provide
good publicity. These activities assume
profound significance in linking thecommunity with the Department and help
to shape public attitudes towards thenature and goals of correctional work.
Since January 1998, information about
CSD ranging from historical events, facts
and statistics, news and events ofindividual institutions on special topics
relating to prison development projects canbe accessed through the Department’s
homepage on the Internet. This provides
an additional channel to communicate withthe public who may be interested in thework of the Department.
2. The Complaints Investigation Unit
On the operations side, the setting up of
the Complaints Investigation Unit (CIU)a s t h e D e p a r t m e n t ’s i n d e p e n d e n tmechanism to redress grievances frominmates, staff and the public, is anothermeasure to enhance correctionscommunity relations. The creation of theUnit, which is headed by an AssistantCommissioner and staffed by teams of
trained officers, is expected to inspire

220

greater public confidence in theimpartiality of complaints investigation.
IV. SERVICES FOR OFFENDERSPROVIDED BY THE SOCIALWELFARE DEPARTMENT
A. Objective
Offenders’ rehabilitative measures, to beeffective, should incorporate means toguide them onto the right track, prevent
them from committing crimes again, andassist them to start afresh so that they can
become not only lawful citizens, but also
contributing members of society. The
overall objective of the services foroffenders is to help them become lawabiding citizens and reintegrate into thecommunity. This is achieved through bothcommunity-based and residential services,adopting social work approaches. It is
hoped that through proper supervision,counseling, academic, pre-vocational andsocial skills training, the offenders will beequipped with the necessary skills to deal
with life demands.
B. Means
This objective is achieved through thefollowing means :• discharging statutory responsibility;• probation service;• administering community service
orders;• community support services;• remand home services;• residential training services;• improvement measures; and• assisting the magistrates through theYoung Offender Assessment Panel.
C. Statutory Responsibilities
The Department is responsible fordischarging statutory functions within theframework of the following ordinances :• Juvenile Offenders Ordinance, Cap.
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112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS• Probation of Offenders Ordinance,
Cap. 298• Community Service Orders
Ordinance, Cap. 378• Reformatory Schools Ordinance, Cap.
225
• Protection of Children and Juveniles
Ordinance, Cap. 213• Immigration Ordinance, Sec. 35(1) ofCap. 115
D. Probation Service
During 1996/97, 162 probation officers
served all the magistracies, the District
Courts and the High Court, as welfare
agencies. The Department prepares social
inquiry reports on offenders, long term
prisoners and petition cases. These reports
provide information on the offender ’s
background to facilitate the court’s andconcerned parties’ decision on suitablesentencing options for disposal of theoffenders.
Probation officers also supervise
offenders (of all ages), who are placed on
probation, to comply with the requirementsof the probation order. 12,520 probation
officer’s reports were produced and 7,643
clients were served in 1996/97. Out of the3,659 cases completed, 2,779 probationers(75.9%) satisfactorily complied with thec o n d i t i o n s o f t h e o r d e r. T h e 8 8 0
probationers who failed to comply with therequirements of their probation orders
were referred back to the courts for resentencing.
To p r o m o t e g r e a t e r c o m m u n i t yinvolvement in the rehabilitation of
offenders, volunteers (under the Volunteer
Scheme for Probationers) befriended 71
probationers/residents of correctional
homes and helped them carry out activities
and programmes to serve the community.

E. Community Support Service
SchemeA pilot community support service
scheme was introduced in December 1994
to help rehabilitate juvenile offenders
through a community-based treatment
programme. The programme provides
structured day-training, such as socialgroups, community service projects, job
training packages and counseling groups,
to stimulate young offenders’ interest in
school or work and to develop their social
skills. During 1996/97, groups were formedfor 312 probationers/dischargees ofresidential homes for juvenile offenders,and 155 family members.
F. Community Service Orders
A community service order may be madeagainst an offender of or over 14 years ofage convicted of an offence punishable withimprisonment. The offenders perform
unpaid work of benefit to the community
for a number of hours, not exceeding 240,
within a period of 12 months. The
probation officers will assess the suitabilityof the offenders for performing such work,
as a rehabilitation/sentencing option.
During 1996/97, 2268 social inquiries
were conducted and 882 orders were made.
Out of 745 cases completed, 662 (88.9%)
offenders satisfactorily rehabilitatedthemselves through the 105 group projects
and 15 single placements organized in 112
centres of NGOs and government
departments.
G. Post-Release Supervision of
Prisoners Scheme
The Post-Release Supervision of
Prisoners Scheme commenced operation in
December 1996. It is implemented jointly
by staff from the Correctional Services
Department and the Social Welfare
Department to provide statutory
supervision for certain categories ofdischarged adult prisoners. The officers

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RESOURCE MATERIAL SERIES No. 56
conduct interviews with the prisoners inpenal institutions well before theirdischarge to prepare them for their returnto the community, and to pay regular visits
to the supervisees at their home/workplace
to help them rehabilitate and reintegrate
into society. Employment, accommodation,
financial assistance, and counseling arerendered. During 1996/97, 141 exprisoners have been placed on supervision.
H. Remand Home/Place of Refuge
ServiceChildren and juveniles who require
short-term remand/place of refuge facilities
are now accommodated in Pui Yin Juvenile
Home, Begonia Road Boys’ Home, Pui Chi
Boys’ Home and Ma Tau Wei Girls’ Home,
which provided 281 places and had a totalof 3746 2new admissions in 1996/97.
These homes provide temporary custody,
assessment and care to offenders aged 7 to
16, illegal immigrants aged 8 to 18, andchildren/juveniles in need of care orprotection aged 8 to 18, including children/
juveniles with a physical disability aged 9
to 18, and those with a mental disability
aged 5 to 18.
Various kinds of developmental andtherapeutic activities, e.g handicrafts,
domestic skills, family life education, social
skills, etc, are arranged to keep theresidents meaningfully occupied during
their stay in the homes. Young offenders
requiring residential training are

NatureProbation Home

Probation Hostel
Reformatory School

222

accommodated in the below-listed homes.
I. Residential Homes for Offenders
The period of placement in probation
homes/hostels ranges from six to twelve
months, with a period of aftercare
supervision in the community. The periodof reformatory school training ranges fromtwelve to eighteen months, followed witheighteen months of aftercare supervisionin the community. Counseling and training
programmes in academic studies,
prevocational and social skills are provided.
There were 305 new admissions in 1996/
97. The reprovisioning project for Begonia
Road Boys’ Home (to improve service
standards) is under smooth progress. The
construction work is anticipated to becompleted in 1998/99.
J. Young Offender Assessment
Panel
The Young Offender Assessment Panelis a special board with panel members
drawn from the Department and theCorrectional Services Department toprovide co-ordinated professional views tomagistrates in the sentencing of young
offenders aged 14 to 25.
In 1996/97, 55 magistrates and sevenjudges made a total of 473 referrals to the
Panel. 462 panel cases were disposed ofb y m a g i s t r a t e s a n d t h e p a n e l ’s
recommendations to the courts had an
acceptance rate of 84.2%.

Name
Begonia Road Boys’ Home
Fanling Girls’ Home
O Pui Shan Boys’ Home
Kwun Tong Hostel
O Pui Shan Boys’ Home
Castle Peak Boys’ Home

Capacity
80
20
48
60
48
75

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
V. SUMMARY
The benefits of community involvement
in corrections are manifold. First andforemost is the tapping of community
resources. They include not only the direct
human resources, but also theprofessionalism and the organization
which allows such resources to be used tob e s t e f f e c t . Wi t h o u t c o m m u n i t yinvolvement, the government will either
have to directly or indirectly provide
resources, or accept that such services will
not be provided at all, or provided on a
reduced level or scale. Even if thegovernment is prepared to substitutecommunity resources, it may not be as costeffective because it is not geared to provide
particular kinds of services.
Secondly, the very nature and diversityof community involvement is not what
government officials and money candeliver. The effects on, and acceptance by,prisoners are peculiar to the people
involved, by the very fact of their being
members of the community or particularsectors of the community. Thirdly, the more
extensive community involvment incorrections, the greater the community
awareness of issues of corrections, and themore likely community attitudes will
support offenders’ rehabilitation.
The Hong Kong Correctional Services iswell aware of the benefits of community
involvement. It welcomes such
involvement and it does everything
possible to support and facilitate such
involvement. It is also constantly watchingout for new opportunities to enlist greatercommunity involvement. Having said allthat, it must be conceded that the current
extent of involvement by the local
community is still relatively limited. Whatcan be done is limited by the community
resources actually available and to a far
greater extent, the prevailing attitudes of
the community at large. Hong Kong isrenowned for its materialism and brisk
pace of life, rather than for its community
spirit. Doing voluntary work for offenders
is not the dream of many and community
attitudes do not change overnight.
Looking ahead, the Hong Kong
Correctional Services should continue tobuild on the community involvement it has
already secured and to actively promote
community awareness of the goals ofcorrections and the role the community can
play.
List of NGOs involved in the
Correctional System inHong Kong
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.

The Society for the Rehabilitationof Offenders Hong Kong
Prisoners’ Friends’ Association
Caritas Lok Heep ClubThe Hong Kong Christian Kun Sun
Association Limited
International Social Service Hong
Kong Branch
Shuval Israel Centre
The Alliance Bible Seminary
Student Evangelistic Band
Christian Prison Pastoral
Fellowship
Hophzibah Evangelistic Centre
Aberdeen East Congregation
Jehovah’s Witnesses
Mother of Good Counsel Parish
Lotus Buddhist Association
Hong Kong Buddhist Association
Hong Kong Ling Yan Pentecostal
Holiness Church
Good Shepherd Siaitere
Buddhist Library of China
Pentecostal Church of Hong Kong
Christian & Missionary Alliance
Church Union of Hong Kong
The Leprosy Mission
The Islamic Union of Hong Kong
Land of Virtue Buddhist Centre
St. Augustine Youth Association
Canossian Micsrons
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RESOURCE MATERIAL SERIES No. 56

PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE
FAIR AND EFFECTIVE CRIMINAL JUSTICEADMINISTRATION
Ghazali bin Hj. Md. Amin*
I. INTRODUCTION
In any civilized society of today, the word
justice (or injustice) refers to the rules andprocedures that characterize social
practices which are applied to the actionsof individuals who participate in thesepractices. When we speak of a breach of
the rules of ‘natural justice’, we arereferring to arbitrariness suffered by anindividual in a ruled-governed process(Barry P. Norman, 1955; An Introduction
to Modern Political Theory; p.149). Thus,
when we talk about justice, it implies
equality before the law, otherwise certain
forms of inequality are arbitrary andunjust.
As Rawls himself says, “Justice is thefirst virtue of society” (Rawls, J.; 1972, The
Theory of Justice p.3) and most people
would agree that, although a society may
exhibit other moral values than justice, asociety characterized by injustice would be
especially blameworthy. Not only is it rightto act justly, it is also specifically wrong to
act unjustly.
II. DEFINITIONS OF JUSTICE
The Webster dictionary defines justiceas the administration of law, authority or
jurisdiction in conformity with moral
principles or law. According to Barry, theconventional accounts of justice normally
begin by stating a fundamental rule thatderives from Aristotle. The theory is thatjustice means treating equals equally and* Superintendent, Public Relations, Royal Malaysia
Police, Malaysia.

224

unequals unequally, and that unequal
treatment should be in proportion to theinequality (Barry P. Norman; Modern
Political Theory; 1995; p.153).
III. DEFINITIONS OF THE
CRIMINAL JUSTICE SYSTEM
Newman D.J defines the criminal justicesystem as, “a system that enforces
traditional systems, analysis of which
includes describing the structural interrelationship of legislative, appellate court,
enforcement and administrative agencies,
as well as their corresponding process ofdecision making from the arrest of suspects
through charging, adjudication,
sentencing, imprisonment and release onparole”. Reid (1982) defines the criminal
justice system as, “the agencies responsible
for the enforcement of criminal law
including legislation, police, courts andcorrections. Their processes of decision
making consists of the prevention, detection
and investigation of crime; theapprehension, accusation, and detention
and trial of suspects; the conviction,
sentencing, incarceration or official
supervision of adjudicated defendants”.
IV. EQUALITY IN THE MALAYSIANCONTEXTIn Malaysia, a similar expression isfound in Article 8(i) of the Federal
Constitution, which guarantees that: “Allpersons are equal before the law andentitled to the equal protection of the law.”
This expression of “equal protection of thelaw”, was implanted in tote (derived form)
from Art.14 and Art.4 of the Indian and112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Pakistani Constitution, respectively. It
must also be mentioned here that although
the Reid Commission in 1957 felt that
fundamental individual rights werealready established throughout Malaysia,
nevertheless they felt that there should be
a constitutional safeguard because of
apprehensions about the future[Federation of Malaya (Constitutional
Commission, 1956-1957 Report, Paragraph161) ].
V. POLICE ROLE IN THE
CRIMINAL JUSTICE SYSTEM
Police are one of the integral components
of a criminal justice system. The police arealways refered to the “long arm of the law”,“law enforcers”, as well as “peace
mediators”. In the course of the executionof their official duties, there may be someshortfalls or flaws in police actions. Suchpolice actions are pertaining to sections 3(3)of the Police Act, 1967; sections, 15, 28 and117 of Criminal Procedure Code (Arrest);
sections 54 and 62 CPC (Search); andsections 387 and 388 CPC (Bail). If police
personnel, are ‘ultra vires’ of their official
jurisdiction in the course of performing
their duties, or contravene any of the above
mentioned sections of law, their actions, if
done without due care and properaccountability, may result in a miscarriageof justice on the part of the persons
concerned.
As Alan E. Ellis said about law andjustice, “The concept of law, using law andlaw enforcement, is only part of the large
idea of justice......Justice includes the useof law and it can’t really exist in society
without order. But the idea goes beyond
both law and order. It is close to what might
be called fundamental fairness, liberty or
almost moral decency......”.
As law enforcement is the most criticaland visible component of the criminal

justice system, the police, in executing theirofficial duties, must ensure that any
shortfall in police action does not result in“justice denied” to the person concerned.
In order to ensure and guarantee thatjustice is neither delayed nor denied,Vincent Ng Kim Khoay, J.C. in PP v LeeEng Kooi (1993) 2 AMR (Supp. Rep) 480
rightly said, “Public interest consideration
demands that criminals are apprehended,rightly charged, fairly tried, justly convicted
and appropriately sentenced. It is only
through an interplay of good law officers(police), honest and able DPPs, ethicallawyers and competent magistrates andjudges that these essential links in theadministration of justice and maintenanceof law and order are ensured for society. A
shortfall in any these links hardly serves
the public interest”.
VI. PUBLIC ALSO HAS A ROLE TO
PLAY IN CRIME PREVENTION
The surge in the crime rate last year, as
revealed by the police, is a reminder thatthe people must never take safety andsecurity for granted. According tostatistics, the crime index rose from 87,902
cases in 1996 to 121,176 in 1997 (index
crime is made up of violent and property
crimes). Policing say the increase wassignificant, compared with the rise of 6,681
cases or 8.23% in 1996 from 81,221 casesin 1995. In 1997 property crime topped thelist with 104,257 cases, an increase of
28,695 or 37.98%. The police had solved
17,824 property crimes and 7,916 violent
crimes. In the wake of these statistics,
questions have been asked as to whether
we have done enough to prevent crime.
While we recognise that the police have amajor role to play, the responsibility is notours alone. One leading newspaper
recently pointed out that while Malaysia
is a comparatively safe country to live in,its citizens and residents should rememberthat these are extraordinary times.

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RESOURCE MATERIAL SERIES No. 56
VII. COMMUNITY CRIMEPREVENTION : WHY IS IT
IMPORTANT ?
Community crime prevention means
people sharing the responsibility formaking the place where they live moresecure. It doesn’t mean taking on the roleof the police, but using valuable police
resource more effectively.
The premise for community crime
prevention is the same as for any
community endeavour - when people pull
together to solve common problems, muchis possible. Since residents know their own
communities better than anyone, they canoften find solutions ideally suited to thesocial and cultural identity of theircommunity.
Obviously, for a community to undertakea successful crime prevention program, anorganized approach and a strong sense ofcommitment are needed. In mostcommunities, there are individuals andgroups with a proven track record oforganizing any number of local projects.
Frequently these people are leaders andvolunteers alike and will have a longstanding commitment to improving thequality of community life.
A growing number of community-basedorganisations are now taking action or
looking for ways they can be involved incrime prevention programs. Some takepart in programs such as Neighbourhood
Watch. Others are creating new programs
designed to meet the specific situation in
their community.
VIII. COMMUNITY POLICING/
ACTIVITIES FOR ENHANCING
PUBLIC AWARENESS
A. Malaysia Crime Prevention
Foundation (MCPF)
The Malaysia Crime Prevention

226

Foundation (MCPF) was established on 12
January 1993. The launching of theFoundation was officiated by the
Honourable Prime Minister of Malaysia,
Dato’ Seri Dr. Mahathir Mohamed, who isalso the patron of the Foundation.
1. Objectives(i)
The Foundation aims to contributeto the enhancement of effective
measures for crime prevention andthe treatment of offenders by wayof survey, research and otherprogrammes. This is the basis ofsolidarity and mutual co-operation
among persons involved withcriminal justice system in countriesof the Asian region; pursuing theultimate goal of peace and stability
in the region.
(ii)

The Foundation shall also promote
public awareness of, andparticipation in, crime prevention
efforts in tandem with the coordinated efforts of government andprivate organisations interested or
involved in crime prevention andthe criminal justice system.

(iii)

The Foundation shall receive andadminister all funds for thefulfilment of the above objectives
for the benefit of all Malaysians,
irrespective of race, creed or
religion.

2. Activities
In furtherance of its declared objectives,
the Foundation shall undertake thefollowing activities:(i)

Organise, co-ordinate, promote
activities and assist otherorganisations, institutions, bodies
and persons for the purpose ofcrime prevention.

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
(ii)

(iii)

(iv)

(v)

(vi)

Organise or assist in organisingpublic lectures, training sessions,
symposia, seminars, exhibitions
and other meetings concerning
research, training and public
enlightenment and awareness inconnection with crime prevention
and the treatment of offenders.
Conduct, assist or encourage suchactivities as surveys, research andrelated activities in the field of
crime prevention and the treatment
of offenders.
Publish and distribute pamphlets,
periodicals and other relevant
literature to expound the aims andobjectives of the Foundation,subject to the prior approval of therelevant authority.
Publish, exchange and distribute
documents and source materials
concerning crime and criminal
justice, mainly in Asia.
Send, invite, assist in sending or
inviting researchers and experts inthe field of crime prevention andthe treatment of offenders,regardless of their place ofresidence.

(vii) Assist the activities of those whowork for the rehabilitation of
victims, offenders and former
offenders in Malaysia.
(viii) Collaborate and co-operate withother related organisations insideand outside Malaysia, particularly
the United Nations Asia and Far
East Institute for the Prevention of
Crime and Treatment of Offenders(UNAFEI) and other similar
regional organisations.

(ix)

At least 70% of all income of the
donations to the Foundation shallbe utilised for the fulfilment of thedeclared objectives of theFoundation.

(x)

Collect and receive grants,
endowments, donations andlegacies from individuals ororganisations or from any othersource for the promotion of theobjectives of the Foundation.

(xi)

Solicit funds to support and sustain
non-commercial activities
organised in fulfilment of its
declared objectives.

(xii) Generate income by utilising notmore than 30% of all income anddonations to the Foundation in
short-term investments, the profits
of which shall be used solely to fulfil
the objectives of the Foundation.
(xiii) C o n t r i b u t e t o w a r d s t h erehabilitation of and assistance tothe victims of crime, where suchassistance is considered by theFoundation to be appropriate
according to the merits of each case.
3. Membership(i)
Ordinary Members: All individuals
whose applications for membershiphave been approved by the
Executive Council. A university oruniversity college student may
become a member with the priorapproval of the vice-chancellor of
the university concerned.
(ii)

Honorary Members: Individuals
who have been considered by the
Executive Council to be appropriate
because of their outstanding
contributions to the activities of theFoundation.

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RESOURCE MATERIAL SERIES No. 56
(iii)

(iv)

Corporate Members: Duly
constituted associations, clubs orother similar bodies interested inor contributing to the activities of
the Foundation and considered by
the Executive Council to beappropriate for the honour.
Life Members: The Executive
Council may, in its absolute
discretion, grant life membership tomembers who have madeoutstanding contributions topromote the activities of theFoundation.

dismissed from being a member.
A member intending to terminate theirmembership shall submit a written noticeof intention to the Chairmam of the
Executive Council. The Executive Council
may dismiss a member from membershipin any one of the following circumstances:
(i)

(ii)
(iii)

The Executive Council may fix an
entrance and subscription fee for members
and may, from time to time, vary the same,
subject to the approval of the Registrar ofSocieties. The entrance fee shall be
RM20.00 and the annual subscription fee
shall be RM30.00. Corporate members
shall pay an entrance fee of RM2000.00 andannual subscription fee of RM2000.00.
The Executive Council shall have fullpower and discretion to approve or refuse
applications for membership to theFoundation. Only ordinary members, life
members and representatives of corporate
and associate members are eligible to voteand be elected or appointed to the
Executive Council. Each corporate andassociate member may nominate a numberor representatives, as determined by the
Executive Council, to participate in theactivities of the Foundation. Corporate andassociate members are each eligible to asingle vote.
Membership sall be terminated on thefollowing grounds:
(i)
(ii)
(iii)

228

When the member resigns theirmembership from the Foundation;
On their demise;
When the member has been

When a member has damaged thereputation of the Foundation or
acted in a manner prejudicial to theobjectives of the foundation;
When a member has acted against
their membership obligations;
When a member is conspicuously indefault of membership dues andcontinues to neglect the reminders
for payment.

No subscription or part thereof, norentrance fee, if any, shall be returned to amember upon ceasing to be a member by
resignation, expulsion or termination of his
membership. The Foundation is not under
the purview of the police, even though it
has police officers within it. It is an NGO.
B. Central Monitoring System (CMS)The Malaysia Crime Prevention
Foundation (MCPF) is going all out toreduce crime in the country. Two of its
current projects are the Central Monitoring
System (CMS) and Safe City Concept,
which are aimed at making it more difficultfor people hoping to embark on a life ofcrime.
One of the main projects of thefoundation is the implementation of acrime-fighting tactic known as the Central
Monitoring System (CMS) which will allow
the public to actively in combating housebreak-ins. With the CMS, the government
won’t have to recruit more police personnel
and incur extra cost, especially at a time
when austerity drives are being adopted
nation-wide. Even if the economy was still112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
bullish, the public must play its part inorder for the police to effectively combat
crime.
The public expects the police to be
responsible for ensuring everybody’s safety;
it is impossible. With our nation’s current
population of 21 million, the ratio of police
personnel to civilians is 1:273. The logisticsof this ratio are indeed a handicap. Thereis no way everybody can be protected all
the time. Based on limited humanresources, the best that the police can do isintroduce efficient crime-busting systems,
step up patrols and quickly respond to
distress calls.
At one time, we had neighbourhood
watch groups such as Rukun Tetangga, butthey fizzled out. People are either too busy
with their daily affairs or do not want tospend time on such activities. The CMS
will be implemented at the planning stageof a housing scheme or township and will
represent a partnership between thedeveloper, police and residents. The first
scheme to go online with the system willbe Bandar Utama Damansara in Petaling
Jaya. When operational sometime thisyear, this upper-middle class residential
estate will be the test-bed for an array of
hi-tech equipment and newly devised laws.
The CMS uses a sophisticated computer
system with a control or operations room
which is connected to the houses ofsubscribers. In the event of a beak-in,
sensors or cameras trigger off a signal in
the control room. The control room will bemonitored by watch-constables who aretrained to respond immediately to any
intrusion.
The watch-constable won’t be run-of-themill security guards. Under Section 9 of
the Police Act, they will be empowered toarrest suspects. This will make it easierfor them to carry out their duties. The
police force will give support to the watch-

constables. For example, if an alarm goes
off in a house, a watch-constable will notify
the police before rushing to the scene. But
if he arrives first, he can apprehend theunauthorized intruder. The watchconstables will be under the direct employof the security company operating the CMS
on behalf of the housing developer.
However, the police will monitor theirselection. They will have to undergo
training at the Police Training Centre(Pulapol) and come under the commandand control of an area’s OCPD.
As for the cost of the CMS, any service
rendered will have to be paid for. The cost
will be a nominal monthly fee, which willvary depending on the type of systeminstalled. With wide usage, we believe thecost of installing a CMS will be reduced,
as was the case with hand-held phones,
which are much cheaper now than when
they were first introduced. In time, it mybecome a necessity rather than a luxury.
The CMS will give house owners total peaceof mind. It is actually a system which
provides on-line communication, protecting
homes against intrusion by unauthorised
persons.
State-of-the-art onsite sending devices
will alert trained personnel who will
monitor a control room 24 hours a day.
They can then take immediate action
should the need arise. Most CMS stations
are also equipped with monitors to enable
the controllers to view clients’ premises,
thereby helping to minimise the time taken
to check the status of an alarm. Suchmonitoring can be done by installing
special cameras with infrared sensors instrategic locations such as the living room,
kitchen, staircase and study.
Every case will be investigated
immediately, but only in genuine situations
will clients be alerted and call the police
for back-up. If the police come, watch-

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RESOURCE MATERIAL SERIES No. 56
constables will assist in giving them anaccount of the burglary progress andlocation in the house. This will help thepolice to act fast and accurately.
The government will be careful in theselection of firms participating in the CMS
programme. Any security firms intending
to appoint watch-constables will have toapply to the Home Ministry for a licence.
Only when the Ministry is satisfied thatthe applicant fulfils all its requirements
will it grant approval.
C. Safe City Initiatives
The MCPF, spearheading the move toensure safety in the cities, was formed in
1993 to promote greater social and public
involvement in crime prevention. Its
current chairman is Education Minister,
Dato’ Sri Mohd. Najib Tun Abdul Razak.
1. Background
The Safe City Initiative is based on theprinciple “prevention is better than cure”.
This crime prevention approach is throughenvironmental design. It is based on theprinciple that crime prevention is achievedby reducing the opportunity to commit
crime. In the United States, crime
prevention is by reducing the opportunity
to commit crime. In the United States,
criminal psychologists have proved that
75% of crime is from victims behaviour
which encourages criminals to commit
crimes against them. For instance, mostof the robberies and highway crime happen
because of opportunity, not because it wasprofessionally planned.
Based on the above, it was decided thatprevention requires a physicalenvironmental design which can generatesocial behaviour that can deter criminals
from committing crime. This physicalenvironmental design is consistent withthe predictable relationship between
human behaviour and the environment in

230

which that behaviour takes place. The Safe
City Initiative is an approach that can beused to create a physical environment that
can help in crime prevention in developing
areas. It is a programme with integrated
activities towards creating, or at least
reducing the fear of, a city that is free from
crime.
The Safe City Concept, involves theenvelopment of a certain area. It involves
how buildings and structures are to be built
to prevent crime. Example: how
advertising boards are put up on
pedestrian crossings. If it is all blocked
when you use the crossing, nobody can see
you when you are robbed. Transparent
advertisement boards should be usedinstead. This in just one small part of the
Safe City Concept. Where trees are planted
is also important- overgrown bushes should
also be avoided because these can act as
an ideal place for criminals to hide. Studies
from some European countries and North
America have shown that the way towns
and estates are designed is seen to havean affect on the crime rate.
Besides that, it has been shown that theway a town is designed also results infamilies being more friendly with eachother, reducing the rate of crime because
they will watch out for each other. Under
the Safe City Concept, safety lanes forbicycles and motorbikes, and safer roads
will be built. It is holistic concept to makeliving in the city safer.
Experts within the MCPF, like thedirector of the Town and Country Planning
Department of Selangor, who is an exco
member, is working on the Safe City
concept. Developers are also updated on
the State City Concept.
The MCPF is also involved inresearching the field of crime prevention,and sometimes invites experts from

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
different parts of the world to give talks on
new insights on fighting crime. The
foundation is not under the purview of thepolice, even though it has police officers
within it. It is an NGO.
We hope that in the future the MCPF
will almost be exclusively made up of nonpolice personnel, except for the post of duty
chairman who must be the IGP. The
latter’s presence will ensure police supportand supervision of its crime prevention
project.
2. Characteristics• Partnership between governmentand citizens, especially marginalizedgroups;• Prevention of criminal behaviour
through environmental design,community development andeducation;• Combine citizens in crime prevention
and instil neighbourhood spirit; and• Urban safety as a catalyst for change.
3. Schedule of Activities(i)
Selection of project area,
introduction to project area andtarget group;(ii)
Explanation of concept to target
group;(iii) F o r m a t i o n o f t h e S a f e C i t yCommittee for project area;(iv) Identification of issues/problems/
crimes by target group andCommittee;(v)
Solution to issues/problems bytarget group and Committee;(vi) Engagement of consultant if
necessary;(vii) Implementation of solutions;(viii) M o n i t o r i n g e f f e c t i v e n e s s o f
solutions;(ix) Modifications of solutions if
necessary;(x)Documentation of project activities;
and

(xi)

Continuous monitoring andfeedback.

4. Safe City Initiatives of Bangsar Zone
The Malaysia Crime Prevention
Foundation (MCPF), chaired by the
Honourable Dato’ Sri Mohd. Najid Tun
Abdul Razak, has decided to implement the
Safe City Initiative to combat crime in
Malaysia. A special committee was formed
to study in detail its implementation. On
June 2nd 1998, the MCPF Exco meeting
decided the two pilot projects, i.e in
Bangsar and Cheras Flats in Kuala
Lumpur, be implemented. Both projects
will be made models for future
implementation in all states.
Safe City Initiative’ Bangsar Zone
comprises of the following areas:
•
•
•
•
•
•

Sri Hartamas Residence Area
Bukit Bandaraya Residence Area
Bangsar Baru Residence Area
Lucky Garden Residence Area
Bangser Park Residence Area
Bangsar Baru Town Area

IX. PUBLIC PARTICIPATION &CO-OPERATION IN CRIMINALJUSTICE PROCESSES
A. Investigation
1. Arrest by Private Persons (SEC. 27
CPC)
Any private person may arrest any
person who, in their view, commits a nonbailable and seizable offence, or who has
been proclaimed under section 44, andshall without unnecessary delay take theperson so arrested to the nearest police
officer or, in the absence of a police officer,
take such person to the nearest police
station.
2. Information (SEC. 107 CPC)
(1) All information relating to thecommission of an offence, if given

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RESOURCE MATERIAL SERIES No. 56
orally to an officer in charge of apolice station, shall be reduced towriting, or under direction, and beread to the informant.
(2) All such information shall be enteredin a book to be kept by such officer,
who shall append to such entry thedate and hour on which suchinformation was given, and whether
given in writing or reduced to writing
as aforesaid, shall be signed by the
person giving it.
3. Police Power to Require Attendance ofWitnesses (SEC. 111 CPC)
(1) A police officer making an
investigation under this chapter may,by order in writing, require
attendance before themself of any
person being within the limits of thepolice district in which s/he is making
an investigation who, from theinformation given or otherwise
appears to be, acquainted with thecircumstances of the case. Suchpersons shall be, required under thissection to perform a journey of morethan seven miles from their usual
place of abode, exclusive of such
portion of the journey as may be
performed by train or motor car orother vehicle.
(2) If any such person refuses to attend
as so required, such a police officer
may report the refusal to a
Magistrate who may thereupon in
their discretion issue a warrant tosecure the attendance of such aperson as required by the aforesaidorder.
(3) Any police officer requiring theattendance of any person employedon a railway shall send immediate
information thereof to the person in
charge of the nearest railway station.

232

No person employed on a railway
shall be required to leave theiremployment under suchcircumstances as to endanger the
lives of persons traveling on therailway.
4. Examination of Witnesses by Police(SEC. 112 CPC)
(1) A police officer making a police
investigation under this chapter may
examine orally any person supposed
to be acquainted with the facts andcircumstances of the case, and shall
reduce into writing any statement
made by the person so examined.
(2) Such a person shall be bound toanswer all questions relating to sucha case as put to them by an officer.
Provided that such a person may
refuse to answer any question, theanswer to which would have atendency to expose them to a criminal
charge or penalty or forfeiture.
(3) A person making a statement under
this section shall be legally bound tostate the truth, whether or not sucha statement is made wholly or inanswer to questions.
(4) A police officer examining a person
under subsection (1) shall first informthat person of the provisions ofsubsections (2) and (3).
(5) A statement made by any person
under this section, whether or not a
caution has been administered tothem under section 113 (1), shall,whenever possible, be taken down in
writing and signed by the person
making it or affixed with their thumbprint as the case may be, after it has
been read to them in the language inwhich s/he made it and after s/he has
been given an opportunity to make

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
the corrections s/he may wish to
make.
5. Omission to Assist Public Servant
When Bound by Law to Give Assistance(SEC. 187 PC)
Whoever, being bound by law to renderor furnish assistance to any public servant
in the execution of their public duty,
intentionally omits to give such assistance,
shall be punished with imprisonment for aterm which may extend to one month, orwith a fine which may extend to four
hundred ringgit, or both. If such assistanceis demanded by a public servant legallycompetent to make such a demand (for the
purpose of executing any process lawfully
issued by a court, or for preventing thecommission of an offence, or for
suppressing a riot or affray, or for
apprehending a person charged with or
guilty of an offence, or of having escapedfrom lawful custody), they shall bepunished with imprisonment for a term
which may extend to six months, or withfine which may extend to one thousand
ringgit, or both.
B. Prosecution
1. Form of Summons and Service (SEC.
34 CPC)(1) Every summons to appear, issued bya court under this Code, shall be inwriting and signed as provided by the
Courts of Judicature Act 1964, or the
Courts Ordinance 1948, and shallbear the seal of the Court.
(2) Such summons shall ordinarily beserved by a police officer but the
Court issuing the summons may, if it
sees fit, direct it to be served by anyother person.
2. Service Procedure (SEC. 35)(1) The summons shall, if practicable, be
served personally on the person
summoned by showing them theoriginal summons and by tendering
or delivering to them a copy thereof
under the seal of the court.
(2) Every person on whom a summonsis served shall, if so required by theserving officer, sign a receipt for the
copy thereof on the back of theoriginal summons.
(3) In the case of a corporation, thesummons may be served on thesecretary or other like officer of thesame.
(4) Where the person to be summonedcannot, in the exercise of due
diligence, be found, the summons
may be served by leaving a copy
thereof for them with some adultmember of their family or with aservant residing with them.
3. Procedure When Personal Service
Cannot be Effected (SEC. 36 CPC)
When the person to be summonedcannot, by the exercise of due diligence, befound, and service cannot be effected as
directed by sec.35 (4), the serving officer
shall affix a copy of the summons to someconspicuous part of the house or other placein which the person summoned ordinarily
resides. In such cases the summons, if thecourt so directs, either before or after such
affixing, shall be deemed to have been duly
served.
4. Allowances / Protection
All allowances are paid to witnesses
attending court cases and protection is
given on a selective basis, based on theseriousness of the case.
1. Payment of the Expenses of Prosecutors
and Witnesses (Sec 427 CPC)
In every criminal case tried before theHigh Court, and in every criminal casetried before a Sessions Court or a233

RESOURCE MATERIAL SERIES No. 56
Magistrate’s Court, such a court may,in its discretion, order payment out of
the Consolidated Fund to theprosecutor and to the witnesses, bothfor the prosecution and for the defence,or to such of them as it thinks fit, ofthe expenses incurred by themseverally in and about attending theHigh Court, or the Sessions Court orMagistrate’s Court, and also as
compensation for their trouble and lossof time, subject to such rules as areprescribed.
2. Reward for Unusual Exertion (Sec430CPC)
Whenever it appears to any court thata private person has shown unusual
courage, diligence or exertion in theapprehension of a person accused ofhaving committed, attempted tocommit or abetted an offence
punishable with death or
imprisonment, such a court may order
payment to them, out of theConsolidated Fund, of any sum notexceeding one hundred ringgit.
3. Compensation for Family of a Person
Killed during Arrest (Sec. 431 CPC)
If any person is killed in endeavouring
to arrest or to keep in lawful custody aperson accused as aforesaid, theMinister of Finance may order paymentout of the Consolidated Fund to thewife, husband, parent or child of thedeceased of such a sum or sums asappear reasonable in compensation forthe loss sustained.
C. THE ATTORNEY-GENERALThe Yang di-Pertuan Agong shall, on theadvice of the Prime Minister, appoint a
person (who is qualified to be a judge of
the Federal Court) to be the AttorneyGeneral for the Federation.
It shall be the duty of the Attorney

234

General to advise the Yang di-Partuan
Agong or the Cabinet or any Minster uponsuch legal matters, and to perform suchother duties of a legal character, as mayfrom time to time be referred or assigned
to by the Yang di-Partuan Agong or the
Cabinet, and to discharge the functions
conferred on them by or under thisConstitution or any other written law.
The Attorney-General shall have power,
exercisable on discretion, to institute,conduct or discontinue any proceedings for
an offence, other than proceedings before
a Syariah Court, a native court or a courtmartial.
The Federal Government may confer on
the Attorney-General the power todetermine the courts in which, or the venue
at which, any proceedings which s/he has
power under clause (3) to institute, shallbe instituted, or to which such proceedings
shall be transferred.
In the performance of duties, theAttorney-General shall have the right ofaudience with, and shall take precedence
over, any other person appearing before
any court or tribunal in the Federation.
Subject to clause (6), the AttorneyGeneral shall hold office during thepleasure of the Yang di-Pertuan Agong andmay at any time resign and, unless s/he isa member of the Cabinet, shall receive such
remuneration as the Yang di-Pertuan
Agong may determine.
The person holding the office of AttorneyGeneral immediately prior to the coming
into operation of this Article shall continue
to hold the office on terms and conditions
not less favourable than those applicableto him/her immediately before coming into
operation and shall not be removed fromoffice except on like grounds and in a likemanner as a judge of the court.

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
D. Judiciary
1. Justice of Peace
1. Appointment of Justices of the Peace,
Subordinate Courts Act 1948 (Sec. 98)
The Yang di-Pertuan Agong may, by
warrant under hand, appoint such
persons as deemed fit to be Justices of
the Peace within and for the Federal
Territory, and may, in like manner,revoke any such appointment.
The State Authority may, by warrant
under hand, appoint such persons as
deemed fit to be Justices of the Peacewithin and for the State, and may, inl i k e m a n n e r, r e v o k e a n y s u c happointment.
All appointments and revocations ofappointments made under this section
shall be notified in the Gazette.
2. Power of Justices of the Peace,
Subordinate Courts Act 1948 (Sec. 99)
Justices of the Peace in West Malaysia
shall have, and may exercise within theState for which they are appointed,
such powers not exceeding the powers
of a Second Class Magistrate as may
be conferred upon them by any written
law.
Justices of the Peace in Sabah shallhave, and shall exercise and perform,
such powers and duties as may be
conferred or imposed upon them by any
written law. They shall also have suchother powers and duties as the Minister
may, by regulations, confer or impose
upon them, and the Minister may
confer or impose the said powers andduties upon all or any of the Justices of
the Peace.
Before exercising or performing any ofthe powers or duties conferred, aJustice of the Peace shall take andsubscribe an oath in the presence of ajudge in chambers.
Nothing in this section shall be deemed
to require a Justice of the Peace to besatisfied as to the contents of any
document, or that the proper stamp
duty prescribed under any written law
has been paid thereon, except to ensurethat one or more stamps have been
affixed to the document and that they
have been cancelled in the mannerprescribed by law prior to signature
and attestation.
A Justice of the Peace, whilst exercising
powers or performing duties as such,shall be deemed to be a public servant
within the meaning of the Penal Code,and the Public Authorities Protection
Act 1948; this shall apply to any suit,action, prosecution or proceedingarising therefrom.
E. Juvenile Court
A juvenile can only be tried in a juvenile
court, which is very different in compositionand procedure from other by courts. The
juvenile court is presided over by amagistrate who is assisted by two advisors,
one of the whom is usually a woman. It is
not an open court, and only the court, court
officials, parties to the case, parents or
guardians, lawyers, witnesses andnewspaper reporters are allowed to bepresent. The media cannot reveal thename, address or school or any otherparticulars which may lead to theidentiffication of the juvenile.
F. The Legal Aid Scheme in
Malaysia
1. Mission
Towards becoming an excellent agency,
by providing caring and professional
legal aid and advice services to persons

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RESOURCE MATERIAL SERIES No. 56
who qualify under the Legal Aid Act
1971.
2. Objectiive
The objective of the Bureau is toprovide legal assistance to those who
cannot afford legal fees and to upholdthe principle of equality before the law.
3. Function• To provide legal advice in all legal
matters;• To represent or provide legal
assistance in proceedings in all courtsin Malaysia in matters within thejurisdiction, as provided by law; and• To educate members of the public on
their rights under the law.
G. Conflict Resolution System
Outside Trial: Plea Bargains
There is no governing law here, but it is
not illegal and it is not unusual to haveplea bargaining take place between theprosecution and the defence counsel only.
The court does not take part in the bilateralagreement. The matter of sentencing is
still up to the discretion of the courts.
Previously in a murder case, the defence
and prosecution could have quick
discussions at the bar table in court andcome to an agreement that the charge
under Section 302 of the Penal Code be
reduced to Section 304. Not being able todo that could cause delays and backlog.
Public prosecutors have to put ‘on record’
all requests and discussions with lawyers
who ‘plea bargain’ for a reduction of charges
or for a review of a case. Any suchapplication must be done in writing by the
defence counsel (on record) to the Attorney
General or the head of the Prosecution
Division or State Legal Advisor.

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X. PUBLIC PARTICIPATION & COOPERATION IN THE TREATMENTOF OFFENDERSTo date, 24,500 offenders are still under
detention in 36 various prisons andrehabilitation centres all over Malaysia.
The administration is run by the Prison
Department, which is directly under the
Ministry of Home Affairs. They weresentenced to prison by the courts foroffences committed under the Penal Code,
Dangerous Drugs Act, Firearms Act orother laws. Records show that public
participation and co-operation in thetreatment of offenders was overwhelming.
There were so many programmes andprojects being held. Two good example areas follows:
A. Religious Activities
There were more than 20 religiousorganizations conducting various religious
activities and programmes in all 36 prison/rehabilitation centres. The religiousorganizations represented not only Muslim
organizations but also Christian, Buddhist
and Hindu organizations.
B. Therapeutic Community (TC) Role Model
1. Objectives(a) To remind school children not to get
involved in and to avoid committing
crime.
(b) To remind parents of the importanceof care and concern towards the social
activities of their children in avoiding
crime.
2. Activities(a) Talks/lectures were conducted by
offenders who were still serving theirsentence, with the guidance ofcounsellors from the prison
department to selected schools.

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(b)Slides/video/film shows.
3. Target(a) All secondary schools in Malaysia.
(b) Teachers and Parent Associations
through out the country.
In 1998, the programme was conducted
in 19 schools in the state of Selangor, while
34 secondary schools in the Federal
Territory of Kuala Lumpur. About 11,000
students and 3,000 parents participated inthis programme. So far 16 institutions(prisons) were actively involved in this TC
programme.

XI. ASSISTANCE TO VICTIMS &VICTIM PARTICIPATION IN THE
CRIMINAL JUSTICE PROCESS
A. Order for Payment of Costs ofProsecution and Compensation(SEC. 426 CPC)
The court before which a person isconvicted of any crime or offence may, in
its discretion, make either or both of thefollowing orders against them, namely:(a) an order for payment of the cost ofprosecution or such part thereof as
the court directs;(b) an order for the payment of a sum tobe fixed by the court by way ofcompensation to any person, or to therepresentatives of any person,
injured in respect of their person,
character or property by the crime oroffence for which the sentence ispassed.
The court shall specify the person towhom any sum in respect of costs orcompensation, as aforesaid, is to be paid;
and the provisions of section 432 [except
paragraph (d) of subsection (1) thereof]

shall be applicable to any order made under
this section. The court may direct that anorder for payment of costs, or an order for
payment of compensation, shall havepriority, and, if no direction be given, anorder for payment of costs shall havepriority over an order for payment ofcompensation.
To the extent of the amount which has
been paid to a person or to therepresentatives of a person under an orderfor compensation, any claim of such personor representatives for damages sustainedby reason of the crime or offence, shall bedeemed to have been satisfied. The orderfor payment shall not prejudice any rightto a civil remedy for the recovery of any
property or for the recovery of damages
beyond the amount of compensation paid
under the order. Every order made under
this section by a magistrate shall beappealable to the High Court.
B. Victim in the Criminal Justice
Process
Until very recently, there was a striking
lack of information about victims, and evennow, knowledge is still fairly sketchy,
limited to certain crimes and often, tocertain types of victims. This ignorance isastonishing when one considers that thecriminal justice system would collapse if
victims were to refuse to co-operate. Some
victims have found that their treatment by
officals in the justice system - the police,
lawyers, court officials, judges andcompensation boards - is too stressful,demeaning, unfair, disregarding of their
feelings, rights, needs and interests.
Sometimes, they see the system as a second
victimisation which can be more
unpleasant than the original crime. In
such cases, they may become disenchantedwith the system and choose not to reportor to co-operate in the future; theirexperiences may also affect friends andfamily, and even the general public,

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RESOURCE MATERIAL SERIES No. 56
spreading a general reluctance to cooperate. This syndrome is best known inrape cases were few women are willing toco-operate, but also exists in other areas.
Victims often feel they are being usedby the courts. They are expected to reportto the police but are not always made feel
comfortable in doing this. For most victims
the police station remains a fairly
uninviting environment. This reduces theeffectiveness of crime control, as itincreases the offender’s chance of getting
away undetected. If victims are asked to
identify offenders, they are rarely screened
and may, through fear of facing theoffender, fail to identify him or her. Whencalled to give evidence, they are rarely
permitted to relate their experiences intheir own words but are forced to answer
questions which may actually misrepresent
their account of what occurred.
Furthermore, if they refuse to co-operate,they may be prosecuted because they would
be obstructing the course of justice. The
proceedings are indeed mostly adapted to
the needs of the State, which has also been
victimised in that its peace and its rules
have been broken. The State has aninterest in the social control of offenders
and therefore has a right to require anyone
to give evidence, but not at the expense of
victims’ rights and interest.
C. Remedies
In recent years, more attention has been
paid to victims. Systems of compensation
and restitution have developed to repay
victims for their losses.
1. Compensation
Compensation is a system in which theState repays victims for their financial
losses or physical injuries. Under thissystem, it is not necessary to arrest andconvict an offender for a victim to becompensated, nor does a convicted offender
have to be financially solvent for the victim

238

to be repaid for his or her losses.
Compensation has been justified inseveral ways. Some say that the State has
an obligation to protect the welfare andsafety of its citizen, and that when it fails
to prevent crime, it should pay victims fortheir losses. Another rationale forcompensation is that it may prevent
victims from becoming angry at thecriminal justice system and alienated fromthe political system (Schafer, 1968; Stookey,1981). Even though compensation
programs are sometimes aimed at public
attitudes toward the criminal justicesystem and the government, research
indicates that many victims who havesought compensation are disenchantedwith the criminal justice system. Indeed,administrative obstacles to securing
compensation, and the inadequate rewards
provided to victims, seem to engender morediscontent towards the legal system among
applicants for compensation, than exists
among people who do not apply forcompensation (Elias, 1983, 1984).
Compensation programs must deal withthe problem of the victim’s contribution to
the crime. Victims sometimes precipitatea crime or contribute to their own
victimization, and in such cases, the Statemight choose not to compensate the victim.
For instance, someone who first uses force
against another person and then ends up
badly injured in a fight might not becompensated if the State Compensation
Board found that the crime would not haveoccurred without the victim’s initiating
actions. In Great Britain, compensation islimited to ‘deserving cases’, and this isdetermined in part by the degree to which
the victim is to blame for his or her own
victimization (Schafer, 1968).
2. Restitution
A system of restitution requires
offenders to make monetary payment or112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
provide services, either to the victim or thecommunity at large. Relatively, few
criminal courts have used restitution
extensively, but growing concern forvictims’ rights has led some judges torequire offenders to repay victims for theirlosses.
Some claim that restitution makes
offenders take responsibility for their
behaviour and thus helps rehabilitate them
(Denning, 1976). Others claim that
offtenders who repay their victims may not
feel guilty for their crimes if they believe
they have corrected their wrongs, and that
this may make it more likely that they willcontinue to commit crime. Restitution
might improve crime reporting if victims
thought they would be repaid for theirlosses. Moreover, by easing public hostility
toward offenders, restitution might reducethe isolation of offenders from conventionalsociety and make it easier to reintegratethem into society after they are released
from prison. Restitution would also lighten
the burden on taxpayers if it replaced asystem of state compensation (Barnett,
1977; Bridges, Grandy and Jorgendon,1979).
3. Others
Victims have also been given a greater
voice in the sentencing of offenders, thoughdefendants are usually allowed to respondto victims statements. In somejurisdictions, victims must be notified ofhearings and trials and be informed when
an inmate is being considered for parole orescapes from prison.
In America, district attorneys havestarted to pay more attention to the role ofthe victim in the criminal justice system.
They can help to deal with a victim’s fearof retaliation by the offender, frustration
with delays in the court, and intimidation
by a defence attorney’s cross-examination.
District attorneys can also impress on

victims and witnesses the importance oftestifying in court. In some jurisdictions,victims have even been included in plea
bargaining conferences with the district
attorney, the defence attorney and thedefendant (Heinz and Kerstetler, 1981).
One study found that victim-witness
programs in prosecutors’ offices contributedin an important way to keeping victims
informed about the progress and outcomeof cases, and that crime victims expressedmore satisfaction with the criminal justicesystem when they knew the outcome of thecase and thought they had influenced thatoutcome (Forst and Hernon, 1985).
Few judges learn directly from victims
about the impact crime has on their
psychological well-being, physical condition
and financial situation. Usually, judges
learn about this only from pre-sentence
reports prepared by probation officers, whodraw on secondhand information frompolice reports, medical records, or victim
discussions with prosecutors. As a result,some courts have introduced victim impact
statements, detailed written reports basedon interviews with victims about the effectsof crime on them (Forst and Hernon, 1985).
In 1987, the US Supreme Court ruled thatsuch victim impact statements could not
be used in hearings on the imposition of
the death penalty, arguing that thosehearings should focus on the defendant’s‘moral blameworthiness’ rather than on theimpact of the crime on the family of thevictim.
Today, nearly all states (in the USA)
permit victims to appear at parole board
hearings or to file written statements withparole boards, in order to make theirwishes known whether a prisoner should
be released. This reform was introduced
to the Federal Prison System in 1984.
Many victims do not take this opportunity
to make their wishes known, either fearing
retaliation or not wanting to dredge up

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unpleasant memories of past crimes.
However, those who oppose the use of
victim’s testimony to parole boards andvictim impact statements in court fear thatthose reforms might introduce publicpressure or vengeance into proceedingsthat should be more dispassionate. They
claim that poor and uneducated offenders
might be punished more severely if they
are confronted with articulate victims who
demand long sentences. These critics
assert that sentencing and parole should
be based on an offender’s threat to society
and behaviour while in prison, not on a
victim’s wishes.
Supporters of these reforms argue thatthey draw the victim into the criminal
justce system in a direct way, thereby
providing a new perspective to criminal
justice administrators. They also point to
the greater degree of satisfaction with thecriminal justice system among victims whobelieve their wishes have been taken into
consideration in meting out punishment,
arguing that a satisfied victim is more
likely to report crime in the prosecution of
defendants in the future, and this may help
deter crime.
XII. CONCLUSION
The criminal justice system would
probably function more efficiently if it
counseled victims and witnesses and tried
to incorporate them more into theprocessing of defendants. Ultimately, thecriminal justice system should achieve an
equilibrium of justice for the victims, public
and the State, as for well as for the
defenders.

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112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE
FAIR AND EFFECTIVE CRIMINAL JUSTICEADMINISTRATION IN THE PHILIPPINES
Donna Lynn A. Caparas*
I. INTRODUCTION
In the 1998 State of the Nation Addressof His Excellency, President Joseph Ejercito
Estrada, the President announced theadoption of a ten-point action program by
his government. The first major task hecited pertains to the strategic theme of his
government, which he declared as agovernance of transparency. All decisionmaking processes are to be publicly
disclosed and must be consultative. The
immediate objective of the government isto restore public confidence and its longterm objective is to establish an enduring
partnership among government, thebusiness community and civil society.
One of the major task of his governmentis reduction of criminality by effecting the“immediate arrest of the most notorious
criminals and drug pushers”. He has, infact, created a Presidential Anti-Organised
Crime Task Force to coordinate efforts as
regard to the reduction of criminality.
The upsurge in crimes concerns not only
public security and order or politicalstability, but also gravely affects thefavorable economic gain of the country. The
consequential repercussions of such crimes
have compelled the Philippine government
to launch a more intensified and more
unified drive to involve law enforcement,
prosecutorial, and judicial agencies. In
fact, even the legislative branch has* Project Evaluation Officer V, Division Chief,
Criminological Research Division, National Police
Commission, the Philippines.

labored to prioritize legislation to curb the
proliferation of crimes. The crime situation
has evolved in such dimensions that that,in order to curb it, a systematized andeffective crime prevention and control
program is deemed imperative.
II. PHILIPPINE STRATEGIES FORCRIME PREVENTION
A basic condition for an effective andefficient criminal justice system is genuine
trust and confidence of the general public.
It is this trust and confidence that spells
the difference between an actively
supportive public on the one hand, and an
apathetic community on the other hand.
It is the building block of successful crime
prevention strategies.
A. The Philippine Criminal Justice
System: The 5-Pillar Approach
The Philippine criminal justice system
has four (4) formally organized components
namely: law enforcement, prosecution,
courts and corrections. The formalcomponents are the traditional series ofagencies that have been given formal
responsibility to control crime: the police,
the prosecutors, the judges, prison and jailpersonnel, probation and parole officers.
The fifth component is made-up of themobilized community and is outside thisformal organization. If may be composedof public entities, private groups andindividuals and local officials who are
performing functions related to theprevention and reduction of crime.

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RESOURCE MATERIAL SERIES No. 56
The fifth pillar has a two-fold role. First,
members have the responsibility toparticipate in law enforcement activities by
being partners of the peace officers inreporting crime incidents, and helping in
the arrest of the offenders. Second, they
have responsibility to participate in the
promotion of peace and order throughcrime prevention or deterrence, and in the
rehabilitation of convicts and theirreintegration to society.
B. The Holistic Approach
Over the years, crime has continued to
be one of the major social problems andquestions linger in the minds of the public
as to the capability of the agencies
concerned to respond effectively to thethreat of crime. The failure to meettargeted goals, however, should not be
totally construed as a failure of the system
but rather, on the prevailing environmental
conditions or foctors that may haveprecipitated the increase of crime
incidence. These factors include increasingpressure from the family, peer groups,
rural-to-urban migration, negative effects
of mass media, impact of poverty,
unemployment and inflation, and graft andcorruption.
In view of this, crime prevention policies
have been incorporated in national
economic development plans. Under the
past administration, reinventing thebureaucracy and crafting a new andreinvigorated Social Reform Agenda
became priority actions. Specifially, thePhilippines 2000 program, launched in
February 1993, encompasses the Filipino
vision for an improved quality of life forall. It is anchored in people empowerment
and global competitiveness.
Significant sector-specific strategies tomore equitably distribute the fruits ofdevelopment, to bridge rural-urban
disparities and to increase people’s242

participation are being introduced on all
fronts.
In the reduction of crime, a systems-wide
strategy was initially developed in the
1970s. This ventured into specificcommunity-based crime prevention
activities for adoption and implementation
by criminal justice agencies, specificallythose perceived to have the greatest
potential for improving the quality of life,and hence, reducing crime. The strategies
that find relevance to the present are: 1)
reinforcement of the home and family life;2) educational improvement; 3) healthimprovement; 4) active participation ofreligious organizations/groups; 5)
improvement of recreational facilities; 6)
involvement of mass media; and 7) citizens’
involvement in crime prevention activities.
C. Coordination and Networking in
the Philippine Criminal Justice
SystemThe criminal justice arena is a system
of interrelated goals, functions and roles.
Interagency coordinating mechanisms
have been created and strengthened to
optimize problem-solving for pressing
issues affecting each pillar, and to work out
the implementation of projects andactivities within an interdisciplinary
framework.
1. National Peace and Order Council
Several years ago, a centralized
coordinating mechanism to carry out anational program addressed not only
criminality but all forces that threaten
national security was established with thepromulgation of Executive Order 309, as
amended by EOs 317 and 320, and recently
EO 366. This national council, more
popularly known as the Peace and OrderCouncil, draws its membership fromgovernment agencies and nongovernmental organizations (NGOs). It
underwent reorganization and112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
revitalization on all levels-national,
regional, provincial and city/municipal.
The Peace and Order Council (POC) is a
unified and strongly coordinated body tocarry out national programs addressed tothe problems of criminality, terrorism,drugs, insurgency, rebellion or disruptionof public order, which threaten our national
unity and security.
2. National Summit on Peace and Order
In connection with this, the government
tasked the National Peace and OrderCouncil to call on all criminal justiceagencies in the country consultative
meetings. This resulted in the holding of
national peace and order summits to craft
a common policy and action plans against
criminals, especially those involved inheinous offenses.
The National Summit on Peace andOrder, which was institutionalized in 1993,
is an annual exercise wherein government
is considered in this jurisdiction as the fifthcomponent of the criminal justice system not just in the implementation phase but
also in the policy-formulation level.
The Summit of 1993 was the first timethat public servants met with the citizenry
on a national scale to openly discuss thepeace and order conditions in the country
on which could be forged a rationalized
blueprint for action, distilled from the clash
of intellectual and experimental insights.
The Summits have endeavored to learn
from hindsight, to sustain the gains thathave been made in the past and to find out
what more could be done to improve theadministration of justice in the country andthe overall peace and order situation. The
annual summit provides an occasion for adiagnosis of the year just past, and aprognosis of the year to follow.

Conferees in the Summit agreed to adopt
a Master Plan of Action for Peace and Order
to be implemented for a period of 5 years
by the criminal justice system agencies andthe mobilized community. Former
President Fidel V. Ramos directed thePeace and Order Council through the
National Police Commission’s TechnicalCommittee on Crime Prevention andCriminal Justice to oversee theimplementation and monitoring of the
projects contained in the Master Plan.
The Master Plan of Action for Peace andOrder is the blueprint for a concerted
government action against criminality, andprograms, projects and activities
incorporated in the plan are to be
implemented from 1997 to 2001.
III. PUBLIC PARTICIPATION AND
COOPERATION IN THE CRIMINALJUSTICE PROCESS
Trust and confidence is built upon a firmknowledge of a criminal justice machinerythat is able to deliver justice speedily,
accurately, equitably, fairly and accessibly,or any combination of these depending onsociety’s culture and norms.
As reforms in the Philippine criminal
justice system gradually take root in theindividual pillars, public trust andconfidence can be built up into greater
vigilance and active community
involvement. The process of regaining
people’s trust and confidence in the
country’s criminal justice system is beingorchestrated at the highest levels ofgovernment and is being coordinatedthrought the close networking of interdisciplinary committees such as the
Napolcom Technical Committee on Crime
Prevention and Criminal Justice. Some ofthe programs initiated, by pillar, are thefollowing.

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RESOURCE MATERIAL SERIES No. 56
A. Police Level
By and large, this pillar represents themost visible subsystem and has thegreatest membership of the four formalcomponents. To date, the country has atotal of 94,965 members of the Philippine
National Police nationwide, with NCR
accounting for 10,644 members, excluding
uniformed and civilian volunteers
comprising a total of 3,817 at present. Thisin the entry point of the system for first
offenders and the re-entry point for the
failures of the other subsystem. This issometimes referred to as the “gateway to
the Criminal Justice System”.
The law enforcement function isspearheaded by the Philippine National
Police (PNP) and the National Bureau of
Investigation (NBI). The PNP is nationalin scope and civilian in character andadministered and controlled by the
National Police Commission(NAPOLCOM), an attached agency of the
Department of Interior and Local
Government (DILG).
Several measures have been initiated at
the law enforcement level to maximize theparticipation of the public at this level ofthe criminal justice system. Among theseare:
1. Community Oriented Policing Concept(COPS)The National Police Commission and thePhilippine National Police agreed that
there should be a specific operational
program initiated by the government tocounter criminality, even if some of themore successful models are those initiatedby the community. The two agencies
agreed to implement and institutionalizea particular community-based crime
prevention program nationwide. This
program is dubbed the “CommunityOriented Policing System or COPS”

244

The major emphasis of COPS is theimperative of cultivating a people-police
partnership to champion the cause of peaceand order in the community. Public
support is the desideratum of police
effectiveness and success. The police cannot single-handedly solve the manifold
problems of criminality, considering its
deficiencies in manpower, mobility,communications and firepower. Only thepeople can fill the gap.
The Philippine National Police (PNP)
has been directed to hasten the full
implementation of community-based
policing projects, especially in urbanizedareas, nationwide. All territorial unit
commanders have been directed toaccelerate the institutionalization of thecommunity policing system in theirrespective areas in cooperation with local
government units (LGUs), othergovernment agencies/offices, andnongovernment organizations (NGOs).
Cognizant that the support andinvolvement of the community is one of thesignificant factors in the successful
implementation and intstitutionalizationof the community policing project, theNapolcom enjoined the PNP to solicit andenter into partnership and alliance with allinterested NGOs, civic organizations and
LGUs to be formalized through the signingof Memorandum of Agreement without
exclusivity.
The physical/structural aspect of the
project is the establishment of a modest
police box or police center in the community
wherein the activities of the system will
be planned, organized and executed. The
primary function of the box or center is theorganization of the community to preventand control crime.
On the other hand, its psychological/
behavioral aspect pertains to COPS as a

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
philosophy that guides the approach topolicing taken by every police unit. It is
the process of changing the mindset andattitude of the members of the police force
in solving criminality without resorting toviolent means and methods. In the samemanner, the members of the community
will be convinced to enter into partnershipwith the law enforcer to keep thecommunity peaceful. While a police agency
can adopt aspects of the community
policing philosophy for selected units andactivities it undertakes, maximum impact
cannot be achieved unless the entire
station adopts the COPS philosophy andthe station is organized in a manner thatreflects the commitment to neighborhood
problem solving.
COPS aims to cultivate the citizen-police
partnership to serve the cause of peace andorder in the community. It seeks thecooperation and active support of NGOs,
the local government officials, and theentire community for crime prevention andcontrol. It also ensures immediate police
response to situations, thereby fostering a
sense of security among the residents inthe community. In the long term, it aims
to facilitate the transition from thetraditional reactive incident-driven modelof policing to a proactive style of operation
which seeks to identify and resolve
community problems and actively engage
members of the community in the process.

2. Institutionalization of the Peoples Law
Enforcement Boards (PLEB)
People empowerment as a strategy inthe administration of police administrative
disciplinary system finds actualization
with the organization and operation of thePeople’s Law Enforcement Boards (PLEBs)
in the cities and municipalities throughout
the country.
Under R.A. No. 6975, the PLEBs are

vested with the jurisdiction to hear anddecide citizens’ complaints against erring
personnel that are filed before them. The
intent of the law is clear. In the governanceover the police, local government units andthe community must have substantial andmore meaningful participation,
particularly in the area of discipline.
PLEB members are appointed by the
local executives through therecommendation of the local Peace andOrder Councils. In 1995, a total of 1,510
PLEBs were organized nationwide. PLEB
members are given the appropriate
training upon appointment. Of the total
number of PLEBs organized, 1,087 PLEBS
were monitored to determine their caseload
and status of case disposition, as well as tolook into their technical or legal capabilities
and requirements. Around l,919
complaints against PNP members werefiled with the various PLEBs. Of thisnumber, 824 were disposed of, registering
a 42.9 percent case disposition rate.
3. Establishment of “Women’s andChildren’s Concern Desk” in Police
Stations
The establishment of the Women’s andChildren’s Concern Desks in police stations
is expected to further streamline andstrengthen the effort of the police in
responding to problems of violence against
women and children. As a management
strategy, police women are assigned to man
the desks, or if no female personnel areavailable, a trained male police officer isassigned. To date, a total of 1,632 WCCDs
with 1,763 personnel (l,468 policewomenand 294 policemen) have been establishednationwide. In highly urbanized cities, theWCCD handles the investigation of womenand children’s cases. A total of 3,463 casesof abused women and children have beenreported to WCCD and acted upon
appropriately. WCCP officers have beeneffective tools in providing services to

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RESOURCE MATERIAL SERIES No. 56
women and children in close coordination
with the Department of Social Welfare andDevelopment (DSWD) and concerned
women-based NGOs.
Aside from these flagship programs, thepolice also conduct their own public
information and education programs
through a number of TV and radio
programs. They likewise conduct regular“Ugnayans” or dialogue with thecommunity and hold a “People’s Day” every
month. These activities make police
services accessible to the public.
4. Law Enforcement Pillar Master Planof Action for Peace and Orderl. P i l o t - Te s t i n g o f E n h a n c e dCommunity-Oriented Policing
System in the Municipality of
Valenzuela
This pilot testing project was conductedin the municipality of Valenzuela. All police
officers in this station are specially trainedin the COPs philosophy and mindset. They
are also afforded better logistical support
like computers, hand held radios and officeequipment. Seminar-workshops on crime
prevention are regularly conducted andattended by community leaders and thepolice. Action planning sessions are alsoheld.
A favorable result on the implementationof the project was observed, particularly on
the maintenance of peace and order. The
citizens observed that the continuous
monitoring and evaluation of the COPs
program in their area has brought about amore favorable level of safety in thecommunity.
B. Prosecution Level
The National Prosecution Service (NPS)
is the prosecution arm of the Philippine
government and is mandated to uphold therule of law as a component of the criminal
justice system. In the realm of the criminal

246

justice system, prosecution is viewed as themachinery that sets in motion theinstitution of action to establish the guiltof criminal offenders and law violators. Its
mission is to maintain peace, order, safety
and justice in the community throughdelivering prompt prosecutoral services,that is, the investigation of crimes and theprosecution of criminals. Tasked with thisdelicate function of screening andevaluating which cases are to be dropped
or filed in court, the prosecution is often
called the prime official in law enforcement.
They represents not only the community
but the people in the prosecution and trialof the accused in court. It is theprosecution’s responsibility to represent
the government in court and to see thatproper persons are appropriately charged.
The National Prosecution Service cameinto being on 11 April 1978 by virtue of
Presidential Decree No. 1275. The NPS isunder the supervision and control of the
Department of Justice. They run anationwide organization consisting of stateprosecutors, regional prosecutors,
provincial prosecutors and city/municipal
prosecutors tasked to undertake theinvestigation and prosecution of cases
involving violations of penal and special
laws.
The NPS is mandated to maintain anduphold the rule of law through the effective
and expeditious delivery of prosecutorialservices in order to enhance peace andorder. The members of the NPS are
primarily tasked to investigate andprosecute all criminal offenses defined andpenalized under the Revised Penal Codeand other special penal laws.
The Department of Justice, incoordination with various government
agencies maintains several programs toensure citizen participation at this level ofjustice administration.

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
1. The Witness Protection, Security and
Benefit Program (WPSBP)
After only six years of operation, theWitness Protection, Security and Benefit
Program (R.A. 6981) has proven to be an
indispensable feature of the criminal
justice system in the country. Clientswitnesses covered by the program havecontinued to play a pivotal role in the
successful prosecution of significant
criminal cases.
The Witness Protection, Security and
Benefit Program (WPSB), under Republic
Act No. 6981, is a recent legislative
enactment granting witnesses certain
rights and benefits and defining their
responsibilities, if admitted into theProgram. Apart from the primary benefitof security and protection, witnesses may
be given any or all of the following benefits
under the program; 1) secure housing
facility for high-risk witnesses; 2) financial
assistance to witnesses and theirdependents, ranging from a minimum of

P3,000.00 to about P15,000.00 in certain
cases; 3) travelling expenses andsubsistence allowance; 4) medical andhospitalization assistance; 5) housing or
rental allowance in case of witnesses iswith manageable risks.
The success of the Program is best
measured by the number of convictions it
has secured. From 1991 to January 31,
1998, the program secured convictions in
132 cases, the most recent of which are theDumancas Kidnapping-Murder Case
(involving the heiress of the owner of a bus
company) and the former Chief of Police of
Bacolod City, putting behind bars a totalof nine accused based on the sole testimony
of a witness under the program; the Cong.
Jalosjos case; and the Mayor Alonte case.
For 1997, the program placed behind bars
45 accused with 23 witnesses testifying.
The Department of Justice entered into
agreement with different government
agencies for assistance and services to be

Table 1
Witness Protection and Benefit Program
Budget and Important Statistics
1991
1992
1993
1994
1995
1996
1997
1998
Budget (in Million 25.00 25.00 23.036 18.718 25.360 35.00
Pesos
Less Reserve- 1.964 2.268.918 1.250
Net Appropriations
25.00 23.036 20.768 25.800 24.110 35.00
Applications
60
149
293
499
525
317
245
112
Received(as of 831-98)
Carry over from50
40
16
Previous Year
Total on Hand
60
199
333
515
Admissions
6
99
247
273
300
229
189
53
(as of 831-98)
Denials/Archived/
4
60
70
147
Withdrawn/Suspended
Balance by Year-End
50
40
16
95
350*
500*
Disposition Rate
17%
80%
95%
82%

247

RESOURCE MATERIAL SERIES No. 56
afforded to clients. The Department of
Foreign Affairs agreed to render assistancein facilitating/securing passports and visas
for WPSBP covered witnesses and initiate
negotiation with countries to determine thefeasibility of exchanges of witnesses. The
Philippine Overseas Employment
Authority (POEA) agreed to assist
witnesses in obtaining livelihoods abroad
through its government hiring schemes orother methods of deploying overseas
contractual workers. The Department ofLabor and Employment and theDepartment of Social Welfare andDevelopment conduct skills training
programs for witnesses.
2. Compensation for Victims of Unjust
Imprisonment or Detention andVictims of Violent Crimes from theBoard of Claims
Republic Act No.7309 is the law creating
the Board of Claims under the Departmentof Justice, granting compensation forvictims of unjust imprisonment or
detention and for victims of violent crimes.
One of the more vexing problems in thearea of justice and human rights is theimplementation of the constitutional
provision against the deprivation of life,
liberty and property, without due processof law. Persons have been accused andimprisoned for crimes they did not commit,
only to be subsequently acquitted.
For the victims of unjust imprisonment,compensation shall be based on the numberof months of imprisonment and every
fraction thereof shall be considered one
month, but in no case shall suchcompensation exceed P1,000.00 per month.
In all other cases, the maximum for which
the Board may approve a claim shall not
exceed P10,000.00 or the amount necessary
to reimburse the claimant’s expenses
incurred for hospitalization, medical
treatment, loss of wage, loss of support orother expenses directly related to the248

injury, whichever determined by the Board.
3. Prosecution Pillar Projects Under the
Master-Plan of Action for Peace andOder
1. Prosecution, Law Enforcement andCommunity Coordinating Committee(PROLECCs)
One of the projects contained in the
Master Plan of Action for Peace and Orderis the maintenance of the prosecution, law
enforcement and community coordinating
service (PROLECCS). Representatives
from the different pillars of the criminal
justice system have taken cognizance of the
low rate of cases rested in court. This could
be attributed to the limited or lack ofevidence presented in court. The
prosecution pillar of the TechnicalCommittee on Crime Prevention andCriminal Justice felt the need for closer
coordination among prosecution, law
enforcement, and community pillars,
specially in evidence gathering.
Project PROLECCS provides a regularforum to achieve and sustain closer
linkages among the prosecutors. Law
enforcers, and community in evidencegathering, specifically in cases involving
heinous crimes. It is also designed to help
attain a 50% increase in the rate of cases
rested in court for a 5-year period. The
project envisions fostering an enhanced
working relationship and to promotecamaraderie among prosecutors, law
enforcers and concerned non-governmentorganizations (NGOs) through regularmeetings, seminars and conferences. The
project was launched in August 1996 in the
Metropolitan Manila area and is being
participated in by Chiefs of Police, PNP
District Directors, representatives fromother law enforcement units, and membersof the community and cause-oriented
groups such as the Crusade Against
Violence (CAV), the Citizen’s Crime Watch(CCW), the United Pasig Against Crime

112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(UPAC) among others.
To date, the PROLECCS have conductedseven (7) general meetings and five (5) SubCommittee meetings. During the general
assembly meetings, several issues,
problems and gray areas were discussed,
especially on procedural matters and on thegathering and presentation of evidence, forthe purpose of strengthening the merits ofcases in court. Through the exchange of
information during meetings, the law
enforcers were made to understand certain
rules regarding gathering, handling,preservation and presentation of evidence.
Accordingly, the law enforcers will be able
to apply the learned process in their futurecases.
2. Tr a i n i n g P r o g r a m f o r D r u g Identification AccreditedProfessionals (DIAPs Training
Program)
One of the most pressing problems that
hamper the speedy disposition of cases isthe lack of witnesses who will testify incourt. Specifically, expert witnesses playa vital role in the speedy administration ofjustice in that their knowledge may beeither make or break a case. Giving
particular focus on the drug problem, theTechnical Committee on Crime Prevention
and Criminal Justice have taken
cognizance of the problem of the very low
conviction rate in drug cases. The problem
has been traced, among others, to thedearth of government chemists who cantestify as expert witnesses in court. At thetime, only the chemists from the Philippine
National Police, the National Bureau of
Investigation (NBI), and the Dangerous
Drugs Board (DDB) were allowed to appear
in court as expert witnesses.
The Napolcom TCCPCJ felt the need fora project that will augment the very limited
number of resident chemists in crimelaboratories. The Committee, spearheadedby the Prosecution Pillar, designed a“Training Program of Non-Chemists in
Dangerous Drugs Identification”. The
graduates thereof shall be called Drug
Identification Accredited Professionals(DIAPs). They shall be allowed to serve as
expert witnesses in drug and drug-relatedcases. From 1995 to 1996, two batches oftraining were conducted, which produced
a total of 52 DIAP graduates.
C. Judiciary
Together with the other pillars of the
Criminal Justice System, the court is an
important institutional agency relied uponby a great number of people in theprotection of their lives, rights and dignity,
as well as their property.
The court plays a dual role in ourcriminal justice system as both participantand supervisor of the latter’s process anddispensation. In its role as participant, thecourt determines the guilt or innocence of
the accused, the courts are responsible forthe trial process. Also it must ensure thatthe law is properly applied to the case athand, and that all parties to theproceedings receive justice. As supervisor,
the court acts as important guardian of
human rights. Thus, the court remains the
final and ultimate sanctuary of thecitizenry against all forms of injustice.
In their formal organization, the courts
are concerned with punitive sanctions forviolators of law. This concern is reflectedin the activities of the courts personnel, as
well as in the very trial process itself, aprocess that has as its goal ‘thedetermination of the guilt or innocence of
the accused’.
There is, however, an informal court
organization that allows a certain degreeof discretion about whom it should or
should not punish. It also decides thenature and extent of the punishment that249

RESOURCE MATERIAL SERIES No. 56
is to be imposed. This informal side has
made possible some new approaches to thecontrol of crime, for example, by treatment
instead of punishment.
As the court system now operates, anattempt is being made to be as non-punitive
as possible by the use, for instance, of
probation coupled with warnings ofpunishment for the offender who ventures
outside the conditions set forth by thejudge. Such conditions include continued
good conduct, adequate support of families
and steady employment. Several projects
are being initiated to make citizens awareof the operations of the judiciary.
1. Judiciary Project Under the Five-Year
Master Plan of Action for Peace andOrder
1. Conduct of Symposium on the
Operational Workings of the Court
The courts pillar of the TCCPCJ
conducted symposia in different regions of
the country to enhance the understandingof the public on the processes involved in
the administration of justice. The symposia
provided more information andfamiliarization on the operational system
and workings of the judicial system. The
symposia enlightened the minds of thosewith negative beliefs about the judicial
system and provided public awareness ofthe entire criminal justice system.
Participants gained insights on the actual
situation in courts and the causes of delayin the disposition of cases.
2. Grant of Awards and/or Recognitionof Deserving Judges and Court
Personnel through the Merit System
To further improve the efficiency andeffectiveness of the judges and court
personnel, the grant of awards andrecognition is given to deserving judges andpersonnel through a merit and award
system.

250

The Foundation for Judicial Excellence,a private foundation, has granted awards
for Judicial Excellence every year. This
private foundation grants awards to three(3) Outstanding Regional Trial Court
Judges, and three (3) Outstanding
Metropolitan or Municipal Trial Court
Judges. Likewise, the foundation also gives
awards for Outstanding Public Prosecutors
and Outstanding Public Defenders. The
award system is implemented to affirm andencourage exemplary performance andconduct among public servants, and tostrengthen citizen’s faith and confidence inthe rule of law.
D. Corrections
The corrections pillar is formally charged
with the primary responsibility ofreforming the deviant behavior of
offenders, young and adult alike, for theireventual absorption into the social andeconomic streams of the community. These
goals are important in developing andimplementing programs to achieve theobjectives of corrections, which include
building and rebuilding solid ties betweent h e o f f e n d e r a n d t h e c o m m u n i t y,
integrating or reintegrating the offender
into community life, restoring family ties
and obtaining employment and education.
In the Philippines, the primary agencies
for institutional corrections are the Bureauof Corrections, which is under the
Department of Justice, responsible for thetreatment and rehabilitation of national
prisoners who are serving sentence of morethan three (3) years; the Provincial Jails
which are administered and supervised bytheir respective provincial governments.
Inmates who are serving sentences fromsix (6) months and one (1) day to three (3)years are confined in these jails and theMunicipal and City Jails which areadministered by the Bureau of JailManagement and Penology (BJMP), whichis under the DILG. The inmates confined112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
in these jails are serving sentences of not
more than six (6) months of imprisonment.

occupational record, interpersonal
relationships and other such aspects of life.

The Bureau of Corrections, which ismandated by law to safekeep andrehabilitate national prisoners, has
maintained about 20,172 prisoners in 1997,
who are distributed in its seven prison andpenal farms. The Bureau, in cooperation
with non-government organizations, hasintensified the conduct of livelihoodtraining programs for prisoners throughthe effective Agro-Industrial Livestock
Productivity Program. The continuous
conduct of religious activities, recreation
programs, as well as educational (bothformal and non-formal) and training
programs were given by concerned NGOs.

About 17,121 unemployed and lowincome probationers, parolees andpardonees were assisted for job placement
projects. About 5,434 clients were trained
or extended scholarships on automotive
mechanics, refrigeration, and air
conditioning and radio-audio repair. Some
2,061 of them either continued their formal
education or were given various incomegenerating projects such as animal
dispersal, fish culture and backyard
gardening.

Non-institutional corrections involve thereformation and treatment of offenders
outside correctional facilities, and arecommunity-based. These communitybased alternatives to imprisonment do notinclude pre-trial diversions which, in thePhilippine setting, take the form of casedisposition under the barangay justicesystem, e.g release on recognizance, bail,pre-trial conference and imposition of fines.
The non-institutional treatment ofoffenders are as follows:(i) Adult Probation
A significant milestone in the Philippine
Criminal Justice System is theinstitutionalization of the Adult Probation
Law under implementation of theProbation and Parole Administration (PPA)of the Department of Justice. The Paroleand Probation Administration has received
36,939 applications for probation in 1998.
About 32,607 Post Sentence Investigation
Reports were completed and submitted tothe courts. The investigation of an
applicant for probation, parole orconditional pardon involves a thoroughstudy of criminal records, family history,
educational background, married life,(ii) Parole and Conditional Pardon
Under these forms of release, prisoners
who no longer need institutional treatment
are released and given the opportunity to
be reintegrated into the community. It is
the President of the Philippines who grants
conditional pardon, upon recommendationof the Board of Prison and Parole (BPP)
which has also authority to grant parole.
The Board of Pardons has received a
total number of 17,803 carpetas from 1995
to 1998. Out of this number, 8,490 were
granted parole, 5,392 were released anddischarged, and 2,025 were recommended
for conditional pardon, 5,034 forcommutation of sentence and 98 forabsolute pardon.
(iii) Probation for Youth Offenders
Youth offenders are dealt with inaccordance with the provisions of the Childand Youth Welfare Code. This Codeprovides that “the court shall suspend all
further proceedings and shall commit theminor to the custody of the Department ofSocial Welfare and Development (DSWD),
or to any training institution operated by
the government, x x x until he shall havereached twenty-one years of age x x x.”

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RESOURCE MATERIAL SERIES No. 56
Table 2Comparative Data of the Board of Pardons and Parole(CY 1995 to September 1998)
Particulars
1995
1996
1997
1998
Carpetas Received
5,750
4,969
3,986
3,098
Parole Granted
2,736
2,190
1,757
1,807
Recommended for
615
565
440
405
Conditional Pardon
Recommended for
1,848
1,822
1,138
226
Commutation of
Sentence
Recommended for
42
25
15
16
Absolute Pardon
Granted Final
1,377
1,446
1,603
946
Release and Discharge
1. C o m m u n i t y I n v o l v e m e n t i n
Corrections in the Philippines(1) Parole and Probation Volunteer Aides
Probation is a disposition of the courtthat allows a convicted offender to serve
their sentence in a community and outsideprison, but under the supervision of aparole and probation officer and subject tocertain conditions contained in the Paroleand Probation Order. Dedicated membersof the community are tapped as volunteers
to ensure the success of the parole andprobation system. These volunteers arescreened and trained. Each volunteer
supervises a maximum of five clients andkeeps all information about a parolee,
probationer or pordonee in strict
confidence. S/he works in close
coordination with the Chief Probation and
Parole Officer in providing counselling andplacement assistance.
2. Strengthening of Coordinative
Mechanisms with Non-Government
Organizations
In line with establishing more
responsible rehabilitation and correction
programs and services for inmates,
correctional agencies coordinate withgovernment and nongovernmentorganizations like the Episcopal

252

Total
17,803
8,490
2,025
5,034

98
5,392

Commission for Prisoners Welfare,C A R I TA S ( f o r m e r l y t h e C a t h o l i c
Charities), and the National Manpowerand Youth Council (NMYC) in providing
small-scale livelihood projects andcommunity-based programs for inmates.
Likewise, several religious groups visit jails
to share spiritual messages.
3. O b s e r v a n c e o f t h e N a t i o n a l
Correctional Consciousness Week
Proclamation No.55l, dated March 15,
1995, declares the last week of October ofevery year as National Correctionol
C o n s c i o u s n e s s We e k . A n a t i o n a lsecretariat, composed of government andprivate sector representatives from media,
academia, civic and religious sectors
formulate a national plan for thecelebration.
2. Corrections Pillar Projects Under the
5-Year Master Plan of Action for Peace
and Order
1. Operation and Management of thePhilippines-Japan Halfway House
The Philippines-Japan Halfway Housewas designed to provide preparatory
rehabilitation activities for released or prerelease clientele in a 24-hour residential
setting. It is geared towards preparing the112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
clientele to become emotionally, sociallyand economically prepared for family andcommunity life and to cope with thedifferent pressures in society. Aninterdisciplinary-trained staff provides
services wherein all activities are geared
to providing therapeutic impact on theclients served.
The construction of the edifice wasshouldered by the Nagoya West Lions Cluband the Asia Crime Prevention Foundation(ACPF). Several donations from the
Nagoya West Lions Club and ACPF werealso given through the efforts of the United
Nations Asia and the Far East Institute for
the Prevention of Crime (UNAFEI) and theAsia Crime Prevention Philippines(ACPPI). The initial seed money for
operation of the Halfway House was takenfrom the funds of the 5-Year Master Planof Action for Peace and Order. Various nongovernment organizations and several
private individuals have assisted in themaintenance of the Halfway House,
including the Makati Golden Lions Club,the Muntinlupa Lions Club and the Lady
Judges Association of the Philippines.

II. PUBLIC PARTICIPATION AND
COOPERATION IN CRIMEPREVENTION
The activities that properly belong to thecommunity pillar are those that concern
the so-called infrastructure of crime, suchas the lack of educational or recreational
opportunities and inadequate job skills.
These are social conditions that foster
crime which the formal criminal justicesystem can not resolve alone. Other
community actions that can contribute toless crime are improvement of the homeand family life, delivery of health andtreatment services, reduction of criminal
opportunities and safeguarding of theintegrity of the government.

In line with this, government has
identified several ways of encouraging thecommunity to join in the anti-crime
campaign. One way is to provide venues
for community-based participation in
localized crime fighting. Another is to forge
partnerships with non-governmentalorganizations (NGOs) in the creation of
more crime-watch groups nationwide. A
third way is to tap media groups in
implementing communication strategies
that will enhance public awareness.
Great emphasis has been placed on thesubject of citizen participation in crime
prevention. The process offers a viablemeans of involving citizens in the planning,decision-making and process of change andinnovation. Various indigenous conceptsof adopting community-based methods
were formulated in urban locales in thePhilippines to assist in the process ofmaintaining peace and order, specificallyagainst criminality.
A. Community-based Strategies
There are a number of community-based
crime prevention programs. Recent
community-based crime prevention groups
differ from classic vigilante groups in thatthey do not put the law into their hands.
Instead, their primary function has been
the surveillance and protection of their own
communities, often acting as an ancillarygroup to regular police. They amplified law
enforcement through pursuit and capture.
Largely, their primary function is in
information gathering and dissemination,
as well as surveillance or neighborhood
policing.
In the Philippine setting, the activatedcommunity is spearheaded by thebarangay, the grassroots political unit
which is primarily envisioned to strengthen
the popular voice of political decision
making, and at the same time augment law
enforcement efforts in coordination with253

RESOURCE MATERIAL SERIES No. 56
police forces.
1. The Barangay Initiated Ronda System
The Barangay Initiated Ronda System
is an offshot of Presidential Decree No.
1232 authorizing the organization ofcommunity groups to serve as effective
vehicles for organized community
participation in crime prevention. The saidgroups are organized by barangay officials.
The most common community-based crime
prevention program implemented by the
Barangay Council is the Ronda System,
conducted by the Barangay Security andDevelopment Officers or Barangay Tanods( Vi l l a g e Wa t c h m e n ) . B a s e d f r o minterviews, Ronda has been implemented
as far back as 1972 and is still in operation
now.
The Barangay Security andDevelopment Officers (BSDOs) or more
popularly known as the Barangay Tanod,
are the volunteers who are responsible forpeace keeping activities in the barangay.
Recruited civilian volunteers will be
engaged primarily in unarmed civilian
assistance that shall include intelligence
information-gathering, neighborhood
watch or “rondas”; medical/traffic/
emergency assistance; assistance in theidentification and implementation ofcommunity development projects; andgathering relevant information and data
as inputs to peace and order planning andresearch.
The localities have adapted the programand have taken the liberty of assimilating
the concept into native culture and beliefs.
Examples of these are the Oplan
Pakigsandurot in Cebu City and the
Neighborhood Watch Group in Baguio City.
(a) Oplan Pakigsandurot“Oplan Pakigsandurot” was initiated by
the Cebu City local government. This isbased on Cebu City Police Community

254

Involvement 93 to Cebu City Integrated
Community Public Safety Plan, dated July
18, 1993. The said plan aims to promote
closer ties between the police and thecommunity, maintain peace and orderthrough combined crime prevention, andimprovement of police image.
“Pakigsandurot” is a Cebuano word
which means an act of fostering better
relationships for the purpose of getting
fully acquainted with or obtaining a closer
harmonious relationship. This plan
encapsulates the idea of getting the police
to be personally involved in the affairs of
the community where they reside,
specifically on matters of peace and order.
The plan conceptualizes a program where
the police are enjoined to render two hours
voluntary service to their barangay
residence during their time off-duty and bealways on call when the need arises. It
calls for their direct participation in
conducting patrols and other police actionsin their area, side-by-side (buddy-buddy
system) with the tanods. Oplan
Pakigsandurot regularly conducts
meetings/dialogues or fellowship every
second Saturday of the month.
Each barangay has a manpowercomplement of twenty tanods and 15
reserves. The group is divided into two
shifts, the first shift is from 7:00 am to 7:00
pm and the second shift is from 7:00pm to
7:00am.
To complement the program, anotheroperational activity was launched, code
named Oplan Tambayayong or Oplan
LUBAS (Lungsod Batok Salaod or City/
Community Against Crime). Composed ofcivilian volunteers, this organization is
aimed to organize an anti-crime movement,
composed of well-meaning citizens tocomplement the various PNP units in thecity in its operational activities. It is
likewise designed to promote peoples’112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
awareness of their basic obligation tocontribute to the maintenance of peace intheir community.
(b) Baguio City’s Community Oriented
Policing (COP) Program
In order to prevent or minimize theincidence of crime in the city and topromote the security and well-being of the
populace, Mr. Ray Dean Salvoza, a civic
leader, formulated the Community
Oriented Policing (COP) Program as earlyas November 1991. This program intends
to meet the demands of innovative andcreative intervention, and is designed topromote a highly organized, high morale,
efficient police force working hand in handwith the community in crime prevention.
This was fully accepted in the city in 1993.
The program aims to install an
integrated, interdependent law
enforcement system designed to efficiently
and effectively assist the Baguio City Police
Force to prevent and minimize theincidence of crime. Involvement of thecitizen/ community/ neighborhood crime
watch systems were sought to meet day to
day policing operations.
The crime prevention activity conductedby these community-based organizations isbasically carried out through the Ronda
system. The system is operated by teamsof volunteers who take turns making
rounds (Ronda) around the barangay
during critical periods (late at night or
early dawn). For operational purposes, thebarangay is divided into “pook or puroks”
and each “purok or pook “ has an appointed
leader. There are various methods/styles
in conducting the Ronda and eachbarangay improvises according to its
resources and needs.
The main actors in the said programsare volunteers. The main component istherefor citizen participation.

Vo l u n t e e r i s m p l a y s a v i t a l r o l e .
Sustainability of any grassroots project
depends on the harnessing of local
resources, particularly that of humanresources.
Aside from the Ronda, a number ofindirect measures are also conducted.
Some of these include establishing day-care
centers, organizing the youth, conducting
seminars on responsible parenthood,providing training for livelihood andassisting families in the establishment ofsmall scale businesses.
The public perception survey reveals
that such programs are effective deterents
to criminality. However, the study showsthat the effectiveness of community-based
crime prevention programs depend upon ahost of factors. Based on the data gathered,
the effectiveness of projects depends onleadership, area of jurisdiction, population
size, logistical capability and the locationof the barangay.
2. The Civilian Volunteer Organizations(CVO) Program
To reorganize and consolidate theBarangay Tanod of the 1970’s, thegovernment initiated in 1989 the programon Civilian Volunteer Organizations(CVO’s) or Bantay Bayan. Most of the local
governments just reorganized their
Barangay Tanod and the same group acted
as their CVOs or Bantay-Bayan. The
establishment of another organization was
triggered by inactive Barangay Tanods.
The local executives and police officials
deemed it necessary to organize a newgroup. The new group is called CVOs/
Bantay-Bayan.
B. Forging Partnerships with
Citizens’ Group/ Non-Government
Organizations
Greater involvement of the community
towards effective social defense in the local

255

RESOURCE MATERIAL SERIES No. 56
setting is being mobilized through various
groups. The Crusade Against Violence(CAV), the Citizens’ Action Against Crime(CAAC), and the Movement for the
Restoration of Peace and Order (MRPO)
were created as an offshoot of theescalating incidents of violent criminality
i n t h e c o u n t r y. T h e s e a n t i - c r i m emovements undertake: (1) protest rallies
as the means of obtaining a more effective
response of the government in criminal
justice matters; (2) sustained court watch;(3) information campaigns to increase
consciousness of victims and their familieson the need to cooperate with authorities
in reporting crimes and pursuing cases incourt; (4) monitoring of cases pending withlaw enforcement agencies and theDepartment of Justice; (5) legal assistanceand; (6) public education campaigns on
crime prevention to encourage vigilanceamong the citizenry in the campaign
against crime and violence.
The Citizens’ Crime Watch is anumbrella organization of non-governmentorganizations (NGOs) and People’s
Organizations (POs) working in
partnership with the government in theanti-crime campaign. It provides
assistance to the police in informationgathering, reporting of suspicious persons
and places, service of subpoenas and othercourt processes, and monitoring the
progress of investigation, prosecution anddisposition of heinous offenses. In
barangays, Barangay Crime Watch
Centers are being organized by the
Barangay Chairman in consultotion with
the City/Municipal Peace and OrderCouncil concerned.
1. Most Recent Program (Example):
Street Watch
Street Watch is a program designed to
get the community actively involved inpreventing crime by encouraging neighbors
to help each other deal effectively with

256

neighborhood crime and related problems,
and to cooperate in law enforcement. It
involves the organization of neighborhood
blocks in a barangay into a Street Watch
unit.
Each member of the Street Watch is
expected to be on the look-out for crimes
and emergencies within their own premises
and that of their immediate neighbors. The
monitoring efforts shall be assisted by theFoundation for Crime Prevention by
providing the necessary infrastructure andnetworking.
Support of the media is provided by oneof the major television networks of thec o u n t r y, G M A N e t w o r k , I n c . T h eneighborhood Street Watch informationand education campaign on crime
prevention is supported by the GMA’s radio
and television network. Crime prevention
information and tips are aired in its
newscasts, radio and television programs.
GMA has also set up a Street Watch Action
Center to follow up cases and report
emergencies. The station also airs featurestories and interviews on crime prevention
and criminal justice issues.
Street Watch has established an
Emergency Hotline (Emergency Hotline
117) which is centrally managed by thePhilippine Long Distance Telephone(PLDT) Company and operated by qualified
operators from the Philippine National
Police.
C. Activities for Enhancing Public
Awareness
The media’s role must be in making the
public more conscious and aware of the
problems of criminality, the sociology ofcrime, the machinery of the criminal justicesystem, the imperfections and problems
besetting the system and the arduous
process of prosecution. Criminal justiceagencies can engage the services of the112TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
media for a more effective fight against
crime. Towards this end, a Communication
Plan was launched in 1994 to educate thepublic on what the criminal justice system
is and its critical role in the prevention andcontrol of crime.
1. T h e C r i m i n a l J u s t i c e S y s t e mCommunication Plan
A common strategy among the fivepillars of the criminal justice system is the
conduct of an Information Education
Communication (IEC) Campaign. A
Presidential Directive was issued for thefive pillars of the criminal justice system
to formulate and implement acomprehensive Criminal Justice System
Communication Plan (CJS Complan). TheCJS Complan was initiated to promote the
CJS in order to enhance justice, publicorder and safety through an integrated andsustained communication program.
Primers, posters, brochures, pamphlets
and other materials containing informationon the criminal justice system wereprepared, reproduced and distributed tothe public. CJS agencies also air a weekly
one-hour radio program “BantayKatarungan” (Justice Watch) which focuseson crime prevention and the criminal
justice system. It is aired every Friday
from 11:00 a.m. to 12:00 noon over DZBBRadyo ng Bayan.
2. Nationwide Crime Prevention Week
Celebration
The Department of the Interior andLocal Government, through the National
Police Commission, spearheads the annual
celebration of the National CrimeP r e v e n t i o n We e k .
Presidential
Proclamation No. 461 dated 31 August
1994, declared the first week of Septemberof every year as National Crime Prevention
Week (NCPW).
Plans, programs and activities for the
week-long celebration, are drawn up withthe active support and involvement of the
Department of Education, Culture andSports (DECS), the Peace and OrderCouncils, the Office of the Press SecretaryPhilippine Information Agency (OPS-PIA)
and various citizens groups like the
Crusade Against Violence and the Citizen
Action Against Crime.
In recent years, activities conducted
include the Presidential Kick-Off ceremony,an inter-collegiate debate on crime
prevention, an On-the-Sport poster making
contests, symposia on crime prevention,skit-drama contest for high school
students, motorcades and parades. These
activities are conducted nationwide.
V. KATARUNGANG PAMBARANGAYSYSTEM - CONFLICT RESOLUTIONSYSTEM OUTSIDE TRIAL
Presidential Decree No. 1508, otherwise
known as the Katarungang Pambarangay
Law, established a system of amicably
settling disputes at the barangay level.
The system aims to strengthen the family
as a basic social institution, preserve anddevelop Filipino culture and promote thequality and speedy administration ofjustice being dispensed by the courts. The
essence of Katarungang Pambarangay(KP) is embodied in two salient features ofthe law. One is that it makes the barangay
settlement compulsory and a pre-requisite
to bringing suits in regular courts of justice,or before any governmental office
exercising adjudicative functions.
As a community-based, conflict
resolution mechanism, the KP has provenits effectiveness in perpetuating the timehonored Filipino tradition of settlinginterpersonal disputes amicably without
resorting to confrontational social behavior.
Moreover, while central to the concerns of
the KP is the speedy administration ofjustice, what appears to be of prime

257

RESOURCE MATERIAL SERIES No. 56
significance over time is people
empowerment and, therefore, highly
supportive of the notions of social orderingand human development.
The Philippine Barangay Justice system
exemplifies the personal-oriented approachto the dispensation of justice within a fasterand shorter time frame, with less rigor andcheaper costs. Its performance for overmore than fifteen years shows that it is one
sure mechanism for diverting cases of petty
crimes and civil cases from the judicial
system. The amicable settlements ofdisputes intends to bury the rancour andbitterness between the parties and ensure
the preservation of closer personal
relationship within the barangay.
There are 41,000 barangays in the
country, with a total number of 780,000
mediators (Lupong Tagapamayapa
Members). The system has contributed tothe improvement of the administration ofjustice specifically the problem of poor
people having limited access to the higher
courts.
Progress reports from the Departmentof the Interior and Local Government(DILG) indicated that some 171,042,975
cases were settled, with only 53,361
disputes being elevated to the courts. Its
settlement success percentage is a high89.25%. If this number of disputes were
elevated to the courts, the government
would have spent P 21,665,443,500.00
representing the total cost of adjudicationof the cases. This does not take into accountthe other benefits to the country such as
developing community leaders andproviding a complementing alternative tothe judicial system at the barangay level.
VI. ASSESSMENT AND
CONCLUSION
The success of the criminal justicesystem, with the goal of reducing crime258

through prevention, hinges on the supportand involvement of the citizenry. Without
the active and meaningful involvement of
the community, even the best trained andequipped police force would fail in its
function of maintaining peace, order andstability in society. For instance, if thecitizenry would deny a former inmate thechance to be reintegrated into community
life, it would be difficult for the offender tobe reformed.
“A vigilant community is a peacefulcommunity”. In our society, emphasis andrecognition should be placed on the socalled mobilized community which iscomposed of those who are tasked toassume a leading role not only in law
enforcement, but in the endeavor to fashion
the values and attitudes that make thecriminal justice system work. The
Philippine criminal justice system has, in
its feature, the community as its fifth pillar.
The community in this context refers to theelements that are mobilized and energized
to help authorities in effectively addressing
the law and order concerns of the citizenry.
As a sub-system of the criminal justicesystem, the community is the most criticaland useful component in view of its massive
and pervasive composition. Enlightened
and cognizant of their roles in themaintenance of peace and order, as well as
in the dispensation of justice, members of
the community get involved in providing
assistance and support to crime prevention
activities, particularly in improving thedetection and prosecution of crimes and there-integration of offenders into themainstream of society.

112TH INTERNATIONAL TRAINING COURSEREPORTSTHE
COURSEREPORTSOF
OF THECOURSEGROUP 1
VICTIM ASSISTANCE: PUBLIC PARTICIPATION FOR MORE
EFFECTIVE CRIME PREVENTION AND LAW ENFORCEMENT
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Ghazali Bin Hj. Md. Amin
Mr. Maxime Antoine Tirant
Ms. Donna Lynn Caparas
Mr. Kouji Yamada
Mr. Pa Hamady Jallow
Mr. Haruhiko Ishida
Mr. Nobuo Nakamura
Mr. Nawaz Ul-Hvq Nadeem
Professor Shoji Imafuku
Professor Chikara Satou

I. INTRODUCTION
The importance of public participationin the effective functioning of the criminal
justice system and in preventing crimes isan acknowledged fact. The necessity toencourage and mobilize citizen
participation can not be overemphasized,
because the criminal justice system can notwork in a vacuum. Likewise, pastexperiences have proven that public
participation is indispensable for the
success of any crime prevention program.
As reforms to maximize citizen
involvement in the criminal justice system
gradually take root in the individual
pillars, this paper will focus on public
involvement at the police level. The paper
will cover three (3) main topics, thisincludes: 1) participation of the public inpolice investigation; 2) community policing
and 3) victims assistance at theinvestigation stage. It should be noted
however, that this paper is prepared fromthis perspective of criminal justicepractitioners, most of whom are law
enforcers (public officers, prosecutors).

(Malaysia)(Seychelles)(Philippines)(Japan)(Gambia)(Japan)(Japan)(Pakistan)(UNAFEI)(UNAFEI)

II. PARTICIPATION OF THE
PUBLIC AND VICTIMS IN POLICEINVESTIGATION
A. Situational Analysis
The basic objective of police work is themaintenance of law and order, thepreservation of peace, the prevention anddetection of crime, the apprehension of
offenders and the promotion of public
safety. This concept of police work is
universal, even if there are slightdifferences in the procedures of eachcountry, largely dependent upon existinglaws.
As regards police methods andprocedures of investigation, the detectionof criminals, collection of evidence andmanner of crime reporting, the present
situations in the countries represented arevery similar. In all countries, reporting canbe done in three ways: 1) personal reporting
to police stations (police stations, koban,
police counters, etc.); 2) written reportthrough letters of complaint; 3) telephone
hotlines. However, in the Philippines,
certain offenses should be reported to theB a r a n g a y 1; t h i s i n c l u d e s o f f e n s e spunishable by imprisonment exceeding one

259

RESOURCE MATERIAL SERIES No. 56(1) year or a fine exceeding 5,000 pesos.
Examples of these offenses include slightphysical injuries, slander, threats, theft,
evicition, family or marital relations,collection of debts, damage to property andother petty quarrels amongst neighbors.
Malaysia has “paperless investigation”,
wherein reporting is only inputted in acomputer file.
Unlike other countries, whereby
vicitims and witnesses are not legallybound to report crimes, in Pakistan every
person is legally bound to report thecommission of certain offences like murder,
robbery, dacoity and bribery.
The police should make an effort
towards ensuring that the public
understands their role in the investigation
process, so as to encourage maximum
participation. The public must assume
some sort of a shared responsibility in themaintenance of peace and order in thec o m m u n i t y, e v e n i f t h e p r i m a r y
responsibility of enforcing law and orderstill rests with the police.
The police expect the public to cooperatewith them specifically at the three stagesof the investigation process. As regards
crime reporting, which is considered to be
the first stage, the police expect the public
to willingly report crimes and unusual
incidences. The second stage, which
involves collection of evidence, the police
expect the public to provide information,
be willing to be a witness (by giving police
statements), identifying suspects,
recognizing weapons, etc, and by nottampering with evidence. During theapprehension or arrest stage, the police
expect the public to assist in locatingsuspects, giving information (hideouts etc),
providing logistical assistance liketransportation and communication, if
necessary.

260

At this point, it should be noted that thegroup had a lengthy discussion on whether
to expect the public to conduct citizenarrests or not. According to someparticipants, the police expect the public
to exercise their right of citizen arrest
because the police can not be everywhere,
everytime. The representatives from
Gambia, India, Pakistan and the
Seychelles declared that this expectation
is appropriate since the laws of theircountry provide for this. Any private
person may arrest or cause to be arrested
any person who in their presence commits
a non-bailable and cognizable offense, andwithout unnecessary delay, shall take any
person so arrested to a police officer orpolice station. According to the laws ofthese countries, every person is bound toassist in the prevention or suppression ofa breach of the peace, or in the preventionof any injury. However, Japanese
representatives noted that the police
should not expect the citizens to make anarrest. They also noted reservations
especially in relation to the issue of “mobjustice” and “arrest without warrant”.
B. Hindrances that Impede Public
Participation and Cooperation
The best performance index for thepolice service is the quality of therelationship established between the police
and the community they serve. The
perception of the community by the police,
and vice-versa, accounts for the kind ofpolice-community relations that prevail.
Favorable public perception suggests
acceptable police behavior and ready public
support. An unfavorable image spells
trouble. It should be noted that public
perception is rather negative in somecountries.
Police effectiveness is derived fromexternal focus on how the community
perceive their activities, and their
willingness to help in enforcing the law. It

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
is therefore important that good policecommunity relations be nurtured, as thiswill increase community involvement incrime prevention and control processes.
The public has valid input for a better
police service.
1. Police Factors (Negative Police Image)(a) Unsatisfactory Police Performance
When the police do not detect andinvestigate criminal cases sufficiently
and effectively, this prevents the
public and victims from counting on
and cooperating with the police. At
present, a number of deficiencies
affect police performance(i) Police human resources:• Insufficiency of investigativeskill, manpower and legal
knowledge.
• Inflexibility of police officers.
• Insufficiency of coordination
amongst law enforcement
agencies and with othergovernment offices.
(ii) Logistics:• Insufficiency of not only
modern but basic equipment
and supplies.
(b) Lack of Awareness Regarding Issuesof Victims (Secondary Victimization,
Victims’ Rights, Sensitivity to the
Plight of Victims etc.)
Some police officers are not evenaware that they commit secondary
victimization in the course of theirinvestigation. The routine of police
work sometimes causes them to be
indifferent and callous to the plightof victims. Secondary victimization
can be committed in the cource ofpolice questioning.
Such
victimization occurs when the policecause unnecessary delay; ask
unnecessary questions; makeunnecessary remarks, allow themedia to access investigation; create
an atmosphere of fear for the victim;
prejudge the situation; discriminate
because of race, colour or religion; orwork for possible reconciliation
without permission from the victim.
Some specific examples of secondary
victimization are: showing
photographs of the family members
killed, investigating a victim
immediately after undergoing severe
medical treatment, arbitraryscheduling of questioning, or having
the victim relate the story too manytimes.
(c) Low Police Morale
The morale of police officers affects
their performance. If they have low
morale and do not have the rightattitude towards their work, the kindof service rendered to the public isshortchanged.
(d) Political Influence
Police fear reprisals as they can betransferred or reassigned to a remotearea or a less important position if
they refuse to cooperate with
influential politicians.
2. P u b l i c a n d V i c t i m F a c t o r s(Uncooperative Attitude)
A basic condition for an effective andefficient criminal justice system is thegenuine trust and confidence of the generalpublic. It is this trust and confidence thatspells the difference between an actively
supportive public and an apathetic
community. Encouraging citizens to get
involved is no easy task. Currently, thefollowing conditions of the uncooperative
attitude of the public are observed in someof the participating countries:(a) Uncooperative Attitude due to Fearof Political Interference in the Police
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RESOURCE MATERIAL SERIES No. 56
Public and victims in some countries
fear that nothing will come of theinvestigation, in spite of their efforts,
because someone more “influential”
has a hand in things (incidences ofwhitewash; political vendetta;
complaint not being entertained
because of the political leaning of thevictim or witness, etc.)(b) Uncooperative Attitude due to
Pressure from the Community(Traditional Values)
In some countries, the concept ofjustice is heavily culturally laden.
Victims and witnesses are often
reluctant to report crimes for fearthat it will affect their stature insociety. They are likewise concerned
about less confidentiality in acommunal society, wherein people
tend to talk about and make fun ofthe misfortunes of others. Thissituation may bring shame for thevictim and their family if the event
occurred because of their own
negligence or if the offense is delicate(eg, those involving sexual offenses).
Since most communal communities
are quite small and people know eachother, victims and witnesses often
fear reprisal from offenders or fromthe offenders family and friends.
There are even instances wherein thecommunity would view theirreporting or cooperation with thepolice as a “breach of brotherhood”.
In the Philippines, this breach ofbrotherhood is a violation of the valueof “pakikisama”2. In Gambia, this iscalled “badia”3.
(c) Uncooperative Attitude Due toMaterialism and Individualism
Another observation is that people
are uncooperative because they are
too busy earning a living and do not
like to be bothered. They do not care262

much about the good of society andthink only of themselves.
(d) Lack of Incentives for the Public
The public do not have enoughincentive to assist in the investigation
process. They are expected to doleout money for transportation to andfrom the police station, and tosacrifice possible earnings because ofspending time for the investigation.
Often times, their efforts go
unrecognized.
(e) Lack of Awareness of Criminal
Procedures
Most people are uninformed about
the proper way of reporting crimes orfiling a complaint. They are often
also not aware of distinguishing thevarious types of offences and suchsituations may discourage them.
3. Unfavorable Environment Created by
Mass MediaThe Media has to play a positive andconstructive role as a channel of
information and as a line of communicationfrom the government to the people, andfrom the people to the government. Media
must make the public more aware andconscious of the problems of criminality, thesociology of crime, the machinery of thecriminal justice system, the imperfections
and problems besetting the criminal justicesystem, and the arduous process ofprosecution.
H o w e v e r, u n t o w a r d e v e n t s a r esometimes caused by the media. Mediasensationalism, unfortunately, creates anegative impact on public trust andcooperation. Media sensationalism isidentified as a common problem in all
countries. Some media practitioners give
particular “colour” to issues to add to thecommerciability of the medium.
Sometimes they go to the extent of

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
glorifying crimes and criminals, andpractice irresponsible reporting.
C. Recommendations
1. Police(a) Enhancing Police Education
Improve the treatment of crime
victims by enhancing police educationin the fields of human psychology,
v i c t i m s e n s i t i v i t y, a n d c r i s i sintervention, especially in handlingdomestic violence cases and sex
offences. Such training programs are
currently being locally conducted inJapan, Pakistan, the Philippines, andthe Seychelles. Police officers in
Gambia and the Philippines are also
trained overseas for this purpose. In
Malaysia, training for senior police
officers is held every year and aninternational police training courseis sponsored by the government
which is participated in byneighboring countries like Brunei. In
the USA, all police officers are given
training on victim’s rights, how totreat people in distress, crisis
intervention and other victim issues.
Proper police education should becontinuously conducted to meet
victims with respect and sympathy,
and to make diligent efforts towards
not hurting their feelings, andavoiding secondary victimization.
(b) Improved Police Performance
The best image-building program isgood police performance. Efforts
should be made toward achieving
higher crime solution rates,
promoting better police
accountability and preventing
corruption. Such effort can be
maintained by means of the propermonitoring of police services. Aninternal system of inspection andmonitoring in the police force iscurrently being practiced in all

countries. However, an independent
performance evaluation scheme, likethat practiced by the Public Safety
Commission of Japan and the
National Peace and Order Council of
the Philippines, seems more
appropriate to truly effect anunbiased evaluation.
(c) Promote Better Relationships with the
PublicThe police must make a conscious
effort towards creating a conducive
atmosphere for the public to reportcrimes. One strategy is community
policing.
(d) Equipment and Supplies
Provide basic equipment andsupplies, and procure modern
equipment by tapping available
resources from the government andprivate sector. However, conditions
for donations from the private sector
should be properly laid out by eachcountry.
(e) Provide a More Comfortable
E n v i r o n m e n t f o r Vi c t i m s a n d
Witnesses
Providing a condusive atmosphere forcrime victims and witnesses means
establishing specific windows/
counters for victims, providing
receiving rooms, deploying courteouspolice officers to man the counters,
and providing women investigatorsfor victims of sexual crimes ordomestic violence.
Japan has provided victims with areceiving room. Malaysia has
installed ‘Victim’s Counters’ in police
stations and has a Mobile Police
Complaints Center (bus) which canbe deployed to the scene of the crime.
The Philippines has established‘Women and Children Concerns

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Desks’ nationwide. Policewomen toinvestigate crimes of domestic
violence and sexual offenses arecommon in Gambia, Japan, Malaysia,
Pakistan, the Philippines, and the
Seychelles.
(f) Provide Information to Victims andWitnesses
The police should provide sufficient
information to victims and witnesses,
including explanation of criminal
justice procedures, available services,
status of the case investigation, andsituation of the offender.
A victims notification system iscurrently being practiced in Japanand the Seychelles. In the Seychelles,
a Complaint’s Acknowledgement
Form is issued to victims upon
reporting a crime. The form consistsof the complainant’s name, address,
date and time the report was made,particulars of the compliant, name ofthe officer receiving the complaint,
the case number, relevant telephone
numbers, date on which the victim
may check back for the outcome of thecase.
The notification program to victims
in Japan is based on the Code of
Criminal Procedure, wherein a publicprosecutor should promptly notify thecomplainant, accuser or claimant of
the result of the disposition (CCP
article 260, CJLJ p. 129). Therefore,
the notification program to victims
was launched on 1 April 1999. Whenthe victims, a bereaved family
member or witnesses desire
notification, a public prosecutor shallinform orally or in writing as follows;(1) the disposition of the case (e.g.
prosecution for the formal trial,
prosecution for the summary
proceedings, non-prosecution or

264

referral to the family court); (2) inprosecuted cases, the name of thecourt and the date of the trial; (3) the
result of the judgement, sentencing,whether to appeal to a higher court;(4) the summary of the prosecuted
offences, the heading and summaryof the non-prosecution, whether todetain, bail etc.
(g) Strengthen Coordinative Mechanisms
with other Government Agencies
The police should maintain
coordinative mechanisms with othergovernment agencies. One of themeasures recommended is the
deployment of police personnel in
hospitals. A police counter isrecommended at least at the district
hospitals. This is currently being
practiced in Gambia and Malaysia.
In these countries, police counters are
set up in district hospitals so as toassist and/or monitor unusual
occurences which necessitate medical
attention. By setting up police
counters in the hospital, victims or
witnesses are provided with easieraccess to police services andtherefore encourages reporting.
Likewise, the police can also lookafter or monitor suspicious
occurences (i.e patients with gunshot
wounds, etc).
(i) Provide a System for Reimbursing
Transportation and Allowances forVictims and Witnesses
In Japan, victims and witnesses areprovided with actual transportation
reimbursement, accommodation
expenses, and allowances ranging
from 5,000-7,000 yen.
(j) Victims Complaint Sections or
Grievance Procedures
Establish a victims complaints
section or a grievance procedure112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
within the police station and an
independent body for complaints
against the police (disciplinary body).
The independent body being proposed
can be similar to the Peoples Law
Enforcement Board of the Philippines
or the Public Complaints Bureau in
Malaysia. People empowerment, asa strategy in the administration ofpolice, finds actualization in theorganization of the People Law
Enforcement Board (PLEBs) in thePhilippines. Under R.A. 6975, the
PLEBS are vested with thejurisdiction to hear and decide
citizen’s complaints against thepolice. PLEB members are appointed
by the local executive on therecommendation of the local Peace
and Order Council. PLEB members
are acknowledged and respectedindividuals from the community.
The Public Complaints Bureau of
Malaysia is under the Public Services
Commission and is responsible to thePrime Minister’s Department. Itstask is to receive all complaints
against public servants. The
complaints will be referred to theproper department concerned andthat department will investigate andtake the necessary action. The said
department is also asked to report it’sactions to the Complaints Bureau.
The report of the complaint will befurnished to the complainant.
(i) Establish an Independent Institution
or Committee to Monitor Police
Services
Monitoring of police services should
be done by a separate independentagency. This is being practiced in
Gambia (Police Commission), Japan(Public Safety Commission), Hong
Kong (Independent Police
Complaints Council), Malaysia(Police Commission), and thePhilippines (National Police
commission). These commissions
involve representatives from thepublic. The purpose of thesecommissions is to supervise andadminister the police force, and to
draw out policies for the police.
The Public Safety Commission ofJapan consists of a chairman who is
the Minister of State, and fivemembers. The members of theCommission are appointed by thePrime Minister, subject to theapproval of both houses of the Diet.
The National Public Safety
Commission was founded 1954, andit has since played a significant rolein securing democratic
administration and the politicalneutrality of the police. The majortasks of the National Public Safety
Commission are administrative
supervision over police activities
relating to national public security,and coordination of the police
administration, by the formulation ofstandards for activities by police
personnel.
The Malaysian Police Commission
was formed under the Police Act
1967. The Commission is chaired by
the Minister of Home Affairs and themembers are appointed by the
Minister from amongst
representatives of the judiciary andformer senior government officers.
Its role and function includes mattersof discipline and career improvement(promotion).
2. Public and Victims(a) I n i t i a t e o r I n t e n s i f y P u b l i c
Information and Education
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RESOURCE MATERIAL SERIES No. 56
Criminal Justice System; the Role of
the Public in the Criminal Justice
Process, etc)
• Police to conduct public education
programs by community seminars
or dialogues, and/or by target
groups (students, office workers,
housewives, etc).
• Exhaust the use of radio, TV andprint for criminal justiceinformation and education (print
and broadcast).
• Work for the inclusion of such
subjects in school curriculums formal education.
(b) Public Information
Initiate moves to institutionalize thepolice duty to provide necessary
information to the public, especially
victims and witnesses, on the caseprogress; information on available
services like witness protection,
providing information on hotline
numbers in case of emergencies, etc.
(c) Adopt a Reward System for the Public
The police should always appreciate
the efforts made by the public. This
recognition can be made by awarding
certificates of appreciation toindividuals who have rendered
exemplary assistance, specificallyduring police anniversaries or
ceremonies. The reward may also be
a monetary token. Such appreciation
may encourage more people tobecome involved.
3. Media Management
The police must initiate diligent efforts
toward giving the public the rightinformation. This can be done bycoordinating with the media and by issuing
official police press releases, regularconduct of media dialogue, and by
establishing an office in the police service
which is responsible for public relations or

266

public information, to enhance accessibilityof information to the media.
The criminal justice system can engage
the forces of the mass media, along withvigilant citizen action at the local level, inthe effective fight against crime. Thus, aradio, TV and print communication planon the criminal justice system should belaunched to inform the public of its criticalrole in the prevention and control of crime.
Public appearances on radio and television
programs by law enforcement officials andother criminal justice personalities serve
to assure the people of the government’s
sincerity in cracking down on organizedcrime groups and other criminal elements.
III. COMMUNITY POLICING
A. Community Policing Concepts
1. Common Understanding
Community policing is an activity toattain the police objectives of maintaining
peace and order, preventing crimes andpromoting public safety. Community
policing works on the assumption thatcrimes cannot be adequately met by law
enforcement and coercion.
Community policing is both a goal andan organizational strategy that allows thepolice and community residents to work
closer together in new ways to solve
problems of crime, fear of crime, physicaland social disorder. Community policing
envisions the police will actively engage inlarger social issues.
Community policing emphasizes acooperative relationship between the police
and the community, It is a system ofpolicing mobilizing the community to solve
the problem of crime and for ensuring
public safety. The objective of community
policing is to establish a closer relationshipwith the community to attain better public
participation for more effective police work.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Community policing is geared towards
crime prevention and crime control bypromoting awareness, disseminating
information, education and mobilization. Itshould be noted that the flow of information
is a very vital factor in community policing.
Information can be channeled from thepolice to the public; from the public to thepolice. Community policing is pro-active
rather than reactive.
2. The Purposes of Community Policing
There are four identified purposes ofcommunity policing:(a) To e n c o u r a g e p o l i c e / c i t i z e npartnerships for crime prevention.
(b) To foster and improve communicationand mutual understanding between
the police and the community.
(c) To p r o m o t e i n t e r p r o f e s s i o n a lsolutions to community problems,
and the principle that the responseto crime is ultimately a total
community responsibility.
(d) To e n h a n c e p a r t i c i p a t i o n a n dcooperation of the public at all levelsof the criminal justice system (police,prosecutors, courts, corrections andrehabilitation).
3. Essential Elements of Community
Policing
There are three (3) essential elementsof community policing:(a) Police Must Understand the Needs
and Expectations of the Community
Community policing is the goal thatguides the attitudes of officers wheninteracting with the community. The
police assume a much bigger role.
Community-policing is problem
oriented policy; officers areencouraged to make decisions about
how to analyze problems, develop
appropriate responses, and interact
responsibly with the community in apartnership aimed at solving
community problems.
(b) The Community Must Actively
Participate in Crime Prevention
Community policing puts a greater
degree of accountability andresponsibility on the community.
Community policing should indicate
a sense of ownership from thecommunity - “this our police”.
There are three (3) basic types ofcrime prevention:• Social/community crime
prevention - social development
programs.
• Crime prevention throughenvironmental planning anddesign.
• Situational crime prevention target hardening, reducing
opportunities and temptations tocommit crimes.
There are four levels of involvement incommunity policing:• 1st level - No objection• 2nd level - Agreement/consent• 3rd level - Support• 4th level - Involvement(c) Community and Police Jointly
Responsible for Community Safety
and Solving Community Problems
Community policing adopts a simple
problem solving model to facilitate
the exchange of information between
public and private agencies,
community groups, and all those who
become part of the problem solving
process. In community policing, thepolice and the community assume
more dynamic roles. Crime
prevention is seen as the shared
responsibility of the police and thecommunity. Fostering effective
partnerships to solve problems is

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crucial because of the scarcity ofresources.

type police outposts called Chuzaisho5, andby those who patrol in squad cars.

B. Community Policing Practices in
Participating Countries
1. S i t u a t i o n a l A n a l y s i s ( P r a c t i c a l
Implementation)
The overall mission of community
policing is to carry out community safety
activities to ensure the safety and peace ofcommunity residents, and to perform
initial-stage police action in immediate
response to any event related to the police.
To better accomplish this mission, thecommunity police seek to take into accountthe opinions, suggestions and requests ofcommunity residents, and to tailor police
operations to the specific needs of each
community.

Neighborhood watch, conducted bycitizen patrol groups, is also a significant
activity of community policing. In thePhilippines, this community patrol (Ronda)
is conducted by the Barangay Tanod orvillage watchmen. In Washington, DC,
USA, this program is called the Orange Hat
Program, wherein residents patrol thestreets using orange hats. The same
scheme is practiced in Kenya, in which
residents of an estate organize themselves
into vigilante groups to perform patrol
duties at night on a shift basis. The City
Rangers in Papua New Guinea conduct thesame type of citizen patrolling. In
Pakistan, community policing includes avillage watch and patrol system,
organization of Citizen Police Liaison
Committees, Khuli Kacheris6, Khidmat
Committees7, Jirga System8, and Union
and Municipal Councils.

Community policing is carried out by the
conduct of a wide range of activities
including crime prevention activities andcrime solving/exposing activities;
maintaining constant alert day and night;
patrolling neighborhoods; exercising street
vigilance; visiting families and businesses
to give advice on the prevention of crimes
and accidents, and listening to their
troubles and requests; holding traffic safetyclasses and crackdowns on traffic violators;
giving counsel to juveniles; protecting the
drunk; protecting lost children; offeringcounselling on troubles and problems.

2. Problems
Consequently, the identified problems
encountered in implementing community
policing are the following:

Community policing is considered as amajor project in Canada, Colombia, Japan,
Kenya, Malaysia, Papua New Guinea,
Pakistan, the Philippines, Singapore,
Thailand and the USA. Some elements ofcommunity policing are being done in
Gambia and the Seychelles. Community
policing will be introduced in Egypt soon.

(a) Resistance of police officers to change.
(b) Lack of manpower - the grouprealized that effective community
policing is manpower intensive.
(c) Lack of logistics - the group pointed
out the problem of resource
maintenance and “sustenance”.
(d) Lack of leadership and commitment
on the part of police officers andcommunity leaders.
(e) Lack of participation from the public.
(f) Strong traditional customs andbeliefs.

In Japan, community policing is mainly
performed by community police officers
posted at street corner police outposts
called Koban4 police boxes and at resident-

It should be noted that according to theparticipant from Gambia, community
policing is unlikely to succeed in some areasin West Africa because of strong traditional

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112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
customs and beliefs which make activities
of community policing impossible toimplement. However, other participants
opined that the principle of “Rule of Law”
should prevail.
3. Countermeasures
Recommendations for improving
community policing are the following:(a) Police Organizational re-structuring
This can be done by:(i) R e - o r i e n t a t i o n / r e - t r a i n i n g :changing the mindset of the policeon their role.
(ii) Institutionalization of community
policing as a fundamental aspectof basic policing.
(iii)Providing greater job challenge.
(b) Adopting a More Innovative
Deployment Strategy
This can be realized by:(i) Internal reorganization: reexamining the prevailingsituation and pertinent issues
such as decentralization,
development of career generalists
rather than specialists, providing
more flexibility and discretion to
frontline officers (after proper
training), and evaluating
recruitment programs.
(ii) Utilize technology to free up
manpower resources.
(iii)Tapping community volunteer
groups.
(c) Tapping Available Resources in theCommunity
Liaison with business groups, NGOs,
Homeowner Associations etc, andmaintain a good level of coordinationand networking. Some programs
recommended include “Adopt a
Precinct” which is practiced in thePhilippines, wherein a certain civicorganization looks after the needs ofa certain police precinct and gives thenecessary support like logistics andtraining, and even provides somepolice benefits like scholarships forthe children of model cops. In
Malaysia, the “Wakaf” 8 system iswidely practiced. This can be
exemplified by assistance togovernment by private corporations.
For example, a private construction
firm who has built a residential
subdivision may donate a police
station, including a housing area forpolice personnel.
(d) Continuous Public Education
E xhaust all possible areas ofcommunication (TV, radio and print
media) and intensify community
contact activities (seminars,
dialogues, home visits, businessvisits, etc).
(e) Public Education on the “Rule of Law”
In countries where the public are notreceptive to any kind of policing,
public education should be initiatedregarding the ‘Rule of Law’.
(f) Improving Public Participation in
Community Policing(i) Initiate good public relations
programs - give sufficient, andproper information to increase thepublic’s knowledge of police work.
(ii) Initiate measures to have morecontact with the public (homevisits, office visits, community
dialogues, school visits, etc).
(iii) Initiate an integrated crime
prevention strategy:(a) I d e n t i f y i n g c o m m u n i t ysectors (core group or
catalysts).
• Identifying sectors
vulnerable to crime.
• Identifying sectors who
have influence.

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RESOURCE MATERIAL SERIES No. 56•

Identifying sectors whoare instrumental inbringing about change.
(b) Identifying target groups:• Juveniles• Retirees• Parents/Teachers• Businessmen(c) Identifying crimes of major
concern and work for theirsolution.
(d) Deployment of more police
officers on the beat.
(iv) Initiate measures of making thepolice service more accessible andmore friendly (installing
structures like the Koban or
Chusaissso, neighborhood police
posts).
(v) Adopt a comprehensive and goodcommunications plan (public
information program, informationand education campaign).
(vi) B e i n g m o r e s e n s i t i v e t ocommunity feedback - regularconduct of needs assessment
surveys, and police performanceand evaluation surveys.
A lot of ground has been covered by the
combined efforts of the government and thecommunity as far as crime prevention andcontrol are concerned. On a macro-level,
several measures, like systematic andorganizational changes, and new policies
have been introduced to enhance
government capabilities to address
problems of peace and order. On a microlevel, the police have shifted from thetraditional reactive, incident-triggered typeof policing to a proactive, problem-solving,community-orientated policing system.
The adoption of community policing has
resulted in a quantum improvement in therelationship between the police and thecommunity. This has resulted in a newpartnership and increased awareness that270

criminality is not solely a police problem
b u t a s h a r e d r e s p o n s i b i l i t y. T h e
precipitating or major causes of crime havebeen brought to the consciousness of not
only the victims, offenders and the police,
but also to a wider spectrum of society that
includes the media, religious sector/church,
legislature and the whole community.
IV. VICTIM ASSISTANCE
A. Definition of Terms
Based on the UN Declaration of Basic
Principles of Justice for Victims of Crimes
and Abuse of Power.
1. Victim
Persons who, individually or collectively,
have suffered harm, including physical ormental injury, emotional suffering,
economic loss or substantial impairment of
their fundamental rights, through acts oromissions that are violations of national
criminal laws or internationally recognizednorms relating to human rights.
2. Secondary Victimization
Victimization which occurs, neither as adirect result of the criminal act nor afurther victimization, but through the
response of institutions (hospitals, media),criminal justice agencies (police,prosecution, courts, corrections) andindividuals to the victim.
B. Effects of Victimization
1. Physical Effects
Physical injuries, physical effects
including insomnia, appetite disturbance,
lethargy, headaches, muscle tension,
nausea and decreased libido, physicaldamage - abrasions and bruises, etc.
2. Financial Effects• Repairing property or replacing
possessions• Installing security measures• Accessing health services

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE• Participating in the criminal justicesystem, i.e attending trial• Obtaining professional counselling• Taking time off to work or from otherincome generating activities• Funeral or burial expenses• Relocation• Loss of employment
3. Emotional or Psychological Effects
The extent which people may be affectedby crime will vary from one individual toanother. At one extreme, people may shrug
off very serious incidences with nonoticeable effects, while at the otherextreme, people become “stuck” in aparticular stage and never move on. People
who suffer from such emotional effects are
diagnosed of having Post-Traumatic Stress
Disorders.
C. Victim’s Needs
Individual victims have individual
needs. There are 5 recognized needs ofvictims. However, some victims may have
only one or two needs, depending on theimpact of the crime on them:(i) Emotional need - recognition of“own” harm from the Criminal
Justice System (CJS):• Recognition that there is violation
inflicted.
• CJS should initiate efforts so thatthe community and the offender
can recognize the harm.
(ii) Emotional need: support from thecommunity (e.g specific sectors ofsociety like religious groups, victims
groups, etc) as well as from family
and friends.
(iii)Financial need: reparation for theharm.
(iv) Protection and security needs:
effective protection from revictimization or retaliation.
(v) Need of being informed: information
about the offender, the offense andinformation about the CJS.
D. Types of Services Provided toVictims
1. Crisis Intervention
Crisis intervention should seek to ensure
the safety and security of victims. At thesame time, it should provide an opportunity
for the victims to tell their stories, theirreactions to the incident, to be assured of
the validity of their reactions and prepare
themselves for dealing with the aftermathof the incident.
E motional support during crisis
intervention counselling may include
notification of death and occasions for theidentification of the body, and notificationof the offense to the immediate family.
Direct assistance can be done by emergency
referrals or direct assistance with medicalcare, shelter, food, dependent care, property
repair and substance abuse treatment.
Meeting the immediate need for clothing,
emergency/protective shelter, money andtransportation, clean-up of the crime scene
and emergency repairs, protection throughrestraining orders, etc. Information should
likewise be provided to meet the immediateneeds, and victims rights and concerns, like
information about emergency financial
assistance.
2. Counseling
The incident may trigger stress reactions
during the processes of the criminal justicesystem, and after the trial. Victims may
again be traumatized by the verdict,sentence, etc. Some victims simply takelonger to begin to cope with their
victimization and to reconstruct a new life.
Emotional support can be in the form of
supportive individual and group
counselling. Direct assistance may involvereferrals to or direct assistance withprotective shelters. Information should
also be given as to how to prevent further

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RESOURCE MATERIAL SERIES No. 56
victimization and substance abuse,
information and referrals for social,physical health or mental health services.
3. Advocacy
General advocacy services, in order toprovide assistance with applications forvictim compensation or private insurance,intervention to ensure the continuity of thevictims credit, housing or employment,
assistance with protection throughprotection orders, relocation or shelters forvictims when needed, in order to ensure
access to the trial.
4. Examples of Police Support During
Investigation(i) Emotional Support
Accompaniment to occasions for theidentification of the accused and toother criminal justice interviews;
accompaniment to evidentiary
examinations; accompaniment ofvictims for the identification of
bodies, the crime scene and evidence.
(ii) Direct Assistance
Assistance with the prompt return ofproperty, victim compensation,
restitution, protection orders,shelters or safe places available tovictims.
(iii)Information
At first contact with the criminal
justice system, provide informationon the progress of the investigation;
information on the criminal justiceprocess; information on the rights ofthe victims at the scene of the crime
and later in the criminal justiceprocess; provide information on thedetention of the suspect, bail, bond,measures to assure reparation, theprotection of evidence for forensic
examination; information on medical
assistance at the forensic
examination; and information on the272

prevention on further victimization.
E. Situational Analysis
Please refer to Annexure 1, programs/
activities on assisting victims currently
being practiced in the participating
countries.
F. Victims Assistance Programs
As understanding and awareness of theeffects of crime has grown, so to the
responses to crime have become more
complex. Research has brought issues suchas re-victimization and harassment to theforefront, and victimization surveys havehighlighted different levels of risk and the
problem of witness intimidation. All thesedevelopments have illustrated the need for
a community response to crime.
Victim assistance is committed toproviding people affected by crime withappropriate and sufficient recognition,
support and information to help them deal
with their experience, and to ensuring that
their rights are acknowledged andadvanced in all aspects of criminal justiceand social policy.
1. The Goals of Victims Assistance
Programs
The goal of a victim service program is
to assist victims in dealing with emotional
trauma from participating in the criminal
justice process, obtaining reparation andcoping with associated problems caused by
the impact of victimization.
2. The Objectives
The objectives of the program is to do
the following:(a) I n c r e a s e t h e c o m m i t m e n t o f
governments and organizations to do
all that is possible to assist victims.
(b) Increase the range and availabilityof services for victim from the time ofthe victimization, and throughout theaftermath.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(c) Expand the victim’s opportunities toparticipate at all critical stages of thecriminal justice process, and toensure consideration of the impact ofvictimization upon the victim in all
criminal justice systems.
(d) I n c r e a s e c o o r d i n a t i o n a n d
networking of all appropriate
agencies, organizations, groups, andfamilies, kinship and community
support systems providing services tovictims or affecting the treatment ofvictims, in order to develop an
integrated system of victim
assistance.
(e) Improve the quality of outreach toand treatment of victims in need.
(f) Be aware of the unique needs ofu n d e r- s e r v e d a n d n e w v i c t i m
populations.
3. Special Victims Groups
The group members agreed to identify
special categories of victims’ groups which
need professional and specialized
assistance:(a) Domestic violence victims(b) Juvenile victims(c) Victims of organized crime(d) Victims of sex offences(e) Victims of crimes involving police or
PoliceStrengths• More control and more manageable.
• More specialized personnel trained.
• More impartial.
• More accessible for general types ofvictims.
Weaknesses• Limited police budget - scarcity offunds.

military or high ranking government
officials
4. Police Role in Victim Assistance(a) Onsite-crisis intervention(b) Securing medial assistance(c) Information regarding their rights(d) Referrals to services and resources
5. Evaluation
Evaluating the strengths andweaknesses of a victims support
program initiated by the police against
those Initiated by volunteer groups.
G. Recommendations
1. Strategies(a) Work for the establishment of an
integrated victim’s support system or
establish a network of agencies toprovide comprehensive services.
(b) Establish a victim’s support unit
within the police organization (every
police officer has to have a chance towork in the Unit - job rotation after
proper training). Special counters for
women, or women and children’sconcern desks are established inJapan, Malaysia, Pakistan, Papua
New Guinea, the Philippines and theVolunteer Groups
Strengths• Maximize public involvement.
• Reducing costs for CJS.
• More accessible to specific types ofvictims (violence against women,
violence against children, etc).
Weaknesses• No guarantee of confidentiality of
information.
• May lack the needed training .
• May have a particular agenda.

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RESOURCE MATERIAL SERIES No. 56
Seychelles.
(c) Encourage the establishment ofvictim’s support groups initiated byprivate and non-governmentalorganizations similar to the Shizuoka
Victim Support Center and Mito
Victim Support Center of Japan(please refer to a more detailed
explanation in Annexure 3- victim
support programs).
(4) Provide specialized programs forvictims of special categories of crime:(a) Domestic violence victims(e.gMalaysia, Philippines);(b) Juvenile victims (e.g Philippines);(c) Victims of organized crime (e.gJapan);(d) Victims of sexual crimes (e.gMalaysia, Philippines);(e) C r i m e s i n v o l v i n g p o l i c e o r
military or high ranking
government officials (e.gPhilippines - provided by theCommission on Human Rights, or
the National Police Commission).
(5) Provide victims with information on
the available services by employing
suitable measures, depending on theconditions in the country. Examples:
set up a referral system, employing
victim’s advocates (USA).
(6) Encourage citizens to get involved in
victims support programs. The
community can get involved in victim
support programs by:(a) Being a sponsor: victim support
produces and supplies a growing
range of information leaflets forpeople affected by crime. The costof production, translation, anddistribution of the material issometimes very costly. Victims
support offers many opportunities
to sponsor information leaflets

274

and other publications forcompanies who see the merit ofbeing associated with such aworthy cause.
(b) By investing in services liketraining, research andinformation campaigns.
(c) B y b e c o m i n g a v o l u n t e e r volunteers contribute in a variety
of ways, from offering
administrative services, assistingin publicity and fundraising,helping victims cope with theeffects of crime, and as witnesses
in court, etc.
(d) Becoming a friend - annual
donations.
The issue of victims’ assistance is arelatively new phenomenon. A lot of issues
should still be addressed to improve theparticipation of victims and the public in
the criminal justice process. Efforts toimprove the plight of victims, however
meager, prove that governments recognize
the importance of the role they play in thejustice machinery.
V. CONCLUSION
The effective, efficient and fairadministration of justice lies in the smoothand expeditious functioning of the criminal
justice system at different stages andlevels. The flow of cases at these levels
comprise the workload of the machinery,
given the interlocking relationships
amongst the components of the criminal
justice system- law enforcement,
prosecution, courts, corrections and themobilized community. Each component
must strive to be a coherent, efficient andeffective unit for the whole system to fit
neatly together. Of the five components,
the law enforcement pillar constitutes themost critical stage, as it defines theworkload of the entire criminal justicesystem.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Public cooperation is vital for the system
to work effectively. Public trust andconfidence is built upon a firm knowledgeof a criminal justice machinery that is able
to deliver justice speedily, accurately, fairly
a n d a c c e s s i b l y. E n c o u r a g i n g t h ecommunity to get involved is no easy task.
Certain preconceptions in the minds of the
public have to be reshaped for them tobetter appreciate their role in effective
crime prevention and the functioning of thecriminal justice system.
As regards crime prevention, strategies
should include the seven elements
identified by UNICRI (presentation of Dr,
Uljesa Zvekic), to include:(i)

The promotion of active crime
prevention policies to accompany law
enforcement and criminal justice,based on international experienceobtained through effective projects
developed by the United Nations andother relevant internationalorganizations.
(ii) The development of long-term plans,even though public opinion might ask
for short-term responses to crime.
(iii) Improved coordination between
crime prevention activities at thenational, regional and local levels.
(iv) Encouragement of the public to be
involved in crime prevention, bystrengthening the community’s
confidence in the police.
(v) The promotion by law enforcement
and criminal justice agencies of thesafety and security of persons andproperty.
(vi) Treatment of victims with respect
and understanding of their needs,
and the provision of prompt
assistance and information about
their rights.
(vii) The regular monitoring of crime
prevention programmes, based onreliable information, analysis andpublic discussion with all parties
involved.
Sustained efforts towards providing
proper avenues for public participation isa good step towards maximizing citizen
involvement. Public participation can beachieved in the investigation process,community policing programs and victim’s
assistance programs. Governments haveto ensure that these opportunities arepresent and that the public is properly
informed about them.
ENDNOTES
1

2

3
4
5
6

7

8
9

Community or village organization; thesmallest political unit in thePhilippines.
Filipino values pertaining to communal
relationships; expectations on the issueof brotherhood.
Gambian value of brotherhood.
Japanese police boxes.
Japanese residential police boxes.
Open public gatherings which are held
at various places of a district anddivision, chaired by the deputy
commissioner and commissioner,
respectively.
Volunteer committee to assist police incrime prevention.
Arabic term meaning ‘generous gift’.
Council of Elders of a tribe or a tribe ora number of tribes which settle allissues within the region.

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RESOURCE MATERIAL SERIES No. 56
ANNEXURE 1
SUMMARY OF VICTIM PROTECTION AND VICTIM SUPPORTLEGISLATION AND PRACTICES IN THE COUNTRIES REPRESENTED
COUNTRY

MEASUREBRIEF EXPLANATIONVICTIMPROTECTION

Although there is no victim protection program in
Gambia, there is some protection available in special
cases. This is offered by the police. In most cases, wherea victim fears revictimization or molestation by others,
the police provide protection in the form of surveillance ofthe victim’s residence. When it is absolutely necessary, anarmed guard is provided. The victim is also provided with
the numbers of the nearest police stations, in case of
emergency. At worst, the offender is detained or remanded in custody for the safety of the victim. The victim
is also assigned an investigative officer whose task will becounselling.

VICTIM SUPPORT

Victim support is available only during natural disasters
such as flood, outbreaks of fire, or heavy storms. Here,
there are support group such as the Red Cross and othervoluntary organizations. These organizations will provide
support to the victims both in cash and kind.

THE SEYCHELLESVICTIMPROTECTION

There is presently no victim support scheme in the
Seychelles, however such a scheme is deemed importantto alleviate the plight of the victims of crime.
Similarly, no official witness protection scheme exists,
however such protection is carried at the discretion of thecommissioner of police, in special circumstances.

PAKISTANVICTIMPROTECTION

Deployment of police contingent or security guards at theresidence of the victim.
Issuance of firearms license for self protection.
Installation of police hotlines.
Daraullaman (Female Hostel).

VICTIM SUPPORT

Establishment of police counters at hospitals.
Many NGO’s have their emergency centers in cities andalong the highways where the facilities of hotlines, aswell as ambulances, are available.
Women at police stations.

VICTIMPROTECTION
AND SUPPORTActual Situation• Royal Malaysia Police (RMP) have no specific victim
units/victim support centers.
• We have standing orders/ administrative orders totreat victims with dignity, empathy and information.
• The role of RMP in victim protection and support ismore of referral to existing agencies such as the Social
Welfare Department and NGOs.

GAMBIAMALAYSIA

276

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE• Protection is given depending upon the merits of thecase. The witnesses are given protection when there isa threat on life or property. This must be followedwith an official police report. If not, security will begiven on an ad hoc basis.
• Victim protection and support is given in cases such as
rape, domestic violence and child abuse, by the Social
Welfare Department with the assistance NGO’s.
• Less than 10% of domestic violence cases are being
prosecuted because of:(a) Withdrawal of complaint(b) Reconciliation(c) Referred to religious department (for muslim families)• Women police officers have been assigned to suchcare roles.
• There are no major crimes involving big numbers ofvictims and the record shows that the probability of
future violence is less.
• Most cases of causing hurt in domestic violence areclassified under Sec. 323 pc. This is a non-arrestablecase, and an order to investigate must be given by the
deputy public prosecutor.
Should Police Organizations Have Victim Units?
Strengths• Control of the situation.
• Information on who the victims are.
• Ability of services; referral.
• Emotional support.
• Assurance of safety for victims and witnesses.
• Assurance that the actions of the victim or witness isnormal.
• Strengthen the police awareness of avoiding secondary
victimization.
Weaknesses• Cannot depend on volunteers only. There must be
professionals.
• Security is not guaranteed.
• Specific job creates boredom and no job satisfaction.
• Extra job/ manpower.
• No specific budget.
Victim Support Unit Must be Under the Deputy
Public Prosecutor Office, Why?
1. Legal Implications:• Amendment of laws
• Budget• Personnel
2. Order to investigate can be given by e-mail, it is notnecessary that the investigating officer submit theinvestigation paper. Not every district is provided with apublic prosecutor.

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RESOURCE MATERIAL SERIES No. 56
Countermeasures
Due to a low budget and administrative problems, theexisting police personnel of all levels should be aware/
knowledgeable about victim’s rights. This will avoid
secondary victimization and unnecessary work pressure.
THE PHILIPPINESLEGISLATION
The Witness
Protection,
Security and
Benefit Program(WPSBP)

The Witness Protection, Security and Benefit Program(WPSB), under Republic Act No.6981, is a recent legislative
enactment granting witnesses certain rights and benefits
and defining their responsibilities, if admitted into theprogram. Apart from the primary benefit of security andprotection, witnesses may be given any or all of thefollowing benefits under the program; 1) secure housing
facility for high-risk witnesses; 2) financial assistance towitnesses and their dependents, ranging from a minimumof P3,000.00 to about P15,000.00 in certain cases; 3)
travelling expenses and subsistence allowance; 4) medical
and hospitalization assistance; 5) housing or rental
allowance in case of witnesses with manageable risks.
The Department of Justice entered into agreement withdifferent government agencies for assistance and services
to be afforded to clients. The Department of Foreign
Affairs agreed to render assistance in facilitating/ securingpassports and visas for WPSBP covered witnesses, and toinitiate negotiations with countries to determine thefeasibility of an exchange of witnesses. The Philippine
Overseas Employment Authority (POEA) agreed to assist
the witnesses in obtaining livelihood abroad through its
name hiring or government hiring schemes, or othermethods of deploying overseas contractual workers. The
Department of Labor and Employment, and the Department
of Social Welfare and Development, conduct skills training
programs for witnesses.

Compensation forVictims of Unjust
Imprisonment or
Detention andVictims of Violent
Crimes- The Boardof Claims

278

Republic Act No. 7309 is the law creating the Board ofClaims under the Department of Justice, granting
compensation to victims of unjust imprisonment or
detention, and victims of violent crimes. The following
may file claims for compensation before the Board: a) any
person who was unjustly accused, convicted and imprisoned, but subsequently released by virtue of a judgment ofacquital; b) any person who was unjustly detained andreleased without being charged; c) any victim of arbitraryor illegal detention by authorities as defined in the Revised
Penal Code under a final judgment of the court; d) any
person who is a victim of violent crimes. Violent crimes
shall include rape and shall likewise refer to offenses
committed with malice which result in death or serious
physical and/or psychological injuries, permanent
incapacity or disability, insanity, abortion, serious trauma,or acts committed with torture, cruelty or barbarity.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
For the victims of unjust imprisonment, compensation
shall be based on the number of months of imprisonment
and every fraction thereof shall be considered one month,but in no case shall such compensation exceed P1,000.00
per month. In all other cases, the maximum for which theBoard may approve a claim shall not exceed P10,000.00 or
the amount necessary to reimburse the claimant’s
expenses incurred for hospitalization, medical treatment,
loss of wage, loss of support or other expenses directly
related to the injury, whichever is determined by the
Board.
PRACTICES
Establishment of"Women's andChildren's Concern
Desk" in Police
Stations

The establishment of Women’s and Children’s Concerns
Desks in police stations is expected to further streamline
and strengthen the efforts of the police in responding to
problems of violence against women and children. As amanagement strategy, policewomen are assigned to man
the desks, or if no female personnel are available, a
trained male police officer is assigned. To date, a total of
1,632 WCCDs with 1,763 personnel (1,468 policewomenand 294 policemen) have been established nationwide. In
highly urbanized cities, the WCCD handles the investigation of women and children’s cases. A total of 3,463 casesof abused women and children have been reported to
WCCD and acted upon appropriately. WCCP officers
have been effective tools in providing services to womenand children in close coordination with the Department ofSocial Welfare and Development (DSWD) and concerned
women-based NGOs.

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RESOURCE MATERIAL SERIES No. 56

ANNEXURE 2

OUTLINE OF CRIME VICTIMS SUPPORT CENTER
Networking of Related Agencies andGroups (Japan)• October 1996, first establishment ofcrime victim assistance liaison
conference at the prefectural level.
• May 1998, national network of victim
support, consisting of 10 volunteer
groups.
• February 1999, last establishment ofcrime victim assistance liaison
conference at the prefectural level(established in all prefectures).
Crime Victim Assistance Liaison
Conference(1) Members
Police, public prosecutors offices, local
government and related agencies (e.g legal
circle, medical institution, psychologicalinstitution, Counseling Institution for
Women and Children, social welfare
institutions, Board of Education, businessworld, public-service corporations, mass
media, and so on) and volunteer groups.
(2) Location
The Office of Crime Victims Assistanceliaison conference is at the prefectural
police headquarters and the police
cooperate with related agencies andvolunteer groups.
(3) Activities
Opening meetings, exchange
information, training course on
counselling, introduction of the properorganizations mutual to crime victims
according to victims needs, various
activities in order to open counselingcenters.
(4) Purpose
One of the aims of establishing crime
victim assistance liaison conferences at theprefectural level is to build volunteer
280

groups such as support centers at theprefectural level; through the activities ofcrime victim assistance liaison conferences,such as the meetings and examination of
the members of crime victim assistanceliaison conferences and the volunteers to
prepare for the establishment thevolunteer groups.
Volunteer Groups
12 groups have been established at theprefectural level, such as the Mito Support
Center (SC) in Ibaragi Prefecture and the
Shizuoka Support Center (SC) in Shizuoka
Prefecture.
(1) Mito Support Center
Established referring to the program of
NOVA in 1995 July. There are 5 Programs(5 activities):(a) Information: explain the rights ofvictims and giving the information
which victims need.
(b) Referral to related organizations: e.g.
hospitals, police, lawyers
associations, clinical psychologist andso on.
(c) Crisis response; crisis intervention.
Two volunteers accept training tovisit victims and give the support
which victims need.
(d) Counselling: by telephone or byinterview.
(e) Support groups: support to make theassociation (or meeting) of victims ortheir bereaved family.
(f) Others: there are more than one
hundred volunteers. Characteristic
activities of the Mito SC is to escort
victims to the courts.
(2) Shizuoka Support Center
Established in May, 1999. The
activities of Shizuoka SC is similar to
those of the Mito SC.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
ANNEXURE 3
COMPARATIVE EVALUATION OF STATE COMPENSATIONJAPANTHE UNITED STATESEligibility
Requirements• Report to police; no time limit.
• Filing period: Within 2 years fromthe day the applicant recognizes
the crime, and within 7 years fromthe day the crime was committed.

• Report to police: usually within
72 hours; exceptions are madefor good cause.
• Filling period: One year is typical;
time limits vary from State to State.

Victims of Terrorist
Acts

N/A

Compensation is payable forresidents and non-residents who are
injured by crimes involving terrorism occurring within the States or,on the case of US citizens, outside of
the US.

Claimants• Victims of crime who suffer
serious injuries.
• Dependents of deceased victims
if they legally reside in Japan.
• Foreign citizens if the victim wasa legal resident of Japan when
the crime occurred.

• Victims of crime.
• Dependents of homicide victims.
• Relatives of victims of crime.
• Foreign citizens; eligible in mostStates.

Procedures

The victim must report the crime tothe police, and the police must
recognize the victimization.
A claimant can obtain an
application from any police stationor prefectural police department.
The claimant should send theapplication to the prefectural public
safety commission through thepolice station or the prefectural
police department that has
jurisdiction over the address of theclaimant. It takes approximately 5months for the applicant to be
notified of the decision, and it takes
approximately 2 more weeks for theapplicant to receive the benefit.

The claimant must file an application with the compensation agency
in the State in which the crime
occurred.
Based on information submitted by
the victim, the agency determines
whether the claimant is eligible andhas suffered a financial loss. In
most States, the victim can appeal
the agency’s decision to deny or
reduce the award of compensation.

Benefits and Award
LimitsThe maximum award in yen:
Bereaved Family Benefit: 10,790,000:
Incapacity Benefit: 12,730,000

Most States can pay a maximum of
between $15,000 and $25,000. A few
states have higher or lower
maximums.

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RESOURCE MATERIAL SERIES No. 56
Compensable
Costs

None. The program provides theabove lump sum awards.

All States will cover the following:• Medical expenses.
• Mental health counselling.
• Lost wages for disabled victims.
• Lost support for dependents ofhomicide victims.
• Funeral.
• Travel for medical treatment.
• Services to replace work previously
performed by the victim.
• Cleaning of homicide scene if a
residence.
• Essential personal property.
• Rehabilitation.

Emergency
AwardsIf the program cannot quickly
render judgement because theoffender is unknown or the degree of
disability is unclear, the program
offers provisional benefits to theapplicant.

Some States provide emergency
awards or expedite processing forvictims faced with an extraordinary
financial or health crisis.

Funding Sources

The program is funded by the
National Expenditure. For bereaved
children, scholarships are available
throught the Crime Victim’s Relief
Fund.

Most States obtain their funding fromfees or charges assessed against
offenders. Some States receive
appropriations from general revenue.
OVC provides supplemental funds
from Federal criminal fines.

282

112TH INTERNATIONAL TRAINING COURSEREPORTSCOURSEREPORTS OF THE
COURSEGROUP 2PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE
EFFECTIVE ADMINISTRATION IN PROSECUTION AND THE
JUDICIARY
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Alvaro Caro Melendez
Ms. Emi Yoshida
Mr. Hideki Igeta
Mr. Moustafa Ahmed Genidy Abdin
Ms. Wang Ping
Mr. Jyotirmoy Khosla
Mr. Darmawel Aswar
Ms. Tokiko Sugawara
Mr. Hisashi Uruga
Mr. Yasanath Ravindra
Weerakkody Wijegunawardena
Professor Keiichi Aizawa
Professor Hiroshi Iitsuka

I. INTRODUCTION
Vi c t i m s s h o u l d b e t r e a t e d w i t hcompassion and respect for their dignity.
They are entitled to access to themechanisms of justice and to prompt
redress, as provided for by national
legislation, for the harm that they havesuffered; as is provided in the Declarationof Basic Principles of Justice for Victims of
Crime and Abuse of Power (General
Assembly resolution 40/35 (1985)).
Unfortunately however, victims of crime
have received insufficient attention fromthe criminal justice system. Although inrecent years considerable progress has
been made to improve the situation of
victims, many shortcomings and problems
still remain. This means that victims still
suffer physical and financial impact,
psychological injury and, in some cases,
secondary victimization from the criminal
procedure. In order to realize more
effective administration in prosecution andthe judiciary, it is important to encourage
victims to cooperate with the criminal(Colombia)(Japan)(Japan)(Egypt)(China)(India)(Indonesia)(Japan)(Japan)(Sri Lanka)(UNAFEI)(UNAFEI)

justice system by releasing them fromvictimization.
In addition, public participation, mainly
as witnesses, is also indispensable for thesame object. This matter is also likely tobe neglected because witnesses are
regarded not as the object to consider, but
as a ‘means to an end’ in the criminal
procedure.
The main subject of this group is the‘Participation of the Public and Victims forMore Effective Administration in
Prosecution and the Judiciary’, which isaccompanied with the undermentioned 3
sub-topics:(1) Measures for securing testimony (e.gwitness protection).
(2) Redress for victims through criminal
justice procedures.
(3) Measures for protection of the rights
and interests of victims.

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RESOURCE MATERIAL SERIES No. 56
We know that there are a lot of issues ofconcern with our main theme, an example
of which is the jury system, but we will not
discuss such issues. The focus is on thesaid 3 sub-topics because, as officers
engaged in law enforcement, we believethat we should address our attention to theissues that can be resolved in practice, andthe 3 sub-topics are commonly shared
among us. We are going to discuss our
main subject according to these topics,
under which the problems and current
situation of each country, and oursuggestion, will be discussed.
II. MEASURES FOR SECURINGTESTIMONY
A. Problems
Among most of the group participants,
it is well recognized that witnesses are
sometimes exposed to threats bydefendants or members of the gangster
groups and as a result, are likely to be
reticent to answer questions by theprosecutor or change their statement incourt. If witnesses are afraid that
defendants or their associates might harm
them, they will hesitate to attend court andwill avoid statements against thedefendant in court, at which the defendants
and their associates (in spectators seats)
may be present (some participants named
this situation of witnesses as “hostile”). As
the public or victims as witnesses cannot
effectively participate in the criminal
proceeding, the pursuit of truth shall fall
into a fatal blunder. The group discussed
how we are to cope with this problem of
threats and reticent witnesses.
It is certain that the reticence of
witnesses can be caused by other reasons,such as victims of sexual offenses notwanting to disclose their experience (wewill mention this problem later). However,
the main and major reason for witness
reticence to assist the prosecution284

authority, even if arising from other causes,
cannot be separated from the problem of
the threat to witnesses.
B. Current Situations and Present
Countermeasures
As each participant presented thecountermeasures implemented in theirrespective countries, we have discussed themerits and demerits of each system inpractice, with recommendations. We cameto recognize that multiple countermeasures
are compatible in specific countries and, if
selected and applied properly, to a variety
of situations. The brief summary of thecurrent situations and countermeasures
adopted at present are given below.
1. Witness Securing Program
In Colombia and the USA, there arehighly developed countermeasures forsecuring witness protection in order toprevent threats against witnesses. This
concept brought us a great model for
desirable countermeasures. It includes
control over information on witnesses andconcrete protection measures. This system
can include providing witnesses with bodyguards, changing their name, identifying
them by a number throughout the trial,
providing them with a budget for moving
to safety areas or to a foreign country, andso on. In a case where witness examinationis conducted, linking a witness in anotherroom to the courtroom via video camera is
one measure. This program can be applied
from the early phase of investigation andcontinue to the end of the danger to thewitness. These concrete protection
measures are selected and adopted
depending on such elements as the phaseof the case, seriousness of the threat, thenature of a witness and so on, or by thejudgement of the Attorney-General.
Also in Egypt, special permission forcarrying firearms and insurance arrangedby the government is available for112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
witnesses likely to be threatened. Suchprograms are effective and invaluable tothese countries, in spite of their enormous
costs, where the power of gangster groups
is so strong that witnesses are likely to
expose themselves to serious harm by
opposing the groups. It is a matter ofcourse that these programs should be
implemented without any unfair influenceon testimony from the investigation
authority.
2. D e v i c e s i n t h e E x a m i n a t i o n o f
Witnesses
In countries such as Indonesia andJapan, which have their legislative origin
in the Continent, written statements of
witnesses made by the investigating
authority can be examined under specificconditions, i.e, as evidence in the trial (ifthe prosecutor submits it, the defense
counsel consents to it and the judge makes
an affirmative decision). In such cases, it
is not necessary to summon a witness tothe court in Japan. Unfortunately theaccused and the defense counsel are likely
to refuse consent for the written statement
because they contend the guilt of theaccused.
Witness examination through TV
cameras is suggested in order to relieve
witnesses of pressure from defendants andspectators, although it has not been
implemented in any countries of the group.
This measure may well be recommended
and adopted, especially where thedefendants or the spectators scare thewitness extremely, because this can exempt
them from confrontation with thedefendants or spectators, while still
granting an open trial and the right ofcross-examination.
In Japan, judges are authorized to
exclude the defendant from the courtroom
during witness examination when theirpresence would interrupt the witness fromgiving a full statement. Indonesian Judges
have similar powers too. Although there
is a collision between the victim’s rights
and the defendant’s right to attend thecourt, such powers can be justified under
specific conditions and are adaptable toother countries.
3. Keeping the Defendant in Custody
In such countries as India and Japan,
there is a legal mechanism that theaccused, who are suspected of destroying
evidence or threatening witnesses intochanging their statements, may be kept incustody and refused bail during the trial.
In some cases, persons (except for the
defense counsel) are prohibited frominterviewing the defendant, even in a
detention house. This can contribute
greatly to security for witnesses, as it
makes it impossible for the accused tothreaten the witnesses by themselves.
However, some participants objected to thisidea in terms of the defendant’s humanrights. Therefore, adoption of this idea
seems to depend on the nationality andsituation of each country, though it is aneffective countermeasure for securing
witnesses.
4. The Sanction Against Threat
A threat or unlawful force to a witness
composes another crime, such as
intimidation of a witness, and is punishable
by another criminal procedure in somecountries. However this provision seems
insufficient as a measure to annihilate suchactivity in the case of specific organizedgangster groups, because members of thegroup are likely to threaten witnesses
regardless of this provision.
There is sanction in the sentencing
against defendants who threaten witnesses
in their case. If such conduct is proved in
the trial of the case, the sentence for theaccused will be increased by 25% in
Colombia. Similar treatment is reportedly

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RESOURCE MATERIAL SERIES No. 56
implemented in Egypt. Where an attempt
to control witness’ testimony is impossible,
a defendant, knowing that such an attempt
would result in longer sentencing, will giveup on such unlawful conduct. This sanction
against the defendant can be effective inpreventing threats committed bydefendants to some extent.
In Japan, a judge may have a specificspectator excluded from the courtroom
when his/her presence would interrupt thewitness’ statement. Implementation of thiscountermeasure requires adjustment
between the authority and the dignity of
the court, and the human rights of thethreatener, because s/he shall be subject
to such disposition by a relatively
simplified procedure. Whether judges canbe endowed with such power depends on
the status of the court in each country.
C. Suggestions
Effort should be made to enhance theprotection of witnesses during the entire
criminal judicial process. Introduction ofcomprehensive witness protection
programs would be useful for the fightagainst organized crime.
D. Additional Problems or Points
1. Allowance of Witnesses(a) Problems and Situations of Countries
Although in many countries daily
allowances and traffic fees forwitnesses are supposed to beprovided, in more than few countries
they are not provided in practicebecause of the deficit budgets ofgovernments. In Egypt, noallowances are supposed to be paid
to witnesses.
(b) Suggestions
It is desirable that:(i) Adequate daily allowances andtraffic fees be paid to a witness
who attends the court and286

testifies.
(ii) If necessary, accommodation fees
be paid or accommodation
facilities be available.
2. Document as Corroborative Evidence(a) Problem
Besides oral evidence, documentary
evidence is necessary in cases for
proof, such as medical reports andother expert reports. In cases of
misappropriation or criminal breachof trust, documentary evidence plays
a great role. It is also possible that awitness’ testimony is not admissible
or credible without such kinds of
documents. Unless these documents
are preserved and protected, it isdifficult to prove the case. There may
be cases where the offender may try
to damage or destroy the documents.
Whether this issue should be an itemof this sub-topic was doubted by someparticipants because it is not relevant
to our main theme. However thisissue was decided as a topic of our
discussion by the majority in whosecountries the loss of documents is aserious problem.
(b) Current Situation of Each Country
In Japan, the documents which are
not yet submitted to the court are
kept in the prosecutor’s office, wherea scientific way of preserving
documents is available. They are
inputted into the computers. In
India, the court takes these records
into the custody. The documents are
submitted by the prosecution and are
produced only during the trial. In
China, evidence involving statesecrets shall be kept confidential.
Seized articles and documents areproperly kept and sealed. Judicial
functionaries take measures for theprotection of the documents in
Colombia. In many developing

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
countries, documents submitted tothe court by the prosecution authority
are sometimes lost or altered without
the consent of the related parties.
(c) Suggestion
Criminal records, especially evidence
including documents, should be kept
adequately safe, and if tampering isfound, the officer in charge of keeping
the documents should be blamed forthis fault. Documents should beprotected at all costs. Scientificdevices may be adopted for the same
ends.
III. MONETARY REDRESS FOR
VICTIMS THROUGH CRIMINALPROCEDURE
A. Problem
Victims suffer damages from crime suchas loss of their property, bodily injury, deathand mental suffering. In addition, victims
have to pay for medical bills, moving feesand so on. When an offender kills a victim,
the bereaved have to hold a funeral whichmight cost dearly. Such damages or costshould not be left unaddressed. Therefore
offenders should, where appropriate, makefair restitution to victims, their families ordependants. Such restitution should
include the return of property or payment
for the harm or loss suffered, andreimbursement of expenses incurred as aresult of the victimization.
Firstly, victims of crime can bring a civil
action against the offenders in civil court
for monetary payment as compensation, inorder to recover the damage of the crime.
Unfortunately however, victims sometimes
cannot get any or sufficient amounts ofmoney with civil action, because it has
some defects in relieving victims of crime,that is:(i)

Victims sometimes cannot identify or
find the offender.

(ii) Victims sometimes find difficulty incollecting enough evidence to sustain
civil actions.
(iii) Offenders often lack enough funds tomake up for the victim’s damage,even if victims win in civil action.
(iv) Hiring a lawyer for civil action costs
much in comparison with the amountof gain that the victim may get, sothat victims sometimes cannot or do
not want to bring actions.
(v) In case of payment of fine, this might
be an obstacle to compensation forvictims.
Regarding stolen property, every country
has a system in which articles belonging
to victims, seized as evidence by theinvestigation authority and submitted tothe court, shall be returned to the owneras soon as possible. If the articles is lost or
not found, victims have no choice otherthan to get monetary redress for thedamage.
In addition, from a historical point ofview, criminal procedure for punishment
and civil procedure for monetary redress
were not separated in pre-modernizedsociety. Therefore each country has
developed a respective system to realize
monetary redress through criminal
procedures, other than civil action in civil
court (the systems adopted are countries
are attached in table 1).
B. Current Situation andCountermeasures at Present
Here we will illustrate statecompensation, restitution orders, and civil
action in criminal procedure, with theexperience of practice in each country.
1. State Compensation
State compensation means
indemnification provided by the state,police authority or Attorney-Generaloutside and independent of judicial

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RESOURCE MATERIAL SERIES No. 56
procedures. With state compensation,
victims can obtain some monetary redressfrom the government or state. State
compensation does not require theapprehension and conviction of the offender
to provide financial relief to the victims.
State compensation can provide victims
with financial relief, even though theoffenders do not have enough money tomake restitution.
In general,compensation for victims of crime is paid
mainly to the victims of violent crimes.
Property loss is typically not covered, withthe exception of eye glasses, hearing aids
and other medical devices. Adoption or
implementation of state compensation is
likely to depend on the financial situationof the government.
In Japan, state compensation was
introduced in 1980 according to theenactment of the Crime Victim Benefits
Payment Act (Law of State Compensation
for the Victims of Crime). The types ofcrime or damages to which this system isapplicable are death or serious disability
that are incurred by intentional conduct.
This includes 2 types of payment, that is:(i) Payment for the bereaved of victims
who were killed.
(ii) Payment for victims who sufferedserious disability.
In 1997, payment from this systemamounted to 635 million yen for 259
bereaved or victims. It is possible thatvictims who received damage by the
conduct of their relatives, those who areresponsible for the cause of the crime or
those who have got official payment, suchas compensation for industrial accidents,
may be suspended from payment of all ora part of the compensation.
In India, the state of Tamil Nadu
commenced the Victim Assistance Fund in

288

1995. The scheme is run by state police
and is applicable only in the said state.
State compensation requires national
funding sources and mechanisms. There
are two primary sources: funding from feesor charges that offenders pay, and funding
from General-Revenue appropriations fromthe legislature. In the United States, atthe federal level, fines and penalties arelevied against federal criminal offenders
and these monies are deposited into the“crime victims fund”, which is used to help
states support their victim compensation
programs.
2. Restitution Orders
Restitution order means an order by thecriminal court, on its own initiative anddiscretion, that the offender shouldcompensate their victim’s damages.
Restitution should be used to provide a wayof offsetting some of the harm done to thevictim, and also to provide a sociallyconstructive way for the offender to be held
accountable, while offering maximum
opportunity for rehabilitation. Restitution
attempts to establish a relationshipbetween the victim and the offender in aneffort to raise the offender ’s sense of
responsibility to the victim.
Restitution to the victim of a criminal
injury can be effective as a punitive
measure, as well as a financial remedy. If
used as a punishment, restitution mustcome from the offender’s own resources andit must be part of the criminal court
sentence, in that it is tied to the dispositionof the case.
Assessment of victim loss is a complex
process, so some device is required to haverestitution in the criminal procedure tofunction effectively. In Colombia, both civil
action in criminal procedure andrestitution orders are adopted and enacted.
The court can consider and order bothpunishment of the accused and payment

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
from the accused to the victims. In
restitution orders the court is authorized
to decide from which property the
defendants should raise money forrestitution, in order to guarantee
fulfillment of the restitution order. For thispurpose, the public prosecutor seizes
enough property of the defendant for thispayment, after the arrest.
In India, restitution orders, that is court
authorized orders for offenders to pay tovictims, was introduced in 1974. Thissystem has been regarded as a substitution
for fines in India, that is; payment ofcompensation is at the discretion of thecourt and is subject to no specific criterion.
The priority of restitution over fine is at
the discretion of the court and restitution
orders cannot be realized by compulsory
execution. The defendants shall be subject
to detention in a workhouse if they fail tofulfill their payment. In practice, the cases
in which restitution orders have beenentered are very few because the publicprosecutor is indifferent to the monetary
redress of victims and does not ask for it incourt.
3. Civil Action in Criminal Procedure
Civil action in criminal procedure isanother countermeasure to realize
monetary redress in criminal procedures,
where victims can participate in thecriminal procedure, seeking monetary
redress as a party. Many jurisdictions
allow the consideration of civil claims incriminal proceedings. This combination ofcivil and criminal proceedings has several
benefits for the victim and the jurisdiction,
ranging from procedural economy to thefact that responsibility for the collection ofevidence and the presentation of the issues,
to a large extent, lies with the authorities.
In China, civil action in criminal
procedure was introduced recently as
Incidental Civil Actions, where victims who

have suffered material loss as a result of
the defendant’s criminal act have the rightto file an Incidental Civil Action during thecourse of the criminal proceeding. An
Incidental Civil Action is heard together
with the criminal case. Only for the
purpose of preventing excessive delay inthe trial of the criminal case may the same
judicial organization, after completing thetrial of the criminal case, continue to hear
the Incidental Civil Action. A party to an
Incidental Civil Action may file an appeal
against that part of a judgment or an orderof first instance made by a local People’s
Court, at any level, that deals with the
Incidental Civil Action. In practice, aconsiderable part of victims’ injury casesor the bereaved of murder cases have triedt h i s p r o c e d u r e w h e n t h e P e o p l e ’s
Procuratorate decided to prosecute thedefendants. Victims are likely to getinsufficient remedy because the defendantis lacking enough money.
In Egypt, civil action in criminal
procedure is also adopted. As the decisionof the criminal court is binding on that of
the civil court, victims are supposed tomake use of this system when cases havebeen prosecuted. In Indonesia, the court
is authorized to decide the civil suit forcompensation with the criminal case, at therequest of victims. If the injured party
seeks joinder of their claim with thecriminal case, the district court concerned
shall consider its competence to adjudicate
the said claim, the veracity of the basis of
the claim, and the order requiring
reimbursement of costs expended by the
injured party. Except where the district
court declare its incompetence toadjudicate a claim, or a claim is declared
to be unacceptable, the judgment shall only
set forth stipulation on the order requiring
reimbursement of costs expended by the
injured party. Where there is a joinder ofa civil suit and a criminal case, then thesaid joinder shall continue at the stage of289

RESOURCE MATERIAL SERIES No. 56
examination on appeal in and of itself.
Where no appeal is lodged with respect tothe criminal case, then a request for an
appeal regarding a judgment oncompensation shall not be allowed. As in
most criminal cases in practice, when theoffender/defendant has no budget for
fulfillment of the compensation, the victims
may use the civil court to get compensation,
as the judge of the civil court can seize theproperty of the offender and enforce its
decision on the offender to pay the victims.
In Germany, civil action in criminal
procedure has not worked sufficiently after
it was introduced as “Ancillary
Proceedings” in 1987. Although thissystem has a lot of merits for victims or
the bereaved, ancillary proceedings wereused in only less than 1% of all judgments
delivered in 1997. Judges, publicprosecutors and legal professionals havebeen reluctant to use the proceedings andthe victims were also unfamiliar with thistype of proceedings. The assumed reasonsfor this are the strict separation between
criminal and civil law, and the mental
distinction between punishment andreparations. It is claimed that a
considerable amount of additional work canstem from the proceedings, and theprocedural delays resulting from the takingof additional evidence are considerable.
C. Suggestions
We should continue with our efforts tofind how the criminal procedure can best
contribute to ensuring the monetary
recovery of victims of crime. State
compensation could be one of the possible
solutions, especially in case the offenders
are not caught or they do not have enoughmoney. It is also worth considering thefeasibility of encouraging criminal courts
to be able to order the defendant tocompensate the victim’s damage, andestablishing a system in which the victim
can participate as a party concerned in the290

criminal procedure, and propose
compensation for damage.
In some countries this kind of system
was introduced, but even in thosecountries, the judges and prosecutors were
not interested in the system; or even if suchorders in that system were issued by thejudge, the defendant did not have themonetary power nor intention tocompensate for the damage. For such
instances, a possible alternative is thesystem of the UK, where if the judge does
not order the defendant to compensate thedamage, the reason should be disclosed by
the judge. In the system of Colombia, thepublic prosecutor may seize the propertyof the accused, which can be appropriatedfor payment to the victims, in order toprevent the accused trying to avoid theenforcement of compensation and conceal
their property.
IV. MEASURES FOR THE
PROTECTION OF THE RIGHTS AND
INTERESTS OF VICTIMSAs the status or standing of victims incriminal procedures has been reviewed
recently, we discussed some issues which
can be argued relating to our generaltheme. We will explain each problem, thecurrent situation of each country andsuggestions to each issue according to theflow of prosecution and trial procedure. We
also mention the issue of how to cope withthe dissatisfaction of victims withsentencing.
A. Notification System for Victims
1. Problem
Information is the minimum
requirement to protect the rights andinterests of victims, because victims cannot
take any adequate action to participate in
the criminal procedure, exercise their legal
rights or apply for special treatment
without knowing basic information such as

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
on the proceeding or disposition of cases,
and the existence of and application
procedure for their rights and special
treatment.
2. Situation of Each Country and Present
Countermeasures(a) China
The court, receiving inquiries aboutprosecution of the case from victims,
shall answer and notify persons after
the prosecution. On the other hand,
the People’s Procuratorate cannot
explain the case to the victim before
the phase of prosecution. However if
the case is privately prosecuted,
victims are naturally notified of
information regarding the case, as aparty to the case.
(b) Colombia
Victims have the right to receive
documents, in which the outcome anddisposition of the case is shown,within 12 days when they inquire
about these matters in writing to the
public prosecutor.
(c) Egypt and India
In Egypt and India, any special rights
or treatment regarding thenotification system are not available
to the victims. Victims shall get
relevant information when they bringprivate prosecution by themselves inboth countries.
(d) Indonesia
Although a victim may ask for
information regarding the case fromthe public prosecutor or the court, it
is not mandatory to correspond andanswer this inquiry.
(e) Japan
Some kinds of pamphlets andbrochures which explain the outlineof the criminal judicial procedure,

and the rights and positions ofvictims are prepared and available atthe police office and the publicprosecutor ’s office. The publicprosecutor ’s office implemented a
notification program where theprosecutor in charge of a case, withapplication of the victim, shall informthe victim of the disposition of thecase, of the court in charge of the case,the trial dates and so on.
3. Suggestions
In order for the victim to be able to makenecessary proposals or requests to theinvestigating authorities and the court, itis necessary to provide adequate
information on the flow and outcome of thecriminal proceeding. However providing
information to the victim may result in
violating the privacy of third parties
concerned with the case, or the secrecy ofinvestigating information. Therefore, it isdesirable to provide information to thevictim by striking a balance between thenecessity of providing information,
protection of the privacy of third parties,
and the secrecy of investigating
information.
Specifically, if there is a request from thevictim, we should provide the victim withinformation on the disposition of the case,trial court, trial date and outcome of thetrial. Another method explaining the flowof the criminal proceeding, such as
pamphlets or brochures explaining judicial
procedures and the rights and positions ofvictims, are also useful to victims.
B. Initiative or Participation ofVictims in Criminal Prosecution
1. Problems
Victims sometimes feel dissatisfied withthe decision of non-prosecution by the
public prosecutor. However, generally
victims are not provided with the right ofparticipation regarding the decision to

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RESOURCE MATERIAL SERIES No. 56
prosecute an offender. The need for victims
to check non-prosecution might be strong
where prosecution is monopolized by the
public prosecutor and is discretionary.
2. Current Situation of Each Country(a) China
While the public prosecution agency
exercises the power to prosecute interms of the state, society and thevictim, the victim by himself/herself
may bring a charge and request the
judicial body to investigate criminal
responsibility by right.
(b) Colombia
The public prosecutor has theauthority to decide on the prosecutionof cases. This decision is notdiscretionary but mandatory whenthe evidence is sufficient. Special
countermeasures for abuse ofprosecution power are not available.
(c) Egypt
Prosecution of the case is decided at
the discretion of the publicprosecutor. On the other hand, there
is a system of private prosecution
where a victim, who is not satisfied
with the decision of non-prosecution,
may bring criminal action against an
offender by himself/herself. In spiteof its significance for victim
participation, private prosecution in
Egypt does not serve victims
substantially, for victims can scarcely
win in private prosecution.
(d) India
Most of the criminal cases in India
are investigated by the police andprosecution, and are also filed bythem. However, the victim’s right toprosecute an offender is provided
under Sec. 200 of the Code of
Criminal Procedure, 1973. The
victims in certain cases get legal

292

assistance from the state to prosecutethe offender. The victims can engage
lawyers for prosecution at their own
convenience. So far as legal
assistance is concerned, victims caneither receive counseling or lawyers
engaged to assist the victims.
(e) Indonesia
The public prosecutor decides theprosecution of a case at his/her
discretion. There is no system tocheck or control this discretionary
decision. Sometimes victims use
mass-media to pressure the AttorneyGeneral into re-investigation and reexamination of non-prosecution
decisions.
(f) Japan
Prosecution of a case depends on thediscretionary decision of the publicprosecutor, even though the evidence
is sufficient to support the case. On
the other hand, the Inquest of
Prosecution in each jurisdiction of the
district court, which is composed of
11 ordinary people, have authority tocheck a decision of non-prosecution
by a public prosecutor, and provide
an opportunity to correct his/herdecision. It also serves the functionof letting a victim present his/hercomplaint. In addition to this, there
is a system where a person, who hasmade a complaint or accusation of a
specific crime, and is not satisfied
with the public prosecutor ’s nonprosecution decision, may apply tothe court to order the case to be tried.
If the application is granted by the
court, then a practicing lawyer isappointed by the court to exercise thefunctions of the public prosecutor.
3. Suggestions
Under the countries where private
prosecution is in practice, victims naturally

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
should be able to bring criminal action
against the offender in spite of aprosecutor’s non-prosecution decision. It
is desirable to check the reasons why theprivate prosecution system does not work
effectively and improve it to realize victim’s
rights or interests.

We will mention this right later under an
independent item. Egypt and India also
adopt the private prosecution system. In
this, the victim who brings criminal action
against the accused is naturally authorized
to be notified of the trial date and attend
the court as a party.

Under the countries where private
prosecution is not in practice, it isnecessary to study/establish the systemand to provide victims with an opportunity
to be involved in the decision of prosecution
or non-prosecution, or the indictment
process, by being interviewed by the publicprosecutor and having a say in the content
and degree of damage, and the punishmentof the offender. It is worth considering thatvictims should have an opportunity to file
a complaint and request review of the nonprosecution if they are dissatisfied with thedecision of the public prosecutors.

In Indonesia and Japan, victims have no
special standing to attend the trial otherthan as spectators. In Indonesia, special
seats are provided for victims to hear thetrial as spectators, after their witness
examination. In Japan, special allocationof spectator’s seat is sometimes provided
for victims at the discretion of the court.

C. The Right to Attend the Trial
1. Problem
Victims sometimes can not attend thetrial date, even though they want to,because of non-notification of the trial date,capacity of spectator’s seats, place of thecourt and so on. The situation of victims
attending the trial is as follows. First,
victims are summoned and testify as
witnesses at the trial. Secondly, victims
attend the trial as a party of the case under
the private prosecution system. Thirdly,
victims attend the trial as spectators.
What matters mainly is the third- standing
as spectators- because sometimes there are
obstacles to victim’s hearing the proceedingof the case, although they are interested.
2. Current Situation of Each Country
In China, victims have the right toattend the court and are granted special
seats beside a public prosecutor in the
courtroom, and will be notified of the trial
date by the court. In Colombia, victims
have the right to attend court and testify.

In the United States, in the Oklahoma
bomb case, the case was transferred toanother court far from the residence of thevictims. Also the number of victims was
too large to accommodate in the spectator’sseats of the court. The court allowed
victims to watch the trial by relaybroadcast in special seats set in a
gymnasium located in a residential area
near the crime scene.
3. Suggestions
Regarding the right of victims to attend
and hear the trial, it is worth considering
special treatment for victims in somesituations to guarantee their opportunityof attendance or hearing, besides thegeneral right to hear the public trial.
D. Secondary Victimization
Through Witness Examinations
1. Problem
Victims have difficulty in testifying in
the courtroom in front of a defendant orspectators in cases of sexual crime, childabuse and organized gangster groups. We
focused on victims of sexual crime here.
Victims of sexual crime want to avoid
witness statements in the trial because
they think it is scandalous or shameful. In
addition, victims are often afraid of the293

RESOURCE MATERIAL SERIES No. 56
defendant.
It is generally assumed that the gap
between the actual number of sexual
crimes committed and those reported isgreat, and the latter does not reflect thereality of the situation because female
victims hesitate to report such crimes.
Victims are sometimes cross-examinedseverely or humiliated by the defense
counsel, suffering additional hurt.
2. Situations of Each Country(a) China
In China, examination of witnesses
shall be subject to closed trial in thecase of sexual crime. This is notdiscretionary but mandatory.
(b) Colombia
Colombia has the Total Witness
Security Program which is also
applicable to the examination of
victims as witnesses in sexual
offenses. Under this system, victimsof sexual offenses can be examinedin a way where their privacy is notinvaded, because the victims are
exempt from witness examination in
front of the defendant, and written
statements of the victims can be usedas evidence with the medical reports.
A detailed explanation of this system
was already mentioned earlier.
(c) Egypt
In Egypt, the victims of sexual crime
are examined as witnesses underopen trial before spectators.
(d) India
Sec. 327 of the Code of Criminal
Procedure 1973, provides for trial incamera for any classes of cases
deemed fit by the magistrate/judge.
In addition, in all rape cases the trial
is held only in camera. This would
not only be in keeping with respect294

for the victim of the crime, and intune with the legislative intent, but
is also likely to improve the qualityof the evidence of a female witness
because she would not be so hesitantor bashful to depose frankly, as she
may be in an open court under thegaze of the public.
(e) Indonesia
In Indonesia, the victims of sexual
offenses can be examined as
witnesses in camera, which means aclosed trial without spectators, except
for relatives of the offenders andvictims. Needless to say, theapplicability of this system is limited
to the victims of sexual offenses, but
this can also contribute to securing
the privacy of victims generally.
(f) Japan
In Japan, examination of a witness
may be held outside of the trial date,under restricted conditions, without
spectators. This doesn’t mean denialof an open trial, but it substitutes
written statements of the said
examination for direct witness
statement as the evidence of the case.
This can be very useful in securing
witnesses’ privacy, as this makes it
possible to keep the identification ofa witness secret and, at the sametime, allow a defendant and theircounsel the right to cross-examine.
3. Suggestions
Devices to relieve the mental sufferingexperienced by victims of sexual offenses
through witness examination, balancedwith the right of defendants to crossexamine, the right of spectators and an
open trial, is desirable. Examples of suchdevices are as follows:(i) video-linked witness examination
systems.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(ii) witness examination in a witness box
sheltered from the defendant andspectators.
(iii) keeping the name, address and placeof work of a victim (as a witness)secret during the course of the trial.
(iv) closed trial in camera without
spectators, scope of which should be
limited to specific cases such as rapeor sexual crime, in order to save any
further embarrassment of victims.
E. Mental Care and Support forVictims
1. Problem
Victims sometimes want to avoid
testimony as witnesses at court, even if
there is no concrete danger or risk ofhumiliation. Victims also sometimes feel
uneasy and isolated in testifying as awitness, especially when it is the first time
for them, because victims do notunderstand the criminal procedure and thecourse of examination. Victims sometimes
do not have access to free legal counsel to
instruct them on their rights, and as aresult, they may not enjoy their rights orinterests.
2. Situation of Each Country
China, Colombia, Egypt, India andIndonesia have no special volunteer
organizations to serve for the mental careof victims. All countries of the group,
including Japan, have no special systems
to support victims to attend and testify atcourt. However it may be noted that:(i) There are a private and volunteer
organizations which collect money
and allocate aid to victims in Egypt.
They do not provide counselling or
support services.
(ii) Some volunteer groups in Japan are
working in the field of the mental careof victims and have started activities
which are limited to victim assistance(not extended to witness assistance).
(iii) Some kinds of leaflets or brochures

explaining criminal procedure andwitness examination are available forvictims at police stations and publicprosecutor’s offices in Japan.
3. Suggestions
Criminal justice agencies concerned withthe criminal judicial procedure, including
police officers, public prosecutors andjudges, should recognize the mental impact
or suffering that victims of crimes receive.
It is worth considering establishing asystem of orientation to the criminal
procedure, escort to the court, or
counselling support by government
authorities or non-governmentorganizations, and training to have officers
recognize victim problems.
F. Punishment - Giving Victims a
Say About Sentencing
1. Problem
Punishment by the court may not becommensurate with the crime committed,
and the victims may not be satisfied withthe punishment given to the offender. But
we do not conclude that heavier
punishment is desirable, as punishment
itself does not provide redress to thevictims.
Victim’s feelings or victim’s damage
cannot be neglected in the disposition ofcases because they are deeply concernedwith the cases, even if they are not a party
to the trial. Therefore the involvement ofvictims in decision-making regarding thesentencing of the offenders can be an issue,
as they sometimes have no chance to give
their opinion or state their damages.
Generally, such involvement is referred toas “Victim Impact Statements” or “Victim
Statements of Opinion”.
2. Situations
In an increasing number of jurisdictions,where the victim does not have the rightto prosecute, the victim is allowed to295

RESOURCE MATERIAL SERIES No. 56
provide information through a victim
impact statement or victim statement of
opinion. With victim impact statements,
the victims fills out a form in which they
indicate what impact the offence has had,
what property was lost or damaged, what
other financial losses resulted and how theevent has disrupted their life. It provides
the victims with an opportunity to informthe court of how the offence has affected
them physically, mentally, and otherwise.
In some jurisdictions, victims are given theright to allocution, i.e, the right to deliverin person a statement on the impact thatthe offence has had on them. In Colombia,
victims have right to attend the trial andpresent their opinion about the crime. In
Egypt, the court often allows victims toappear in trial and explain to prosecutors
or judges their point of view, even when
they are not going to be called or summonedas witnesses, although it is not endowed
as the right of victims. The court may taketheir opinions into consideration in thepunishment of the offender. In Japan,
victims are allowed to present the damage
that they have suffered from the crime andtheir feelings in written statements given
before the investigating officer, or as awitness statement at the trial, if the court
decides to do so.
3. Suggestions
Victims should be allowed to have theirviews and concerns presented andconsidered at appropriate stages ofproceedings where their interests areaffected. This should be done without
unfair prejudice to the accused and must
be consistent with the relevant national
criminal justice system.
In deciding the sentence of the
defendant, some elements presented by thevictims could be considered, such as thecontent and degree of the damage, theeffect on the victim, and the punishmentof the offender. It is therefore desirable to296

consider the establishment of a system inwhich the victim will have a say in thecriminal trial, for example, such as theVictim Impact Statements of the USA.
G. Victim Involvement in Decisionmaking on Appeals
1. Problem
Victims are sometimes not satisfied withthe sentencing of the courts, but usuallywhether to appeal or not depends on thejudgement of the prosecutor.
2. Current Situation of Each Country(a) China, Egypt and India
China, Egypt and India have thesystem of private prosecution, but thestatus of the victims who haveprivately prosecuted the case aredifferent. In Egypt, publicprosecutors have the right to appeal
the court decision if the prosecutor
who prosecuted the case is notsatisfied with the decision of thecourt. Victims can not appeal evenin the case of private prosecution. In
India, victims who have brought
private prosecution can appeal. In
China, in a case of public prosecution,
if the victim does not agree with ajudgement made at the first instanceof the Local People’s Court, s/he has
the right to request the people’s
procuratorate at the same level topropose a counter-appeal, but has noright to lodge on appeal to the people’s
court at a higher level.
(b) Colombia, Indonesia and JapanIn Colombia, Indonesia and Japan,o n l y t h e p u b l i c p r o s e c u t o r,
defendants and defence counsels
have the right to appeal against the
court decision or sentencing. Usually
they don’t ask the victims for theiropinion on deciding whether toappeal.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
3. Suggestions
It is worth considering giving the victims
an opportunity to have their say on thedecision-making re appeals, to promote
victims participation. Usually victims are
not asked their opinion by authorities when
deciding whether to appeal.
H. Privacy Invasion by the Press
1. Problem
Mass-media sometimes reveals theprivacy of victims. The press sometimes
reports details of the case or the privacy ofvictims; and information that the victims
do not want to disclose will be made open
to the public. As a result, such victims are
obliged to suffer another victimization.
Mass-media are able to get information
about the victims’ privacy as a spectator at
the court trial.
2. Situation of Each Country(a) China, Egypt and JapanThe Courts of China, Egypt andJapan are authorized to prohibit
broadcasting of the trial. We can saythat the mental suffering of thevictims of sexual crime deriving fromthe broadcasting of witness
examination is diminished to someextent.
(b) India
There is no provision for broadcasting
the trial in India. However, the press
may, with the permission of the court,
publish a brief summary of the casewithout any invasion of the privacyof the victim, in other words, theprivacy of the victim is protected.
(c) Indonesia
In Indonesia, the court has the power
to restrict the press broadcast of atrial, but sometimes allow it to do so.
Regarding the trial of sexual crime,
privacy invasion does not occur as
witness examination can be held

under closed trial.
3. Suggestions
Generally, the privacy of victims should
be taken into account all through thecriminal judicial procedure. Especially insexual crimes, the necessity of securing theprivacy of victims in order to prevent
victimization through witness examination
should be recognized. It is desirable to take
into account the freedom of the press andbalance it with the privacy of the victims.
V. CONCLUSION
Participation of the public and victims
in the criminal justice procedure is of vital
importance to the fair and effective
administration of criminal justice. Without
the active contribution of the public andvictims, the criminal justice system isunable to fulfill its entrusted mission. In
this context, we note with pleasure thatgrowing attention has been given to thisissue, not only at the national level, butalso in the international forum.
Nevertheless, we recognize that there is
still a long way for us to go.
Various relevant issues at the stages ofprosecution and trial have been identified,and extensive discussion was made during
our debate. However, these are in no way
exhaustive. There are a lot of otherimportant issues to be studied in order tomeet the challenges we are facing.
Moreover, the suggestions contained in
the present report have not necessarily
been implemented, even in theparticipant’s respective countries. We
recognize that it is essential for criminal
justice personnel to increase theirawareness of the importance of the public
and victims’ participation, for reaching ourgoal.
At the same time, the group fully
understands and respects the systems
297

RESOURCE MATERIAL SERIES No. 56
prevailing in different countries. The
political, social and economic conditions ofsome countries may not be conducive to theimplementation of some of the measures
proposed above. The intention of the groupis to make contributions to further current
efforts to promote understanding on thisissue.

298

Yes
Yes
Yes
No
Yes
Yes
No
No
No
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
No
Yes
No
No
No
No
Yes
No
No
Yes *
Yes
Yes
Yes
No
No

Indemnification
outside &independentof judicial
system

Yes
No
Yes
No
Yes
Yes
Yes
Yes
No
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Order to pay
by the judge,
upon initiative anddiscretion of
judicial
system
No
Yes
Yes
Yes
Yes
No
No
No
Yes
No
No
Yes
No
Yes
Yes
No
No
No

Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Victim as civil Civil action by Return ofparty invictim in civil property
criminal
casebelonging toprocedure
the victim

Table 1

Note: If the country has the system, "Yes" is written.

If the country does not have the system, "No" is written.

*Sometimes the government provides financial assistance to victims of certain offences or acts, like terrorism, from relief
funds. This is a discretionary power of the government. Victims cannot claim this as a matter of right.

CANADACHINACOLOMBIA
EGYPT
FIJI
GAMBIA
HONG KONG
INDIA
INDONESIA
JAPAN
KENYA
MALAYSIAPAKISTANPAPUA NEW GUINEAPHILLIPINESREPUBLIC OF KOREASEYCHELLESTHAILANDCOUNTRYSYSTEM

Mediation
program;out-of-court
payment from
offender tovictimREDRESS FOR VICTIMS THROUGH CRIMINAL PROCEDURE

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

299

REPORTS
OF THECOURSERESOURCE MATERIALSERIES
No. 56
GROUP 3
THE PARTICIPATION OF THE PUBLIC AND VICTIMS FOR
MORE EFFECTIVE ADMINISTRATION IN THE TREATMENTOF OFFENDERS
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. John Isaac Odongo
Mr. Takehiko Mukaigawa
Ms. Pornpit Norapoompipat
Ms. Chikako Nakajima
Mr. Mansa Ram
Mr. Tai Kin Han
Ms. Noriko Komori
Mr. Mattew Peter Himsa
Mr. Young-Hoon Ha
Professor Akihiro Nosaka
Professor Hiroshi Tutomi
Professor Shinya Watanabe

I. INTRODUCTION
We know that the effective treatment ofoffenders cannot be achieved through theefforts of governmental agencies alone, we
require public participation and cooperation in order to effectively rehabilitate
offenders and re-integrate them into
society. At the same time, the treatment
of offenders can be enhanced by theparticipation of victims, so that it cansatisfy the needs of victims as well as thoseof offenders.
This group was assigned the topic:“participation of the public and victims formore effective administration in thetreatment of offenders.” Since there are
two forms of offenders’ treatment i.e,
institutional treatment and communitybased treatment, this topic was divided into
three issues:(1) Participation of the public ininstitutional treatment:(a) prison labor(b) rehabilitation programs

300(Kenya)(Japan)(Thailand)(Japan)(Fiji)(Hong Kong)(Japan)(Papua New Guinea)(Republic of Korea)(UNAFEI)(UNAFEI)(UNAFEI)(2) Participation of the public incommunity-based treatment(3) Involvement of victims in thetreatment system of offenders
II. PARTICIPATION OF THE
PUBLIC IN THE INSTITUTIONAL
TREATMENT OF OFFENDERS
A. Prison Labor
It is noted that many countries havebeen facing the problem of overcrowding
and the supply of inadequate amounts ofprison labor for prisoners. Consequently,
it is often seen that many prisoners do
nothing in prison, which brings undesirable
results in the administration of thetreatment of prisoners. The main point
which we have discussed is how prison
labor can be stabilized and promoted bymeans of public participation.
1. Actual Situation
Some countries have been successful inincreasing public participation in runningprison industries, as a form of thestabilization of idle prison labor. In doing

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
so, it is believed that public participationin running prison industries, insideprisons, can contribute to a decrease in therecidivism rates of both adults andjuveniles delinquents.
It is very interesting to take particularnote of how religious organizations play animportant part in the stabilization of prison
labor in some countries like Fiji, Hong
Kong, India, Kenya, Malaysia, Pakistan,
Papua New Guinea, the Philippines, theRepublic of Korea and Thailand. Anotherinteresting situation, which will soon comeinto reality, is the establishment ofprivately managed prisons in both
Malaysia and Korea in the near future.
Hereunder, we will observe the actual
situation of public participation in prison
labor in Japan, Korea and Thailand.
Making an effort is essential to preparing
satisfing prison labor, to make prisoners
constructive human beings.
In Japan, a style of public participationin prison labor is the CAPIC (Correctional
Association Prison Industry Cooperation).
As a result of the stringent fiscal situationof the State, the raw materials budget forthe operation of prison work was forced tobe substantially curtailed. Consequently,
the Corrections Bureau of the Ministry ofJustice adopted the “third sector system’’as a countermeasure. Specifically, thePrison Industry Cooperation Division,
which provides raw materials for prison
work and markets for these products, wasset up within the Japanese Correctional
Association (JCA) in 1983, with the State
providing subsidies for five years. Since
the discontinuance of the subsidies, it isself-funding and manages its own accounts.
In Korea, the State Use Law for Products
by Prison Industry was enacted in 1962.
Under the Law, industrial plants have been
established at correctional institutions

across the country, with the participationof private contractors. Industrial work
consists of 27 different kinds of work, suchas carpentry and printing. An average of
21,600 prisoners are working at thesefactories per day.
In Thailand, the Department ofCorrections has promoted offender ’streatment through mass media byencouraging the private sector to set up
workshops in prison. Now, most prisonsin Thailand have made contracts withprivate contractors for producing goods orusing prison labor.
2. Obstacles
The following points are recognized asproblems in public participation in thestabilization of prison labor, and these are;(a) L a c k o f p u b l i c i n t e r e s t a n d
appropriate information getting
across to the general public orbusiness sector, to help or assist
prison administrators in the
rehabilitation process by way ofsetting up small-scale industries
within prisons to stabilize prison
labor.
(b) Security risk is a contributing factor
as prison administrators cannot
guarantee the safety of the public in
the prison. Lack of tight security
allows easy access for prisoners to
attack or take civilian participants as
hostages, or to escape from prison.
(c)I n a d e q u a t e l a n d o r s p a c e f o r
expansion of the prison impedes
businesses who are interested insetting up small-scale industries inprison.
(d) Quality of productions cannot becompetitive in open markets on the
grounds that goods and items
produced in prisons are considered to
be of poor quality and of no open301

RESOURCE MATERIAL SERIES No. 56
market value, as compared to thesame kinds of products produced bywell recognised manufacturing
companies.
(e) Difficulty in securing qualified andwell-trained prisoners constantly
exists, because offenders may bereleased: early; on their normal due
date of release after serving out theirfull imprisonment term; released onamnesty; extra-mural release or onparole.
(f) Lack of official certificates for
attainment of certain levels of work
skills, issued by authorized labor
institutes, to help discharged
offenders in securing employment
with private business firms/
institutions after their release.
(g) No legal provisions in place for theuse of prison labor or liberalizationof the market in a number ofcountries. Therefore, it is difficult for
those countries with no legal basis toimprove their prison labor
engagement by the public.
3. Countermeasures
The following points are thought to be
the countermeasures for the obstacles topublic participation in the stabilization ofprison labor:(a) Strengthen the activities of public
relations through media and public
seminars on the various activities
undertaken inside the prison, so thatthey (the public) can meaningfully
contribute, in whatever possible form,
to the stabilization of prison labor.
(b) Improve security capability or
measures in prison in order toaccommodate and protect the wellbeing of public participants working
inside the prison and its
surroundings.
(c) Establish intensive and functional
workshop units (put together) in302

prison by making use of limited landas much as possible, to accommodate
more public participation in prisons
for the stabilization of prison labor.
(d) Upgrade the quality productivity ofprison products through more
modernized instruments, with thehelp of private sectors.
(e) Te a c h p r i s o n e r s , a f f i r m a t i v e
guidance, or instruction for work
skills (with the help of the private
sector), and utilize the evaluations ofa classification system more
effectively.
(f) Skills gained through prison labor
should be geared towards the issuingof trade test certificates.
(g) Active movement for appropriate
legislation by appealing to thenecessity of public participation inprison labor.
B. Rehabilitation Program
The main point of our discussion is how
rehabilitation can be more fruitful andeffective by means of public participation.
Rehabilitation programs should be treatedas the most important factor because they
are regarded as one of the most effective
programs for offenders.
1. Actual Situation
The search for effective measures for the
rehabilitation of prisoners has led thecriminal justice system to look beyond thewalls of the prisons for programs in thecommunity that effectively complement therehabilitative efforts in prisons. It is notedthat prison authorities run rehabilitation
programs in two ways, either by the prison
management themselves or withassistance (by introducing public
participation in helping with theimplementation of programs conducive tothe suitability of a particular prison
environment). Some countries havedeveloped many effective rehabilitation
programs throughout their correctional

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
history, and are trying to develop more
effective rehabilitation programs
nowadays.
(a) Vocational Training
Vocational training programs areorganized so as to serve a constructive
purpose in the treatment of offenders. The
objective is not only to provide offenders
with vocational knowledge, but also tostrengthen their individual will to workand learn new skills. On the other hand,
vocational training can be seen as part ofprison work. Nevertheless, these should
be more skill orientated in the sense thattraining helps very much in enhancing thecomplement of prison and public joint
venture projects situated in prisons.
In Hong Kong, the public participates bysupplying the prison with raw materials
and vocational training examination
documents for the offenders to makefinished products, and to sit for vocational
training examinations endorsed andcertified by the Vocational Training Council
for Offenders, respectively.
In Japan, many vocational training
programs are conducted with theparticipation of the public who havequalifications in teaching those programs.
In Kenya, qualified skilled personnel fromthe public participate actively with theoffenders in finishing products.
In the Philippines, the Correctional
Bureau, in cooperation with nongovernment organizations, has intensified
the conduct of livelihood training programsfor offenders through the effective agroindustrial livestock productivity program.
The continuous conduct of religious
activities, recreational programs, as wellas educational (both formal and nonformal), and training programs are given
by concerned non-governmentalorganizations.

In Korea, since 1969, public vocational
training centers have been establishedwith authorization from the Ministry ofLabor Affairs throughout the 30
correctional institutions amongst thenation. At each training center, six month
to two year training courses are provided
for 54 different types of jobs, such asarchitecture, mechanics, electrical fields,
etc. For the training, many volunteers
teach their skills to prisoners with theassistance of professional vocational
training teachers. Some religious members
or rehabilitation members financially
support the expenses needed for vocational
training. Amongst the trainees, those whohave exceptional skills are selected toparticipate in national and local skills
contests, with other students or civil
participants. If they win prizes from thecontest, occupational guidance is provided
by the prison or public, and they are given
priority for such privileges as release onparole.
In Thailand, the public supply raw
materials, together with training
equipment, for offender rehabilitation
programs. Qualified skilled personnel arealso sent into the prison to assist in
finishing production of the goods/items
supplied to the prison.
(b) Educational Training
In countries like Hong Kong, Japan andthe Republic of Korea, services receive goodfinancial support from their respective
governments, as seen in the form ofgovernment-funded basic education/
literacy, English and mathematics
programs. As far as higher education isconcerned, a large number of theparticipating countries facilitate
correspondence courses for offenders, withthe assistance of the public. In most cases,
the government meets the cost for longterm sentenced offenders who undertakesuch correspondence courses. Likewise, in

303

RESOURCE MATERIAL SERIES No. 56
some cases, public assistance also comesfrom NGOs and church organizations.
(c) Life Guidance
Volunteer visitors, psychologists, andrespectable religious instructors
participate in life guidance programs toprovide counseling, role playing andspiritual guidance to offenders. In this way,
offenders will know that they are not left
alone in prisons without public care.
Offenders are human beings and therefore
they are to be cared for and treatedhumanely as another fellow human being.
(d) Work Release
In order to facilitate offenders’ smooth
re-integration into society upon discharge,
many countries adopt work releaseprograms with public participation,
especially with the help of the private
sector, by employing offenders at theirworkplace outside of the prison.
Work release programs contribute to the
reduction of institutional operation costs,
or allows assistance for victims, when someamount of offenders wage is paid for prison
food or bed expenses, or remitted to a victim
or his/her family.
In Japan, offenders are selected to go on
work release programs in factories
producing building materials and shipbuilding. The offenders commute to theirwork place either by foot or institutionaltransportation, with supervision provided
by prison officers. In fact, work release
offenders are selected under strict
conditions, and work is accorded only tooffenders having six months of an
imprisonment term left to serve.
In Korea, the work release program has
been in force since 1984. Under thisprogram, selected model prisoners
commute to their workplace in thecommunity’s (private industry) and receive

304

a salary according to their work. In
February 1992, the number of prisoners
participating in work release programs was
400 offenders, and this number has
gradually increased, so nowadays thenumber of prisoners participating in work
release programs are 1064, from 25 prisonsin 54 private industries.
In Sri Lanka, according to theadministrative regulation concerned, thework release program is defined as “ascheme under which selected offenders areallowed to get themselves employed in the
open community, unescorted during day,and return to prison for the night”. The
work release program may be applied tothose offenders who have successfullycompleted part of their prison term (twoyears or more) and who have a remainderof two years or less imprisonment. Amongthese offenders, some are selected for the
program when resources for
implementation are available. This
program was inaugurated in May 1974.
Under this program, offenders for whomsuitable employment can be found in thecommunity are sent to work, either from aprison or from a work release center, where
they return in the evening. Therefore they
are technically still a custody. The
prisoners receive normal wages, which they
can send to their families or which they cancollect on their discharge. In the process,the offender gets accustomed to conditions
and regulations prevailing in theworkplace. Prison welfare officers
occasionally visit the workplace to meet
employers and to monitor the progress ofinmates. Offenders who perform poorly canbe withdrawn from the program. Workrelease is applied to about one hundred
offenders each year.
2. Obstacles
The following points are regarded as
obstacles:

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(a) Negative public perception ofparticipating in rehabilitation
programs. The public want theoffender to do hard labor for thepunishment of the crime committed,
rather than be assisted by way ofeducation and vocational training
programs given by both the prison
and the public.
(b) Shortage of specialists or qualified
staff suitable for implementing therequired rehabilitation programs run
in prisons.
(c) Shortage of effective or practical
vocational training programs such asdata processing, motor mechanics,
welding, electrical work, boiler
making and tailoring.
(d) Security risks in prison whereby
there is less manpower to carry out
the supervisory role of offenders
undergoing rehabilitation programs.
(e) Protection of privacy of offenders.
Offenders privacy needs be protected
at all times whenever public
participants are participating inside
the prison.
(f) Less employment opportunities inwork release programs. When an exoffender approaches businesses
seeking employment, he/she is outrightly rejected from employment due
to their criminal background.
(g) R e s p o n s i b i l i t y f o r i n j u r i e s t oprisoners in work release programs
makes employers hesitate to accept
offenders. When an offender sustains
any serious or minor injuries while
undertaking a work release program,
there is still difficulty in solving who
is supposed to meet the medical
expenses or workers compensation
for the offender.
3. Countermeasures
Based on examining the actual situationand problems, the following
countermeasures are recommended:(a) Strengthen the activities of public
relations through print and electronic
media, and public seminars
educating the public on theimportance of their role inparticipating and involving
themselves in rehabilitation
programs.
(b) Encourage the participation ofexperts from private fields, such as
institutes or universities, to make useof retired staff or reformed exoffenders who have become good
citizens of society. This kind of effort
can make rehabilitation programs
more fruitful.
(c) Introduce more modernized andpractical vocational training
programs which meet the needs ofsociety, with the assistance of public
participation.
(d) Improve security capability or
measures in prison by improving thecurrent prison manpower strength, inorder to encourage the public that
their security is guaranteed if andwhen assisting the offenders inrehabilitation programs.
(e) Set up effective regulation for privacy
protection, describing that violators
leaking privacy information to the
public shall be disqualified and given
sanctions.
(f) Find and encourage cooperative
employers in cooperation with job
placement offices, where government
needs to take the initiative in making
an effort to give private contractors
benefits such as reducing corporate
or income tax.
(g) Give cooperative employers theopportunity to make use of the
medical insurance system applied tothe case of injury in order to reduce
their responsibility.

305

RESOURCE MATERIAL SERIES No. 56
III. PARTICIPATION OF THE
PUBLIC IN COMMUNITY-BASEDTREATMENTThe main task of the group was toexhaustively explore how participation of
the public in the community-based
treatment of offenders could be enhanced
to achieve good results. In this regard, thegroup was to evaluate the performance ofexisting, conventional community-based
methods of treatment of offenders like
probation, parole, halfway houses,
probation hostels, community work
programs, mediation and fines, and also togive an insight into other community-based
treatment programs which may be used as
supplementary methods of the restorative
justice system. The group also looked into
the obstacles affecting these methods andthe countermeasures which may be used
to secure more public participation in thecommunity-based treatment of offenders.
In so doing, we opened the discussion by
expressing the importance of participationof the public in the community-based
treatment of offenders as a crime
prevention method. The forms of public
participation may vary from country tocountry, depending on the diverse sociocultural and economic practices inherent
in specific countries. Some countries may
have less crime, while others have a greaternumber and more serious crime. However
since the commission of crime is as dynamic
as technology, the growth of urbanization,
moral decadence, and economic difficulties
take centre stage. Even countries who are
currently enjoying a situation of public
safety might find themselves entangled in
an environment where they have to grapple
with complicated crimes.
We further said that in approaching the
subject of participation of the public in thecommunity-based treatment of offenders,
we need to focus our attention on non-306

custodial measures. The advantage of noncustodial measures are many and varied,
as they range from benefits to the offenders
in particular, and to government and thecommunity in general. The following wereconsidered as some of the most important
benefits derived from non-custodial
measures in the treatment of offenders.
A. Advantages
1. The liberty of the individual is
maximized to prevent the possible
violation of human rights.
2. It is less disruptive on family life. The
offender is still allowed to continue
contributing towards his/her family
in particular, and society in general,
by working instead of being confinedin prison.
3. The rehabilitation of the offender isenhanced by continuing normal
community life.
4. The criminogenic effects of custodial
measures are avoided, thus removing
a factor that often complicates thereintegration of the offender into thecommunity and avoids offender
stigmatization.
5. Non-custodial measures are costeffective. They cost much less thancustodial measures.
6. The number of prisoners entering theprison is reduced, thus facilitating
the administration of prisons and theproper correctional treatment of
those who remain in prison.
7. It is more conducive to social
integration, thereby reducing
recidivism and increasing the crime
control effects of the criminal justicesystem.
The kinds of non-custodial measures inthe treatment of offenders, as well as the
obstacles and countermeasures ofparticipation of the public in thesemeasures, are considered as outlined below.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
B. Probation and Parole
1. Probation
Probation is a community-based method
in which a juvenile delinquent or an adultcriminal offender, who has been foundguilty by the process of judicial criminal
hearing or on their own plea of guilt, isreleased into the community (particularly
the family or halfway house) by asentencing court, without being sent toprison or a juvenile institution. Such an
offender will be subjected to specificconditions imposed by the court and shallbe under the supervision of a probation
officer. In countries like Fiji, Hong Kong,Japan, Kenya, Papua New Guinea, theRepublic of Korea and Thailand, probation
services have almost similar arrangements
and are used as an alternative to
imprisonment. The application of actual
supervision by a probationer seems to be
the same in the above mentioned countries,
including the Seychelles and India.
In Hong Kong, Japan, Papua New
Guinea, the Philippines, the Republic ofKorea and Thailand, the services ofgovernment probation officers aresupported by Volunteer Probation Officers(VPO). However the VPO systems varyfrom country to country.
In Hong Kong, the role of VPOs is minor.
They may assist the probation officers in
the overall supervision of the probationers.
They accompany the probation officer
during the time of actual visits to ap r o b a t i o n e r. I n H o n g K o n g , t h eprobationer directly reports to theprobation officer and not to the VPO. The
VPO may only assist the probationers inorganizing some social activities in thehome area of the probationer. VPOs areusually members of NGOs under the Social
Welfare Department. The VPO may also
be an ex-offender with a proven record ofgood conduct, or university students
studying behavioural sciences who are on

vacation and have an interest in assisting
probationers.
In Japan, the probation officer assigns
a VPO as the day-to-day supervisor of theprobationer. The assignment is based upon
the probation officer’s judgement, matching
the VPO’s personality with that of theoffender, so that the most effective
supervision of him/her will be materialized.
Most VPOs are familiar and keep close
relations with community residents,groups and organizations. They utilize
these relationships in helping offenders
rehabilitate. Also there are two forms of
public participation in the treatment ofprobationers in Japan. First, Big Brothers
and Sisters (BBS) is an organization ofyouths who befriend juvenile probationers,
and encourage their desistance fromdelinquency. Their activities include
organizing sporting events and outdoor
activities, accompanying juveniles involunteer work in homes of the aged anddiscussing probationers’ views of their lifeand future. Second, the Cooperative
Employers Scheme helps probationers byoffering stable employment.
In Papua New Guinea, there are about
500 active VPOs who assist probation
officers. In urban areas, they are retired
public servants, missionaries, NGOs,
Young Men’s Christian Association(YMCA), Young Women’s Christian
Association (YMCA). In rural areas, they
are village elders, councillors, literate
middle-aged men/women.
In the Philippines, probation is adisposition of the court that allows aconvicted offender to serve their sentencein the community/outside prison, but under
the supervision of a parole and probation
officer and subject to certain conditions
contained in the Parole and Probation
Order. Dedicated members of thecommunity are tapped as volunteers to307

RESOURCE MATERIAL SERIES No. 56
ensure the success of the parole andprobation system. These volunteers arescreened and trained. Each volunteer
supervises a maximum of five clients andkeeps all information about the parolee,
probationer or pardonee in strict
confidence. S/he works in close
coordination with the Chief Probation and
Parole Officer in providing counselling andin placement assistance.
In the Republic of Korea, previously
there were three types of VPO groups:
rehabilitation members, who were in
charge of halfway houses; protection
members who assist juvenile offenders; andcrime prevention members, who weregenerally acting as crime prevention
agents. The coordination of the activitiesof the above groups became fairly
cumbersome. Therefore in 1996, the threegroups were integrated into one body called
Crime Protection Members. To make theiractivities become more effective, and toachieve efficient communication andunderstanding amongst the members.
In Thailand, there are two types of
VPOs. One works for the Department of
Probation. Another works for the
Department of Corrections. The main
responsibilities of VPOs in the two
departments are similar, i.e to examine thebackground of offenders and supervise
them. However, their target groups aredifferent. The probationers are those whohave never been imprisoned before andhave committed minor crimes, but theparolees and the sentence remissioners are
prisoners who are conditionally released.
So the work of VPOs in the Department ofCorrections is tougher and requires moreskill. Moreover, the way they are trained
is different.
In general, it is not easy to decide
whether integration of the system of VPOs
is better than a separate service, because308

the decision to integrate or not will be
determined by the local conditions
prevailing in each country.
2. Parole
Parole is a system which has been usedover the years in many countries as acommunity-based method of treatment foroffenders. In this system, a prisoner isgiven a certificate of discharge from prison
to detention in the community under thesupervision of a probation officer. While
the actual application may vary fromcountry to country, the principle behindparole remains the same. The parole
system is granted to a prisoner who has aremaining sentence to serve, subject togood conduct, previous criminal record andlength of the sentence. The parole system
is used in Hong Kong, India, Japan, Kenya,
Pakistan, Papua New Guinea, the Republicof Korea and Thailand.
In Japan, a parolee who has been
conditionally released from a prison or ajuvenile training school shall be placed
under the supervision of the VPO for theremaining term of the sentence, as is thecase of a probationer. Parolees get
assistance from BBS and Cooperative
Employers.
In Kenya, parole or after-care service isextended to long-term offenders. Longterm offenders are those offenders who arecommitted to life imprisonment or long
confinement, but on serving part of theirsentences, usually ten years or above, they
may be considered for early release. For
this category of prisoners, the officer incharge is expected to submit periodical
reports on the conduct and behaviour ofsuch a prisoner to be placed before adischarge board. The discharge board iscomposed of the Attorney General as thechairperson, Commissioner of Prisons as
the secretary, the Director of Probation
Services, Director of Medical Services,

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Permanent Secretary to the Minister
Responsible for Prisons, and two otherprominent members of the public who areappointed by the Minister Responsible for
Prisons. The discharge boards’ main
responsibility is to review the prisoners
records with a view to making
recommendations for early release under
the supervision of probation officers.
For ex-Borstal inmates, the law provides
that a youthful offender between the ageof 15 and 18 years who has committed an
offence punishable by imprisonment, who
may not be rehabilitated by the probation
services, is ordered to undergo three years
Borstal training. During their residence
in the Borstal Institution, the offenders aretaught some useful vocational training in
addition to academic education. On
completion of one year, the inmates are
released on license to their communities
under the care of a responsible person, who
is usually a community leader, village elder,businessmen, retired public servant orfrom organizations like religious groups orNGOs offering welfare services to needy
cases and charitable organizations. Whileon license out of institutional treatment,
they remain under the supervision of aprobation officer. So the number ofopportunities available for such youthful
offenders to be released on license will
depend on the number of people willing tolive with and take care of such offenders
in the community. During this period, they
may continue with formal education or
technical training in local polytechnics.
While they are out in the community, they
are required to be of good conduct and avoid
associating with bad characters.
The Papua New Guinea members areappointed from the public by the Minister
for Justice. Appointment is based on thefollowing conditions:(b) Active involvement in community
affairs.
(c) Maturity and integrity.
(d) Good standing in the community.
(e) Appreciation and understanding ofsocial issues and problems: interestor background in working with people
in need of rehabilitation.
The Minister may therefore nominate
the Chairman, who must be a lawyer bytraining, another person is nominated by
the Commissioner of Prisons and anotherperson nominated by the Departmental
Head.
3. Obstacles(a) Negative public attitude towards
offenders.
(b) Limitation of activities like lessemployment opportunities.
(c) Inadequate trained staff and VPOs.
(d) Some parole board members areincompetent in making usefuldecisions.
(e) Insufficient budget to meet the needs
of VPOs.
(f) VPOs supervise by means of their
humane interests and their strong
sense of responsibility, but sometimes
it is difficult for them to supervise
offenders like sex offenders and drug
offenders.
4. Countermeasures(a) Encourage the public to cooperate in
the community-based treatment ofoffenders.
(b) Introduction and improvement of
VPO training in supervisory duties.
(c) Governments to provide more funds
to improve the services of VPOs.
(d) D i v e r s i f y c o m m u n i t y - b a s e dtreatment methods by involving
various community groups likeNGOs, Drug Addiction Rehabilitation
Centers, Alcoholic Anonymous.

(a) Experience in social welfare.

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RESOURCE MATERIAL SERIES No. 56
C. Halfway Houses and Probation
Hostels
1. Halfway Houses
Halfway Houses can be defined ascommunity-based centers to which
offenders are sent with the view tomaintaining or facilitating social
integration. Halfway houses serve thoseplaced under supervision following
institutional treatment and those who havecompleted serving their sentences. They
are provided with the basic necessities likefood, shelter and clothing and, where
possible, help seek employment
opportunities for ex-offenders preparing
themselves for re-integration into thecommunity. In Hong Kong, Japan, thePhilippines, the Republic of Korea andThailand, halfway houses are privately
managed. On the other hand, Hong Kong
halfway houses managed by its
government.
In Japan, all halfway houses are run bya non-profit organization called theJuridical Persons for Offenders
Rehabilitation Services (JPORS). The Law
for Offender Rehabilitation Services was
enforced in 1996 to legally improve thefinancial status of the JPORS byintroducing a tax-reduction specificallyapplied to it.
2. Probation Hostels
In Kenya, probation hostels areresidential institutions providing
temporary residence for some special
categories of probationers. Some
probationers commit crimes which
necessitate their removal from society forfear of reprisal or revenge as a result of
hostility displayed by the victims of theircrimes. Other crimes like infanticide orabortion, incest or manslaughter may
create family hostility among close family
relatives. It is therefore necessary to
remove them, through a court order, into a
probation hostel for a period not exceeding310

12 months. During their stay in theprobation hostel, they are involved invarious occupational training courses
under the supervision of probation officers.
The charitable organizations and NGOs
voluntarily donate items like bedding to be
used by inmates and also tools to be usedin vocational training courses.
3. Obstacles(a) Inadequate accommodation space in
halfway houses and probation hostels
in developing countries due toinsufficient funds.
(b) Lack of community support andnegative public perception.
(c) Lack of public awareness due to lackof education.
(d) Vulnerable groups like the aged,
disabled, and the sick, who may needassistance, cannot be accommodated
in halfway houses.
(e) Inmates with poor records like gangmembers, and drug or sex offenders
may not be accepted in halfway
houses.
4. Countermeasures(a) Seek alternative accommodation likefrom the church and non-government
agencies.
(b) Developing countries which are notcapable of expanding halfway houseprograms should seek donor funds tofacilitate the administration of these
programs.
(c) Community education programs
should be provided so that thecommunity gains a better
understanding of community
corrections issues to accept andsupport halfway houses/probation
hostels within their localities.
(d) T h e p r i v a t e s e c t o r s h o u l d b e
encouraged to make contributions tothese programs by way of incentives.
(e) The programs for the treatment ofresidents of halfway houses should

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
involve various community resources
such as medical officers, teachers,
psychologists, sociologists,
psychiatrists, community leaders andbusiness executives.
(f) Halfway houses should be morevigorous in reciprocating services tothe public like cleaning in thecommunity, actively assisting theevents held by neighbourhood
associations, renting parking lots toneighbors at a lower price, andallowing cultural groups to havemeetings in their premises.
(g) H a l f w a y h o u s e s s h o u l d b e
encouraged to make positive
contributions to the community by
availing their programs. They should
avoid operating as closed institutions.
(h) The government should support
halfway house in recognition of theimportant role they play in theintensive treatment of offenders in
the community.
(i) Pre-release programs to makeintegration easier.
D. Community Work Programs
The community work program is asystem in which prisoners andprobationers perform public work within
their community. It is the type of work
which benefits the whole community. In
this program, offenders perform such work
like the up-keep of the streets, cutting
grass, clearing bushes, putting-out fires,
maintenance of school buildings, assisting
the aged or disabled people in social welfare
institutions. The rationale underlying
Community Work Programs is for offenders
involvement in community work and forsuch performance to be acknowledged by
the community.
Community work programs include
community service orders by courts, prerelease by correctional institutions,community participation programs by

probation offices or by prisons. Including
countries, community work programs arealso an alternative to imprisonment and ameans to alleviate prison overcrowding. It
is a reparation method for offenders to pay
back the community for the offences they
have committed. It is a program thatenables a prisoner to become accustomed
to social life within their community, build
self-worth, achievement and eradicate guilt
or stigmatization.
In Japan, many volunteers like VPOs,WARA and BBS participate in thisprogram. The effects of the program are:(a) t o d e v e l o p a c l i e n t ’s s e n s e o f
responsibility as a member of society
and enhance their sense of self-worth;(b) to know different types of people intheir living space and learn their wayof life and values as identifiable rolemodels;(c) to learn about sound relationships
with others;(d) to learn sound ways of spending
leisure time.
Community work programs are found inFiji, Hong Kong, Japan, Kenya, Papua New
Guinea, the Republic of Korea andThailand (prisoners only).
1. Obstacles(a) Insufficient trained staff to perform
supervisory duties.
(b) Lack of equipment like vehicles totransport probation officers tosupervise work.
(c) Lack of placement like social welfare
institutions and cooperative
employers.
(d) N e g a t i v e p u b l i c a t t i t u d e s i n
accepting offenders to work in theircommunities.
(e) Unwillingness by the offenders towork in the community where they
reside.

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RESOURCE MATERIAL SERIES No. 56(f) Danger of offenders getting injuredin the course of performing publicwork.
2. Countermeasures(a) Improve public perception througheducation programs. The publicshould come to understand andappreciate offenders as fellow humanbeings who need care and love. A
person does not cease to be a humanbeing by becoming an offender.
(b) Encourage more public involvementin the community work programs
through the media, public educationand public meetings.
(c) Use the services of part-timesupervisors like retired police, prison
officers, army officers, probation
officers, churches, non-government
agencies, and civil servants including
university students (studying social
sciences) during their vacation as
Volunteer Probation Officers.
(d) Publicity of the work or services
provided by the offenders like tree
planting, building of temporary
wooden bridges, digging of water
canals, cleaning parks.
(e) Motivate offenders to perform
community work and gain
community responsibility.
E. Aftercare Services
The definition may vary from country tocountry, for example with the existance ofsupervision, application or obligation, but
this form of system was found in Hong
Kong, Japan, Papua New Guinea, theRepublic of Korea, and Thailand. In
countries like Japan, after-care services areprovided only to those who specifically
apply for them in person at the probation
office. The probation officer will thenconduct a background investigation andscreen each individual in light of theurgency and priority, and the offenders’willingness to rehabilitate themselves. The

312

offenders who take after-care services aremainly as follows: termination of executionof sentence, granted suspended executionof sentence, granted suspended
prosecution. Such ex-offenders areprovided meals, clothing or fares for travel.
Some of these services are aided by the
Juridical Person for Offenders
Rehabilitation. When lodging is necessary,
ex-offenders can live in halfway houses run
by the Juridical Person for Offenders
Rehabilitation.
1. Obstacles(a) Unreceptive community not wanting
prisoners.
(b) Slim employment opportunities for
ex-offenders.
(c) Inadequate supervisory staff - use ofvolunteers.
(d) Difficulty in coordinating the servicesof other government departments
and organizations like NGOs andsocial welfare institutions.
2. Countermeasures(a) Encourage educational activities
through public meetings, seminars tocreate public awareness on the valueof human life.
(b) E n c o u r a g e p r i v a t e s e c t o r
participation by incorporatingprominent businessmen andmembers of the community andvolunteers.
(c) Set up community agency networks
through education and a better
understanding of roles andresponsibilities.
F. Mediation
Mediation is a method that has beenused as a means of solving disputes andpersonal damages in many countries in theworld. Mediation has been used in solving
minor conflicts in which basically bothparties, the offender and the victim, cometo some form of compromise through a

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
neutral group comprising of village elders
or respectable persons in the community
acting as mediators in the restorative
justice system, without necessarily seeking
the intervention of the judiciary.
Mediation programs bring the offenderand the victim together in face-to-facemeetings to negotiate a restitution
settlement. The objective is to appease thesocial situation which has been disturbed
by the offender. Mediation procedures aredifferent from criminal judicial
proceedings. A mediation session is only
arranged with the consent of both thevictim and the offender. During areconciliation session, the two parties canbring up the social conflict which might
have been the cause of the delinquent act.
This approach attempts to address the
economic, as well as the psychological,
injuries in such way that the offender isable to comprehend the full impact that thecrime has had on the victim. The
advantages of mediation are:(a) The victim is not treated as a mere
witness but has the opportunity todigest what has happened to them byexpressing their shock andbewilderment.
(b) The offender is made to reflect upon
the injuries done to the victim and toaccept responsibility by engaging inconstructive actions. This is deemed
to have a high value of rehabilitation.
(c) The offender gets less stigmatized.
(d) The victim obtains financial andemotional restitution quickly and in
an informal way.
(e) There is higher involvement of thecommunity in the solution of
conflicts, which is supposed to havea positive impact on deterrence.
However, due to modernization, thesesystems have been disregarded as
outmoded methods of solving disputes

between parties like land cases, damage
caused to crops by cattle, and minor
disputes within the community. It isabsurd that the present generation does
not appreciate traditional laws, which they
presume to be orthodox and authoritative.
In our view, these methods should be
revived and activated to settle minor cases
in society and avoid offenders being taken
to court, and eventually entering prison.
Mediation may take place in threestages, at pre-trial, during trial and at posttrial. For the purpose of our discussion,
we focused on mediation at post trial. In
our view, we would like to recommend thepossibility of mediation as a form ofcommunity-based treatment of offenders.
In the community-based treatment ofoffenders in Japan, it is taken into
consideration whether the offender makes
restitution to their victim or not, andwhether he or she has the willingness tomake amends or not. It is important foroffenders to apologize with sincerity andto make restitution after trial for theirsuccessful entry into the community. When
probation officers conclude that it isnecessary for parolees and probationers tomake restitution or to apologize to their
victims, they supervise through thefollowing means:(a) Including victim measures in thetreatment plans made by probation
officers.
(b) Including victim measures in any
special conditions to be observed.
(c) Asking about the progress conditionsof victim measures or discussing theirnecessity.
Victim measures by offenders reduce thehostility of the public, allowing the offender
to re-integrate more easily. Furthermore,this helps the offender to develop thewillingness to rehabilitate and, in doing so,

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RESOURCE MATERIAL SERIES No. 56
continues to prevent crime. That is why
the development of mediation after trial
has an important role in the treatment ofoffenders.
In many instances, mediation after trial
is not enough. However, from the viewpointof the re-integration of offenders and crime
prevention, many countries felt it moredesirable that we expand public
participation and promote mediation at the
post-trial stage.
1. Obstacles(a) No guidelines defining the use of
mediation in penal matters. There
are no guidelines to address theconditions for the referral of cases tothe mediation service, nor proceduresto handle cases following mediation.
(b) Mediators lack training, resulting in
unfair and biased decisions.
(c) Offenders/victims are sometimes
unwilling to appear and uphold theruling by the mediator.
(d) N o s e l e c t i o n a n d a s s e s s m e n t
procedures for mediators.
(e) Mediation services do not haveautonomy in performing their duties,
making it difficult to issue certified
documents. In India and Pakistan,
mediation is legislated and required
as a lawful method of settling adispute.
(f) No public awareness as to theusefulness of medition.
2. Countermeasures(a) Legislation facilitates mediation inpenal matters. There exists clear
guidelines explaining the use of
mediation in penal matters.
(b) M e d i a t o r s m u s t h a v e b a s i cqualifications and receive training inmediation skills. Training programs
should be made available for the
betterment of the mediation system,
for the smooth and effective disposal

314

of disputes. Before assuming office,mediators receive initial training inmediation duties, as well as inservice
training. Their training aims at
providing for a high level ofcompetence, taking into accountconflict resolution skills, the specificrequirements of working with victims
and offenders, and basic knowledgeof the criminal justice system.
(c) Recruitment and appointment ofmediators should be done from all
sections of society, and such people
should generally possess a goodunderstanding of local culture andthe norms of the communities.
(d) The public be educated to appreciate
mediation as a means to resolve
disputes. Before agreeing tomediation, the parties should be fully
informed of their rights, the natureof the mediation process, and thepossible consequences of theirdecision.
G. Fine Payment
In many countries, monetary penalties
are usually awarded, and in default of
payment, the offender suffers
imprisonment. Fines are mostly awarded
for petty and traffic offences. That is, if
the offender can pay the fine s/he secures
their liberty, but if s/he fails to pay the finethey suffer imprisonment. Fines are acommon form of non-custodial sentence.
Fines are economical because their
management involves less money and lessmanpower. They are regarded as humane,since they cause minimum social damage
to the offenders. Fines therefore aim toachieve the objectives of punishment interms of retribution, deterrence andrehabilitation.
In a number of cases where fines are
imposed, the court may consider thefollowing basic pre-requisites:

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(a) The gravity of the offence and thecircumstances under which theoffence was committed.
(b) The financial ability of the offender.
(c) The offender’s family background.
(d) Offender’s occupation.
(e) The health condition of the offender.
(f) The previous criminal history of theoffender.
In determining the amount of fine, thecourt may also consider the offender’sfinancial position, whether s/he can pay on
demand, be allowed more time for payment
or order the payment by installment. In
Fiji, when the offender is given monetary
penalty and the offender does not havesufficient money to meet the amountrequired, s/he may be given more time,
usually thirty days, to go and look for themoney, or the offender may be allowed to
pay by installment until s/he completes thefine.
In quite a number of situations, theoffender may not be able to pay the finedue to poverty or other adverse economic
factors surrounding the offender. In sucha case, we may ask the public to offer theoffender opportunities to pay the fine due.
For example, the community can provide
work to the offender so that he/she canfulfill the responsibility of paying the fine.
Also the work to be performed by such an
offender can benefit the whole community.
The community, which is aware that noncustodial sentences are better thanimprisonment for the re-integration of theoffender into the community, can help withthe rehabilitation of the offender.
1. Obstacles(a) Poor status of the offender in theimmediate community.
(b) Unwillingness by the public tocontribute towards the payment of
the fine.
(c) Award of fine sentences is at thediscretion of the sentencing courts.
2. Countermeasures(a) Educate the public to learn to assist
disadvantaged members of thecommunity by pulling their resources
together.
(b) Educate and counsel members of thecommunity to be law abiding.
H. Summary
In the past, not much attention has been
focused on the community-based treatment
of offenders as a mean to achieve therehabilitation and reformation of offenders.
However, considering that governments
are now experiencing huge budget deficits,
to the extent that not many governments
can now afford to be over-burdened withthe provision of other than basic services,public participation in the communitybased treatment of offenders is vital. Thereis, therefore, the need to strengthen
cooperation between government agencies
like local government, law enforcement
agencies and correctional agencies, social
welfare departments, non-governmentalorganizations (NGOs), donors and theprivate sector.
IV. INVOLVEMENT OF VICTIMS IN
THE TREATMENT SYSTEM FOR
OFFENDERS
Involvement of victims in the treatment
system for offenders is very important for
both victims and offenders. By involving
victims in the treatment of offenders,
offenders can be sensitized to the victims’
feelings and agony. Also, offenders’ genuine
feelings of guilt are promoted. Programs
previously described in this paper promote
understanding between offenders andvictims, and prompt reconciliation. Victims
are encouraged to be more forgiving.
A criminal justice system that is
intended to restore social relationships is315

RESOURCE MATERIAL SERIES No. 56
called ‘Restorative Justice’. The aims of
the restorative justice are:(i) To repair the harm that has been
done to the victims and thecommunity;(ii) To involve the victims and othermembers of the community as active
participants in the process;(iii) To help communities to reintegrate
victims and offenders;(iv) To rebuild communities that havebeen weakened by crime and othersocial ills;(v) To deal with the needs of the victims,
offenders and community.
So, restorative justice systems require
the involvement of victims in the treatment
of offenders.
A. Restorative Justice Programs
We classified restorative justiceprograms into the following five categories
and organized our discussion according tothese categories.
1. Mediation (direct/indirect)
There are two types of mediation
programs; one which requires face-to-facecontact between the victim and the offender(direct mediation), and one which does not
involve face-to-face contact between thevictim and the offender (indirect
mediation).
(a) Victim-Offender Mediation
Victim-Offender Mediation Programs(VOMP), also known as Victim-Offender
Reconciliation Programs (VORP), bring
offenders face-to-face with the victims of
their crimes, with the assistance of a
trained mediator (usually a community
volunteer). The value of these programsin restoring all those affected has been
proven in communities throughout theworld. Through the process, crime victims
are given an opportunity to have their316

questions answered, and restitution andemotional needs are met. The person
responsible for the crime is held
accountable for his/her actions and given
an opportunity to make things right. The
community becomes involved in the processof restorative justice.
A basic case management process inNorth America and in Europe typicallyinvolves four phases:(i) Case referral and intake;(ii) Preparation for mediation;(iii) The mediation itself; and(iv) A n y f o l l o w u p n e c e s s a r y e . g ,enforcement of restitutionagreements.
Often, a case is referred to VORP after aconviction or formal admission of guilt incourt; but some cases are diverted prior tosuch a disposition in an attempt to avoid
prosecution. Studies have concluded thatthese programs have high client
satisfaction rates, victim participation
rates, restitution completion rates, andresult in reduced fear among victims, andreduced criminal behavior by offenders.
(b) Serious Offence Mediation
Program for serious offenders werecarried out in Anchorage, Alaska.
Mediations were conducted with juvenile
offenders and their victims for offences as
serious as manslaughter and attempted
murder. While mediation for minor
property offences has the goal of obtaining
restitution, the primary goal of serious
offences mediation is to help in the healing
process. Participation in mediation did not
result in more lenient dispositions for theoffenders, most of whom were alreadyserving their penalties at the time of themediation. Most participants reported thatmediation was successful in meeting thegoals of reconciliation, accountability, andclosure.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Several projects involving prison-based
mediation have been done with adultoffenders. As with the young offender
program, the goals are somewhat different
from those of community-based programs,
in that they emphasize sharing informationand healing rather than restitution. They
involve voluntary meetings held between
victims and offenders in an institutionalsetting. Typically, they explicitly exclude
offender benefits such as parole release.
Immarigeon’s (1996) assessment of several
prison-based programs found that
hundreds of victim-offender reconciliation
meetings have been held with a great dealof success, and with no negative
consequences.
Such violent offenses are usually
mediated upon the initiation of the victim,
and only after many months (sometimes
even years) of work with a specially trainedand qualified mediator, collaborating withthe victim’s therapist and/or other helping
professionals. Participation must becompletely voluntary, for both the victim
and the offender.
(c) Assessment of Mediation
Programs
Victim-Offender Mediation Programs
have been mediating meaningful justicebetween crime victims and offenders forover twenty years. There are now over 300
such programs in the US and Canada, anda b o u t 5 0 0 i n E n g l a n d , G e r m a n y,
Scandinavia, Eastern Europe, Australia
and New Zealand. Remarkably, consistentstatistics from a cross-section of the North
American programs shows that about twothirds of the cases referred resulted in faceto-face mediation meetings; over 95% of thecases mediated resulted in a written
restitution agreement; over 90% of thoserestitution agreements are completed
within one year.

In France in 1993 and in Germany in
1994, after the assessment of theseexperimental programs, victim-offender
mediation has been fully recognized incriminal procedure. In France, theprosecutor is entitled to arrange formediation before the decision of whether
or not to prosecute. The mediation is
directed to the compensation of the victim
and the rehabilitation of the offender.
2. Disclosure of Offender’s Information
Recently, a victims’ need to be notifiedof their offenders’ information is increasing.
Since criminal procedures, criminal justicesystems, and cultures differ among
countries, there is no definite answer to thequestion “Who/which agency (e.g, police,
public prosecutors office, the courts,
correctional institutions, probation office,etc) should disclose the offender ’s
information?”. In principle, victims should
be notified of their right of access to theoffender’s information, and the agency
which is most convenient to victims should
be available to them, so that they will havethe least trouble in requesting theoffender’s information. However, suchdisclosure may endanger the rehabilitationof the offenders, and therefore, the criminal
justice agencies should be allowed toexercise discretionary power, in case they
foresee such a danger.
3. Involvement of Victims’ Opinion in
Decision-making Concerning
Offender’s Status
In some countries, victims provide input
about the impact of the crime (andsometimes parole violation) at the parole
hearings, in person, via audiotape orvideotape, by teleconferencing, or inwriting. Their statements give the parole
authority crucial information about thecrime’s financial, physical and emotional
impact on the victim. To make thismeaningful however, parole authorities
must notify victims and their families of

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RESOURCE MATERIAL SERIES No. 56
the hearings (in advance), and schedule
time during the hearing to allow them todescribe the crime’s impact on their lives.

opportunity for offenders to
express the impact that drunk
driving has had on their lives.

4. Education(a) Victim-Offender Confrontation
Programs and Similar Programs(i) Victim-Offender Confrontation
Programs: Programs in which
offenders and victims of otheroffenders, usually groups ofvictims or their families, meet in
the correctional setting to discuss
the impact of crime from both
perspectives. This program’s goal
is to sensitize offenders to the pain
and suffering of victims and cangive offenders the opportunity todeal with remorse and guilt (forexample, Alberta Seven Step
“Surrogate Perpetrators
Program”, a program for sex
offenders in Fort Saskatchewan).

A VOP is comprised of unrelated
victims and offenders, linked only
by a common kind of crime, not theparticular crimes that involved
others. It thus provides anopportunity for indirect encounter
when either the victim or offenderis unwilling or unable to meet theother.

(ii) Victim-Offender Panels: VictimOffender Panels (VOP) can be
attributed to the rise of thevictims’ rights movement in thelast decade, and in particular tothe campaign against drunk
driving. They were developed asa means of giving convicted drunk
drivers an appreciation of thehuman cost of drunk driving on
victims and survivors, with theintention of decreasing the
likelihood of repeat offences. It
also offers victims and survivors
a forum in which to express theirexperience and thereby restore
some sense of power to the victims
of crime.

(b) Victim-Awareness ProgramThis type of program sensitizes offenders
to the needs of victims, without directcontact with them. This type of programis important because we may not be able
to find victims who are willing toparticipate in programs involving contact
with their offenders. The following are thelist of programs which are currently
utilized in Japan:

One noteable example of a VOP
in application is the Victim Impact
Panel (VIP) organized by Mothers
Against Drunk Driving (MADD).
This panel provides an

318

With the VIP operated by MADD,
for example, judges or probation
officers will often requireconvicted drunk driving offenders
to attend a panel as an element of
their sentence or probation.
Attendance is monitored, withsanctions applied for failure toattend.

(i) Essay writing.
(ii) Imaginary letter.
(iii) Role playing.
(iv) “Naikan” meditation therapy.

5. Community Service
Community service requires offenders to
perform some beneficial community
service. These services are beneficial tovictims in several ways. First, somevictims may want to humiliate offenders
by having them engage in community

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
work. Second, some victims may want
offenders to engage in community work
believing that experience such as working
in an elderly person’s home may help
offenders be aware of the plight of victims.
Third, since crimes offend the feelings ofthe public, including the victims,
community service works as “symbolic
restitution”.
B. Actual Situation
Table 1 shows the actual situation of thecountries of this group. Mediation
programs (including programs which aresimilar to mediation) are implemented inFiji, Japan, Kenya and Papua New Guinea.
Who takes the role of mediator is different
amongst these countries. In Japan,
probation officers and VPOs take the roleof mediator. In other countries, mediators
are voluntary chaplains and elderly
persons who are trusted by the community.
The disclosure of offenders’ information
to victims is implemented in Hong Kong,
Kenya and the Republic of Korea. In Hong
Kong, upon the victim’s request, theCommissioner of the Correctional Service
is required to provide information asneeded in respect of the offender. In Kenya
and the Republic of Korea, the offender’sinformation is disclosed to victims by thepolice and welfare officers.
The consideration of the victim’s opinion
in decision-making concerning theoffender’s status is implemented in Fiji,
Japan, Kenya, the Republic of Korea andPapua New Guinea. In these countries, thevictim usually does not attend the parole
hearing. Only a document describing thevictim’s opinion is submitted to the paroleboard (e.g, the report of probation officers
to the board).
Victim-offender confrontation programs
and similar programs are not implemented
in all countries of the group . Victim

awareness programs are implemented inJapan, Papua New Guinea, and Thailand.
In Papua New Guinea, voluntary chaplainscome to prisons or juvenile training schools
and talk about the feelings and agony ofthe victims. In Thailand, meditation is
implemented as one victim awarenessprogram. Thus, the involvement of victims
in the treatment of offenders in many of
the group’s countries seems to have beensuccessful.
C. Obstacles and Countermeasures
1. Mediation(a) Obstacles(i) In some participating countries,
programs are being conductedwithout any legal backup. In thatno monitoring system is in place,the neutrality/quality of themediator is not guaranteed.
Hence, the rights of the victim andthe offender can hardly beprotected.
(ii) In general, the public do not havea full understanding of theobjectives and the value of these
programs.
(iii) Public opinion is accustomed to
the retributive model of justice, i.e,
geared to the punishment ofoffenders. As such, public support
and participation in mediation
programs difficult.
(iv) Usually, the victims do not wantto meet offenders as they are
either afraid of being re-victimized
or choose to forget the harm/trauma that the offender has doneto them.
(v) The role of the mediators is sodemanding that it is quite difficult
to recruit sufficiently competentmediators.
(vi) Face-to-face contact of offenders
with victims can be quite
dangerous, i.e, not easy to control(security administration

319

RESOURCE MATERIAL SERIES No. 56
problems).
(b) Countermeasures(i) Relevant laws have to be enacted
in the implementation ofmediation programs, in order toprotect the rights of the victims
and offenders.
(ii) The public has to be made awareof the objectives and values of suchprograms by providing them withall the necessary information (e.g,using the mass media).
(iii) Offenders and victims need to be
encouraged to participate inprograms by educating them on
their objectives and values.
(iv) Government and NGOs shouldtake the lead in organizing thetraining of mediators, and invite
suitable citizens to become
mediators.
(v) Appropriate programs, such as
psychological counselling, should
be set up to assist victims andoffenders to be prepared for
mediation.
2. Disclosure of Offender’s Information(a) Obstacles(i) In many participating countries,
there is no leglistaion to govern
whether it is lawful to provide
offender’s information to their
victims.
(ii) Offenders may object to having
their information being disclosed
to their victims, as it would
infringe on their privacy.
(iii) Offenders get disadvantaged as
their victims may plan retalitation
against them after theirdischarge, by knowing their dateof discharge and other informationsuch as place of residence.
(b) Countermeasures(i) Relevant laws have to be enacted

320

to specify suitable types of
information disclosable to thevictim, and the proper procedure
in disclosing this information to
victims.
(ii) The public has to be made awareof the objectives of providing
offender information to theirrespective victims.
(iii) Protection of offenders’ privacy
and human rights has to beobserved. In that, laws should beenacted to prevent the victims
from misusing the information
provided to them.
(iv) Cooperation among the police,
public prosecutor ’s office, thecourts, and correctional
institutions has to be secured inorder to ensure that all
information provided to thevictims is updated and given ingood time.
3. Consideration of the Victim’s Opinion
in Decision-making Concerning the
Offender’s Status(a) Obstacles(i) Victims do not have adequate
information about parole
hearings, and thus they are
unwilling to participate in the
hearings either in person or inwriting.
(ii) Most participating countries lackhuman resources (e.g, probation
officers, etc) to approach thevictims and explain to them theobjectives of the parole hearing, or
to give them counseling insecuring their participation in the
hearing.
(iii) Most of the victims do not wish tohave any further direct or indirect
involvement/contact with theiroffenders. Some of them evenrefuse to hear anything about
their offenders.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(b) Countermeasures(i) Government should recruit moreprobation officers and invite
suitable citizens to be volunteer
probation officers.
(ii) There is a need to explain theobjectives and values of the paroleboard hearings to the victims andthe public.
(iii) Education and counselling should
be given to victims, informing
them that they, their offender andsociety would benefit from their
participation in the parole
hearing.
(iv) Victims have the right to attend
parole hearings so that they canfully realize how the parole
hearing is being conducted.
(v) If the offenders are to be granted
release by the parole board,
victims should be protected by
imposing certain conditions forthe offenders to observe, such as
keeping a certain distance awayfrom the victim’s residence. In
such a way, victims may feel safein participating in the parole
hearing.
4. Education(a) Victim-Offender Confrontation
Programs and Similar Programs(1) Obstacles(a) The general public do notrecognize the objectives andvalue of these programs.
(b) P u b l i c o p i n i o n i s d e e p l yentrenched in executing
punishment against offenders(retributive sentiment).
(c) Victim’s unwillingness.
(d) Offender’s unwillingness.
(e) Serving officers are not trained
to implement and organize
these programs.
(f) Offenders can be dangerous tovictims(security

administration problems).
(2) Countermeasures(a) E d u c a t i n g t h e p u b l i c b yproviding them with all theinformation (e.g, using mass
media) regarding the objectives
and value of the programs.
(b) E d u c a t i n g o f f e n d e r s a n d
victims about the benefits of the
programs, and encouraging
them to participate.
(c) Providing appropriate training
for serving officers in
implementing and organizing
the programs, and seeking
cooperation from private
experts in providing theirprofessional advice to enhance/
improve the qualities of these
programs.
(d) Assisting victims and offenders
to be prepared for participation.
(b) Victim-Awareness Program(1) Obstacles(a) Serving officers are not trained
to conduct/organize theprograms.
(b) Through participation in the
programs, some offenders may
have their guilty feelings
aggravated, i.e, depression.
(2) Countermeasures(a) Serving officers should beequipped with adequate
knowledge in organizing andconducting programs throughin-service training.
(b) Cooperation with private
experts should be sought inorder to obtain their expertisein enhancing the effectivenessof programs.
(c) Future-orientation of programs
should be emphasized toprevent offenders from321

RESOURCE MATERIAL SERIES No. 56
becoming depressed.

D. Problems/Challenges in Using
Restorative Justice Programs
Through the above processes, crime
victims are given an opportunity to havetheir questions answered and theirrestitution and emotional needs met. The
person responsible for the crime is held
accountable for his/her actions and given
an opportunity to make things right. The
community becomes involved in the processof restorative justice.
However, some research indicates thatvictim participation in restorative justiceprograms places an unwanted burden on
the victim himself or herself, beyond what
would result from serving only as a witness
for the prosecution. In particular, placing
the victim in a decision-making role maylead to even more harassment andintimidation by the offender. In somejurisdictions that have introduced
mechanisms designed to give victims amore active role in the process, aconsiderable number of victims havechosen not to exercise such a right.
One of the keys to successful restorative
justice projects is the participation andsupport of the community. In some cases,
victims have been unwilling to participate
in victim-offender mediation programs, andsome surveys have shown a relatively low
level of public support for alternative
programs. There are several reasons why
public support for these programs is by nomeans automatic :(i)People accustomed to the retributive
model of justice may be reluctant tosupport restorative justice programs.
However, successful restorative
initiatives can lead to a change inpublic attitudes.
(ii) Empowering the community to take322

control of justice issues can be a major
step in community healing. However,it can be a difficult step because thecommunity institutions that must do
this - including the family, schools,
and religious and economic
institutions - may not themselves behealthy. In other words, communities
may have too many other problems
to deal with.
(iii) There is also the possibility that
community justice may divide rather
than unite people. This may happen
in small isolated communities where
punishment, even when it is intended
to reintegrate offenders, may alienate
individuals and their friends andrelatives from one and other. To
prevent this, everyone must
understand that restorative justice isin the best interest of the entire
community.
(iv) For programs conducted inside theprison setting, such as VictimOffender Reconciliation and VictimOffender Confrontation Programs,
they are operated less often than
expected. This may be largely due tothe lack of additional resources.
Under a limited budget, suchprograms are not given priority.
(v) A l s o , o f f e n d e r s m u s t w a n t t oparticipate in these programs forthem to be successful. Offenders
should not be given rewards (such as
reduced punishment) for
participating, because the offendermust be sincere.
(vi) Restorative justice programs may beinappropriate in cases of unequal
power positions between the victim
and offender (e.g, child abuse).
Victims might be revictimized bysuch participation.
(vii) In mediation programs, the mediatorneeds to be well trained so that he/she can prepare both the victim andthe offender. Victims cannot use the112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
session to only express grief or anger(i.e, just yell at the offender). Also,
mediation needs to make sure thatthe expectations of both sides are
realistic.
V. CONCLUSION
Participation of the public and victims
is imperative in the overall treatment,
rehabilitation and re-integration of
offenders into society. In order to achieve
the desired results, public involvement in
the effective utilization of prison labor,enhancing and resuscitating rehabilitation
programs available to prisoners, is indeed
vital.
Similarly, for the re-socialization of
offenders to be effective and pragmatic,emphasis should be given to communitybased treatment methods which can beenormously enhanced by active public
involvement. The participation of the
public in community-based treatment
provides an enabling environment
conducive to the speedy re-socialization of
the offender.
Lastly, no comprehensive treatment
program for offenders will ever be complete
without the involvement of the victims in
the restorative justice system. The actual
re-settlement of the offender into thecommunity will be determined by theability and readiness of the victim to livein harmony with and restore the hope ofthe offender.

323

324

Indirect

Direct

●

●

●

●

●

○

●

●

○

●

○

●

○

●

○

●

○

○

Hong Kong Japan●… program which can/should be implemented

Involvement of Victim’s Opinion in
Decision-making Concerning
Offender’s Status
Education
Victim-Offender
Confrontation Programs
and Similar Programs
Victim Awareness
Programs

Disclosure of Offender’s Information
to Victims

Mediation(post trial)

Fiji

○

●

○

●

○

○

●

●

○

○

●

●

○

●

●

●

●

●

Papua.
Republic of Thailand
New Guinea Korea○… program is implemented

●

●

○

○

○

○

Kenya

Table 1
Involvement of Victims in the Treatmet System of Offenders (actual situation of group members)

RESOURCE MATERIAL SERIES No. 56

MAIN ACTIVITIESPART TWORESOURCE MATERIAL SERIES
No. 56Work Product of the 113th International Training Course“THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE FOR THE PREVENTION
OF CORRUPT ACTIVITIES BY PUBLIC OFFICIALS”

UNAFEI1

113TH
INTERNATIONAL
TRAINING
COURSEVISITING
EXPERTS’
PAPERSVISITING EXPERTS’ PAPERS

INTERNATIONAL ANTI-CORRUPTION INITIATIVES
Donald K. Piragoff*

I. INTRODUCTION
Efforts have been ongoing within various
international fora to combat corruption
through negotiating international
instruments, exchanging information, andpromoting international co-operation andtechnical assistance in the field. The
necessity of States joining together tocombat corruption has also been promoted
at the highest political levels. This has
been the result of a recognition that
corruption weakens democratic
institutions and public administration,
undermines good governance, fairness andsocial justice, distorts the economy andcompetition, hinders economic and social
development and damages a society’s moral
fibre. Of growing concern is that corruption
is used as a tool by organised crime toachieve its criminal goals.
Governments and non-governmentalorganisations have become convinced thatthe public must become aware of thisproblem and participate in its prevention,and that governments must exert
coordinated action, both domestically andinternationally, to fight it effectively. In
result, in the last decade the issue of
corruption has taken priority in the work
programmes of many internationalorganisations, both inter-governmental
and non-governmental. This work has
included the negotiation of international
instruments and other legal measures,i m p l e m e n t i n g v a r i o u s r e g u l a t o r y,
* General Counsel, Criminal Law Policy Section,
Department of Justice, Canada.
The views expressed herein represent those of theauthor and do not necessarily represent the viewsof the Department of Justice.

preventive and educational measures andproviding technical assistance andcooperation.
While acknowledging that the fightagainst corruption requires multidisciplinary action, this paper will survey
only a number of initiatives undertaken by
a number of international and intergovernmental organisations, primarily
with respect to legal measures in thecriminal law area to fight corruption.
II. ORGANIZATION OF AMERICANSTATESIn 1994, at the Summit of the Americas,
Heads of State and of Governments in theAmericas endorsed a Plan of Action, whichcalled upon the Organization of American
States (OAS) to develop a hemisphericapproach to acts of corruption. Afterseveral preparatory meetings, theSpecialised Conference on the Draft InterAmerican Convention against Corruption
was held in Caracas, Venezuela on March
27, 28 and 29, 1996. The Convention was
concluded on March 29, 1996. Twenty-one
Member States (out of thirty-four Member
States) signed the Convention on that date,
and the Convention entered into force on
March 6, 1997.
This was the first international
convention to be negotiated that provides
for criminalizing the bribery of foreign
public officials. The OAS Convention has
two purposes:(1) to promote and strengthen withineach State Party mechanisms
necessary to prevent, detect, punish
and eradicate corruption; and327

RESOURCE MATERIAL SERIES No. 56(2) to promote, facilitate and regulate cooperation among States Parties toensure the effectiveness of measuresand actions to prevent, detect, punish
and eradicate corruption.1
The Convention describes a number ofacts of corruption which States Parties are
obliged to criminalize under their domestic
law, and further obligates them to consider
establishing various preventive measures,consider the establishment of otheroptional offences and provide international
co-operation in the investigation ofcorruption. The Convention is applicableto, and States Parties shall adopt thenecessary legislative or other measures toestablish as criminal offences, the following
acts of corruption:•

Solicitation or acceptance, directly or
indirectly, by a government official ora person who performs public functions,of any article of monetary value, orother benefit (such as a gift, favour,
promise or advantage for him or herself
or for another person or entity), in
exchange for any act or omission in theperformance of his or her public
functions;•

Offering or granting, directly or
indirectly, to a government official or aperson who performs public functions,
any such article of monetary value orother benefit as described above;•

Any act or omission in the discharge of
duties by a government official or aperson who performs public functions
for the purpose of illicitly obtaining
benefits for him/herself or for a third
person;1

Organization of American States, Inter-American
Convention Against Corruption (hereinafter“OAS”), Article II.

328•

Fraudulent use or concealment ofproperty from any of the acts referredto; and•

Participation as a principal, coprincipal, instigator, accomplice oraccessory after the fact, or in any otherm a n n e r, i n t h e c o m m i s s i o n o r
attempted commission of, or in any
association or conspiracy to commit,
any of the acts referred to.2

The Convention also contains a numberof optional obligations concerning
criminalisation, which are conditional andsubject to a State’s Constitution and thefundamental principles of its legal system.
The first of these involves transnational
bribery. Each State Party shall prohibit
and punish its nationals, persons having
their habitual residence in its territory, andbusinesses domiciled there, for offering or
granting, directly or indirectly, to agovernment official of another State, any
article of monetary value, or other benefit(such as a gift, favour, promise oradvantage) in connection with any
economic or commercial transaction in
exchange for any act or omission in theperformance of that official’s public
functions. The second optional offence
involves illicit enrichment. Each State
Party shall take the necessary measures
to establish under its laws as an offence “asignificant increase in the assets of agovernment official that he cannot
reasonably explain in relation to his lawful
earnings during the performance of his
functions”.3
Such offences shall be considered as anact of corruption, for the purposes of theConvention, among those States Parties
that have established transnational
bribery or illicit enrichment as an offence,2
3

OAS, Article VI and VII.
OAS, article IX.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
respectively. However, even State Parties
that have not established transnational
bribery or illicit enrichment as an offence
shall, insofar as their laws permit, provide
assistance and co-operation with respect tothose offences, as provided in theconvention.4
In order to foster the development andharmonization of their domestic legislationand the attainment of the purpose of theConvention, the States Parties are also
obliged to consider establishing as offences
under their laws the following acts ofcorruption:•

Improper use by a government official
or a person who performs public
functions, for his or her own benefit orthat of third party, of any classified orconfidential information which that
official or person has obtained becauseof, or in the performance of, his of her
functions;•Improper use by such an official or
person, for his or her own benefit orthat of a third party, of any kind of
property belonging to the State or to
any firm or institution in which theState has a proprietary interest, towhich that official or person has accessbecause of, or in performance of, his or
her function;•

Any act or omission by any person who,
personally or through a third party, or
acting as an intermediary, seeks toobtain a decision from a publicauthority whereby he or she illicitly
obtains for him or herself or for anotherperson any benefit or gain, whether or
not such act or omission harms State
property; and•Diversion by a government official, forpurposes unrelated to those for which
they were intended, for his or her own
benefit or that of a third party, of any
moveable or immovable property,
monies or securities belonging to theState, to an independent agency, or to
an individual, that such official hasreceived by virtue of his or her position
for the purposes of administration,custody or for other reasons.5
Such offences shall be considered as actsof corruption for the purpose of theConvention among those State Parties thathave established these offences underdomestic law. Any State Party that has
not established these offences shall,nevertheless, be obligated, insofar as its
laws permit, to provide assistance and cooperation with respect to these offences, as
provided in the Convention.6
Each State Party shall adopt suchmeasures as may be necessary to establish
its jurisdiction over the offences it hasestablished (in accordance with theConvention) when committed in its
territory, and may adopt jurisdiction where
the offence was committed by one of its
nationals or by a person who habituallyresides in its territory. It shall alsoestablish jurisdiction over an alleged
criminal who is present on its territory andit does not extradite such a person toanother country on the grounds of thenationality of the alleged criminal.7
With respect to extradition, each of theoffences established by the States Parties
in accordance with the Convention shall bedeemed to be included as an extraditableoffence in any extradition treaty between
the State Parties, and if no extradition
treaty exists between two State Parties,
5

OAS, Article XI para. 1.
OAS, Article, XI paras. 2 and 3.
7 OAS, Article V.
6

4

OAS, Article VIIIand IX.

329

RESOURCE MATERIAL SERIES No. 56
they may consider the Convention as thelegal basis for extradition. State Parties
that do not make extradition conditionalon the existence of a treaty shall recognise
Convention offences as extraditableoffences. If extradition is refused solely on
the basis of the nationality of the personsought, or because the Requested Statedeems that it has jurisdiction over theoffence, the Requested State shall submit
the case to its competent authorities for the
purpose of prosecution, unless otherwise
agreed with the Requesting State.8
States Parties shall also afford one
another the widest measure of mutual
assistance by processing requests either
through Central Authorities 9 or from
authorities that have the domestic power
to investigate or prosecute the acts ofcorruption described in the Convention.10
They shall also provide each other with thewidest measure of mutual technical cooperation on the most effective ways andmeans of preventing, detecting,investigating and punishing acts ofcorruption. This would include exchangesof experience by way of agreements andmeetings, with special attention to methods
and procedures of citizen participation infighting corruption.11
State Parties shall also provide eachother the broadest possible measure ofassistance in the identification, tracing,
freezing, seizure and forfeiture of property
or proceeds obtained, derived from or usedin the commission of Convention offences.
A State Party may, to the extent permitted
by its laws, transfer all or part of suchproperty or proceeds to another State Party
that assisted in the underlying
investigation or proceedings.12

Bank secrecy shall not be invoked by the
Requested State as a basis for refusal toprovide assistance sought by the
Requesting State. In reciprocity, theRequesting State is obligated not to use any
information received that is protected bybank secrecy for any purpose other thanthe proceeding for which that information
was requested, unless authorised by the
Requested State.13
For the purpose of the articles
concerning extradition, mutual assistancein general and assistance in respect ofmeasures regarding property and banksecrecy, the fact that the property obtainedor derived from an act of corruption was
intended for political purposes, or that it
is alleged that an act of corruption wascommitted for political motives or purposes,
shall not suffice in and of itself to qualify
the act as a political offence or as a common
offence related to a political offence.14
Subject to the constitutional principles
and the domestic laws of each State, andexisting treaties between the States
Parties, procedural co-operation in criminal
matters may be given with respect to an
act of corruption that was committed before
the entry into force of the Convention.
However, the principles of non-retroactivity
in criminal law and the application ofexisting statutes of limitation relating tocrimes committed prior to the date of entry
into force shall not be affected by theConvention.15 Likewise, nothing in theConvention prevents the State Parties fromproviding mutual co-operation within theframework of other bilateral or multilateralagreements or arrangements.16

12 OAS, Article XV.
8OAS, Article XIII.
9 OAS, Article XVIII.
10 OAS, Article XIV, para. 1.
11 OAS, Article XIV, para. 2.

330

13 OAS, Article XVI.
14 OAS, Article XVII.
15 OAS, Article XIX.
16 OAS, Article XX.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Additionally, the Convention obligates
State Parties to consider the applicabilityof a number of preventive measures within
their own institutional systems to create,
maintain and strengthen:•Standards of conduct for the correct,
honourable, and proper fulfilment ofpublic functions, in order to prevent
conflicts of interest and ensure theproper conservation and use ofresources entrusted to government
officials in the performance of theirfunctions, including the establishmentof measures and systems requiring
government officials to report acts ofcorruption in the performance of public
functions;

report acts of corruption, including
protection of their identities, inaccordance with their Constitutions
and the basic principles of theirdomestic legal system;•

Oversight bodies with a view toimplementing modern mechanisms forpreventing, detecting, punishing anderadicating corrupt acts;•

Deterrents to the bribery of domestic
foreign government officials, such asmechanisms to ensure that companies
and associations maintain accurate andreasonably detailed books and records,
which reflect the acquisition anddisposition of assets, and havesufficient internal accounting controls
to detect corrupt acts;•

Mechanisms to enforce these standardsof conduct;•

Instruction to government personnel toensure proper understanding of their
responsibilities and the ethical rules
governing their activities;•

Mechanisms to encourage participation
by civil society and non-governmentalorganisations in an effort to prevent
corruption; and•Systems for disclosing the income,assets and liabilities of persons who
perform public functions in certain
posts as specified by law and, whereappropriate, for making suchdisclosures public;•

Study further preventive measuresthat take into account the relationshipbetween equitable compensation andprobity in public service.

•

Systems of government hiring andprocurement of goods/services thatassure the openness, equity andefficiency of such systems;•

Government revenue collection andcontrol systems that deter corruption;•

Laws that deny favourable tax
treatment for expenditures made in
violation of anti-corruption laws;•

Systems for protecting public servantsand private citizens who, in good faith,

On June 5, 1997, the OAS General
Assembly adopted a Program for InterAmerican Cooperation in the Fight against
Corruption. Among other things, thisprogram calls for a strategy to secure
prompt ratification of the OAS Convention.
The Second Summit of the Americas washeld from April 18 -19, 1998 in Santiago,
Chile. Corruption was a featured theme
under the Human Rights and Democracy
section of the Summit agenda. Amongother things, this section of the action plan,
approved by leaders in Santiago, calls upon
governments to adopt strategies to achieve
prompt ratification of the OAS Convention.

331

RESOURCE MATERIAL SERIES No. 56
A Symposium on Enhancing Probity in
the Hemisphere was held in Santiago,
Chile, on November 4-6, 1998. Participants
included representatives of national
institutions and of international agencies
involved in the fight against corruption.
Participants explained the underlying legal
basis, sphere of competence, and functionsof those bodies, as well as exiting
mechanism of co-ordination with othernational institutions. Presentations werealso made by representatives ofinternational organisations on how
national organisations could improve theirfight against corruption and better coordinate their activities with nongovernmentnal institutions. The
Symposium urged all governments to ratify
the OAS Convention before the year 2000,
and produced a number of conclusions andrecommendations.
In 1996, following the negotiations of theInter-American Convention against
Corruption, the OAS General Assemblyc o m m i s s i o n e d t h e I n t e r- A m e r i c a n
Juridical Committee (IAJC) of theOrganization of American States to preparemodel legislation covering transnational
bribery and illicit enrichment (Articles VIII
and IX of the Convention, respectively),
which could be used by Member States asa guide to implementing those articles of
the Convention.17 The Committee, in thecourse of its work, concluded that thedifferences among the legal systems ofMembers States, in terms of criminal law,even among those with the same language,
juridical tradition and similar historicalbackground, were far deeper and morevaried than those in other branches of thelaw. Therefore, the Juridical Committee
drafted a minimum number of basic
articles (which it acknowledged would
probably not be adopted as they stand by
any state), together with a commentary, as
17 OAS, AG/RES. 1395 (XXVI-0/96).

332

a guide for legislators. These are containedin its report, dated January 29, 1999,
entitled “Model Legislation on Illicit
Enrichment and Transnational Bribery”. 18
The report was presented to the Permanent
Council of the OAS in the spring of 1999.
III. ORGANISATION FORECONOMIC CO-OPERATION AND
DEVELOPMENT
Corruption of public officials has beenviewed as a major problem affecting
international trade and investment.
Accordingly, the Organisation for Economic
Co-operation and Development (OECD),
which is a major economic policy forum forthe world’s most advanced industrialised
democracies, has focused attention on thisissue. The OECD has 29 members, which
include Canada, the United States, most
European countries, Japan and South
Korea.
In May of 1997, a Ministerial meetingat the OECD called for the negotiation of abinding convention to address the briberyof foreign public officials. Ministers urgedthat the convention be finalised by the endof 1997, and recommended that Member
countries should submit legislative
proposals to criminalise such bribery totheir national legislatures and seek theirenactment by the end of 1998. On June
21, 1997, leaders at the Summit of Seven
Industrialised Countries, at their meetingin Denver, Colorado, issued a statement inwhich the leaders endorsed this approachand timetable. Negotiations commenced
with earnest and the OECD Convention on
Combating Bribery of Foreign Public
Officials in International BusinessTransactions was concluded on November
21, 1997. On December 17, 1997, theConvention was signed by Member States
18 Model Legislation on Illicit Enrichment andTransnational Bribery, OEA/Ser.Q, CJI/doc. 21/99,
29 January 1999.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSof the OECD, and by 5 non-Member States,
Argentina, Brazil, Bulgaria, Chile andSlovak Republic. On May 17, 1998, in the
Final Communique of the G-8 Summit,
held in Birmingham, United Kingdom, theHeads of State and Government pledged
to make every effort to ratify the OECD
Convention by the end of 1998.
Five of the ten OECD countries with thelargest share of OECD exports wererequired to ratify the Convention in 1998
in order to trigger its entry into force.
Canada ratified the OECD Convention on
December 17, 1998, and by becoming thefifth country to ratify the Convention (outof the ten countries with the largest shareof OECD exports, and representing at least
sixty percent of the combined total exportsof those ten countries, which was athreshold condition for entry into force), theother four countries and Canada were able
to trigger the entry into force of theConvention sixty days after the deposit of
Canada’s instrument of ratification. Thus,
the Convention entered into force on
February 15, 1999.
The Convention obligates each Party totake such measures as may be necessary
to establish as a criminal offence under its
law the intentional offering, promising or
giving of any undue pecuniary or otheradvantage, whether directly or throughintermediaries, to a foreign public official,
for the benefit of that official or a third
party, in order that the official act or refrainfrom acting in relation to the performanceof official duties, for the purpose ofobtaining or retaining business or otherimproper advantage in the conduct ofinternational business.19 Likewise, acts ofcomplicity, including incitement, aiding
and abetting, or authorisation of an act ofbribery of a foreign official, shall also be
criminal offences. Attempt and conspiracy
shall also be criminalised to the same
extent as they are in relation to bribing apublic official of that Party.20
For the purposes of the Convention,“foreign public official” is defined asmeaning “any person holding a legislative,administrative or judicial office of a foreigncountry, whether appointed or elected; any
person exercising a public function for a
foreign country, including for a publicagency or public enterprise; and any official
or agent of a public internationalorganisation. The phrase “act or refrainfrom acting in relation to the performanceof official duties” includes “any use of the
public official’s position, whether or not
w i t h i n t h e o f f i c i a l ’s a u t h o r i s e dcompetence”.
These criminal offences “shall bepunishable by effective, proportionate anddissuasive criminal penalties”, which are“comparable to that applicable to thebribery of the Party’s own public officials”,
including deprivation of liberty sufficient
to enable effective mutual legal assistanceand extradition. 21 The bribe and theproceeds of the bribery of a foreign public
official, or property of a corresponding
value to such proceeds, are to be subject toseizure and confiscation or to theimposition of monetary sanctions ofcomparable effect.22 Where a Party has
made bribery of its own public official a
predicate offence for the purpose of theapplication of its money laundering
legislation, that Party shall also apply thesame terms for the bribery of a foreign
public official, without regard to the place
where the bribery occurred.23
19 Organization

for Economic Cooperation andDevelopment, Convention on Combatting Bribery ofForeign Public Officials in International BusinessTransactions (hereinafter “OECD”), Article 1, para. 1.
20 OECD, Article 1, para. 2.
21 OECD, Article 3, para. 1.
22 OECD, Article 3, para. 3.
23 OECD, Article 7.

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RESOURCE MATERIAL SERIES No. 56
Each Party shall also take suchmeasures as may be necessary, in
accordance with its legal principles, toestablish the liability of legal persons forthe bribery of a foreign public official.24 In
the event that criminal responsibility is notapplicable to legal persons under the legal
system of a Party, that Party “shall ensurethat legal persons shall be subject toeffective, proportionate and dissuasive noncriminal sanctions, including monetary
sanctions, for bribery of foreign public
officials.”25
Regarding jurisdiction, each Party is
obligated to establish its jurisdiction overthe bribery of a foreign public official when
the offence is committed in whole or in partin its territory. 26 Additionally, where a
Party has jurisdiction to prosecute its
nationals for offences committed abroad,it shall take such measure as may benecessary to establish its jurisdiction in
respect of the bribery of a foreign public
official by one of its nationals, according to
the same principles. Each Party shall also
“review whether its current basis forjurisdiction is effective in the fight against
the bribery of foreign public officials and,
if it is not, shall take remedial steps.”27
The investigation and prosecution
offences regarding the bribery of a foreign
public official shall be subject to theapplicable rules and principles of eachParty, but they “shall not be influenced byconsiderations of national economic
interest, the potential effect upon relations
with another State or the identity of thenatural or legal persons involved.”28 Any
statute of limitations applicable to theoffence of bribery of a foreign official shall
24 OECD, Article 2.

provide an adequate period of time for theinvestigation and prosecution of thisoffence.29
The Convention also provides
obligations regarding accounting practices
and auditing standards. Within theframework of its laws and regulations
regarding the maintenance of books andrecords, financial statement disclosures,
and accounting and auditing standards,
each Party shall take such measures as arenecessary “to prohibit the establishment ofoff-the-books accounts, the making of offthe-books or inadequately identified
transactions, the recording of non-existentexpenditures, the entry of liabilities withincorrect identification of their object, as
well as the use of false documents, bycompanies subject to those laws andregulations, for the purpose of bribing
foreign public officials or of hiding suchbribery.”30 Effective, proportionate anddissuasive civil, administrative or criminal
penalties shall be provided for suchomissions and falsifications in respect of
the books, records, accounts and financial
statements of such companies.31
With respect to international cooperation, each Party shall, “to the fullest
extent possible under its laws and relevant
treaties and arrangements, provide promptand effective legal assistance to anotherParty for the purpose of criminal
investigations and proceedings brought bya Party concerning offences within thescope of this Convention and for noncriminal proceedings within the scope of
this Convention brought by a Party against
a legal person.” Importantly, a Party “shallnot decline to render mutual legal
assistance for criminal matters within thescope of this Convention on the ground of

25 OECD, Article 3, para. 2.
26 OECD, Article 4, para. 1.

29 OECD, Article 6.

27 OECD, Article 4, para. 4.

30 OECD, Article 8, para. 1.

28 OECD, Article 5.

31 OECD, Article 8, para. 2.

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113TH INTERNATIONAL TRAINING COURSE
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bank secrecy.”32 Bribery of a foreign public
official shall also be deemed to be included
as an extraditable offence under the lawsof the parties and any extradition treaties
between them; and, if no treaties exist
between two Parties, they may consider theConvention as the legal basis for
extradition. Each Party shall also assurethat it can either extradite its nationals orthat it can prosecute its nationals for theoffence of bribery of a foreign public official.
If a Party declines a request solely on the
ground of nationality, it shall submit thecase to its competent authorities for the
purpose of prosecution. 33 Where dual
criminality is a requirement for mutual
legal assistance or for extradition, it shallbe deemed to exist if the offence for which
the assistance or extradition is sought iswithin the scope of the Convention.34
Of long term significance is the fact that
the Convention provides for a mechanism
for monitoring and follow-up. Article 12
obligates the Parties to “co-operate incarrying out a programme of systematic
follow-up to monitor and promote the full
implementation of this Convention.”
Unless otherwise decided by consensus of
the Parties, this programme shall be
carried out in the framework of the OECD
Working Group on Bribery in Intentional
Business Transactions. The OECD has
already embarked on a programme ofevaluation and assessment of Parties’
efforts to implement the convention, andeach Party is subject to a review andassessment by two other Parties and theresults are subject to review by the Working
Group.
IV. COUNCIL OF EUROPE
In September 1994, the Committee of
Ministers of the Council of Europe,
32 OECD, Article 9.
33 OECD, Article 10.
34 OECD, Article 9, para.2, and Article 10, para. 4.

following a proposal of the 19th Meeting of
the European Ministers of Justice (Malta,
June 1994), established a MultidisciplinaryGroup on Corruption (GMC) to examine
what measures might be suitable toconstitute a programme of action against
corruption, to make recommendations, andto examine the possibility of drafting model
laws or codes, including an international
convention, and of organising or promoting
research project, training and exchangesof experiences.
In November 1996, a Programme of
Action against Corruption, developed by
the Multidisciplinary Group on Corruption,
was adopted by the Committee of Ministersof the Council of Europe. The Programmeof Action, examined the nature and reasonsfor corruption, and set out a work
programme that included examining andmaking recommendations in a number ofa r e a s , i n c l u d i n g c r i m i n a l l a w,
administrative law, fiscal aspects, civil law,
institutions and categories of persons withspecial roles and responsibilities as regards
corruption, prevention, investigation andsanctioning of corruption, international cooperation and a number of areas related tofinancing of political parties, role of lobbyist
organisations, role of the media, andresearch, training and exchange ofpractical experiences.35 The Committee of
Ministers mandated the MultidisciplinaryGroup on Corruption (GMC) to developinternational instruments to give effect to
the Programme of Action and to implement
the Programme of Action before December
31, 2000.
At the 21st Conference of European
Ministers of Justice, held in Prague, Czech
Republic, in June 1997, Ministers
recommended accelerating the
35 Multidisciplinary Group on Corruption (GMC),

Programme of Action Against Corruption, GMC (96)
95.

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RESOURCE MATERIAL SERIES No. 56
implementation of the Programme of
Action against Corruption, andintensifying efforts with a view to the early
adoption of, among other things, a criminal
law convention that would provide for theco-ordinated incrimination of corruption
offences among states, enhanced cooperation for the prosecution of suchoffences and an effective follow-up
mechanism open to both Member States
and Non-member States.
At the Second Summit of Heads of Stateand Government of the Member States of
the Council of Europe, held in Strasbourgon October 10 to 11, 1997, an Action Plan
was adopted which included an instruction
to the Committee of Ministers to adopt
guiding principles against corruption andto secure the rapid completion ofinternational legal instruments pursuant
to the Programme of Action against
Corruption.
On November 6, 1997, at its 101st
session, the Committee of Ministers of theCouncil of Europe adopted the 20 Guiding
Principles for the Fight against Corruption.
These principles set out a number of goals
that should be achieved to fight corruption,
and addressed a number of areas such as
public awareness, co-ordination at thenational and international level, adequate
resources for and independence of thosefighting corruption from undue andimproper influences, seizure anddeprivation of proceeds of corruption,
corporate liability, transparency of public
administration and procurement
procedures, appropriate auditing
procedures, systems of public liability andaccountability, codes of conduct and rules
for financing of political parties andelection campaigns, and effective remedies
36 Council of Europe, Committee of Ministers,

Resolution (97) 24 on the Twenty Guiding Principles
for the Fight against Corruption.

336

and sanctions against corruption36 The
Committee of Ministers also instructed the
GMC to rapidly complete the elaborationof an instrument to establish a mechanism
to monitor the observance of the Guiding
Principles and the elaboration of theinternational legal instruments to be
adopted.
On May 5, 1998, the Committee of
Ministers adopted Resolution (98) 7
authorising the establishment of the“Group of States against Corruption”(GRECO) in the form of a partial andenlarged agreement which aims at
improving the capacity of states to fightcorruption by following up compliance with
their undertakings in the fight against
corruption. GRECO will monitor
implementation of the Convention and theapplication of the 20 Guiding Principles,
as well as other conventions and legal
instruments developed by the Council ofEurope in the area of corruption. The
Committee of Ministers invited Member
States and Non-member States having
participated in the elaboration of theAgreement to join the GRECO. GRECO
will come into force when 14 States haveindicated their desire to join it, which
occurred in early 1999. GRECO started
operating in May 1999.
On November 4, 1998, the Committeeof Ministers adopted the Criminal Law
Convention and decided to open it for
signature on January 27, 1999. On
January 27, 1999, 21 European states
signed the Criminal Law Convention, andas of September 15, 1999, 30 states havenow signed. It will come into force when
ratified by 14 States. The Convention is
open to the accession of Non-member
States. The Criminal Law Convention on
Corruption seeks to achieve co-ordinatedcriminalisation of a wide range of corrupt
practice by harmonised national legislationand improved international co-operation.

113TH INTERNATIONAL TRAINING COURSE
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It complements existing legal instruments
and covers the following forms of corruption
and corrupt behaviour:•

Active and passive bribery of domestic
and foreign officials;37•

Active and passive bribery of nationaland foreign parliamentarians, which
exercise legislative or administrative
p o w e r s , 38 a n d m e m b e r s o fparliamentary assemblies ofinternational or supranationalorganisations of which a Party is amember;39•

Active and passive bribery in theprivate sector (i.e, active or passive
bribery by “persons who direct or workfor, in any capacity, private sector
entities”) ;40•

Active and passive bribery ofinternational civil servants;41•

Active and passive bribery of domestic,
foreign and international judges andofficials of international courts;42•

Trading in influence;43•

Money-laundering of proceeds from37 Council of Europe, Criminal Law Convention on

Corruption, (hereinafter “COE”), Articles 2, 3 and 5.
38 COE, Articles 4 and 6.
39 COE, Article 10.
40 COE, Articles 7 and 8.
41 COE, Article9 (i.e., “any official or other contracted

employee, with the meaning of the staff regulations,of any public international or supranationalorganisation or body of which the Party is amember, and any person, whether seconded or not,carrying out functions corresponding to those
performed by such officials or agents”).
42 COE, Article 11.
43 COE, Article 12.
44 COE, Article 13.

corruption offences;44•

Accounting offences (invoices,
accounting documents, etc) connectedwith corruption offences.45“Active bribery” is defined to mean theintentional “promising offering or giving by
any person, directly or indirectly, of any
undue advantage “to any public official, forthe benefit of that official or for anyone else,in order that the public official refrain fromacting in the exercise of his or her
functions.46 “Passive bribery” is defined tomean the intentional request or receipt by
any public official, directly or indirectly, of
any undue advantage, for the benefit ofthat public official or anyone else, or theacceptance of an offer or a promise of suchan advantage, in order that the public
official act or refrain from acting in theexercise of his or her functions.47“ Tr a d i n g i n i n f l u e n c e ” m e a n s
intentionally “promising, giving or offering,
directly or indirectly, of any undue
advantage to anyone who asserts or
confirms that he or she is able to exert an
improper influence over the decisionmaking” of any public official, member of ap u b l i c a s s e m b l y, m e m b e r o f a n
international organisation, parliamentaryassembly or court within the scope of theConvention, in consideration thereof. It isirrelevant whether the undue advantage
is for himself or herself or for anyone else.
The term “trading in influence” also applies
to the intentional “request, receipt or theacceptance of the offer or the promise ofsuch an advantage, in consideration of that
influence, whether or not the influence isexerted or whether or not the supposed
influence leads to the intended result.”48
45 COE, Article 14.
46 COE, Article 2.
47 COE, Article 3.
48 COE, Article 12.

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RESOURCE MATERIAL SERIES No. 56“Accounting offences” refers to thefollowing acts or omissions, whencommitted intentionally, in order tocommit, conceal, or disguise a corruption
offence within the scope of the Convention:(a) creating or using an invoice or any
other accounting document or record
containing false or incomplete
information; or(b) unlawfully omitting to make a recordof a payment.49
Under the Convention, Parties are
obligated to establish jurisdiction over theConvention offences where:(1) the offence is committed on its
territory;(2) the offender is one of its nationals,
one of its public officials, or a memberof one of its domestic assemblies; or(3) the offence involves one of its public
officials or members of its domestic
public assemblies, or any personreferred to in any of the articles
establishing corruption offences who
is one of its nationals.50
The third basis of jurisdiction is intended
to include the exercise of jurisdiction where
the person who is bribed is a national of
the Party.
Parties are also obligated to ensure that
corporate liability exists in respect of thecriminal offences of active bribery, trading
in influence and money laundering where
the offence is committed for the benefit of
the legal person by any natural person,
acting either individually or as part of anorgan of the legal person, who has a leading
position within the legal person. This
leading position can be based on a powerof representation of an authority to takedecisions on behalf of, or an authority to
exercise control within, the legal person.
Additionally, a Party shall ensure that alegal person can be held liable where thelack off supervision or control by thenatural person, who has a leading position,
has made possible the commission of thecriminal offence for the benefit of the legal
person. Any liability for the legal person
does not exclude any criminal liability
against the natural person.51
Each Party is obligated to provide thatthe criminal offences established haveeffective, proportionate and dissuasive
sanctions and measures, including, in thecase of natural persons, penalties involving
deprivation of liberty and in the case oflegal persons, non-criminal sanctions andmonetary sanctions. Likewise, Parties are
obligated to confiscate or otherwise derive
the instrumentality’s and proceeds ofConvention criminal offences or property,
the value of which corresponds to suchproceeds,52 and to adopt such legislative orother measures as may be necessary,
including those permitting the use of
special investigative techniques, tofacilitate the gathering of evidence and toi d e n t i f y, t r a c e , f r e e z e a n d s e i z e
instrumentalists and proceeds.53 These
measures include the authority to orderthat bank, financial or commercial records
are made available or seized and that banksecrecy not be an obstacle to any of themeasures provided.54
The Convention also contains provisions
to ensure that persons or entities
specialised in the fight against corruption
have the necessary independence to carryout their functions free from undue
pressure and are adequately trained and
51 COE, Article 18.
52 COE, Article 19.

49 COE, Article 14.

53 COE, Article 23.

50 COE, Article 17.

54 Ibid.

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113TH INTERNATIONAL TRAINING COURSE
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financially resourced,55 public authorities
and public officials co-operate withinvestigating and prosecuting authorities,56
and effective and appropriate protection isprovided for those who report Convention
criminal offences or who are witnesses.57
With respect to international cooperation, Parties are obligated to cooperate to the widest extent possible for the
purposes of investigation and proceedings
concerning Convention offences, and may
use the Convention as the basis for cooperation where no bilateral or otherinternational instrument or arrangement
exists.58 Mutual legal assistance may berefused if the requested Party believes thatcompliance with the request would
undermine its fundamental interests,
national sovereignty, national security or
public order, but shall not invoke banksecrecy as a ground of refusal.59 Likewise,
the Convention can be used as the basis
for extradition with respect to Convention
offences, and Parties are obligated torecognise Convention offences as
extraditable offences. If extradition isrefused solely on the basis of the nationalityof the person sought, or because therequested Party considers that it has
jurisdiction over the offence, the requested
Party shall submit the case to its competentauthorities for the purpose of prosecution60.
The Convention also contains provisions
concerning the provision of spontaneous
information by a Party to another Party
when it considers that disclosure might
assist an investigation61, as well as the use
of Central Authorities 62 , and directcommunications between judicial
authorities in the event of urgency.63
V. UNITED NATIONSIn 1990, the Eighth United Nations
Congress on the Prevention of Crime andthe Treatment of Offenders adopted aresolution on Corruption in Government 64
which, in addition to inviting and urging
Member States to review the adequacy of
their laws and procedures to respond tocorruption, requested that the United
Nations organisation provide technicalcooperation and assistance to develop anticorruption programmes, law reform,
training, etc. The organisation was also
requested to develop a code of conduct for
public officials and to develop a manual on
practical measures against corruption.
In 1993, the United Nations publisheda manual addressing practical measuresagainst corruption.65 The manual contains
a number of chapters addressing issues
such as penal laws, administrative andregulatory measures, procedures for thedetection, investigation and conviction ofcorrupt officials, forfeiture of property andproceeds, economic sanctions against
enterprises and training, and exchange ofinternational experience.
At the Ninth United Nations Congresson the Prevention of Crime and theTreatment of Offenders, held in Cairo,
Egypt, in 1995, a special session was
devoted to the subject of corruption. A
Background paper prepared by the

55 COE, Article 20.

63 COE, Article 30.

56 COE, Article 21.

64 United Nations, Economic and Social Council,

57 COE, Article 22.

Resolution 1990/23 of 24 May 1990.

58 COE, Article 25.

65 United Nations, “Crime Prevention and Criminal

59 COE, Article 26.

Justice in the Context of Development: Realities
and Perspectives of International Cooperation,
Practical Measures against Corruption”, 41 & 42
International Review of Criminal Policy (1993).

60 COE, Article 27.
61 COE, Article 28.
62 COE, Article 29.

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RESOURCE MATERIAL SERIES No. 56
Secretariat on international action against
corruption was distributed.66 The paper
presents various characteristics ofcorruption, as well as its adverse effects ondevelopment. Various measures against
corruption and recent international
initiatives are discussed, as well as the roleof international organisations in the fightagainst corruption.
In the autumn of 1996, the United
Nations General Assembly adopted two
resolutions concerning corruption. The
first, Action Against Corruption, to which
was annexed an International Code of
Conduct for Public Officials. 67 The
resolution on the Code of Conduct had been
prepared by the UN Commission on Crime
Prevention and Criminal Justice. The
Code addresses areas such as loyalty to the
public interest, effective and efficientadministration of public resources, fair andimpartial performance of functions, conflictof interest and declaration of possible
conflicts, improper use of public property,
disclosure of assets, acceptance of gifts or
favours, confidentiality of information andpolitical activity. The resolution called
upon States to implement the resolution
and Code of Conduct.
The second resolution, adopted theUnited Nations Declaration against
Corruption and Bribery in International
C o m m e r c i a l Tr a n s a c t i o n s . 6 8 T h e
Declaration called upon States to commit
themselves inter alia to take effective andconcrete action to combat all forms ofcorruption, bribery and related illicit
practices in international commercial

transactions and, in particular, tocriminalise the bribery of foreign public
officials in connection with an internationalcommercial transaction, deny the tax
deductibility of bribes, develop accounting
standards and practices that improve thetransparency of international commercial
transactions, develop business codes,
standards or best practices, examine thecriminalisation of illicit enrichment, afford
the greatest possible cooperation andassistance to other States in the criminal
investigation and prosecution of corruption
and bribery, and ensure that bank secrecy
does not impede or hinder criminal
investigations.
Pursuant to General Assembly
resolution 51/59 and ECOSOC resolution
1995/14, a report was prepared in 1997 by
the Secretary General that reviews various
forms of corruption and several anticorruption initiatives taken byinternational bodies and describes possible
elements and means to implement theabove-mentioned General Assembly
resolutions and to promote theInternational Code of Conduct.69 Whileobserving that the fight against organised
crime and corruption is predominantly
presented as a challenge to the law
enforcement community, it recognises thatcrime prevention concepts and techniques
can be employed in the fight against
corruptions and organised crime,
particularly in limiting the opportunities
for corruption.
At the sixth session of the UN
Commission on Crime Prevention andCriminal Justice (1997), states were called

66 United Nations, Ninth United Nations Congresson the Prevention of Crime and the Treatment of
Offenders, A/Conf.169/14, 13 April 1995.
67 United Nations General Assembly, 51st Session,
Resolution 51/59.
68 United Nations General Assembly, 51st Session,
Resolution 51/191.

340

69 United Nations, Economic and Social Council,“Promotion and Maintenance of the Rule of Law
and Good Governance; Action against Corruption,
Action against Corruption and Bribery, Report of
the Secretary-General, E/CN.15/1997/3, 5 March
1997.

113TH INTERNATIONAL TRAINING COURSE
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upon to commit themselves to take further
action further to General Assembly
resolution 51/191. It was also agreed that“combating corruption” would be a theme
to be a addressed at a workshop to be heldat the Tenth United Nations Congress on
the Prevention of Crime and the Treatmentof Offenders, to be held in Vienna, Austria,
in April 2000. At the seventh session of
the Commission (1998), a resolution was
adopted to request the updating of the UN
Manual on Practical Measures on
Corruption and for an experts’ group to
develop an international strategy against
corruption. A meeting of experts was heldin Paris in April 1999, and its
recommendations were considered andwelcomed by the Commission at its eighth
session in May 1999.
Recently, the newly structured Centre
for International Crime Prevention in
Vienna, Austria, has prepared a Global
Programme Against Corruption which is an
outline for action against corruption interms of research and technical cooperation
and assistance. The research component
is to undertake a global study on
corruption, including identification of types
and the effectiveness of anti-corruption
measures, particularly in the areas of
public administration, business andpolitical-financial corruption. In addition,
an international database is to be created
which would contain information on bestpractices, relevant national legislation andregulatory measures of different countries
and international instruments against
corruption. The technical cooperation
component, which is to be multidisciplinary
in nature, is designed to strengthen or
assist Member States to build andstrengthen their institutional capacity inpreventing, detecting and fighting
corruption. Governments in which
technical cooperation activities are to be
implemented will be invited to sign a
National Anti-Corruption Programme

Agreement, which will express theirpolitical will to be bound to a technicalassistance component to deal with thecommercial aspects of corruption andbribery in international commercial
transactions.
Currently, members of the United
Nations are negotiating a Convention on
Transnational Organised Crime. One ofthe proposals under consideration is toinclude a provision on corruption thatwould obligate states to criminalise acts ofcorruption committed by organised groups.
The proposal is similar to that containedin the Council of Europe convention andwould criminalise the offering or giving toa public official of an undue advantage toact or refrain from carrying out his or her
functions or the receipt of such anadvantage by the public official. Of some
controversy is the proposal to extend theobligation to criminalise such acts toinclude also foreign public officials,
international civil servants and judges, andofficials of international criminal courts.
Also being considered by the committee
negotiating the Convention is the question
whether much broader provisions against
corruption, which address aspects otherthan criminalisation, should be the subjectof a future protocol to the Convention or
be the subject of a separate international
Convention. The Committee is to reportto the Commission on Crime Prevention
and Criminal Justice on its
recommendations.
VI. GLOBAL FORUM ON FIGHTINGCORRUPTION
The first Global Forum on Fighting
Corruption: Safeguarding Integrity Among
Justice and Security Officials was held in
Washington, DC, from February 24 to 26,
1999, hosted by US Vice President, Al Gore.
High-level representatives from 89
governments and others shared

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experiences and examined the causes ofcorruption and the practices that are
effective to prevent and fight it,
particularly as regards corruption of justiceand security officials. The costs ofcorruption on democracy, economic andsocial development and the rule of law werenoted and participants called on
governments to co-operate in appropriate
regional and global bodies to rededicate
themselves to adopt effective anticorruption principles and practices and toassist each other through mutual
evaluation.
While there were calls for a global
convention to be negotiated, there was noconsensus whether such a convention
should be negotiated immediately or
following the negotiation andimplementation of regional anti-corruption
conventions. Nevertheless, participants
were committed to act and a second Global
Forum on Fighting Corruption is to be heldin the Netherlands in 2000. Immediately
before the Global Forum, Ministers fromeleven African countries meeting inWashington, DC, drafted a set of 25
principles on anti-corruption, good
governance and accountability. There wasa sense at the forum that these principles
could be adopted by other African countries
and serve as the basis for an African
Convention Against Corruption, which
could be negotiated within the
Organization of African Unity.
VII. CONCLUSION
The political priority given to the issueof corruption has resulted in thenegotiation of a number of regional andother international Conventions against
various forms of corruption. This paper has
attempted to survey a number of these
initiatives, setting out their major
elements. While most of these Conventions
have been of a regional nature or of inter-342

governmental organizations of limited
membership, there is a clear recognition
that global solutions, including a global
convention of some form, is required. It is
anticipated that regional and other limited
international Conventions will continue tobe negotiated in the near future, but withthe realisation and goal that a truly global
convention is required and that its
negotiation is imminent.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

GOOD GOVERNANCE: A MERE MOTTO
OR A PRAGMATIC ENDEAVOUR FOR A REALISTIC
STRATEGY? (THE FRENCH EXAMPLE OF AN
ANTI-CORRUPTION AGENCY)
Laurence Giovacchini*
I. INTRODUCTION
Increasing international awareness ofthe negative impact of corruption isfostering new devices and strategies witha view to protecting the rule of law,
threatened by bribery. Appropriate
criminalization, adequate offences,
deterrent punishments and codes of ethics
rank among the customary tools used totackle the corruption problem.
Nonetheless, the use of sentencing
guidelines is not sufficient. Forwardlooking methods are needed, fromsafeguards against the abuse of power toenhancing and promoting efficientdecision-making. Preventive techniques
against corruption favor the elaboration ofgood management tools, far from thevarious enumerations of misdemeanors to
be avoided by public officials.
How can we, other than by theimposition of a code of behaviour,
implement conditions conducive to theloyalty of public officials? Conditions whichfunction positively when, for instance,
problems related to conflicts of interest
arise, when compartmentalized controls
risk missing their target, whenmisinterpretations of complex data arelikely to occur.
Excessive regulation and, inversely, lackof regulation both offer opportunities for
manipulation and fraud. The latter cannot* Administration Civil, Service Central de Prevention
de la Corruption, French Republic.

be prevented simply by norms and laws.
The risk of corruption must be evaluatedby an overall view of the situation, one
which will facilitate the possible discoveryof hidden connections, sham processes,
forgery, etc. Fragmented information may,indeed, be as useless as no information atall, and can even be deceptive and lead to
distorted analyses.
Consequently, monitoring mechanisms,
training, risk detection techniques,supervisory accountability, whistleblowing,
and so forth: all these tracks can be
explored in order to improve theinvestigation and the prevention of casesof corruption. The “what-to-do” approach
must open the way to the “how-to-achievethe-goal” strategy. The promotion of “anticorruption know-how” is crucial. It has
three aims:• to dissuade public officials frombreaching their duties;• to scrutinize the weak points andloopholes of administrative processes;• to put an end to the mistrust of public
service - whether justified or basedon rumor - in the public opinion.
Corruption is a topic of high priority on
the international agenda of many
institutions. The OECD Convention(December 17, 1997) criminalizing thebribery of public officials in international
business transactions is a breakthrough.
The United Nations and the Council ofEurope have also taken significant steps.
This new context has triggered the343

RESOURCE MATERIAL SERIES No. 56
necessary review of the assets andhindrances of anti-corruption strategies.
What makes them successful? What are
the obstacles likely to stifle the efforts
carried out according to the well-know“where there is a will there is a way”? Apractical viewpoint is indispensable
because a prescriptive approach isnecessary, but insufficient. Workable
solutions must be tested and theirfeasibility proved.
First of all, we have to dismiss theobjection that corruption is tricky to deal
with when public officials in charge offighting bribery can be bribed themselves.
Such an argument reduces to a stalemate
whatever attempts are made at curbing
fraud. Practical, workable solutions help
avoid the obstacle by a subtle process ofchecks and balances, quite different fromthe endless process of “who will control thecontroller and so forth?”. An unbiased
public service requires loyalty andmanagerial skills, which, in the frameworkof the fight against corruption, can be
defined as follows:(i) loyalty: to refrain from acting against
the law and keep potential bribegivers at bay;(ii) management: to implement laws by
overcoming obstacles to theirenforcement and to make corrupt
schemes fail by detecting anddisclosing shady deals, and by
deciphering the moves shrouding
them.
Since both aspects are complementary,neither should be overlooked. Individual
loyalty is of crucial importance, because itis the core of resistance against attempts
at corruption. An honest public official will
obviously refuse a kick-back and the bribegiver will not be able to succeed, being
deprived of the bribe-taker counterpart.
Nonetheless, individual integrity must be

344

supported by ethical management in order
to effectively cope with the risk of pervasive
and widespread bribery. Otherwise,
however adamant and honest public
officials may be, they can feel isolated andthreatened by crooks connected throughfraudulent networks. When corruption is
on the verge of taking the upper hand on
administrative channels, its organisational
grasp has to be equalled by the sameorganisational efficiency on behalf of ethics.
Individual commitment must be
strengthened by the group’s involvement.
This is not an unrealistic view and theremedy does not suppose that the patient
has already recovered. A “leveragetechnique” can be put into practice,allowing a small group (trained in ethicalmanagement techniques) to defeat a larger
one where the loopholes have been
identified. Thus, the negative statement
according to which “nothing can be done,
because everything is rotten, due tobribery” is not valid. The anti-corruption
fight should not be understood as a crusade(doomed to failure sooner or later), or as adaunting prospect which entails so manyefforts that its costs become unbearable.
A leverage process enables its users tomake the most of prevention techniques
and of scattered sources of information.
“An ounce of prevention is worth a poundof cure” and demands awareness of theexistence of problems lurking beneath thesurface. These problems are not solved bymere control-tightening, which, on thecontrary, is liable to favor red tape. A
roadblock can be put on corrupt paths by
scrutinizing the way corruption operates
through various networks. There is
obviously no cure-all to eradicate it, but aprofessional team specialized in anticorruption techniques (described below),
has the means to step up action thanks to
a pro-active strategy, characterized by two
features:113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS(i) the ability to transform fragmented
clues into intelligence of an overall
problem and its intricacies;(ii) the possibility to report right on cue
about the very irregularity which,although it may seem petty, is highly
relevant for kicking off a wholeprocess of further examination.
II. AN INTERNATIONAL CONTEXTFAVORING THE
ANTI-CORRUPTION FIGHT
A. End of the “Grease-the-Wheels”
Argument
This argument is no longer valid,
according to which bribery can be an
efficient way of getting around burdensome
regulations and ineffective legal systems.
This rationale has not only inspired
sophisticated academic models but has
legitimized the behavior of privatecompanies that are willing to pay bribes toget business. On closer examination, thisargument is full of holes. First, it ignores
the enormous degree of discretion thatmany politicians and bureaucrats can have,particularly in corrupt societies. They havediscretion over the creation, proliferation,and interpretation of counterproductive
regulations. Thus, instead of corruption
being the grease for the squeaky wheels ofa rigid administration, it becomes the fuelfor excessive and discretionary regulations.
This is one mechanism whereby corruption
feeds on itself.
In addition to some academic writings,
one school of “corruption apologists” argues
that bribery can enhance efficiency by
cutting the considerable time needed toprocess permits and paperwork. The
problem with this “speed money” argument
lies in the presumption that both sides will
actually stick with the deal, and there will
be no further demands for bribes. For
example, one high-level civil servant who
had been bribed could not process anapproval any faster given the multiple
bureaucrats involved in the process, yet hewillingly offered his services to slow theapproval process for rival companies”.1
B. Promotion of the “ZeroTolerance” Argument
The damaging effects of corruption areemphasized in the main international fora,
among them:
1. The United Nations“(...) international organizations andmany industrialized and developing
countries have deplored the pernicious
effects of corruption, whether internationalin scale or national. This is because
corruption undermines the legitimacy ofGovernments and institutions, andcompromises social and economic
development”.2
2. Council of Europe“... aware that corruption represents a
serious threat to the basic principles andvalues of the Council of Europe,
undermines the confidence of citizens indemocracy, erodes the rule of law,
constitutes a denial of human rights andhinders social and economic development...” (cf. 20 guiding principles for the fightagainst corruption, adopted by theCommittee of Ministers 6 November 1997.)
3. OECD“... The governments of OECD countries
share the conviction that bribery andcorruption undermine democratic
institutions, distort international trade,investment relations and development cooperation. The OECD Public Management
Committee (PUMA) has, since its
inception, focused on ways to improve the1

In “Corruption: The Facts”, article by Daniel
Kaufmann, p. 114 of “Foreign Policy”, Summer,
1997.
2 In “Model Law on Corruption”.

345

RESOURCE MATERIAL SERIES No. 56
efficiency and effectiveness of public sector
management. In particular, the Committee
has addressed the issue of probity in public
sector operations in its work on financial
management, organisational performanceand management of the civil service”.3
4. European Union“The Convention on the protection of theEuropean Communities’ financial interests
was drawn up by the Council and signedby the Representatives of the Governmentsof the Member States on 26 July 1995. A
First Protocol to the Convention was drawn
up and signed on 27 September 1996. The
Protocol is aimed primarily at acts ofcorruption that involve national andCommunity officials, and damage or are
likely to damage the European
Communities’ financial interests.”
The backbone of every draft orinternational recommendation is that
corrupt practices should not be tolerated,
whatever the circumstances.
C. Significant Steps in the
Criminalization of Corrupt
Behaviours“Laws and customs differ from one
country to another”. This sort of statement
is no longer a pretext for governments toneglect corruption in countries where it isr a m p a n t . A c t u a l l y, n o c o u n t r y i s“corruption-proof”. One can no longer
justify corrupt behaviors by explaining thatthey are “normal, acceptable” in othercountries. The maze and the haze of vague
notions (“what can be regarded as
corruption? where does it begin? ” etc) are
replaced by a judicial technical review
designed to shape adequate offences,entailing predictable and dissuasive
sanctions.
Tw o c o m p l e m e n t a r yorientations can be pointed out:
3

In “International Symposium on Corruption andGood Governance”, Paris, 13-14 March 1995.

346(i) Remedies for Loopholes
Progress has been made in criminal law
by agreeing on the definition of corruption
as an offence, instead of relying on mere
individual morality to refrain fromcommitting wrongdoings. The very core ofcorruption is defined, which is not reducible
to other frauds or misdeeds. There is,indeed, an agreement to regard corruption
as “requesting, offering, giving or accepting
directly or indirectly a bribe or any other
undue advantage or the prospect thereof,
which distorts the proper performance ofany duty or behaviour required of therecipient of the bribe.” This roughdescription involves two actors - the bribegiver and the bribe-taker-and both are
liable to sanctions. The bribe-giver cannot
argue that s/he was “compelled” to corrupt
a public official in order to gain markets
and obtain authorizations. Nor should thebribe-taker explain that “it is routine,
everybody is doing so”, or that s/he had
been deceived. Responsibilities are clearly
defined by law; the bribe-giver and thebribe-taker are equally responsible, all themore so because the undue advantage canbe non-material (a promise of promotion,for example. The fact that money has notbeen paid directly or immediately is no
excuse, quite the contrary. The existenceof the secret bond between the two
protagonists, in order to gain an advantage
by abuse of power, is sufficient tocharacterize corruption.
From a legal point of view, ways of escapeare blocked. This does not mean that
offenders are caught and prosecuted, butrather that, if and when they areprosecuted, they cannot use as a pretext
their ignorance of law and of the criminal
consequences of their misdeeds. The
OECD Convention on Combating Briberyof Foreign Public Officials in International
B u s i n e s s Tr a n s a c t i o n s ( s i g n e d o n
December 17, 1997) goes a step forward:

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS• not even bribery of domestic private
officials is criminalized but also thecomplicity in - including incitement,
aiding and abetting - or authorizationof an act of bribery of a foreign public
official shall be a criminal offence.
Even the attempt to bribe a foreign
public official is criminalized;• accomplices and intermediaries arethus, also taken as responsible for thecorrupt scheme;• the liability of legal persons for thebribery of a foreign public official isalso punishable. Such a provision
regarding liability opens a large field
for action and prosecution because
companies, for example, are legal
persons.
(ii) C o r r u p t i o n R e g a r d e d a s
Victimization
Contrary to other crimes, corruption isoften regarded as “victimless” and a shortsighted viewpoint denies seriousness to a
fraud entailing neither blood nor violence.
Nonetheless, international
recommendations aim at requiring eachparty to provide in its internal law effective
remedies for persons who have suffereddamage as a result of corruption, in orderto enable them to defend their rights andinterests, including the possibility ofobtaining compensation for damage. There
are, of course, prerequisites for a claim fordamages. In order to obtain compensation,
the plaintiff has to prove the occurrence ofthe damage, whether the defendant actedwith intent or negligently, and the causal
link between the corrupt behaviour and thedamage. This provision does not give aright to compensation to any person who
merely claims that any act of corruption
has affected, in one way or another, theirrights or interests, or might do so in the
future. However, it is not inconceivablethat persons having suffered damage as aresult of an act of corruption should havethe possibility to sue public officials, as wellas the possibility to sue their public officials
for the reimbursement of any loss for which
they are judged responsible. Progressively,
the stress is put on the necessity of enabling
victims of acts of corruption by public
officials to have effective procedures andreasonable time to seek compensation fromthe State.
Such a conceptual evolution deserves tobe noticed because it entails a demanding
concept of public service. The risk of beingsued for corruption, in a civil trial, puts
some kind of pressure on public officials,
combined with deterrent criminal
sanctions. Of course, such a scenario is amere prospect, presently. The question is:
to what extent and how long will it remain
so? The extension of the process of“criminalization” (the characterization of
misdeeds as wrongdoings, crimes,
offences), coupled with the surge of the ideaof “victimization”, allows us to foresee thetightening up of the anti-corruption fight.
The fact that corruption can briefly besummarized as the misuse of public powerfor private profit should not lead us tooverlook the sophistication of criminal
notions, including other related offencessuch as in France, the trading in influence[a tripartite offence where the person who
is actually bribed for exerting real orpretended influence] is different from theperson who is influenced in the decision.
Only public officials (elected politicians orcivil servants) can be target persons andthe “taking of illegal interest” (the offendertakes or receives a personal interest in acompany, for example, with which they are
involved in the administration or
surveillance task, or where they have theduty to carry out payments). Thosesignificant steps in the criminalization ofcorrupt behaviour lead us to examine thecritical position of public officials: targets
or shields in respect to the issue of
corruption?

347

RESOURCE MATERIAL SERIES No. 56
D. Attempt at Defining
Internationally the Notion of“Public Officials”
The above-mentioned OECD Convention
provides that: “foreign public official”
means any person holding a legislative,administrative or judicial office of a foreigncountry, whether appointed or elected.”
The Council of Europe emphasizes that:“public administrations play an essential
role in democratic societies and that theymust have at their disposal suitablepersonnel to carry out properly the tasks
which are assigned to them. Public officials
are the key element of the public
administration, they have specific duties
and obligations, and they should have thenecessary qualifications and an
appropriate legal and material
environment in order to carry out theirtasks appropriately”.
This recommendation offers acompendium of the rights and duties ofpublic officials. It sheds light on the issueof corruption because bribery intends toalter this very core of rights and duties:“the purpose of this Code is to specify thestandards of integrity and conduct to beobserved by public officials, to help themmeet those standards and to inform thepublic of the conduct it is entitled to expectof public officials”. Standards of integrity
do exist, can be listed and explained;
corruption manipulates those standards all
the more easily when they are only implicit.
Their specifications in a written code,
approved by several countries, help the
public to be more aware of the risk of abuseof power by public officials. Information
makes corruption recede. Whimsical,
arbitrary, odd, self-oriented interpretationof regulations are no longer valid and are
replaced by “duties in accordance with thelaw” and neutrality. As a result, theoffenders are deprived of any means ofjustification. They can no longer takeadvantage of the alleged inaccuracy of the348

rules and of the supposed pressure of
circumstances. The very articulation of amodel code of conduct for public officials
does not suppress, of course, thepossibilities of fraud, but it makes themmore risky and less profitable. This Codehighlights key-notions:• arbitrary behavior;• conflict of interest;• declaration of interests;• advantages;• reaction to improper offers;• reporting;• susceptibility to influence by others;• misuse of official position;• making decisions;• official information;• public and official resources;• incompatible outside interests;• political or public activity;• records;• integrity checking;• supervisory accountability;• leaving the public service;• dealing with former public officials;• observance of the code and sanctions.
The above-listed items set up safeguards
which protect public officials from undue
suspicion, by avoiding their being placedin ambiguous positions (conflict of interest,
revolving door, political interference). The
Code also promotes responsible
management (integrity checking,supervisory accountability, transparent
decision-making and reporting), which
provides a clear picture of the adequate
manner of carrying out public duties. The
Code offers, in a concise text, a review ofsensitive problems. These two criteria(accuracy and concision) contrast with theblurring modus operandi of corruption,
which thrives on the accumulation andsuccessive stratification of texts eventuallyleading to opacity and arbitrary
interpretations.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
A framework with solid judicial grounds
is, thus, ready to make corrupt pretexts andschemes groundless. The credibility of theinternational recommendations isenhanced by monitoring provisions.
E. Follow-up Measures are theHeart of the Matter“Monitoring” and “evaluation” havebecome key-words. Monitoring aims at
making loopholes less numerous. Therecan be many kinds of loopholes, such as:• the lack of criminal penalties (but theinternational texts we have referred
to are a first step to remedy thesituation);• the alleged “national economic
interest” (but article 4 of the abovementioned OECD Convention is
explicit: “Investigation andprosecution of the bribery of a foreign
public official shall be subject to theapplicable rules and principles ofeach Party. They shall not be
influenced by considerations ofnational economic interest, thepotential effect upon relations withanother State or the identity of thenatural persons or legal entities
involved”).
This monitoring is coupled withevaluation processes, because theConvention sets up a Working Group on
Bribery to monitor national
implementation. This Group is specificallydirected to work on a system of “mutual
evaluation” of the effort of each OECD
country. The Council of Europe has
established the “Group of States Against
Corruption - GRECO” (5 May 1998), “whichaims at improving the capacity of its
members to fight corruption by following
up compliance with their undertaking inthis field”.

The stress put on the necessity ofevaluation enhances what could be labelled
as a “culture of audit”, the Council ofEurope, for example, urging to “ensure thatappropriate auditing procedures apply tothe activities of public administration andthe public sector” and to “endorse the rolethat audit procedures can play inpreventing and detecting corruption outside
public administrations” (cf. “20 Guiding
Principles for the Fight against
Corruption”). Not only is an anticorruption doctrine taking shape, but also
practical tools of implementation are being
come up with and assessed:• How to comply with the law?
• How to resist the temptation ofcorruption?
• How to detect corrupt practices?
Those three questions may receive somebeginning of an answer thanks to the“toolbox” described below.
III. THE “TOOLBOX” ASPECTCONNECTED WITH A SYSTEMATIC
APPROACH TO THE ISSUE OF
CORRUPTION
A. The “Toolbox” as an Expertise“An understanding of management
principles is required to recognize andevaluate the materiality and significanceof deviations from good business practice.
An understanding means the ability toapply broad knowledge to situations likely
to be encountered, to recognize significant
deviations, and to be able to carry out the
research necessary to arrive at reasonable
solutions”.4 In this definition, many terms
can be emphasized, among them:• recognize,• evaluate,4“Normes pour la pratique professionnelle de l’audit
interne” by The Institute of Internal Auditors, p.40.

349

RESOURCE MATERIAL SERIES No. 56• broad knowledge,• research,• reasonable.
All the ingredients of a diagnosis are,thus, mentioned: recognize (because
corruption is the art of camouflage),evaluate (because problems have to beclassified with due consideration of theirpotential impact and the risks they entail),
broad knowledge (because a
multidisciplinary expertise is required toensure that adequate coverage exists forthe organisation as a whole, with aminimum amount of duplication), research(to transform partial data into accurate andreliable information) and reasonable(because radical proposals, by their very
exaggerated connotations, may be thesmokescreen hiding the escape from one’s
responsibilities: they are so unrealisticthat they will not be implemented andcorruption will continue to thrive). The
term “reasonable” deserves to be stressed:• It is used in the definition of
accountability supervisory (Code of
Conduct for Public Officials - Councilof Europe - above-mentioned): “Thepublic official who is responsible forcontrolling or directing other public
officials has duties as a supervisor. He
should be required to account for thewrongful acts or omissions of his staff
if they are so serious, repeated orwidespread that he should have beenaware of them if he had exercised thereasonable level of leadership,
management and supervision
required of a person in his position”.
• The notion of “supervisoryaccountability” for public officials ismatched by the notion of “dueprofessional care” for private
auditors: “Due professional care calls
for the application of the care andskills expected of a reasonably
prudent and competent internal

350

auditor in the same or similar
circumstances. Professional careshould, therefore, be appropriate to
the complexities of the audit being
performed.”5• The aim is “to promote effective
control at a reasonable cost”6, and to“include sufficiency of information
obtained to afford a reasonable basis
for the conclusions reached” 7. So as“reasonable assurance is provided
when cost-effective actions are taken
to restrict deviations to a tolerable
level”.8
We refer to this kind of expertise withthe figurative term of “toolbox” because itsupposes: fine tuning, monitoring, anddirections for use of warning indicators.
(i) Fine Tuning
Controls should not be stifling by
overtightness, nor so delayed andunproductive that the situation gets out ofhand when the potential loss associatedwith any exposure or risk is outweighedby the cost to control it. Controls should
be carried out in order to prevent and detect
irregularities, not to hinder action.
Consequently, they should be seen as
instruments of management, ranging frompreliminary assessments to detailed tests.
“Establishing standards for the operation
to be controlled, measuring performanceagainst the standards, examining andanalysing deviations, taking corrective
action, reappraising the standards basedon experience” 9: this process, which is
described in the private sphere, is also valid
for public administration, especiallyregarding the issue of corruption, which
5Op. cit. ibidem.
CIA REVIEW - Certified Internal Auditor - GLEIM,
p.86.
7 Ibidem p. 95.
8 Ibidem p. 116.
9 Op. cit. p. 188.
6

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
must be put under constant scrutiny.
(ii) Monitoring“Monitoring encompasses supervising,observing, and testing activities andappropriately reporting to responsible
individuals. Monitoring provides anongoing verification of progress towardachievement of objectives and goals”.10 It
means that factors of risk have to be
identified. Check-lists help to do so. We
can briefly summarize three examples ofcheck-lists, aiming at:
1. The Transparency of Procedures ofTendering in Public Procurements• Threats must be identified (especiallythe attempt to exert undue influencein the bid process and collusion withother suppliers to form a cartel);• The counter-measures can consist ofsolemnly affirming that illegal
arrangements are not tolerated: sucha statement can be a deterrent if theprospect of black-listing looms large.
Obvious irregularities should berecognized right away, when, forexample, suppliers are constantly
successful in winning contracts. One
company has suggested “visiting
unsuccessful bidders to provide themwith an opportunity to air any
grievances”.
2. The Prevention of Ethical Risks
It goes without saying that “staff
assignments should be made so that
potential and actual conflicts of interest andbias are avoided. The director should
periodically obtain from the audit staff
information concerning potential conflictsof interest and bias” 11. But how is thisinformation gathered? Sensitive sectors,
10 Op. cit.116.
11 Op. cit. p. 61.

such as city planning and zoning
regulations, have to be carefully examined.
There is conflict of interest when, forexample, a public official belongs to acommission in charge of allotting funds torenovate housing - “home improvementloan” - in the very place where s/he owns,
real estate. Conflict of interest also looms
when this public official participates in theactivity of a non-trading real estate
investment company, which happens to be
involved in operations planned by thegeneral assembly (of a local entity orcommunity), where this public official notesor reports. Building permits, generally
speaking, can be the target of direct
corruption (a bribe is given to obtain theauthorization) or of indirect manoeuvres,by influencing the future decision of
constructibility regarding zones whichhave not yet been classified. Obviously,
when a public official finds themself in asituation of potential conflict of interest(because his spouse, for example, owns
some piece of land in this area), s/hebecomes a weak link in a chain of
responsibility which is, thus, likely to bemoulded by corrupt practices.
It is not so difficult to list the risks ofconflicts of interest in various key-sectors.
Public officials can be encouraged to reporton them for fear of getting sanctioned incase of actual deviation. In thisacceptation, the “toolbox” consists in theinventory of risks and of potential
irregularities. In the third example ofaforementioned check-lists, the stress is
put on:3. The Detection of Fraud“Indicators of treachery” are elaborated,such as: “Danger Signs Pointing toward
the Possibility of Embezzlement” (Sawyer
and Dittenhofer, Sawyer ’s Internal
Auditing, p. 1189):• Borrowing small amounts from fellow
employees.

351

RESOURCE MATERIAL SERIES No. 56• Placing personal cheques in change
funds - undated, post-dated, - orrequesting others to “hold” cheques.
• Personal cheques cashed andreturned for irregular reasons.
• Placing unauthorized IOUs in change
funds, or prevailing on others inauthority to accept IOUs for small,short-term loans.
• Inclination toward covering up
inefficiencies by “plugging” figures.
• Pronounced criticism of others, so as
to divert suspicion.
• Replying to questions withunreasonable explanations.
• Gambling in any form beyond ability
to stand the loss.
• Buying or otherwise acquiring
through “business” channels
expensive automobiles andextravagant household furnishings.
• Explaining a higher standard ofliving as money left from an estate.
• Getting annoyed at reasonable
questioning.
• Refusing to leave custody of records
during the day; working overtime
regularly.
• Refusing to take vacations andshunning promotions for fear of
detection.
• Constant association with, andentertainment by, a member of a
supplier’s staff.
• Carrying an unusually large bankbalance, or heavy buying of securities.
• Rewriting records under the guise ofneatness in presentation.
Those indicators quoted from Sawyer
should not be used in a simplistic way
which might lead to absurd conclusions: a
conscientious employee “working overtime
regularly” is not necessarily guilty ofembezzlement !. Only the convergence ofvarious factors of suspicion can be regarded
as a warning indicator. A “toolbox” is not amere aggregate of instruments chosen and352

used at random. Directions for use areindispensable, especially insofar as
corruption is concerned.
(iii)Directions for Use
The need for efficiency of the anticorruption fight should not lead us tooverlook the protection of public andindividual liberty. Some “warning
indicators” to detect fraud may turn out tobe intrusive if used without judicial
background and safeguards. For example,
the disclosure by public officials of assets
and liabilities, coupled with the reversalof the burden of proof in corruption cases,
may be damaging to the fundamental
rights of the accused. This is why an
independent judiciary is indispensable toprotect those rights from infringements.
With such guarantees, efficient methods tofight corruption can be tested, especiallywhen individuals or entities underinvestigation appear to have in theirpossession or availability, directly or
indirectly, goods and means clearly beyond
their normal financial standards.
The “toolbox” represents an attempt ata systematic approach, which is not
reducible to a collection of devices. Thissystematic approach is intended to matchthe “systemic” nature of corruption.
B. The Systematic Approach to theIssue of Corruption
1. What “Systemic” Corruption Means
Corruption is not a transient fraud,because it aims at setting up durable
networks substituting their own regulation
for the legal one. Thus, it cannot be tackled
as a temporary aberration. This pervasive,
undermining nature of corruption may
cause reluctance on the part of publicauthorities, who fear that the remedy may
be so demanding as to be unaffordable andworse than the evil itself. The problem isto determine how to initiate the process ofrecovery when the whole administrative

113TH INTERNATIONAL TRAINING COURSE
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and political body seems to be seriously ill.
When the roots of corruption are so deepand entangled, how is it possible toeradicate them without turning everything
upside down?
2. A Systematic Strategy Based on a
“Leverage Technique”
A modest, even down-to-earth, clue canbe usefully exploited when it is analysedthoroughly, thanks to a multidisciplinary
technique based on accounting,administrative law, commercial andbusiness law, rules banning unfair
competition, and tax laws. A systematic
approach to the issue of corruption goesbeyond criminal law. For example,
administrative provisions, such as what wecall in France “le statut général de lafonction publique” (“Civil servant status”
as a body of rules encompassing the whole
career of a civil servant) offers guidelines
about remuneration which can be
combined with tax law regarding thecontrol of the statement of income. Anotherexample may be quoted from the French“contrôle de légalité” (control of compliancewith law) for which the “Préfet” (a highranking civil servant representing all theministries in a district or territorial
subdivision) is responsible. This kind ofadministrative control makes it possible todetect cases of favouritism in tendering, forexample, by shedding light onirregularities such as a secret, preliminary
agreement between an elected public
official and a company which obtains themarket without the legal authorization of
the collegial body. Another example
concerns the implantation ofsupermarkets, which needs the approvalof a commission. Generally speaking,collegiality and the codification of terms
and conditions (“cahier des charges”, inFrance) contribute to limiting arbitrary
gratifications.

We have mentioned basic rules on
purpose because the review of thesefundamental principles proves that theanti-corruption fight does not begin ex
n i h i l o . A c t u a l l y, t h e p r e s e n c e o firregularities does not necessarily meanthat a corrupt scheme is underway on al a r g e s c a l e . H o w e v e r, t h o s e v e r yirregularities can be the visible part of acorrupt iceberg. Thus, the anti-corruption
fight should not be regarded as a breaker,
but as a patient and subtle review of theelementary procedures for checking
irregularities. Of course, this is only a step
to trigger the process off, but it is the firststep which is often the most difficult. The
basic and obvious devices that we havealluded to can be used in a sophisticatedand innovative manner, in order to track
corrupt practices. The audit method that
we mentioned above is likely to enhance
the impact and the relevance of those basic
rules, which protect the public interest andindividual liberty. Basic administrative
procedures become quickly routine, andthose who use them, unless made aware of
the fact, are perhaps blind to their capacity
to reveal corrupt practices. Once thedetection of corruption is defined as a goal,
irregularities immediately become
relevant. The question is then: what kindof organisation and management will
facilitate this awareness by casting newlight on the risk of corruption?
IV. “COMMAND-AND-CONTROLPARADIGM” VERSUS THE“LEARNING ORGANISATIONMODEL”?
“Command-and-control management” ison the way out. Its replacement, the“learning organisation model”, contradicts
all the assumptions about work espousedin the command-and-control paradigm andrepresents a radical transformation of theorganisation of work”12.
12 “Internal Auditor” review, June 1999, p.29.

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RESOURCE MATERIAL SERIES No. 56
Such an analysis contrasts the object ofcontrol (which is compliance) and the objectof shared vision (which is commitment).
The former supposes a top-down,
hierarchical structure, whereas the latterencourages reflection and inquiry among
all members of the organisation, the groupof people functioning as a whole. Thissecond model suggests that a group ofindividuals can achieve a level ofintelligence higher than any one individualin the group. It favors value-added, winwin, synergistic solutions, rather than thehollow win-lose decisions. “The apparent
reactive solution is often no solution at all,but rather a short-term fix that serves only
to postpone and exacerbate the root
problem. When things go wrong it is more
likely that the business process has afundamental disconnect rather thansomebody failed a specific task. In today’s
businesses, formal controls, such as policies,
procedures, written authorizations,organizational charts, and “chain ofcommand” practices, are less valuable andeffective than informal controls, which
include intangible attributes such as ethics
and values, corporate culture, trust, teamwork, open communications, andp r o f e s s i o n a l i s m ” . 13 W h a t a r e t h econsequences, for the anti-corruption fight,of this contrasted vision of management?
A. Hierarchy is the Back-Bone ofReporting and of Responsibility
Supervisory accountability explicitly
refers to the kind of leadership implied in
the very notion of supervisor. Disciplinary
sanctions should be taken by thesupervisor, in case of a breach of duty by apublic official placed under their authority.
Nonetheless, public administration iscomposed of various agencies anddepartments which may turn out to be
reluctant to point their finger at “black
sheep” inside their staff, for fear of being
13 Ibidem p. 30.

354

stigmatised as a corrupt department as awhole. Keeping silent about misdeeds,
getting rid of the guilty public official bypromoting him/her to another department
prevent the very issue of corruption fromgetting to the forefront. Disciplinary
responsibility should be exercised fortransparency’s sake. This administrative
aspect of sanction should not be overlooked,
especially when penal prosecution is timebarred, which happens very often in casesof corruption. Nevertheless, hierarchicaldisciplinary power does not solve theproblem if the supervisors themselves aremanipulated and even involved in corrupt
schemes.
B. The “Command and Control
Paradigm” and the “Learning
Organisation Model” areComplementary
The “learning organisation model” canbe useful to highlight potential risks ofwrongdoings. It reverses the well-known
pretext, “why should I make a fool of myself
by refusing a bribe when everybody accepts
it? ”, by “why should I keep aloof whenmutual control and assessment allow me
to know what really takes place in the wholeorganisation? ”. This is what “a work
culture of reflection and inquiry among all
members of the organisation” suggests,
enhancing “each participant’s
understanding of the total process underreview”.14
This overall view favors transparency:
seniority is no longer a protection frominquiry and, vice versa, supervisors canrely upon a self-assessed staff. Corrupt
schemes are not necessarily disclosed, but
the contradictions favoring them arerevealed when, for example, pressures toimprove short-run performance promote
unethical behavior, or when “emphasis on
strict adherence to chain-of-command
14 Ibidem p. 31.

113TH INTERNATIONAL TRAINING COURSE
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authority may provide excuses for ignoring
ethics when following orders.”
In the “learning organisation model”, theemphasis placed upon the issue of
corruption is not regarded as shameful forthe image of the whole organisation. Quite
the contrary, it reflects a means ofachieving greater perspicacity and of
improving performance. True “anticorruption engineering” takes shape asrisks of corruption are openly analysed anddiscussed through cases studies. This is
not an idyllic conception of training because
it requires greater supervisoryaccountability and due professional care.
The “I did not know that corrupt practices
were occurring because I could not know
the intricacies and far-reachingconsequences of the activity I am responsible
for, because I am not ubiquitous”, - such anargument tends to be less and less valid.
Does this mean that every employee, every
public official can be a potential
whistleblower?
V. THE EVOLUTION OF THE“WHISTLEBLOWING” FUNCTION“‘Whistleblowing’ is a new label
generated by our increased awareness of the
ethical conflicts encountered at work.
Whistleblowers sound an alarm fromwithin the very organization in which theywork, aiming to spotlight neglect or abuses
that threaten the public interest”. 15
Whistleblowing is the ideal way to alert
those concerned about corrupt practices
before they take hold. Nonetheless:
A. The Whistleblower Can Feel Ill at
Ease and Manipulated“Moral conflicts on several levels confront
anyone who is wondering whether to speakout about abuses or risks or serious neglect.
In the first place, he must try to decide
15 p. 292 “Ethical Theory and Business” by Tom L.

Beauchamp and Norman E. Bowie - Prentice Hall.

whether, other things being equal, speaking
out is in fact in the public interest. This
choice is often made more complicated byfactual uncertainties: who is responsible
for the abuse or neglect? How great is thethreat? How likely is it that speaking out
will precipitate changes for the better? In
the second place, a would-be whistleblower
must weigh his responsibility to serve thepublic interest against the responsibility heowes to his colleagues and the institutionin which he works. A third conflict forwould-be whistleblowers is personal innature and cut across the first two: even incases where they have concluded that thefacts warrant speaking out, and that their
duty to do so overrides loyalties tocolleagues and institutions, they often havereason to fear the results of carrying out
such a duty. However strong this duty may
seem in theory, they know that, in practice,
retaliation is likely”.
The prospect of professional suicide is
not particularly attractive. But, fromanother point of view, the prospect of being
accused of complicity by not reporting
suspicions of corruption is not seductive,
either. The second possibility is nottheoretical, since there is a growing
demand, from public opinion, for more
effective prosecution of cases of corruption.
One may be accused for not having blown
the whistle. The remedy can be foundwhen:
B. An Institution Plays the Role ofWhistleblower
Instead of worrying about one’s personal
career, instead of risking manipulation(hints of false information that, even ingood faith, the whistleblower takes for
granted and reports), instead of feelingisolated when the pros and cons areweighed, the would-be whistleblower could
take advantage in reporting their suspicion
to an independent institution which willtake the responsibility itself of referring it

355

RESOURCE MATERIAL SERIES No. 56
or not to the judge or any other publicauthority appointed by law. In France,such an independent institution exists. It
is called the “Service Central de Prévention
de la Corruption” (SCPC).
VI. THE NEED FOR SPECIFIC
AUTHORITIES FOR THE
PREVENTION AND REPRESSION
OF CORRUPTION: THE FRENCH
EXPERIENCE
A. The Genesis of the French
Service Central de Prévention dela Corruption
It is not taken for granted that such aneed exists. Thus, before emphasizing
what the “specific authorities” are or what
they should be, I would like to shed somelight on the target they must hit, on theprocess which triggers our analysis. How
can such a need be assessed? If I can put
it in this way. It may be a controversial
issue when the so-called “need” is regarded
as a groundless fancy. Therefore, in orderto make the most of those specificauthorities, we have to answer thoughtprovoking objections regarding theirrelevance. One could consider thattraditional agencies already provide
adequate tools. What is the point increating new ones? Are they likely to
improve efficiency in the absence of any
process of trial and error? Won’t they be
inclined to focus on mere trifles instead oftackling important issues and cases
involving “big fish”? And so on and so on:
this list of objections is not exhaustive,
obviously.
The fact that corruption is a specificproblem deserving specific treatment has
inspired the creation of the French Service
Central de Prévention de la Corruption, incharge of coping with:

356(i) The Difficulty of Giving Evidence ofCorruption
Corruption involves secret dealings andit is not easy to point to a clear link between
illicit trafficking, for example, and thesubsequent profit in money or otherbenefits. It is difficult to establish a causeeffect relationship. It may be hard to provethe connection between a mere promise andthe improvement of “life style” in returnfor a favor. Corruption has no “victims”, inthe literal sense of the word, and for thisreason, it is rare that an act of corruption
will be reported to the competentauthorities by a participant in a corruption
scheme.
Since the real impact of corruption is toa great extent unclear, there is a dangerous
shortcut: in the absence of diagnosis,
corrupt practices are either over - or under- estimated, which entails the same
inefficiency: nothing can be done, either
because the illness does not exist or because
the patient does not exist any longer (s/heis dead). We do not share such fatalism.
(ii) The Complexity and Sophistication of
Corrupt Practices
The more technologically proficient thesociety, the more the means of control are
simultaneously strengthened andweakened. Criminals are skilled in themodern technologies of computers,
information systems, databases andfinancial networks. “White-collar
corruption” is highly sophisticated. In
addition, there are sensitive sectors, suchas international business transactions. In
this field, corruption proliferates bymanipulating complex rules andregulations, as well as commercial andfinancial circuits featuring a combinationof traditional operators, new companies
looking for foreign markets and criminalorganizations. Financial circuits and bank
networks are put to use by the operatorsof international trade equally for legal

113TH INTERNATIONAL TRAINING COURSE
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operations and for operations which areeither illegal or carried out by illegalmeans, among which the payments ofvarious types of commissions andkickbacks.
This example highlights the fact that
corruption takes advantage of the intricacyof regulations in order to make illegal
processes appear to be legal ones. The
involvement of an increasing number ofoperators and intermediary companies
complicates the issue. Corruption goesbeyond individual crimes by setting up real
networks which plan even the minor
details. Nothing is done at random;
corruption tends to work as a system. Far
from being a mere aggregate of cunningand deceitful people, it operates throughchannels which cannot be called
precarious, quite the contrary.
(iii)Corruption as an “Upstream”
Phenomenon
With this image, I mean to convey thefact that corruption is not one fraud among
others but the privileged instrument, thelever of other frauds. As we have seen
previously, it helps structure networks,
which can be activated for various
fraudulent purposes. It is for this reason
that corruption can be so pervasive and,without contradiction, perfectly adequate
to the specific aim pursued by dishonest
individuals and groups. Corruption in
public procurements, for example, or thatlinked with public health policies (forinstance the purchasing of expensive new
equipment such as scanners, theintroduction on the market ofpharmaceutical products) have their own
specificities.
Corruption is closely linked with “slush
funds” and this vicious circle operates asfollows: money used to corrupt generates
benefits which can be invested once again
in corrupt practices, which, by facilitating

the fraud, makes it more profitable and soforth.
These three characteristics make itparamount to go beyond traditional
strategies to reduce corruption. The
specificity of corruption demands the
specificity of authorities in charge of anticorruption. What are the requirements
they must meet?
B. Objectives and Requirements(i) The Centralisation of Information
By nature, the crime of corruption isdifficult to establish. Sources of
information are scattered and there is notnecessarily any communication between
the various authorities in possession ofsuch information. Furthermore, in certain
cases, there may be difficulty getting accessto information. Thus, a system of
coordination should be set up between thevarious services, administrations and otherinstitutions working under the Public
Authority, to ensure that all information
sources work together to expose criminal
acts.
(ii) A Global Approach Combining
Prevention and Repression
A case by case repressive approach
would only favour new and moresophisticated techniques of corruption,with every chance of escaping the vigilanceof the Public Authorities, if there is no will
to take the problem firmly in hand withpriority given to the detection of
mechanisms favorable to the proliferationof corruption.
On the other hand, prevention without
repression would be neither reliable nor
credible. Dissuasive mechanisms or
deterrence is the goal to reach in order tomake corrupt practices less and lessprofitable. For example, the ability todecipher the corrupt practices (they arereal “codes”) and describe them in a public357

RESOURCE MATERIAL SERIES No. 56
report is one aspect of deterrence because
criminals will have to invent newprocedures. It will complicate their “task”:
they will lose time and meanwhile themission of inspectors, generally speaking,will be facilitated by knowing what to checkand the approach to be taken.
(iii)Rapidity and Flexibility
We have to keep up with the evolution
and diversification of corrupting
phenomena. Few cases are dealt with in
the courts, and corruption techniques arealways a step ahead of what is known andhas been detected. New professions haveappeared which modify our schemes. HereI am thinking of lobbying which may be
conducive to trading in influence.
Resilience and responsiveness should not
be the privilege of tricky organizations. A
question arises as to whether these
aforementioned objectives cannot be met
by strengthening traditional departments
instead of setting up additional agencies.
I think specialization (such as training in
supposed “abstruse” financial matters) is
an important step but not a sufficient one:
independence and a long-range policy arenecessary. By independence, I mean thatthe anti-corruption agency should be at thedisposal of other authorities but also able
to check into possible irregularities.
Autonomy is indispensable to aid in the
carrying out of legal action and ofadministrative missions, the combinationof both aspects being indispensable. In theevent of any threat of corruption, theorganism can alert Public Authorities andpoint to loopholes in various regulations.
By a long-term policy, I mean the ability
to identify vulnerable sectors and to
anticipate trends rather than deal onlywith cases. The “anti-corruption fight” isa “full time job” requiring a staff devoted
to this specific mission. Being adamant by
not tolerating corruption is not sufficient
if we do not go beyond rhetoric. Watchdog

358

committees created to answer a particular
problem cannot cope with the complex
issue of corruption, which is closely
connected with other crimes: for example,
in France, what we call “abus de biens
sociaux” (misappropriation of corporate
funds). A long-range policy involves a“template” (what are our aims and how are
they to be achieved?), tactic combining legal
approaches and deep insights into
economical mechanisms and, lastly, a kindof “participative management” to make all
feel committed.
There are many biases which can hinder
an anti-corruption strategy: a corporation,for example, is willing to use any means,no matter how devious, to secure a contract.
Such a “goal-oriented” attitude, in contrast
with a “moral principle-oriented”
philosophy, has its ethical justification: thecorporation will indeed explain that thecontract is vital for its future otherwise thethreat of unemployment looms largecheating becomes a virtue.
So, we have to take such “twisted
statements” into account in order todemonstrate that they undermine thewhole economy. A specific authority can
avoid the risk of oversimplification by
pointing to the social cost of corruption
which jeopardizes equality among citizens.
Thus, awareness of the problem must be
increased. “Specific authorities” are notoperational if they cannot persuade
everybody to cooperate, not only public
officials, but also corporations, foreign
partners and, above all, citizens.
Cooperation means the monitoring anddisclosure of devious procedures and deeds.
It has nothing to do with “denunciation”
intended as slander and in which few are
willing to participate.
The Service Central de Prévention de laCorruption strives to meet the above-listed
requirements. It is an inter-ministerial

113TH INTERNATIONAL TRAINING COURSE
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administrative agency, created by Law No.
93-122 of the 29th of January, 1993,
concerning the prevention of corruption
and transparency in economic affairs andpublic procedures. Its overall mission isdefined in Article I, Paragraph I of the law
in these terms: “the centralisation of all
information necessary for the detection andprevention of active and passive acts ofcorruption, for any abuse of influence by
persons exercising an official function or byindividuals, the misappropriation of publicfunds, illegal meddling or disrespect ofregulations aimed at protecting the freedom
and equality of candidates for public
procurements”.
The creation of such an agency wassuggested by a Commission for thePrevention of Corruption presided over by
a former Attorney General, in a report to
the Prime Minister in December, 1992. Set
up by the Minister of Justice on March 9th,
1993, the Agency began to function in
October, 1993. Headed by a high-ranking
magistrate, a former Attorney General, theService Central de Prévention de laCorruption is run by civil servants (onemagistrate from the ordre administratif, amember of the corps préfectoral, a chief ofpolice, a chief customs inspector, a tax
i n s p e c t o r, a h e a d o f t h e S e r v i c edépartemental de la D.G.C.C.R.F., and ahead of the administrative service at the
M i n i s t r y o f P u b l i c Wo r k s a n d a
representative of the Ministry of Defence.
This type of organisation is evidence of
the inter-ministerial nature of the agency
which guarantees its efficiency. Its simple
and straightforward structure reflects thedesire to create a team of highly specialised
experts. As explained in the preamble to
the Law of January 29, 1993, the Service
Central de Prévention de la Corruption, wascreated to ensure more efficient detectionof acts of corruption by means of asystematic processing of centralized

information, towards the aim of greater
efficiency in the prevention and repressionof corruption.
How is a problem brought to ourattention? We may focus on highly
sensitive sectors (public procurements,
international business transactions, publichealth policy, zoning regulations, financing
of sects, merchandising, professional
education and training). We can berequested to check the vulnerability of anactivity or an institution. We can also
examine mere suspicions of corruption andthen, if the issue goes beyond suspicion, we
refer the case to the tribunal. Ours is apreventive agency, which we could refer toas having a “whistleblowing” function. We
work before the case may or may not get to
the judge and our aim is to be ahead of thegame, and to point out loopholes to the
responsible authorities so that they can act
before illegal actions are committed.
C. Our Method and Main
Achievements
1. A Multidisciplinary Method Combining
Audit Techniques and a Legal Approach“Turning raw information and data into
actionable intelligence is fast becoming themost critical management tool”. 16 Raw
information about suspicion of corruption
is almost useless: it has to be analyzed andfiltered to be “eye-opening”. Raw
information is a juxtaposition of unrelated
opinions with no contextual link. It has no
signalling value and cannot be used as awarning indicator. The Service Central dePrévention de la Corruption does not boast
a large amount of raw information because
it is not a mere “information collector”, soto speak. This agency strives to promote
the gathering of relevant and accurate
information. For example, falsifying
inventories to cover thefts or delinquencies,
16 “Competitive Intelligence” by Larry Kahaner,

Simon and Schuster edition, p.15.

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RESOURCE MATERIAL SERIES No. 56
or altering dates on deposit slips to coverstealing and, generally speaking, petty
falsifications and tampering, when
discovered by investigative authorities,
should sometimes be related to an overall
context of slush funds intended for the
purpose of bribing public officials. Insteadof condemning a “bunch of crooks”, a few
corrupt individuals, a network could be
disclosed, involving public officials, either
appointed or elected. Since corruption isthe art of camouflage, one should not besatisfied when pointing at various frauds
without revealing the corrupt link existing
between them. Relevant information
reveals unsuspected connections.
This expertise regarding the standardsof the information needed, the sources ofthat information and the ways to obtain it
has enabled us to carry out a time-and-costsaving activity of assistance:(i) Assistance in Detecting Cases ofCorruption
By giving investigators auditing
documents that we have elaborated on
various sectors (public procurements, forexample), we help them to keep up withthe pace of “speedy money” or, at least,
retrace it.
(ii) Assistance in Anticipating the Risks
of Corruption
At its peak, corruption may be definedby four criteria:
1. A mixture of public and private
financing, favoring the opacity of thetransactions and the abuse of
discretionary power;
2. Dissemination of controls because theactivity involves so many regulations
in various disciplines and areas that
it is almost impossible to encompass
the whole process;3. The alleged respectability of thesector, prohibiting scrutiny of its

360

methods. Whatever attempt at
shedding light on them is stigmatised
as an unacceptable interference;
4. Ta c i t c o m p l i c i t y, o r a t l e a s t
unquestionable agreement, of all theactors involved (in order to avoid thedisclosure of irregularities), because
they are sources of profit and of
protracting advantages.
Those four features remind us that strictlegislation is of no use when it is weakly
implemented. This problem of enforcement
and implementation is brought to ourattention because we have various
interlocutors, thanks to:
2. T h e B r o a d A c c e s s i b i l i t y w h i c hCharacterizes our Agency
Public and private entities, mayors,
public authorities and administrations,private persons, auditing bodies,
investigative bodies, etc, can request
advice, expertise on suspicion of corruption,assessment on codes of ethics, spotlightingof weaknesses conducive to slush funds,
and so forth. Fundamental debates about
the financing of political parties or thetightening limitation of prosecution of casesof corruption due to time-bar: our agency
has been invited to articulate its analysis.
For example, the offence of“misappropriation of corporate funds” isoften used, as we mentioned above, in placeof “corruption” to indirectly prosecutecorrupt behaviours. This situation is notsatisfactory because the blame is put
mainly on the bribe-giver, whereas thebribe-taker is no less responsible. The
SCPC does not, obviously, favour red tapebut insists on the necessary optimizationof controls.
It is difficult to measure a hidden
phenomenon such as corruption; it is all
the more difficult to assess the impact ofprevention. Nonetheless, the relevant
question is not “how many cases of113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
corruption have been deterred? ”, but “towhat extent are detection and deterrence
facilitated?”. The SCPC is not an overseer
but a facilitator. It makes a point byshowing that preventive methods work,that they do not necessitate either large
budgets or excessive administrative effort.
The fact that the SCPC is in charge ofprevention makes would-be whistleblowers
more willing to report; the repressivefunction of an agency bearing a connotationof threat for the reporter, for fear of getting
involved to a certain extent.
The creation of specific authorities forthe prevention and repression of corruption
is advocated by international institutions.
The Council of Europe, for instance,
recommends “to promote the specialisationof persons or bodies in charge of fighting
corruption and to provide them withappropriate means and training to performtheir tasks”.17
The SCPC takes part in theinternational negotiations about corruption
issues.
VII. THE EXPERT GROUPMEETING ON CORRUPTION AND
ITS FINANCIAL CHANNELS (PARIS,
30 MARCH TO 1 APRIL 1999)
A. The Context of This Meeting
This meeting was held in Paris, inspiredby a French proposal presented at the 7th
session of the United Nations Crime
Prevention and Criminal Justice Division,
followed by a resolution of the Economic
and Social Council (July 28, 1998). The
aim of these United Nations initiatives is
to “urge States to develop and implement
anti-corruption measures, to increase theircapacity to prevent and adequately control
corrupt practices, and to improve
international cooperation in this field. The
17 In 20 Guiding Principles For The Fight Against

Council also requested the SecretaryGeneral, inter alia, to review and expand
the manual on practical measures against
corruption; to coordinate and cooperatewith other United Nations entities andrelevant international organizations in
anti-corruption efforts; and to keep theissue of action against corruption underregular review.”
Key-terms can be emphasized:“implement”, “to increase their capacity”,“prevent and adequately control”, “manualon practical measures”, “to coordinate andcooperate”, “under regular review”. Thereis, actually, a will to achieve feasibility andpractical impact and to elaborate acompendium of anti-corruption provisions
enabling the authorities to:• review the adequacy of their [theMember States] criminal laws,
including procedural legislation, inorder to respond to all forms ofcorruption and related actions
designed to assist or to facilitate
corrupt activities, and should haverecourse to sanctions that will ensure
adequate deterrence;• devise administrative and regulatory
mechanisms for the prevention ofcorrupt practices or the abuse of
power;• adopt procedures for the detection,
investigation and conviction ofcorrupt officials;• create legal provisions for theforfeiture of funds and property from
corrupt practices;• adopt economic sanctions against
enterprises involved in corruption.18
This idea of a compendium stems fromconcern for coherence and consistency,
18 The items are quoted from the introduction of theManual on Practical Measures against Corruption.

Corruption.

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RESOURCE MATERIAL SERIES No. 56
required by a systematic approach to theissue of corruption. The purpose of theManual is to review the most common
problems encountered by policy makers
and practitioners in their efforts to deal
with corruption. The adaptability of thisManual to each domestic context andlegislation is a priority. Thus, the processof review is coupled with a process ofrevision of the Manual itself, in order totake into account the evolution of theinternational instruments devised in thevarious fora.
In order to distinguish between what has
been done and what remains to be done, asustained effort is required, aiming atcoordination and cooperation (“thephenomenon of corruption has become
transnational in nature as a result of
increasing globalization and liberalizationof trade. It is no longer possible to deal with
it effectively only through national action.
The international community is in urgent
need of a common basis for cooperation thatwould promote the values of good
governance and would insure thatdevelopment and growth are not impededby corrupt practices.”).
B. “A Common Basis for
Cooperation” and a Significant
Step Forward
Since corruption is an abuse of power togain undue advantages (on the behalf ofthe bribe-giver) and to achieve personalenrichment (on the behalf of the bribetaker), the core of the matter is the crucialrole played by financial channels. Let us
imagine an absurd scenario depriving thebribe-taker of the possibility to profit fromtheir pecuniary advantages. Bribery would
become much less attractive. This picture
is not unrealistic thanks to the tracks
explored by the Expert Group Meeting on
Corruption and its Financial Channels,
with a view to strengthening, or at least,
favoring:

362(i) p r o v i s i o n s a g a i n s t m o n e y laundering, so that they cover bribes
and the proceeds of corruption: if theproceeds of corruption were seized(“forfeiture of the assets ofcorruption”), there would be less of aguarantee of personal enrichment...;(ii) vigilance and monitoring of financialtransactions: banks could play therole of “whistleblowers” when facedwith suspicious transactions;(iii)ways to convince underregulated
financial centres to adopt rules
enabling them to trace and takeaction against the proceeds oforganized crime.
The off-shore places can be characterized
mainly thanks to the following criteria:• prevailing banking secrecy;• lack of regulations and control;• large possibilities of setting up shellcompanies which conceal the identityof the real beneficiary of thetransactions;• restrictive rules of international
cooperation in the administrative andjudicial areas.
The impact of such places cannot beignored; they play a prominent role.
Experts consider that almost half of theamount of the international money volumeuses the channels they offer. They are very
often the indispensable instrument ofcorrupt agreements. This is why the
problem of corruption has to be tackledfrom at least three angles:• the supply side (the OECD
Convention, for example, illustrates
this approach);• the demand side (the ethical code forpublic officials aims at preventing
misdeeds);• the financial channels (whose rolemust be highlighted and scrutinized).

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The detection of criminal financialtransactions, the improvement of theprocedures to retrace the proceeds ofcorruption suppose that the problem offinancial channels receive due
consideration by underlining the necessityof:
1. Cooperation• 42 countries and 12 internationalorganisations were represented in
Paris at the Expert Group Meeting;• The initiatives of the United Nations,OECD, European Union, Council ofEurope, and the commitment of G8,
International Monetary Fund, World
Bank...give impetus to an irreversiblesynergy which makes, by contrast,
the position of the off-shore places
groundless (if I can put it in this way
with no pun intended);• Since the problem of financial
channels is identified as a priority,
the urge for transnational
cooperation is emphasized. If money
crosses domestic boundaries, theinternational response to the problem
has to be coordinated;• The strengthening of cooperation
requires that the same coordination
be a reality when involving various
domestic administrative
departments such as the police,
justice and tax offices.
2. Responsibility• A sustained commitment can nolonger be delayed because politicalauthorities are aware of the threat
represented by corrupt money, using
those financial channels which are
likely to endanger the whole financial
system;• The need for a clear position is all themore important because, for example,
Pablo ESCOBAR placed, a few years
ago, a very large amount of money ina single non-nominative bankaccount in a country belonging to theEuropean Union;• The commitment of the United States
was made clear on the occasion of aninternational conference organised by
the Department of State (from 24 to
26 February 1999);• The awareness that corruption
fosters insecurity at all levels andthat monitoring and procedures ofdeclarations of suspicion - if they failto be put into practice - will entail thenecessity of devising protective
systems.
An “international economic order” istaking shape, which allows us tocontemplate the possibility of forbidding(partially or totally) financial transactions
when it is obvious that too many loopholes
exist. The struggle against transnationalorganised crime and the fight against
corruption bolster each other by a global
strategy of deterrence. Such a strategy
can be effective thanks to:(i) Cross-Fertilization
The exchange of best practices
between various countries andvarious administrative departments
to expand the scope of deterrence byshowing that those procedures work.
(ii) Training and Assistance“Multidisciplinary training andeducational programmes can be
developed at the international,
regional or sub-regional levels, inorder to pool expertise and resourcesthat are often inadequate at thenational level.” Since the anticorruption commitment has becomea landmark for judicial security,
endangered by corrupt practices,
technical and financial assistance canbe provided according to this criteria(taking into account the effectivenessof the effort and initiatives

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RESOURCE MATERIAL SERIES No. 56
undertaken).
The path becomes more and more
obvious, pursuing “the ongoingdevelopment of a comprehensive
international convention against
transnational organized crime”. It is highly
relevant that the UN Commission on Crime
Prevention and Criminal Justice “takes
note with appreciation of and subscribes tothe conclusions and recommendations of theExpert Group Meeting on Corruption and
its Financial Channels, held in Paris from30 March to 1 April 1999, which arecontained in the report of the Expert Group
Meeting”. This official reference enhances
the impact of the conclusions of the Experts
Group Meeting, and allows a specialized
corpus of coherent rules to achievecompletion and coherence.
VIII. CONCLUSION
Corruption has been identified by theinternational community as a serious issue
deserving full attention. This is an
important step which should not beinterpreted naïvely. “Naïvely” would
consist of welcoming a “new era” where
corrupt behaviors would be progressively
banned. This utopian conception iscontrasted by the sarcastic comments
according to which corruption has beenbrought to the international agenda,
simply because it has reached suchproportions that nobody can afford any
longer to spend a huge amount of money.
Anyhow, whatever the motivations, one
cannot deny that the interest in the issue
is momentous, and is far from beingtransient. It is difficult to imagine that the
body of rules taking shape presently might
be wiped out in the future. Its
implementation is at stake, supposing
macro-economic initiatives (at a global andinternational level) and micro-economic
vigilance, monitoring and whistleblowing.

364

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSCORRUPTION PREVENTION - THE HONG KONG
EXPERIENCE
Thomas Chan*
I. INTRODUCTION
This paper describes the Hong Kong
experience in fighting corruption. It briefly
outlines a number of factors that are
conducive to corruption and fraud and thendetails some of the activities of the Hong
Kong Independent Commission Against
Corruption, better known simply as the
ICAC. While the corruption prevention
practices have been developed to suit theHong Kong environment, it is believed thatmany corruption problems stem from
common causes and may respond to similar
approaches.
II. CORRUPTION IN SOCIETY
Corruption can be found in all walks oflife ranging from matters involving petty
and relatively insubstantial issues to thoseof great significance and value.
Nonetheless, corruption has commonly
been associated with major development
activities such as:• infrastructure projects including
dams, harbour works, bridges,
highways, airports, railways, andmass transit systems;• licenses and/or leases for extractive
industries and other concessions (e.glogging, mining and oil leases, fishingconcessions);• large scale industrial, commercial orresidential developments (e.g mass
housing programmes, resorts, newtowns, theme parks, science parks);• the design, specification and supply* Director, Corruption Prevention, Independent
Commission Against Corruption, Hong Kong.

of transportation andtelecommunications equipment(railway rolling stock, bulk handling);• bulk purchases of supplies, such as
petroleum, fertilisers, cement,chemicals and pharmaceuticals;• service and consultancy activities(feasibility, land tenure studies, etc).
A more detailed examination of cause
and effect indicates that there are anumber of common factors that generate
corruption risk. These generally compriseof:• any level of decision-making
involving the exercise of discretionary
power;• arrangements involving patronage orconflict of role;• approval, licence or permit systems
which involve granting of a benefit
or generating a financial gain;• situations involving security or
confidentiality that can becompromised; and• situations where the standard
operating rules and procedures are
not clearly defined.
These factors bear no relationship to thevalue of a purchase or transaction. Thus,
cases of bribery and corruption may arise
from routine licensing arrangements andapprovals as well as from immigration andcustoms breaches, electoral malpractices,
and all types of cash collection
arrangements. Corruption may involve theleakage of confidential information inpolice operations or in procurement; inadministrative decisions on welfare benefit

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RESOURCE MATERIAL SERIES No. 56
entitlements and housing allocation; or in
the distribution and location of hawkers’
stands and market stalls.
Public attention is drawn to the more
obvious cases where the incentives forcorruption are greater and which entail
major decisions involving large sums ofmoney. However, the risk of corruption isjust as real for everyday transactions wheremore elaborate protective mechanisms
cannot be economically employed. Given
the number and scope of such pursuits, thecumulative exposure to risk may wellexceed that of the larger contracts, while
the moral impact is equally damaging.
Nonetheless, both motivation andopportunity must come together in orderfor corruption to occur. Unless theopportunity presents itself to individuals,
corruption will remain just a theoreticalp o s s i b i l i t y. T h i s i n t e r m i n g l i n g o fmotivation and opportunity must always
be considered when structuring an effective
anti-corruption strategy.
III. THE IMPACT OF CORRUPTION
What damage is caused by corruption?
The most obvious effect is to directly
increase the cost of a transaction. If a bribe
of 5% or 10% is paid, it seldom comes outof the seller’s pocket. They will merely build
it into the price to be met by the purchaser.
Indeed, the fact that a bribe is being paid
often makes it possible for the seller toinflate the price by considerably more thanthe bribe amount.
It is not easy to find definitive statistics
on the likely economic cost of corruption.
A 1996 Hong Kong fraud study, publishedby consultants KPMG, estimated a total
cost (to local respondents) of HKD $230M.
The consultants highlighted that thisfigure was probably significantly
understated. KPMG also reported that the366most prevalent areas were purchase fraud,
which accounted for 26% of reported cases.
Twenty percent of the frauds could be
categorised as corruption related offencessuch as kickbacks. Similar figures werereported in another KPMG International
Fraud Report, which highlighted kickbacks
and procurement fraud as particular
problems but also identified employee
fraud as being the most prevalent sourceof malpractice. The amount of internal
employee involvement provides anindication of where one needs to start withcorruption prevention measures.
KPMG’s 1995 Australian Fraud Survey
estimated corporate fraud at A$16B to
A$20B per year. Another survey by Ernst& Young in 1996 reported that 95% ofAustralia’s top 500 companies experienced
fraud over the preceding five years, and for
68 % of those cases it was over A$1M. The
Australian Commonwealth AuditorGeneral estimates the level oforganisational fraud to be 2-5% of private
sector turnover.
These figures, together with other
anecdotal evidence, indicates that
corruption can add between 2% to 15% to
the cost of business, depending on the
country and local environment. Despite
such obvious losses, it is disconcerting tonote that until recently, firms based insome developed nations have been
prepared to fund corruption in many
developing nations.
The direct increase in cost is by no means
the only effect. Once the possibility of
personal gain becomes a factor, it rapidly
becomes dominant - pushing aside quality
and other legitimate considerations in theawarding and performance of contracts orin the provision of services. The result isthat economic decisions are skewed; thewrong suppliers and/or contractors are
selected; and materials, quality standards

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
and safety are compromised. Supplies or
projects that are not needed may be given
priority over more important projects forno better reason than the fact that they
enable decision-makers to obtain large
bribes.
The moral damage is perhaps more
serious. Bribery involves a breach of trust
or a violation of a relationship. The damage
to confidence, reputation and image
inflicted on a corporation or on public sector
administration is debilitating, while theloss of faith in the integrity of decisionmakers can even destroy the social fabricof a nation. While seemingly benign on thesurface, corruption breeds distrust andmay contribute to more violent crimes as
the social injustices accumulate andbecome more obvious.
IV. THE HONG KONG ICAC MODEL
The ICAC was established in 1974 inresponse to rampant corruption within thepolice force and other sections of the public
sector. It has adopted an integrated threepronged attack on corruption based on thestrategic components of investigation,
prevention and education. These threeanti-corruption offensives are reflected inits structure, which comprises threefunctional departments - the Operations
Department, Corruption Prevention
Department and Community Relations
Department.
The Operations Department receives
reports and investigates complaints. This
investigative and enforcement role iswithout doubt the most visible activity of
the Commission, attracting intense public
and media interest in major cases. The
corruption cases are identified fromcomplaints received from a number ofsources including a 24-hour hot-line report
centre.

The Community Relations Department
is responsible for the education, publicity
and moral leadership roles of theCommission. Its role is directed towards
mobilising public support in the fightagainst corruption. In addition to broad
community-based programmes using themass media, specific programmes havebeen developed for various sections of thecommunity. These activities explain antibribery laws in layman’s language, educate
the young at schools and universities, andencourage business organisations to adopt
appropriate corporate codes and corruption
prevention measures. The generalconfidence-building and outreachprogrammes are designed to raise the levelof public awareness and willingness toreport promptly any suspicion of corruption
offences. They also include the operationof a number of regional community officesthat are readily accessible to the public.
The end result is that the ICAC maintains
a high public profile and ‘mind-share’
within the community.
The Corruption Prevention
Department’s mandate is to prevent
corruption within organisations byexamining their internal operations andproposing corruption-resistantmanagement and administration systems.
This objective has been successfully
implemented within the public sector by
the establishment of effective andtransparent systems, thus providing an
example of the principle that prevention ismuch better than cure.
V. CORRUPTION PREVENTIONROLE
From the time the ICAC wasestablished, maintenance of the integrity
1

In “Corruption: The Facts”, article by Daniel
Kaufmann, p. 114 of “Foreign Policy” - Summer
1997.
2 In “Model Law on Corruption”.

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RESOURCE MATERIAL SERIES No. 56
of public institutions was considered to bea priority. Given our primary role to advise
government departments and public bodies
on reducing corruption opportunities, thelegislation therefore empowers us to act
with considerable authority when dealing
with corruption prevention in the public
sector.
The legislation also provides that wemust give advice on request to any person
and any private sector organisation. For
the private sector, the acceptance of our
prevention advice is not mandatory. To
strengthen the scope of our scrutiny we canapply to have organisations designated as‘public bodies’ where they enjoy particularmonopolies or have significant community
roles e.g the Hong Kong Jockey Club, Mass
Transit Railway Corporation, Airport
Authority, Utility Companies, Universities,
Hospital Authority and so forth. In total
there are currently 85 declared publicbodies.
The Department is relatively small with
only 59 staff members and is split intofunctional groups that specialise inparticular areas of work or client groups.
A high proportion of the staff is
professionally qualified. Staff members areappointed at a relatively senior level since
they must be sufficiently experienced andknowledgeable to liaise closely with seniorcompany management and government
officials on corruption prevention mattersthat can substantially affect operating
practices.
VI. CORRUPTION PREVENTIONMETHODOLOGY
Our prevention strategy is based on asystems approach, with a methodology
founded on operational audit principles.
Our major workload comes in the form ofassignment studies where priority
assignment areas are identified and then368

examined in detail, culminating in acomprehensive report containing a seriesof recommendations. To generate
maximum input and commitment to theprocess, client (i.e the organisation whose
procedures are being reviewed)
involvement is encouraged at all stages.
Draft recommendations are normally
discussed with the client prior to releaseof the report to take account of any practicalfactors in implementation and thereby
facilitate their adoption.
Strict confidentiality has been
maintained on the report contents to instil
confidence in the process. Accordingly,
there has been little publication of therecommendations except in general articles
covering anti-corruption issues or as source
material for the development of “Best
Practice” approaches. To date we havecompleted more than 2300 assignment
reports covering a wide range of public
sector activities.
The sources of work are Operations
Department investigations; areas
identified by our own staff or by joint ICAC/
client liaison groups; and requests from theclients themselves. As a liaison strategy wemeet regularly with the directorate officers
of major government departments and thesenior management of public bodies. These
Corruption Prevention Group meetings
discuss priorities, explore problem areas
and review the implementation of previous
studies. They have proved very productive.
A considerable number of private sector
referrals come through the services of theCommunity Relations Department andtheir network of regional offices.
Previously, much of this work was directed
towards specific problem areas such as
stock control, purchasing, and rules forstaff on accepting advantages, but thescope of work has been expanding with agreater focus on system risk analysis,

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
managerial accountability and corporate
governance. Ethics development work is
typically conducted in association with our
Community Relations colleagues as part ofa co-ordinated programme of enhanced
ethical and corruption awareness training
linked with the promotion of Corporate
Codes of Conduct.
An increasing proportion of staff time isinvolved in consultative work. Government
departments commonly ask the
Department to study the implementationof new policies and procedures and we arerepresented on both ad-hoc and standing
working groups or committees.
Involvement in the policy development
process enables us to have effective input
at an early stage, where accountability andeffective controls are best identified.
Ty p i c a l e x a m p l e s i n c l u d e o u r
representation on a treasury review ofgovernment tendering and procurement
procedures and membership of theConstruction Advisory Board, which
provides advice to government on issues
related to the construction industry. Other
examples of our procedural development
work are the analysis of tenderingarrangements for major extensions of the
Kowloon and Canton Railway Corporationand Mass Transit Railway Corporation;
examination of Housing Authority policies;
and involvement in all stages of
construction of the new Hong Kong Airport
and related infrastructure projects.
VII. CORRUPTION RISK FACTORS
Our reviews of corruption risk
concentrates on areas identified as being
prone to fraud and corruption. Assignment
recommendations then focus onmechanisms for reducing or minimising
corruption opportunities while optimisingadministrative performance, system
controls, transparency and accountability.
This strategy of promoting system change

is based on the belief, that whilst
corruption may be investigated andoffenders prosecuted, unless theunderlying management deficiencies arecorrected, the same or similar corrupt acts
could easily re-occur.
Fact-finding involves identification andassessment of a range of possible risks,along with current controls and possible
control improvements. These observations
do not imply that corruption is occurring,
but highlight areas where internal controls
are absent or deficient and the system ispotentially at risk. Our reviews therefore
extend beyond the scope of financial audits
to examine management issues whichmight allow misconduct such as:• misuse of power and discretionary
authority;• neglect of duty or omission;• favouritism;• administrative deviations andbreaches of regulations;• inappropriate legislation;• information and confidentiality
breaches; and• conflicts of interest.
Various techniques and risk indicators
are used in analysing the existing system
for weak-points and loopholes that might
expose the unit or operation to potential
corruption. These include:• internal control weaknesses reported
through internal audit reviews orprevious corruption cases;• discrepancies or deficiencies in theimplementation of previous remedialaction(s);• weaknesses in the system chain ofcontrols;• reported deviations frommanagement controls;• role playing and “what if?” scenarios;• identification of system control

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RESOURCE MATERIAL SERIES No. 56
features able to be bypassed by higher
authorities or alternative procedures;and• inconsistencies in the matrix ofmanagement authorities andaccountabilities.
The report recommendations can be
wide-ranging and may include proposals
for revamping administrative systems;
review of asset management policies andprocedures; introduction of enhanced
transparency and procedural
arrangements for purchasing andtendering; better documentation andreview standards; new or revised
management and quality assurance
manuals; and the adoption andpromulgation of performance pledges,
ethical guidelines and Codes of Conduct.
While some organisations may initiallyfeel some trepidation in agreeing to an
assignment study, the use of competent andexperienced staff and close attention todetail in formulating the recommendations
has resulted in a high level of client
satisfaction. Conducting the study in a
spirit of close co-operation with the client
no doubt helps to achieve this outcome. The
work is conducted at no cost for privateclients and the acceptance andimplementation of the recommendations
remains at the company’s discretion.
VIII. A CASE STUDY IN
CONSTRUCTION
Engineering construction is an
important element in Hong Kong’s
economy and today contributes about 9%of Hong Kong’s gross domestic product. Of
this, public sector construction contributes
about 45% and the private sector 55%.
Public sector projects are handledtransparently with advance publication of
construction programs, pre-qualificationand open competitive tendering exercises

370

and increasingly stringent quality andsafety requirements, subject to on-site
supervision and third party testing andcertification. Contractors performing public
sector construction work are subject tofinancial and technical assessment and arechosen from approved lists maintained by
the central policy Works Bureau.
The newly completed Hong Kong Airport
Project constituted one of the most massive
infrastructure undertakings in the world.
The core projects were completed undervery stringent time and cost constraints
and contained all of the elements thatmight be prone to corruption such as:• sensitive planning and land use
approvals;• selection and appointment of widely
divergent consultant teams;• complex contracts (hundreds) withhighly technical specifications;• negotiated contracts and value
selection of contractors;• use of international and joint venturecontractors;• fast-tracking of planning, design andconstruction;• large sums of money;• numerous variations and claims
arising from design changes;• a multiplicity of sites and numerous
interface issues with contractors andconsultants; and,• the involvement of diverse skills,
nationalities and languages.
Given the immense size and tight timescale for the undertaking, the standard
form of government contract was modified,and revised contractual, administrativeand claims procedures were adopted. Fromthe beginning, the procedural
arrangements and tendering processes
were developed in close consultation with
the Corruption Prevention Department.
Particular attention was paid to include

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
mechanisms that would ensuretransparency and equity in consultant andcontractor selection, effective contract
execution and close monitoring of all
performance aspects, including claims andvariations. The evidence so far is that thisliaison was very successful, with few
allegations of corruption.

greater profitability by any means possible.
Value assessment and supplier selection isaccomplished by nomination of suitableassessment criteria that are weighted inproportion to their importance to thecontract performance or specification. We
provide extensive advice on thesetechniques and the attendant procedures.

IX. A PROCUREMENT EXAMPLE

Government and public bodies are
required to adopt open competitive bidding
methods, except under defined
circumstances requiring full justificationand documentation. Notwithstanding acompetitive award policy, negotiation canbe employed but is normally restricted tohigh value contracts because of theextensive documentation required andtime constraints, contractual difficulties,
perceived corruption opportunities andoverall costs of the process.

Procurement is one of the areas mostprone to corruption. In analysing
procurement systems, our objectives are toensure:• the best possible value-for-money
outcomes;• minimal risk of fraudulent or corrupt
activity in the selection of firms andfinal contract awards throughstructured processes; and,• reinforcement of all legal
requirements and ethical standards
by incorporating guidelines andcontractual conditions relating toBest Practice, Prevention of Bribery
Ordinance, corporate conduct,conflict of interest etc.
We require that the procurement processdemonstrates the necessary elements offairness and impartiality to survive full
disclosure and critical public scrutiny. The
resulting level of transparency needed to
avoid any potential claims of favouritism
or conflict of interest may involve very
detailed procedures and extensive
documentation depending upon the
product, service or project.
For many procurement cases the qualityof performance is a significant factor, andwe recognise that selection may not bebased purely on price competition. In fact,
uneconomic contract prices can provide afurther incentive for corruption duringcontract execution, as the participants
attempt to recover costs and achieve

Other anti-corruption techniques are to
restrict the discretionary role of the
procurement officers, to codify theprocedures, and to apply separation offunctions so as to require greater (andtherefore less likely) collusion if corruption
is to occur. Open advertising, prequalification exercises, formalised lists ofsuppliers and contractors, adoption of
objective selection criteria with advancenotice to bidders, detailed tendering andevaluation procedures, balanced selection
panels, full documentation, monitoring ofpurchasing patterns and vendor
relationships, random checking by senior
management and effective audit
programmes, are all strongly encouraged.
X. THE KEY TO PREVENTION TRANSPARENCY AND PUBLICITY
We believe the best ally in corruption
prevention is the public. When dealing withthe public sector, if people know andunderstand their entitlements and rights,
they will be aware of any shortfalls inservice quality. Therefore we consider it
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RESOURCE MATERIAL SERIES No. 56
essential to ensure that the public is kept
well informed as to the expected time toissue licenses; when, how and where to
apply for services; the costs of services; andthe necessary documentation to besubmitted. The provision of clear selfexplanatory forms and supporting
documentation forms part of the necessary
publicity and education programme.
All government offices now routinely
publicise the key aspects of theiroperations, with prominently displayed
application forms and other public notices.
We also support the implementation of
performance pledges that give greatertransparency and clear guidance as to thereasonable expectations of minimum
service standards. This principle oftransparency extends to everyday eventsand activities. Studies relating to utility
works and roadworks have resulted inrecommendations leading to notices onstreet excavations showing the expected
date of completion and other details
enabling identification of the contractor
and contact persons.
Another area requiring good andcomplete public information is where morethen one government department isinvolved in a process. For example, inlicensing a restaurant, the hygiene, fire
safety, structural safety and ventilation
requirements all involve different
departments in the Hong Kong licensing
system. Satisfying these different
requirements can be baffling for a licenceapplicant and good publicity to guide theapplicant through the maze of the various
licensing processes is essential. To be
successful, this type of guidance needs tobe easily available at low or zero cost andwritten in plain and non-technicallanguage. The Department routinely gives
advice on the structure and developmentof such information packages.

372

XI. OVERCOMING RESISTANCE TO
CHANGE
Notwithstanding our progress inintroducing initiatives to combat
corruption, there is sometimes a degree ofentrenched organisational resistance tochange. Key decision makers may refuse
to accept that the most effective way to
reduce corruption and other workplace
crime is to establish revised practices orprocedures within the organisation thathave an anti-corruption goal. Powerfulindividuals may also resist change becauseof habit or inertia, or fear of the unknown,or because they are afraid they do not havethe necessary skills if the changes are
implemented and they fear losing some of
their power.
Organisations, like individuals, also
sometimes resist change because of fear of
the cost, or a perception that they do nothave the necessary resources. Sometimes
key decision-makers fail to understand thealternative. Subtle resistance is often
embedded in the resource allocation
procedures, with reluctance to adopt newpolicies or refusal to change an establishedpolicy.
Resistance typically involves affectedgroups such as middle managers,
supervisors, units or groups who areopposed to a given corruption prevention
strategy. In the worst case scenario there
may be active opposition represented by :• denial of the need for an anticorruption strategy;• refusal to recognise responsibility
and accountability;• refusal to implement an anticorruption strategy initiative thathas been adopted by the organisation;and• sabotage or dismantling of an anticorruption strategy after
implementation has begun.

113TH INTERNATIONAL TRAINING COURSE
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Such potential resistance must be both
recognised and managed. At the working
level, our response is firstly to involve theclient as deeply as possible in theassignment study so that they arecommitted to a successful outcome.
Secondly, we attempt always to set
standards, objectives or time lines against
which progress may be assessed so that
there is an effective means of monitoring
implementation. In addition to formalmonitoring studies, we also have standard
follow-up procedures to track the level of
acceptance of report recommendations andtheir implementation. This process has
proved very successful and often gives rise
to continuing liaison with the client andmore extensive work.
XII. FACTORS FOR SUCCESSThe success we have achieved in fighting
corruption and fostering change has been
based on a number of factors, of which I
shall nominate a few:
• support from the highest levels ofgovernment providing the politicalwill, legislative framework andfunding necessary to ensure our
independence and focus on the job athand;• recruitment of staff with the skills
and experience to deal with practicalreal life situations, such asaccountants, engineers, quantity
surveyors, ex-policemen andexperienced public servants;• involvement of the client in all phasesof our studies - from thedetermination of the work to be done
through to the development ofprevention measures and how they
are to be implemented;• concentrating on more structured
ways to exercise discretion such as
inspection check lists, objective
marking schemes for performancemonitoring and marking systems fortender assessment;• adopting a more global approach topreventing corruption by examining
not just the symptoms but theunderlying causes such as poor
management structures, poor morale,
lack of information, unenforceable
rules and inadequate legislation; and• adherence to the principle oftransparency.
XIII. NEW CHALLENGES
New challenges are emerging as a resultof economic, social, political andtechnological changes. Hong Kong’s rapidtransition from a light manufacturing
economy to a predominantly service-based
economy has made anti-corruption work
more complex and difficult, while the public
expectation of effectiveness, transparency
and accountability is rising.
New business structures are being
created as the practices of outsourcing andprivatisation or corporatisation havebecome more prevalent. Both public sector
and private sector organisations now
contract out a wider range of services
ranging from data preparation andprocessing, management consulting andhuman resource functions, to research anddevelopment services, professional advice
and the operation of independent business
entities.
The outsourcing business model
typically involves a small number ofmanagement professionals responsible forcontracting, supervising and monitoring
services provided by external firms suchas contractors, manufacturers, third-party
sales and distribution networks, andsuppliers of corporate and administrative
services. It represents a desire to focus oncore business fundamentals in a drive toachieve world competitive practices and

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realise benefits from improved access to
specialist expertise.
Outsourcing brings with it greater
demands for overall co-ordination andcloser relationships between the various
parties to the contract with a consequent
shift towards new forms of performancemonitoring and control, and different legal
and contractual frameworks. Much of thistrend is being driven and supported
through developments intelecommunications and information
technology.
Developments in outsourcing may
introduce management issues having
corruption implications. Close examinationof the overall client and supplier alliance
may reveal new areas where corruption canenter the process and affect the outcome.
Since many operational activities are nolonger performed solely “in-house”, greater
emphasis needs to be placed on thedevelopment of “self-regulatory” systems,with the adoption of appropriate Codes ofConduct.
The computer in its various guises now
pervades every walk of life. Millions ofdollars are handled daily over national andinternational networks, and personal
information is captured for a myriad oftransactions. Vast databases are being
developed containing extremely detailed
information on individuals andorganisations. Information technology has
provided new opportunities for datacollection and management, facilitating
demographic segmentation (data mining)
and new and more extensive forms ofmanagement information analysis. With
these developments have come associatedconcerns for the privacy and security of thefinancial and personal data and attendantcorruption opportunities in the potential
misuse of this data.

374

Some systems are undoubtedly well
protected and properly resistant to security
breaches, but the relaxed attitude of manyorganisations to information security
stands in stark contrast to the procedures
found necessary by banks and otherfinancial institutions. An ever-present
danger is that some computer systems,
designed many years ago, still remain in
operation and may be potentially subject
to new forms of attack as companies moveto embrace e-commerce.
One of the disturbing features is that too
few organisations have undertaken any
risk analysis of their own corporate
information systems and may be unable totell when or whether or not a crime has
been committed. An essential task of the
future will be to ensure that the integrityof these systems is not compromised bycorruption. Appropriate physical barriers,
software barriers, system administration
controls, functional separation of key
activities and the monitoring of criticaltransactions will be essential.
Procurement practices are also
undergoing significant change aspurchasers and suppliers grapple with bestpractice developments in supply sourcing
and the complexities of international law,fair trade requirements and the impact of
new technology. Some of the emerging
technological developments include
electronic commerce and electronic funds
transfer and payment systems;
interconnected materials procurement
management and manufacturing systems;
corporate card purchasing; and electronic
tendering. The growth of the Internet andelectronic commerce introduces theprospect of a new generation of informationand monetary transfers that are moredifficult to track and could make bribery
payments less traceable.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Each of these developments brings a newperspective to the maintenance of system
integrity. They introduce problems
associated with security and confidentialitythat commonly form key elements in the
typical chain of corruption. Management
systems, which once seemed secure, may
be prone to attack as organisations adapt
to these changes.

widespread introduction of appropriate
Codes of Conduct is being strongly pursued.
We have expanded our capacity to assist
both the public and private sectors byintroducing a quick-response consultancy
support system offering advisory services.
Together with this more responsive
approach, we have introduced a corruption
prevention telephone hot-line.

XIV. OUR RESPONSESAs technology advances and political andeconomic boundaries begin to blur,corruption has taken on a global
perspective and the need to develop
regional and international liaison willcontinue to grow. To this end we haveactively pursued a policy of greater
involvement with our colleagues in otherjurisdictions such as the Royal Canadian
Police, the Australian Federal Police andthe US Federal Bureau of Investigation.
The ICAC now acts as the Regional
Information Co-ordination Centre in the
Asia-Pacific region and publishes a regularn e w s l e t t e r. T h i s l i a i s o n w i t h o u r
counterparts will continue and expand.
The proven effectiveness of ourcorruption prevention work will ensure its
continuation, albeit somewhat modified totake account of emerging trends. Moreexpertise will be needed in systems andrisk analysis and we have had a policy forsome time of recruiting staff for prevention
work with strong and up-to date computerand information technology skills.
Greater emphasis will be placed on
managerial accountability in a more selfregulatory environment. The adoption of
performance pledges, Best Practice
approaches and quality management andquality assurance programmes alreadyform part of our armoury. The introductionof specific probity-related clauses intendering requirements and the

In conjunction with the Community
Relations Department’s drive for expanded
moral and ethical education programmes,
we have taken a pro-active approach toenlisting greater support from the private
sector with extensive mailings, visitation
programmes and speaking engagements.
In addition, we have embarked upon aseries of targeted training and development
seminars directed towards particularindustry areas.
We have formulated no fewer than 15
Best Practice modules covering key
industries and their operations which are
now being widely distributed as part of ouradvisory services. These modules aredesigned to provide guidance toorganisations developing or reviewing theirown internal systems. In time, thesemodules should cover the majority of the
key operational areas found to be prone tocorruption.
Finally, in the midst of this change wehave also grasped the benefits of newtechnology with revamped internal
operational procedures and improved
information technology capabilities. This
will enable us to better analyse trends,
perform better research and improve ouroverall productivity. These changes include
expansion of our Internet Web presence toprovide greater public access and enable
us to reach a wider audience.

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RESOURCE MATERIAL SERIES No. 56
XV. CONCLUSION
The enforcement of a strong anticorruption law based on a zero tolerance
approach, backed by effective prevention
and educational programmes, has had amarked impact in Hong Kong. The
populace is sensitive to corruption issues
and acutely aware of the ICAC role andmechanisms for reporting corruption. The
community culture has changed from oneof tolerance of corruption to rejection.
The nature of much corruption meansthat staff already working within an
organisation are responsible for most
failures. Internal access to administrative,
operational and information networks
therefore may present a far greater risk
than the spectre of physical entry or
external access. Software and systemaccess controls subject to internal attack
can easily become ineffective due to laxity,
complacency, under-estimation of risk andundue reliance on trust.
Corruption prevention is anorganisational, as well as individual,
ethical responsibility. While corruption
depends on individuals, it may be
unwittingly encouraged or protected bycertain features of an organisation’s
activities or structural deficiencies. Many
problems can be traced back to poor control
exercised by senior management.
An organisation can lift some of theburden from individuals, not only byplacing greater emphasis on teams andshared decision-making, but also byadopting effective corruption prevention
practices. The detection of corrupt practices
is also a management responsibility,
achieved partly by setting up effective
supervisory and control systems, and also
by managers being alerted to indicators ofcorruption.

376

Effective prevention programs will
provide incentives for managers to educate
themselves regarding the attitudes andvalues held by their subordinates, to locate
the areas in which corruption is likely tooccur, to exert positive leadership and more
quickly curtail abusive and corrupt
activities. Increasing awareness ofcorporate governance principles may see
greater use of senior management
performance indicators that include
evidence of the implementation of effective
fraud/corruption prevention plans and risk
management strategies.
While the lessons to apply must takeaccount of individual social and work
ethics, there are a number of common
features worth noting. Firstly, complex,
unnecessary and unenforceable rules
increase the risk of fraud or error withconsequential increase in the likelihood ofcorruption. The solution may be to simplify
the system.
Secondly, many licence, approval andbenefit arrangements incorporate perverse
actions and seek excessive detail unrelated
to corruption or fraud preventive measures.
The answer is to set minimum standards
for efficient and effective administration
and redirect resources to prevention
strategies.
T h i r d l y, p o o r c o - o r d i n a t i o n ,communication and co-operation between
various agencies or organisations may
facilitate corruption. Provided the system
requirements meet the criteria of simplicity
and effectiveness, the answer is to monitor
service levels, measure performanceagainst objective standards and penalise
non-compliance through transparent
mechanisms.
Prevention, however, involves more thanrisk assessment and the introduction ofmonitoring and supervisory reviews. It

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
requires the development of an ethicalculture reinforced by a code of conduct todeal with specific issues faced by staff. The
code should address a variety of internaland external issues affecting theorganisation, including the way it interacts
with business associates.
With changing work patterns andincreasing globalisation, the principles ofindividual and organisational integrity andaccountability may need to be further
reinforced. As governments and businessalike strive to achieve their objectives in
the most cost effective and efficientmanner, business plans will need to take
into account suitable corruption prevention
strategies.
The Hong Kong experience is that withclose co-operation between business,
Government and the ICAC, the adoptionof a broadly based and integrated
preventive approach can realise theobjectives of minimising corruption. The
message we have given and will continue
to send is a simple one. Corruption does
not pay and will continue to be driven to
the very margins of our society.

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RESOURCE MATERIAL SERIES No. 56

RECENT INNOVATIONS IN TACKLING CORRUPTION IN THE
CIVIL SERVICES IN INDIA
R. K. Raghavan*
I. BACKGROUND
A generally accepted historical fact isthat, like human deviance, humaningenuity has not known its limits. The
cruellest crime is also often the mostbizarre. Deviant behaviour, for their own
benefit, by those entrusted with the taskof rendering service to the community,
loosely called ‘corruption’, is a malaise thathas afflicted even ancient society, although
its dimensions and ramifications havevaried with time. The Indian subcontinent
is no exception. For instance, the classic
treatise Arthasashtra by Kautilya in the
4th Century B.C gives a lucid account ofcorruption as it prevailed in the Mauryan
administration. Indian history ofsubsequent times is also replete withgraphic accounts of official misconduct. In
this context, we know that just as many
forms of social control have sought torestrain individual proclivity to deviance.
Civilized and democratic governments
have found it necessary to regulate theconduct of their civil servants in different
ways, so that there is no dilution of the
major objective of a free and fair deliveryof service to the common citizen.
The Central Bureau of Investigation(CBI) of India, a pre-eminent federal
investigating agency, deals not only with
anti-corruption matters but major
conventional and economic crime as well.
Founded under the name Special Police
Establishment (SPE), it was primarily
intended to look into cases of corruption
involving the handling of federal* Director, Central Bureau of Investigation, New
Delhi, India.

378

government funds by federal civil servants,
starting with World War II, when large
military and naval contracts were awarded
and there was a need to keep a vigilant eye
on public expenditure. The Delhi Special
Police Establishment Act, promulgated in
1946, lends statutory backing to the CBI,
which acquired its present nomenclaturein 1963.1
The birth of the CBI itself was a sequelto the report of the Committee on
Prevention of Corruption (popularly known
as the Santhanam Committee after its
distinguished Chairman who was a former
Minister and Member of IndianParliament) set up in 1962 inter alia withthe following terms of reference:(i) to suggest measures calculated to
produce a social climate both
amongst public servants and in thegeneral public in which bribery andcorruption may not flourish; and(ii) to suggest steps for securing public
support for anti-corruption measures.
In the first of its two reports submitted
in 1963, the Santhanam Committee sought
the creation of a Central VigilanceCommission headed by a Central VigilanceCommissioner (CVC) with considerable
autonomy and status so as to consolidate
1

Legal support to anti-corruption work wasstrengthened in 1947 with the enactment of thePrevention of Corruption Act, that was replaced bya more Draconian legislation of the same name in1988, which considerably expanded the definitionof ‘public servant’.

113TH INTERNATIONAL TRAINING COURSE
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the fragmented anti-corruption work thatwas being performed by the various
Ministries of the federal government. In
the Committee’s view, the two main tasksof the CVC were:(i) p r e v e n t i o n o f c o r r u p t i o n a n dmaintenance of integrity; and(ii) ensuring just and fair exercise ofadministrative powers vested invarious authorities by statutory rules
or by non-statutory executive orders.
The CVC has been performing an
exemplary advisory role since 1963,
although there is a school of thought that
the Commission could have been more
effective had it been given legal authority
under a parliamentary statute. Sensitive
possibly to this point of view, the Supreme
Court of India, in the celebrated Vineet
Narain case (1998), issued many directives
regarding the selection and appointmentof the CVC and the Director of the CBI.
For the first time, the Director of the CBI
was to be given a minimum tenure of two
years in office. The Court also vested thesuperintendence of the CBI in the CVC.
While the two functionaries have been
appointed in accordance with the procedure
prescribed by the Court, a bill conferring
statutory authority on the CVC is pending
in Parliament.
The CBI is the sword-arm of the federal
government for investigating corruptionrelated cases. But the fight against
corruption is also carried on by a system of
Vigilance Officers headed by a Chief
Vi g i l a n c e O f f i c e r ( C V O ) i n e a c h
g o v e r n m e n t m i n i s t r y, a s w e l l a s
government-owned Public Sector
Undertakings (PSUs). Preventive
vigilance throughout the country is
exercised through these CVOs who are
expected to scrutinize major contracts
entered into by the departments/

undertakings concerned, and also conduct
vigilance checks on erring employees. The
efficacy of CVOs can be argued, but the fact
remains that internal vigilance has
contributed to a significantly lower rate ofcorruption than countries which do nothave this system. ‘Agreed Lists’ of civil
servants who had come to adverse notice
are also maintained both by the CBI andthe departments. These serve as a guidefor career advancement and for placing
them in positions which offer minimum
opportunity for indulging in corruption.
In addition, every state - there are 25 inIndia - has its own Anti-Crruption Bureau(ACB), manned by police officers andheaded by the Director-General of Police,that looks into the conduct and affairs ofstate government employees. The
Vigilance Commissioner of each stateoversees the ACB’s work and obtains
government sanctions for prosecuting
government officers at various levels before
the courts of law.
II. DIMENSIONS OF THE
PROBLEM
The high level of corruption in publicestablishments has been a matter of great
concern to successive governments. There
are indications that the ill is all pervasive,
and afflicts even those who have theauthority to take crucial decisions
involving large sums of publc money.
Transparency International, which ranks
countries on the basis of a Corruption
Perception Index, in its last report, put
India in 68th place. Statistics from Crimein India 1997, an official publication of the
National Crime Records Bureau (NCRB)
functioning under the Ministry of Home
Affairs (MHA), are illustrative, though only
partially, of the situation (Annexures A and
B).

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RESOURCE MATERIAL SERIES No. 56
III. MECHANICS OF ANTICORRUPTION WORK IN INDIA
Anti-corruption organizations in India
generally adopt two means to combat theevil. Whenever they suspect corruption,or have received a definite report of an
instance of corruption in a government
agency, they initially opt for a Preliminary
Enquiry (PE) or a Detailed Enquiry (DE),as it is called in a few states. This is apurely administrative action aimed atunearthing more facts than are available.
While there is no statutory provision for
this, courts have countenanced this asadmissible preparatory work before
launching action under the Prevention of
Corruption Act. Once the PE or DE
concludes that, prima facie, the facts
collected make out an offence under thePrevention of Corruption Act, a Regular
Case (RC) is registered under the Act anda full-fledged investigation, as set out in
the Criminal Procedure Code (Cr. PC) 1973,
is launched. Where material unearthed isinsufficient for an RC, a report is sent to
the head of the government department
concerned for such appropriate action,
including proceedings under disciplinary
rules which may or may not result in a
penalty (such as censure, removal,
dismissal or reduction in salary or rank),
depending on the evidence adduced in adomestic enquiry. There are tribunals
available to handle these enquiries.
A direct manner in which brazen acts ofcorruption are tackled is to trap a public
servant while accepting money or any othervaluable security from a member of the
public. Courts have prescribed certain
safeguards, such as obtaining a written
complaint from the aggrieved citizen fromwhom money had been demanded by acorrupt public servant, before a trap is laid.
This is done with a view to eliminating
frivolous and motivated complaints that
could demoralize the civil services. Traps

380

have often proved effective in bringing tobook errant government officials, provided
the procedure recognised by the courts isadhered to rigidly.
IV. SOME RECENT INNOVATIONS
A. Elimination of Loopholes in theAnti-graft Law
In contrast to the expression ‘civil
servant’, we in India use the word ‘public
servant’. In earlier years, this term wasmeant to include only civil servants, butvarious court-based interpretations of law
have brought within its ambit politicalfigures and elected representatives ofLegislatures who are also being prosecuted
under the corruption laws in our country.
Indeed, the definition of public servant has
been enlarged to such on extent that except
for employees of voluntary agencies,
anybody who receives a salary fromgovernment or quasi-government bodies
and works in the public interest is deemed
to be a ‘public servant’ and can beprosecuted for criminal acts of negligence.
A very significant move against corrupt
public servants has been the inclusion of aclause in the Prevention of Corruption Act
1988 which makes it criminally negligent
for a civil servant or public servant to cause
loss to the government or the state by anapparently wrong decision, even though heor she may not benefit from it directly.
Thus, awarding contracts without
following proper procedures, wastefulschemes and other items of expenditureand delayed projects could come under theambit of this clause, and usually it ispossible to prove that the civil servant(public servant) entered into collusive
conspiracy with non-government officials
to cause loss to the government. The
rationale is that in a developing country
like India, where public finances aregathered by taxing people who are not very
well-off, it is important to safeguard the113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
use and distribution of public funds.
The CVC has also been active in the areaof tightening law and procedure with a viewto enhancing the deterrence of anticorruption measures in the country. Twosignificant moves by the Commission are
worthy of mention here. One is the request
to the government to notify under the
Benami Transactions Prohibition Act 1988,
how to confiscate benami property (that is,property held by a person in the name ofanother in an attempt to conceal his/her
ill-gotten wealth) and also how to empower
the CVC in this connection. Secondly, theCVC has forwarded to the Government for
its acceptance a draft legislation called the
Corrupt Public Servants (Forfeiture of
Property) Act, prepared by the Law
Commission of India.
These
recommendations, if accepted by theGovernment, are expected to give a newthrust to the battle against corruption in
the civil services.
B. Grant of Autonomy to the CBIA traditional criticism of the CBI is that
it is toothless in respect of corruption inhigh places, and that it usually goes after
only the ‘small fish’. There was some
substance to this charge till a few years ago,because of the so-called single directive
issued by the Federal Government, which
required the CBI to secure the clearanceof the Government before launchinginvestigations against senior bureaucrats.
There were in fact delays in a few instances
in issuing such a clearance. The Supreme
Court of India, in the already cited Vineet
Narain case, struck down this directive inan obvious effort to streamline anticorruption work and confer greater
autonomy on the country’s most crucial
anti-graft agency. Under the newdispensation, the CBI is free to register
regular cases, even against top civil
servants, without being bogged down by
red tape. This has given a new dimension

altogether to the fight against corruption
in high places, and accounts for the large
number of investigations started lately by
the CBI against very highly placed officials.
C. Induction of Specialists
The CBI and State ACBs are now
assisted by technical and specialised staff
who advise them in the course ofinvestigation, particularly in respect ofcomplex issues of taxation, excise andrelated matters, as well as banking
procedures. Indeed, in the recent past, theReserve Bank of India had set up a
Banking Advisory Board to assist the CBI.
This board examines apparent
irregularities committed by bank officials
which are brought up for its scrutiny, andidentifies instances of grave criminal
misconduct pointing to malafide, so thatthese are considered by the CBI for
appropriate legal action. The point at issue
is that banking decisions cannot be equatedwith routine civil servants’ decisions, andare attended by a degree of commercial risk
which such a board alone can notappreciate before offering an opinion onwhether a detailed criminal investigationby the CBI is warranted.
D. Use of Computers
The quality of anti-corruption work by
the CBI and similar agencies in the stateshas been markedly improved through theuse of computers. Investigators areencouraged to use computers formaintaining their day-to-day records. As
a result, the load of scriptory work has comedown appreciably, saving precious
investigation time. Also, the review of casepending by supervisory officers has become
easier, so that investigators are driven hardto speed up their work. It should be
mentioned here that a major charge, onethat is not without substance, against the
CBI and the ACBs is that theirinvestigations take enormous time, making
their final action pointless.

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RESOURCE MATERIAL SERIES No. 56
Computerisation has contributed at least
a little to taking care of this charge,
although a lot more speed is still definitely
called for.
One positive step is the CBI decision tocreate a website for itself. It offers a wide
spectrum of information on several aspectsof the agency’s work, making it moretransparent and people-friendly. There
have already been more than 15000 visitors
to the site in the year during which it has
been operational. The latest decision toincorporate a ‘Contact Us’ module in thewebsite offers hope that the public will be
encouraged to pass on information on
corruption in the civil service without fearof harassment or their identity being
exposed.
E. The Role of the Central VigilanceCommission
The Central Vigilance Commission(CVC) in its reconstituted version is amulti-member body. At present, apart fromi t s c h a i r m a n ( C e n t r a l Vi g i l a n c eCommissioner), there is one more member,
who is a retired senior police officer. Thereis provision for a few more members tobring in the required wide-spectrum
expertise. A bill outlining its compositionand powers is pending before the SelectCommittee of Parliament. As per theSupreme Court directive and the earlier
ordinance (since expired) issued to giveeffect to the court directive, the CVC was
to exercise powers of superintendence over
the CBI. This provision was intended togive needed insularity to the CBI fromextraneous pressures in its investigative
work. At the same time, this mechanism
was expected to act as a check on possible
abuse of authority by CBI functionaries.
This new experiment has a lot to commend
for itself.
In specific terms, the CVC is yet anotherforum for the common person to bring their382

complaint of corruption to the attention of
the appropriate department of theGovernment, or by the CBI itself througha preliminary enquiry, or by registrationof a Regular Case (RC). This function of
the CVC enlarges the network of
information available to the CBI and
thereby helps to broaden its operations.
Moreover, it lends certain credibility andquality to information that requires CBIverification, because the CVC officer
applies their mind to such information
before passing it on to the CBI.
One more feature of the CVC thatsharpens anti-corruption work is thediscussions that the Commission holdswith CBI investigators on select cases
referred to it by the government for advice.
On such occasions, the CBI officials will
have to justify their conclusions in an
investigation, or else the recommendation(either for prosecution of a civil servant incourt, their arraignment before adepartmental enquiry authority or for
closure of a case for want of sufficientevidence) could be overturned by the CVC
while forwarding its own recommendation
to the government. This procedure assuresthat a CBI investigator will have to be
objective and thorough in theirinvestigation, and that only quality cases
are pursued for action. In my view, thisenhances both CBI performance andaccountability.
F. Transparency in Anti-CorruptionWork
The CVC has its own website that packs
a lot of information on the crusade against
corruption. The site has recently posted
the names of senior civil servants who havecome to the adverse notice of theCommission. This action has generated an
animated public debate and has received
wide media attention. The CVC has also
directed all federal government offices todisplay prominently a board to the effect:

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS“DO NOT PAY A BRIBE. IF ANYBODYASKS FOR A BRIBE, COMPLAIN TO
THE CVO/CVC”. This is a novel
experiment that aims at exerting
considerable psychological pressure bothon the bribe-taker and the bribe-giver. It
further seeks to empower the publicthrough transparency.
G. Mobilising Public Opinion
The CVC’s focus on building public
opinion in favour of rooting out corruption
in the services is gratifying. Throughlectures to a cross-section of the public, theCVC has been spreading the message thatwithout the community’s active
cooperation, no anti-corruption campaign
can succeed. An attempt has been made to
involve the youth and the NonGovernmental Organizations (NGOs) inthe country in this endeavour. An appeal
has been made to draw on the support ofbodies such as the Confederation of Indian
Industry (CII), Federation of Indian
Chamber of Commerce and Industry(FICCI) etc, which represent the private
sector, the quality of whose interaction withthe civil service at all levels is crucial totackling corruption in government.
V. THE FUTURE
The future of anti-corruption work in
India is directly linked to the role ofgovernment in the lives of people. If thisshrinks, as it is expected to in India, thescope for corruption by public servants
should correspondingly minimize, although
new forms of deviance could emerge. In
the context of the government’s focus on
privatisation and globalisation, there is adefinite prospect of the average civil
servant having much less say in economic
decision making. This could greatly affect
the quantum of corruption. Nevertheless,for the present, this is a knotty problem
that requires dexterous handling by thoseheading the administration in India.

Several experiments in the past have
proved only modestly effective. As a result,in the language of the CVC, corruption has
become “a high profit, low risk” enterprisein the country. More than anything, there
appears to be a need to tackle the mindset
that has, over the years, afflicted theadministrative culture and placed apremium on sloth and lack of objectivity.
It is widely believed that new measures,such as according statutory status to the
CVC through suitable legislation; greater
autonomy to the CBI, including a minimum
tenure for its Director, and mobilising
NGOs and the youth in building popular
opinion against administrative corruption,
could pay rich dividends in course of time.
There is the hope that there will be
increased judicial support of these newstrategies.
REFERENCES
1. Government of India (1963), Report of
the Committee on the Prevention of
Corruption.
2. National Crime Records Bureau (1999),
Crime in India 1997.
3. The Prevention of Corruption Acts 1947
and 1988.
4. The Criminal Procedure Code 1973.
5. Vittal, N. (1999), ‘Corruption as the
AIDS of the Society’ in Economic Times,
New Delhi, dated May 24.
6. Vittal, N. (1999), ‘The Corruption
Perception Index’, Economic Times,
New Delhi, dated November 18.
7. Vittal, N. (1999), ‘The Supply Side ofCorruption’, Economic Times, New
Delhi, December.

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ANNEXURE A
STATEMENT OF COGNIZABLE CRIMES REGISTERED, AND THEIRDISPOSAL BY ANTI-CORRUPTION AND VIGILANCE DEPARTMENTS OF
STATES AND UTS UNDER THE PREVENTION OF CORRUPTION ACT AND
RELATED SECTIONS OF THE INDIAN PENAL CODE DURING 1997

Pending investigation from previous year
Cases registered during the year
Total cases for investigation
Cases investigatedCases not investigated or investigation dropped
Cases transferred to local police
Cases declared false etc during the year
Cases charge sheeted
Cases pending dept. sanction for prosecution
Cases sent for trial and also reported for dept. action
Cases reported for regular dept. action
Cases reported for suitable action
Cases in which charge sheet was not laid
but final report submittedCases pending investigation at end of year
Cases resulted in recovery or seizure
Value of property recovered/seized (in Rs.’000)
Percentage of cases charge sheeted tototal cases investigatedCases pending trial from the previous year
Cases sent for trial during the year
Total cases for trial
Cases withdrawn/discharged or otherwise disposed of
Trials completed during the year
Cases convictedCases acquitted or discharged
Pending trial at the end of year
Percentage of cases convicted to trials completed
Total amount of fine imposed during
the year (in Rs.’000)

1
2
3
4
5
6
7
8
9
10
11
12
13

3972
2788
6722
5486
335
23
95
1586
1000
657
124
31
400

14
15
16
17

4573
257178149369
28.9%

18
19
20
21
22
23
24
25
26
27

8019
1766
9371
60
875
296
603
8569
33.8%
5751

(Source: Crime in India 1997, National Crime Records Bureau, New Delhi).

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113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
ANNEXURE B
STATEMENT OF PERSONS ARRESTED IN COGNIZABLE CRIME CASESUNDER THE PREVENTION OF CORRUPTION ACT AND RELATEDSECTIONS OF THE INDIAN PENAL CODE IN STATES & UTS DURING 1997

Persons in custody/bail during investigation
at beginning of year
Persons arrested during the year
Persons released by police/court before trial
Persons in custody/bail during investigation
at end of year
Persons in whose cases charge sheets were laid
Persons under trial at beginning of year
Total persons under trial
No. of cases withdrawn or otherwise disposed of
Persons in custody/bail during trial at end of year
Persons in whose cases trial was completed
Persons convicted
Persons acquitted
Percentage of persons convicted to trials completed
Persons reported for regualar dept. action
Persons reported for suitable action
Persons punished departmentally• Dismissed from service• Removed from service• Awarded other major punishment• Awarded minor punishment
Gazetted or equal status officers involvedin public undertakings• Group A officers• Group B officers
Non-gazetted or equal status officers involvedin government or public undertaking
Private persons involved

1

3798

2
3
4

3603
226
3853

5
6
7
8
9
10
11
12
13
14
15

27732
12825
1416
588
12573
1047
355
733
33.9%
212
163

16
17
18
19

9
3
53
64

20
21
22

185
266
2568

23

493

(Source: Crime in India 1997, National Crime Records Bureau, New Delhi).

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STRENGTHENING INTEGRITY: THE IMPORTANCE OF
TRANSPARENCY AND ACCOUNTABILITY IN ECONOMICSUSTAINABILITY
Tunku Abdul Aziz*
I have chosen to discuss strengthening
a national integrity system because
integrity has an important bearing on oursocial, political and economic wellbeing.
Each year, my organisation, Transparency
International (TI), publishes its Corruption
Perceptions Index.1 The index is based on
the perceptions of the international
business community about the levels ofcorruption in the countries in which they
operate. For a country to be included in
the TI Corruption Perceptions Index in any
given year, that country must have been
the subject of at least 3 or more separate
surveys. Eighty-five countries were
included in the 1998 TI-CPI. How did theSouth East Asian group of countries fare?
Singapore was placed at number 7,
Malaysia at number 29, South Korea at 43,
the Philippines at 55, Thailand at 61, andIndonesia at 80. The bigger the number,the more corrupt a country is perceived tobe.
Many detractors are quick to dismiss theindex as being of no real significance. It isinteresting to note, however, that thecountries which are facing the greatest
economic turmoil today are those perceived
by the international business community
to be among the most corrupt. Indonesia,
South Korea and Thailand are on IMF life
support systems, while the Philippines has
been kept afloat by the IMF and the World
Bank, on and off, for the last 35 years or* Vice-Chairman of the Board of Directors,
Transparency International, Malaysia.
1 For the Corruption Perceptions Index, please see
our website <http://www.transparency.de/>.

386

so. On the other hand, Singapore, once
described by Habibie as “ a little red dot on
the map” was perceived to be among theleast corrupt in the world. It has survived
this crisis relatively unscathed. I leave you
to draw your own conclusions about thesedifferent countries and the relevance of the
TI Corruption Perceptions Index.
While we may not always like the way
we are perceived, particularly by theinternational business community, we haveto agree that although their perceptions
may indeed have no basis in fact, they are,nevertheless, real. Their effects on our
regional economies have been devastating,to say the least. How have these negative
perceptions come about? Have we not, in
this region, been mismanaging our
economic and financial affairs, and totally
ignoring best practices? What our foreign
investors and partners have seen of thequality of corporate governance in our partof the world has given them neither thelevel of comfort nor the degree of confidence
they require for the protection of theirinvestments in the long term.
For a start, the countries in this region,
almost without exception, consign
transparency to the back seat. The lack oftransparency in the disposal of public
assets through privatisation is causing
concern and disquiet. Equally worrying
has been the practice in many countries ofawarding mega-infrastructure and othercontracts on the basis of closed door
negotiations, rather than the fairer, andmore democratic, open bidding. Whatabout ready access to information and the113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
blanket use of the Official Secrets Act? All
this, in a country such as my own that is
promoting information technology throughthe Multi-Media Super Corridor as anarticle of faith!.
It is this cavalier attitude to bestpractices in both the privatisation andpublic procurement procedures that hasgiven rise to the expression “crony
capitalism.” Long before Thatcherism andprivatisation ever became fashionable,another Tory leader, Edward Heath,described the sort of behaviour we now
speak of as the “unacceptable face ofcapitalism.” Both these expressions share
a common characteristic - transparency
and accountability - the two importantpillars of good governance, do not form any
part of the policy equations of many of thegovernments of Asian countries. Therein,
I believe, lies the root of so many of ourcurrent economic and financial problems.
Now, let me say straightaway, that
corruption is not an exclusively Asian
contribution to civilisation. The developed
nations of the world, including Japan, arethemselves replete with scandals, greatand small, that will make your hair stand.
Worse still, until the recent adoption of theOECD Convention prohibiting the briberyof foreign officials, countries such as
Germany gave tax breaks to those of theircompanies that had resorted to bribery inorder to win overseas contracts. The
demand side of corruption is fairly well
documented; TI is now focusing on the
supply side. Corruption, as my Minister
for International Trade and Industry once
said, was like the tango, because you need
two people to dance it. I agree with her,but I have to say in all fairness, unlike thetango, there is nothing elegant about
corruption.
It is lack of confidence in the way someof us continue to manage our economic

affairs that is apparently the cause of thejitters in the market place. If this is true,
and I believe it is, then quite obviously thecommon sense thing to do is to reverse, at
once, negative foreign investors, and forthat that matter, domestic investors
perceptions about our national integrity.
How do we go about restoring confidence?
Can we step aside and leave governments
to put matters right? The answer, I am
afraid, quite simply is, no!. This is because,even with the best intentions in the world,most governments, including that of mycountry, find themselves falling short of thelevel of political will required to finish thejob properly. And without the support ofall sections of society, working as coalition
partners to address the issue of confidencebuilding as part of a long-term strategy todevelop and strengthen our national
integrity systems, the task is an impossible
one. The empowerment of civil society andother components of our population, so thatthey can all play their part in rebuilding
our shattered national credibility, is crucial
to the success of this effort.
You and I, ordinary men and women, thecorporate sector, and civil society need tobe directly involved in this damage control
operation because national integrity is too
precious a part of our democratic values tobe left to the tender mercies of politicians.
Society as a whole must be an active“custodian” if good governance is to becomea reality in our countries. Without
accountability to society, and transparency
in government, as well as in the private
sector, and without integrity in national
life, sustainable human development (ofthe level and quality to which we aspire)
has little hope of finding its true expression.
Sadly, in our Asian political tradition of“Father Knows Best”, these apparently
heretical thoughts will probably not sit too
well with some people in power in yourcountry, or for that matter, mine. I am nothere to dispute the mandate and legitimacy

387

RESOURCE MATERIAL SERIES No. 56
of elected governments, but...
Unfortunately, experience elsewhere has
shown all too often that even enlightened
governments tend to forget that thelegitimacy they enjoy is derived from anunspoken social contract with the people.
In return for the right to govern, agovernment agrees to honour and defend
the constitution. By reason of this contract,
an elected government must be preparedto subject its official behaviour, forexample, to public scrutiny and to be held
totally accountable for its actions to its
constituents. By implication, the mandate
given must be applied to achieving one
object only - to put, as James Wolfensohn,
the President of the World Bank says, “theinterests of the many over those of the few”.
It is under a moral obligation, in carryingout its functions, to adopt universally
recognised and accepted “best practices”,
consistent with the economic, social andmoral needs of an ethical and caring
society. In other words, good governanceis a price that a responsible government is
be expected to pay, and pay willingly, forthe sacred privilege and trust it enjoys. It
goes without saying that the principle oftrusteeship is central to the whole conceptof stewardship, both in the governance ofa nation, as well as (in the case of theprivate sector) the management of publiccompanies.
I turn now to the role of the private
sector, specifically, in promoting corporatetransparency. In his paper ‘Civil Society
in the Fight Against Corruption’, presented
at the 8th International Anti-Corruption
Conference in September, 1997 in Peru, Dr.
Peter Eigen, Chairman of Transparency
International, after arguing that it isgovernments that have a formal
responsibility to reform national andinternational integrity systems, goes on tosay; “The private sector has a unique input
to make. It is the dominant engine of the388

economy and an effective anti-corruption
campaign can hardly be sustained against
the opposition of the corporate community.”
Let no one underestimate the power forgood that the private sector can wield, if it
so chooses. It is, therefore, encouraging to
see that the private sector in many of ourcountries is beginning to be concerned
about the colossal damage done to ournational economies and prestige bycorruption, a word defined by Transparency
International as the “abuse of entrusted
power for private profit.” This definition
includes also corrupt practices within theprivate sector community itself. It is
entirely proper that the desire to reformand bring about transparency andaccountability in the way we do businesshas come, in this case, from within thecorporate community.
The wide-ranging institutional reforms
being undertaken, for example, by the
Securities Commission and the banking
sector in my country, and no doubt other
Asian economies as well, encompassing allof the important areas requiring reform,
such as the desirability of developing a
corporate disclosure policy, the importanceof adopting much greater transparency incorporate financial reporting, the need forbetter banking practice and regulation, andthe need to ensure that there is a clear
understanding of what international
institutional investors expect and wantfrom the companies in which they invest,
are obviously all steps in the right
direction. These are only some of theexamples of the hard-nosed, practical
approach that the corporate sector isapparently capable of bringing to bear, as
part of its own reform initiatives, on theeconomic and financial problems afflicting
our countries today.
One question is should we not, perhaps,
have bolted the financial stable doors

113TH INTERNATIONAL TRAINING COURSE
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before the international investors had time
to make a dash for greener pastures? It is,of course, pure conjecture, but if we hadtaken the trouble to recognise theirconcerns about the way we managed ourbusinesses, might we have helped to stem
the tide? Perhaps, but the important thingis that the various individual, as well as
the collective initiatives on sustainablecorporate governance, appear to confirm along-held suspicion that we ourselves were
not entirely happy with things as theywere, and that we wanted to change ourbusiness culture in a way that foreign, as
well as local, investors might reasonably
expect that the field on which they would
be invited to play the “money game” would
not only be level, but also guaranteed to be
free of hidden traps; and that the goal posts
would not be shifted while the game wasin progress. Investors value predictability
and detest uncertainty.
The current crisis is, in many ways, a
blessing in disguise. This period of
economic downturn has given us, thegovernment and the private sector alike,an excellent opportunity to look inwards.
This should be a time for introspection, atime to search our collective soul, a time to
ask all the right, but difficult questions, tochallenge operating systems, policies andprocedures hitherto accepted without amurmur, irrespective of their merit or
virtue. It is also now the time to ferret out
the real, and not just the politicallyconvenient, reasons for our current
economic condition and, dare I say, stop
blaming the likes of Mr. Soros, as my Prime
Minister so often does, because, for themost part, the problems are of our own
making and he is only doing what he does
best - finding chinks in our financial andeconomic armour and cutting us downruthlessly and efficiently. That is the nameof the game. I believe that while external
influences are important, they are only as
strong as our internal weaknesses. We

must, therefore, strengthen our systems
and institutions.
This coming to terms with reality will, I
am sure, help strengthen our resolve anddetermination to address, in a businesslike fashion, the many issues and apparent
distortions and contradictions in our
economic management that have brought
about all those negative perceptions in thefirst place. The challenge before us is real,and so is the world we inhabit. Thatchallenge (which will, without doubt, test
the true measure of our wisdom andmaturity) must be taken up if Asia is not
to be remembered merely as a footnote
when the economic and social history of thiscentury comes to be written.
It is well to remember that the
globalisation of our economies means only
one thing; the rules are no longer ours tolay down and manipulate according to ourmood. We either play by the new global
rules, which demand of us much greatertransparency and accountability than wewere used to in the past, or remain, at best,
mere spectators on the sidelines. There isno halfway house. We are either in or outof the global economic game. As there isreally no viable alternative, it makes
enormous sense to put our house in order,
get our act together, and conform to globally
recognised best practices.
We have in the last year or so been
continually reminded by leaders that “Oureconomic fundamentals are strong”.
Accepting that they are indeed as strongas the authorities say, the question worth
repeating is: why was it that we were sosavagely and mercilessly attacked, leaving
us in such a frightful economic andfinancial mess? The truth of the matter isthat investors had lost confidence in oursystems and institutions and decided topull out. They had seen too many instancesof intimate relationships between the389

RESOURCE MATERIAL SERIES No. 56
government and certain select groups
within the private sector. In the case of
my own country, this pattern of economic
behaviour goes under the rather grandname of Malaysia Inc., which, in the minds
of many people, rightly or wrongly, isnothing more than a convenient formula
for unfettered cronyism and abuse of public
power for private gain.
All of these might have been perfectly
harmless and innocent, but for the fact thatso many deals have been struck undercircumstances perceived to be less thaninnocent. In the absence of transparency,
and given the scarcity of authoritative,
accurate and timely information, is it any
wonder that the good, old-fashioned
grapevine or the equally old-fashioned
bush telegraph is winning the battle for
information hands down?
In many countries around the world, thedemand for the “democratisation” of
information has assumed battle cry
proportions. The information age has
arrived, and societies that are unwilling toaccept this new reality, as part of the global
business equation, are inflicting serious
economic injury upon themselves. The
floodgates of global information are
opening, and no power can reverse theprocess.
We Malaysians were upset that foreign
investors failed to recognise our special
financial economic position. With our eightpercent annual growth rate for nearly two
decades, foreign investors had the cheekt o l u m p u s t o g e t h e r, s o m e w h a t
unceremoniously, with the likes ofThailand, Indonesia and the Philippines.
We wondered aloud about those ill
informed, somewhat naive investors/
speculators (the words were usedinterchangeably) who did not see theinherently strong fundamentals
underpinning our political and economic390

system.
Our fundamentals
notwithstanding, they perceived (again
rightly or wrongly) similar unhealthy
trends in all of the countries of East Asia.
Some of the countries of ASEAN were home
to some of the world’s greatest proponentsof Asian values. Sadly today, these values
are seen in reality as part of a morally
indefensible and decadent heritage, one
grounded in complete and utter disdain fortransparency and accountability in the
management of those matters that have“public interest” implications.
In retrospect, Asian values were used tojustify excesses in both human andeconomic terms. They became part of apolitical culture that demanded complete
acquiescence and conformity, regardless ofthe damage to the human spirit andenterprise. Happily, both Dr. Mahathir and
Mr. Lee Kuan Yew are now silent on the
much-touted virtues of the Asian values
that, according to them, had much to dowith the Asian economic miracle. So muchfor self-deception.
Recognising as we do the important roleof the private sector in national economic
development, it is entirely proper that weshould, as part of our quest for corporatetransparency, consider seriously the urgent
need to develop a national code of businessethics to regulate our business
transactions, both within our own country
and with the outside world. Such a code of
ethics has to have a clear set of objectives,and must, among other things, include
measures to combat extortion and bribery
in business transactions. After all, thewhole purpose of transparency is to reduce
opportunities for corrupt practice in society
as a whole. The ICC (International
Chamber of Commerce), the Paris-based
world business organisation, issued an
important and far reaching policy paper,
Document No.193/15 in 1996, setting out
actions that needed to be taken by

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS“international organisations, governments
and by enterprises, nationally andinternationally, to meet the challenging roleof greater transparency in international
trade.” All of us have a major contribution
to make to the process of building andstrengthening confidence in the totality of
our national integrity systems.
In February last year I visited Thailand
on a special Transparency International
mission to assess the impact of corruption
on the state of the economy. It wasrefreshing to hear the views of a large crosssection of business, professional, academic
and media leaders who, without exception,
all agreed that the absence of an integrity
system both in government and the private
sector had contributed enormously to theircurrent problems. Refreshing because of
the candor with which they discussed andanalysed the role of corruption in bringing
about the collapse of their economic base.
More important was a willingness, on thepart of the Thais, to find a solution and takethe bitter pill, if that was required, in orderto put the country back on its feet. I am
pleased to note that international
perceptions about Thailand are improving
each day. Thailand, a proud country, is not
too proud to admit where it had gonewrong.
In Bangkok I was privileged to be invited
to attend the first annual lecture organisedby the Asia-Europe Foundation anddelivered by Khun Anand Panyarachun on‘Good Economic Management andGovernance’. Asia’s best known democrat
and a man of the highest personal integrity,
Khun Anand, two-time Prime Minister ofThailand who gave his country what isregarded as the best an anti-corruption
national constitution anywhere in theworld, observed that it had to take afinancial crash to drive home the point thatmany of the Thai institutions were illequipped to operate effectively in the global

economy. He said that in the case of his
own country, the integration into the world
economy was far from smooth. For
example, while the Thais adopted readily
enough Western-style capitalism, this hadcreated an internal contradiction because
they continued to retain their traditional
system of patronage networks, a system
built on personal connections to allocate
values and resources. While maintainingthat personal connections could be
innocent, he warned that when they
became a factor in public affairs, they could
be deadly, because patronage was not basedon merit and tended to breed inefficiency
and corruption.
Khun Anand recognised that good
governance would not bring about some
idyllic utopia. In fact, it could be rather
messy-the chattering masses could be
difficult to satisfy-but he thought this waspreferable to the government taking public
policy decisions in secret or by a small
group of ministers or officials, which in theend would compromise and harm the public
interest. He went on to say: “To avoid suchoccurrences, the decision process must betransparent and open to scrutiny. The
people must be given free access to all
information pertaining to public policies
and projects”. Khun Anand, as you might
have gathered, does not subscribe to the“Father Knows Best” culture. He obviously
believes in the“People Know Best”
principle.
It is only through full disclosure of all
relevant information that the public could
reasonably be expected make informed
judgements and decisions about thematters that affect their lives. Access to
information would translate into greater
freedom of information across the national
spectrum. I see in freedom of informationa real victory for transparency andaccountability, because where timely andaccurate information is readily accessible,

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RESOURCE MATERIAL SERIES No. 56
corruption is deprived of oxygen.
Information that is freely available iscorruption’s worst enemy. Freedom of
information will enable the people to judge
whether the leaders they have elected arelooking after “the interests of the many
over those of the few” to borrow, once again,
the words of James Wolfensohn.
In conclusion, let me just say this: thefight for good governance is not an easy one.
It would be naive in the extreme to suggest
otherwise. It has become a major global
concern because, as Nobel Peace Laureate,
Oscar Arias Sanchez of Costa Rica, reminds
us, “Powerful financial organisations haveglobalised corruption as an accepted toolof business; the fight against corruption
must be globalised as well. If people do not
act to preserve their democracy, if they lackcivic virtue and the commitment of theirgovernment, then democracy will fall preyto the vulture of corruption.” Let us
therefore ensure that our institutions andsystems are strengthened. We must guard
their integrity jealously. Corruption takes
over when we allow our national
institutions and democratic systems to be
subverted by unprincipled politicians
determined to abuse “entrusted power for
private profit”.

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INTERNATIONAL CASE STUDY :STAMPING OUT CORRUPTION IN MALAYSIA
Tunku Abdul Aziz*
I. PUTTING CORRUPTION IN AHISTORICAL CONTEXTIn 1957 when Malaya1 became
independent, corruption was hardly an
issue. Both British and Malayan officers
maintained the highest standards ofintegrity and the proud traditions of the
Malayan Civil Service and were, on thewhole, incorruptible. They lived wellwithin their means. Ten years on, in 1967,
the Government, sensing a gradual shift
of attitude towards corrupt practices, anattitude that could be fairly described asambivalent, felt constrained to create a
special bureau to combat corruption, theforerunner of today’s Anti-Corruption
Agency. As you can see, the ACA has alonger history than, for example, the ICAC
of Hong Kong, arguably the most successful
corruption-busting organisation in theworld today. It all goes to show that age is
not always everything in fighting
corruption. Political will is!
In my experience, it is impossible for us
to even begin to understand the impact of
corruption on a country without our being
acquainted, however superficially, withthat country’s social, economic and politicalbackground. I make no apology, therefore,
for delving a little into Malaysia’s recent
history, so that we may have a clearer ideaof the causes of corruption in Malaysia and* Vice-Chairman of the Board of Directors,
Transparency International, Malaysia.
1 Malaya became Malaysia in 1963 following themerging of British North Borneo, Sarawak andSingapore with the Federation of Malaya.
Singapore was given independence by Malaysia in1965.

the efforts made to curb it.
When Malaya became independent in
1957, it inherited a form of government
based on the Westminster model which,with a few local adaptations, remains verymuch in place. Of equal significance, it also
inherited an economy based on Britishcolonial mercantile interests, centred
almost exclusively on the export of rubber
and tin. Palm oil came a little later.
Malaya boasted the most efficientplantation economy in the world, so
efficient, in fact, that in the immediate
post-war years, Malayan foreign exchangeearnings enabled Britain to repay much of
its American war debt. It was not fornothing that Malaya was known as
Britain’s Dollar Arsenal. Economic
prosperity, by the standards of Asia, isnothing new to Malaya or Malaysia, as it
became later on. But it was a different kindof prosperity, an agriculture-based
economy, offering nothing like theopportunities on which corruption was able
to thrive in the 1970s.
As a result of the race riots in Kuala
Lumpur in 1969 between the Malays andthe Chinese, the Government, recognisingthat economic disparity between the two
major races was at the heart of the tension,
decided that unless the politicallydominant, but economically deprived,
Malays were brought into the mainstreamof the nation’s modern economic life,
prospects for lasting peace and economic
prosperity would be greatly reduced. The
prescribed solution came in the form of
massive social and economic engineering,
going under the somewhat grand name of393

RESOURCE MATERIAL SERIES No. 56
the New Economic Policy or the NEP, forshort.
A. Opportunities for Corruption
Unlimited
The NEP was to be implemented over a
30 year period. It ran into controversy fromday one, and was seen by Western liberals
as unwarranted discrimination against asection of the Malaysian population. Its
motive, though, was wholly transparent;
it did not pretend to be anything other thanpositive discrimination, in the interest ofnational unity.
The Malaysian Government’s diagnosis
was spot on, and the prescribed remedy,
painful and unpopular though it was,produced the desired results.
Economically, the country took off, and with
it came political stability which Malaysia
continues to enjoy to this day. In less than
30 years, an agricultural economy was
totally transformed, and, apart from a
hiccup here and there, the country has notlooked back. The lesson that Malaysia
recognised, and learnt quickly, was that ina multi-racial and multi-cultural society,extreme economic disparities along racial
lines, if neglected, could and would quickly
create political and social instability, to thedetriment of the democratic values we
profess to uphold and cherish.
While the NEP has generally beensuccessful in meeting nearly all of its mainsocial and economic objectives, the creationof dozens of public enterprises toimplement hundreds of socio-economic
measures (enjoying wide discretionary
powers) produced some not totally
unexpected results. As with most
government-inspired initiatives anywherein the world, more often than not operating
without the benefit of effective central
coordination, they soon create enormous
problems of their own; the most pervasivewas corruption, both grand and petty. In394

the closing years of the 1970s, corruption
had become a factor of quite considerable
significance in the national businessequation.
Corruption and abuse of power had
reached such unprecedented heights thatthe normally staid The New Straits Times,
Malaysia’s oldest English language
newspaper, was moved to run an editorial
on the subject;“There was a time when a Malaysian
could indulge in a little smile ofcondescension when stories about
corruption in developing countries other countries, of course-weredetailed. That pride was entirely
justified: virtually every aspect ofpublic administration was clean,abuse of power was unheard of,departmental morale was high,public confidence vibrant. Perhaps
there was a tendency to take this stateof affairs for granted. For whateverreason, the present conditions havecalled forth a litany of exhortationfrom the various rulers, the Prime
Minister, his deputy, and a numberof ministers and departmental
heads.”
Malaysia had taken the first eager stepon the slippery slope of national
degradation.
II. GOVERNMENT ANTICORRUPTION MEASURES
A. The Early YearsA s m e n t i o n e d e a r l i e r, t h e A n t i Corruption Agency was set up in 1967. Its
main function was to combat corruption,
previously handled by the police. It wasthought that with the growing
sophistication of the economy, specialists
were required to deal with white-collar
crimes, including corruption. In the initial

113TH INTERNATIONAL TRAINING COURSE
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years, the ACA, with full government
backing, notched several notable successes,
including the prosecution and conviction ofseveral political leaders and senior civil
servants.
Harun Hashim, the first Director of the
ACA, and arguably the most effective in along line of dedicated officers, recalled
recently that his first duty was to know theextent of corruption in the country - what,
where and who. Let him tell us what hedid in his own words;“Initially, pleas for information on
corruption from the public, with theassurance that their identities would
be kept a secret, did not meet withmuch response. The people wereafraid of being victimised by the very
people they had bribed. Bribery is asecret transaction between two
individuals and if the secret is not
kept, it must have been revealed by
the giver. Victimisation is a naturalconsequence. But I had to know. So I
established P.O Box 6000. The public
were invited to write to me onanything they knew about corruption
in government, or by any of its
servants, without having to disclose
their identity if they did not want to.
Postage was free. The response wastremendous. Sometimes I received
about 200 letters in a single day fromall over the country. I read them all.
I was then able to implement a planof action of instituting measures toprevent corruption (the primaryobjective of the Agency) and where
there was sufficient evidence, tosanction criminal prosecutions. The
public would not have kept writing to
the Agency if they did not see any
result. Indeed the Agency could nothave functioned without theassistance rendered by the thousandsof anonymous letter writers who gavevital information.”
I have quoted Harun Hashim at somelength because there are important lessons
to be learnt from his pioneering work. The
most important lesson is that combating
corruption requires public support andcultivating public confidence in the systemis crucially important. This involves,
among other things, guaranteeing an
informer that their anonymity will not becompromised, and they will not be
victimised. Every scrap of information isimportant, nothing should be consigned to
the waste paper basket without checking
out and verifying the information given. As
the saying goes, “nothing succeeds likesuccess”, and nothing is more encouraging
to the public than a few successfulprosecutions. The ACA, under Harun
Hashim, was perceived to be free to act.
The fact that he also had the power of adeputy public prosecutor was not lost on
the corrupt.
B. Methods of Stamping Out
Corruption in Malaysia
In the 1970s, when the NEP was
installed, the Government intervened
actively in economic activities, setting up
large numbers of agencies to regulate andcontrol every aspect of commercial andindustrial life. Licensing, in particular, was
the key instrument used to enforce the newrequirements of the NEP. It is said thatthe British invented the red tape and theIndians subsequently improved it by tying
it up in knots. The Malays, everresourceful, turned it into a profitablepersonal revenue service.
Without naming names, thedepartments of government that exploited
the opportunities presented to them by theneed to obtain various approvals before amanufacturing license was granted, were
those with powers to grant or withhold
specific approvals. The approval process

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RESOURCE MATERIAL SERIES No. 56
was complicated and extremely time
consuming. Several departments wereinvolved and many businessmen wereforced by circumstances to oil the wheelsof bureaucracy. I speak from personal
experience as a former businessman of theprocedures involved, though not,mercifully, of having to bribe anyone.
Foreign investments soon dried up, and theGovernment, recognising the need toreduce opportunities for corrupt practices,
streamlined the procedures and introduced
what came to be known as a one stop
approving authority. The new system
worked like magic; foreign, as well as local
investments, poured in and, the rest, as
they say, is history.
In time, various administrative reforms
were put in place to improve civil service
discipline. Among the more visible ones:(i) Clocking-in and clocking-out,
involving every member of the civil
service, the police, the armed forces
and members of the cabinet,
including the Prime Minister. Even
judges are not exempt.
(ii) The wearing of name tags by civil
servants so that they can be
identified.
(iii) The introduction and improvementof the desk file and office procedures
manuals.
These measures were intended to
improve time management, accountability
and facilitate work and decision-making
p r o c e s s e s . S u b s e q u e n t l y, o t h e rinnovations, including quality control
circles, total quality management, clients’charter, and more recently, the ISO 9000
were introduced. While the emphasis has
been on making the civil service more
efficient, attention has also been given to
improving the conduct and discipline of396

public servants (a recent Hong Kong based
survey put Malaysia just behind Hong
Kong and Singapore in a public service
efficiency poll. The comparison of two tinycity states with vastly different problems,
is not, in my view, strictly valid. Malaysia
is placed ahead of Japan, Taiwan andSouth Korea in terms of efficiency).
In 1993, the Public Officers (Conduct
and Discipline) Regulations came into
force. Disciplinary Board Regulations wereintroduced. In December 1994, the Judges’
Code of Ethics was put in place, followed
in 1995 by the adoption of Ethics in the
Administration of the Institution of His
Majesty the King. The recently retired
head of the Anti-Corruption Agency, Dato’
Shafee Bin Yahaya, believes that “all thesemeasures have made the Malaysian Civil
Service more efficient and less prone tocorruption. This has definitely contributed
towards Malaysia’s high rate of growth in
the last eight to nine years.”III. FURTHER MEASURESAGAINST ABUSE OF AUTHORITY &FINANCIAL MISMANAGEMENT
As early as 1988, the government
recognised the need for a high-level
national body to address weaknesses inpublic service financial administration.
For this purpose, a Special Cabinet
Committee on Government Management
was set up under the chairmanship of the
Minister of Finance. Matters highlighted
by the Auditor-General, the AntiCorruption Agency and the Treasury, aregiven serious attention, and remedialaction taken. Compliance by heads ofdepartments is crucial to the success of theCommittee’s work. Creative switchingfrom one expenditure head to another goeson all the time, and eternal vigilance is thename of the game as far as the Committee
is concerned.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
In Malaysia, members of the public whoare aggrieved by bureaucratic misconduct
may take their complaints to the Public
Complaints Bureau or PCB. The PCB
comprises of the Director-General of the
Public Services Department, the DirectorGeneral of the Anti-Corruption Agency, theSenior Secretary-General of the Prime
Minister’s Department and the DirectorGeneral of the Malaysian Administrative
Modernisation and Management Planning
Unit. The PCB is responsible to the Chief
Secretary of the Government, the country’s
top civil servant. To date, more than 70%of the complaints received have beensuccessfully resolved.
A. Conflicts of Interest in the PublicService
The Federal Constitution prohibits amember of the Executive Council fromengaging or taking part in any decision of
the Executive Council respecting any trade,business or profession which may have abearing on their pecuniary interests.
Members of the Administration and Public
Officers who abuse their position in orderto obtain financial or other advantages will
be subject to criminal proceedings, as
provided under the Emergency (Essential
Powers) Ordinance No. 22/70. The
Ordinance has been enacted “to widen the
campaign against bribery and corruption,and now makes a penal offence any practicethat comes within the definition of corrupt
practice in the Ordinance, which previously
would have escaped the net of the Penal
Code”, Mr. Justice Chang Min Tat in a
Federal Court ruling. In practice, theOrdinance has proved to be an important
instrument in preventing corrupt practices
among members of the Administration,
Members of Parliament, both State andFederal, as well as public officers. “Overthe years, the Anti-Corruption Agency has
been fairly successful in taking action
against the corrupt practices of public
officers and politicians....”, Director

General, ACA, August 1997.
IV. INTEGRITY - A NEW FOCUS
A. New Legal Framework & Greater
Resources
In April 1997, the Government took
another important step to develop andstrengthen its own integrity system bysetting up a high-powered Cabinet
Committee on Integrity in Government
Management. It is significant that theGovernment has chosen to embrace
integrity, a word first used widely in thecontext of good governance when TI started
to be active in Malaysia with a series ofintegrity seminars, as part of its anticorruption public awareness programme.
Coalition building is TI’s strong point;
working with individuals, civil society andorganisations, both government as well as
the private sector, fighting the same battle.
In Malaysia, we have been able to develop
an active, and effective, professional
relationship with the Anti-Corruption
Agency.
To give practical effect to public concerns
about the damage caused by corruption tonational life and prestige, the Government
passed the Prevention of Corruption Act
1997, the most important weapon in the
Government’s legal arsenal with which todeal with the new, more sophisticatedforms of corruption the country was facing.
For the first time, the ACA was given wider
investigative powers. Other features new
to the corruption-busting scene are:(i) Minimum of 14 days mandatory
imprisonment and a ten thousand
ringgit fine or 5 times the amount orvalue of the bribe received, whicheveris the higher.
(ii) Requiring a suspect to explain how
s/he has acquired their assets to thesatisfaction of the Public Prosecutor.

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RESOURCE MATERIAL SERIES No. 56
If s/he fails to do so, s/he will be
presumed to have acquired theirwealth by corrupt means. The court
may order forfeiture of the assets insuch circumstances.

more inclined... to come forward to giveinformation on corruption and othermalpractices when their identities areconcealed and protected.”
The relevant provision in the Act states:

As part of its ongoing “cleaning up”
process, the government has established,in departments and agencies in a position
to engage in corruption, a departmental
Committee on Integrity, Quality andProductivity. Quite apart from improving
efficiency and transparency, the inculcationof “high moral values and good work ethics”
is an important element in preventing
corruption in the public service. The ACA
has been revamped. Its functions havebeen expanded, and it is now required to:(i) Examine the practices, systems andprocedures of public bodies in orderto facilitate the detection anddiscovery of corrupt practices and tosecure such further improvements as
to make it difficult for corruption torear its ugly head.

“Except as hereinafter provided, nocomplaint as to an offence under thisAct or any prescribed offence shall be
admitted in evidence in any civil or
criminal proceeding whatsoever, andno witness shall be obliged or
permitted to disclose the name oraddress of any informer, or state any
matter which might lead to his
discovery.”I have taken you through a maze ofmethods, measures and legislation whichhave been put in place to minimise
opportunities for corruption in my country.
You may well ask, at this juncture, howeffective the various measures have beenin stamping out corruption in Malaysia?
V. CONCLUDING REMARKS(ii) Instruct, advise and assist any
person, upon request, on ways inwhich corruption can be prevented.
(iii)E d u c a t e t h e p u b l i c a g a i n s t
corruption.
(iv) Enlist and foster public support incombating corruption.
The ACA is committed to working in
partnership with civil society, and isprepared to ensure, under the law, thatmembers of the public reporting corruption
cases, are protected against victimisation.
In this context, the Director-General has
said “Through public support, cases ofcorruption could be brought to light, theperpetrators prosecuted, and punishment
meted out accordingly. The ACA also
believes that members of the public will be

398

The measures I have described,
unfortunately, have not succeeded instamping out corruption. No anticorruption measures known to man, andno country in the world, can claim to havesucceeded in stamping out corruption. All
that we can hope to do is contain it, andmake corruption a risky and an
unprofitable business.
That is precisely what Malaysia has
been doing since the ACA was firstestablished in 1967. The seriousness withwhich the Government views corruption isevident in the range of legal andadministrative measures and resourcesthat it has put at the disposal of the ACA.
The political will is apparently there, but
it is important for the Government toaccept that corruption is not just about

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
bribery; corruption is about the abuse of
entrusted power for personal profit, adefinition widely used by Transparency
International. Corruption thrives in theabsence of transparency and accountability.
A grave shortcoming in the Malaysian anticorruption mechanism is that the ACA is
not an independent commission. It is agovernment agency, and members of the
public suspect its impartiality, reporting as
it does to the Prime Minister.
Happily, for the present at any rate, theGovernment has taken to heart the lessonsof good governance, and the days of crony
capitalism, the misuse of public funds forrescue operations of politically connected
corporations and negotiated contracts arenumbered. Malaysia, therefore, remains
a good place in which to do business
precisely because corruption, unlike inmany countries, is not a major factor in ourbusiness equation.

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CURRENT PROBLEMS IN THE FIGHT AGAINSTCORRUPTION AND SOME POSSIBLE SOLUTIONS:US PERSPECTIVE
Anthony Didrick Castberg*
I. INTRODUCTION
Official corruption occurs and is fought
at several different levels of the criminal
justice system in those nations using afederal model. The levels may generally
be labeled as enforcement, prosecution, andtrial, which in the US occur at both thefederal level and the state level. There arefifty-one criminal justice systems in the US.
This decentralization offers perhaps more
opportunities for corruption, but at thesame time provides more agencies to fightagainst corruption. The US has law
enforcement agencies at the federal level1,
the state level2, the county level3, and the
local level4. Prosecution takes place at thefederal level (US attorneys), the state level(attorneys general), and the county level(prosecutors) 5. Trials take place at thefederal level and the county level, although
the courts in a county are generally state
courts and the judges, state judges. Thisrather complicated system may soundstrange to those unfamiliar with the US
system of justice, and in fact, very few
citizens of the US have a goodunderstanding of it.
This system of government was createdduring the Constitutional Convention that
met in Philadelphia, Pennsylvania, in
1787. The delegates to the Convention
originally met to revise the Articles ofConfederation, which had established aleague of states with a relatively weaknational government, but ended up writing
an entirely new document that divided the* Professor of Political Science, University of Hawaii
at Hilo, United States of America.

400

powers of government between the national
government and the states. Thus, the US
became a country with some powers
reserved to the national government, somepowers reserved to the states, and somepowers that are concurrent. Article I,
Section 8, gives Congress the power toestablish tribunals (courts) inferior to theSupreme Court, while Article III delineates
the powers of the judicial branch of
government. The power to establish state
courts and state criminal codes was left tothe states. But because many of the more
influential figures of the time felt that theConstitution established a national
government that was too strong, there wasgreat debate about ratification, with the
major factions being the federalists (who
supported the Constitution) and the antifederalists (who wanted the power of thenational government limited). In acompromise that allowed ratification totake place, the federalists agreed to support
amendments to the Constitution thatwould limit the powers of the national
government. These 10 amendments, whichbecame known as the Bill of Rights, were
ratified in 1791. Amendments 4, 5, 6, and
8 directly affect the criminal justiceprocess, but until the middle of the 20th
century these rights applied almost
exclusively to the national government.
Through a series of Supreme Court
decisions however, almost all of the rights
enumerated in the Bill of Rights have been
applied to the states through the due
process and equal protection clauses of the
1 4 th A m e n d m e n t . P r i o r t o t h i s
incorporation, different standards applied
to federal and state law enforcement.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
II. PROBLEMS OF INVESTIGATION
Investigation of corruption depends ona number of variables, the first of which isdetection. As official corruption is bydefinition committed by government
officials, its detection may be difficult
because of its hidden nature, but also by
the ability of government officials to
intimidate subordinates who are in aposition to reveal the corruption or tothreaten the funding of law enforcement
agencies which have jurisdiction over them.
The federal government and most states
have “whistle-blower” laws6 which protect
those who reveal corruption, but there are
no protections against retaliation bycorrupt politicians against law enforcement
agencies who investigate them. Whistleblowers are responsible for many
investigations into corruption, both byproviding information directly to law
enforcement agencies and by contacting themedia, which may launch its own
investigation. However information froman informant is only the beginning, as
many tips do not result in investigation,
let alone conviction.
Official corruption may range from freerestaurant meals provided to police officers
to bribes paid to high-ranking federal
officials by stock manipulators. In the US,
many corruption investigations involveillegal contributions made to political
campaigns. In such cases, detection isfrequently accomplished by agencies
created for that very purpose7, in contrast
to other types of corruption that areinvestigated only after tips provided bywhistle-blowers and other citizens. Thus,
detection may take place in a proactive ora reactive manner. Regardless of how thealleged illegal activity is detected, adecision must be made to investigate or not.
Such decisions should rest solely on
sufficiency of evidence, but in practice areinfluenced not only by evidence but also by

the availability of resources8 and by thepolitical considerations. The resource
problem in the US is frequently a functionof the federal system and its decentralized
law enforcement. While the US has more
law enforcement officers per population
than most other countries,9 60% of all local
police departments employed fewer than
10 full-time, sworn officers.10 Few local law
enforcement agencies in the US then havethe capability to investigate significant
cases of official corruption. Politicalinfluences may range from threats ofretaliation by those targeted, to fear of
exposing community influentials; but it issafe to say that there are virtually always
political factors in any decision toinvestigate official corruption.
There are, of course, legal considerations
when undertaking an investigation of
official corruption. Law enforcement
agencies must observe all constitutionaland statutory guidelines, with particularemphasis paid to search and seizure, which
may include electronic eavesdropping, andentrapment, frequently an issue in “sting”
operations.11 Law enforcement agencies
normally consult with prosecutors on such
legal issues. There are 50 different state
penal codes, the US Code, and precedent(common law) from appellate courts in eachstate, federal circuit courts of appeal, andthe US Supreme Court, all of which must
be considered when undertaking an
investigation. Thus, the legal preparationand monitoring of a major corruption
investigation is frequently complex andlengthy, and often involves search warrants
which must be approved by judges. A
successful investigation, therefore, ishighly dependent upon adequate resources
and the quality of and cooperation between
law enforcement, prosecution, and the
judiciary. And they are all dependent uponlegislation that clearly delineates what
constitutes official corruption.12

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III. POSSIBLE SOLUTIONS
Corruption must be clearly defined in
the law, citing specific acts, the elementsof which constitute a violation. The
example cited above of a police officer
receiving a free meal from a restaurant isa typical example. This practice is very
common in the US, with some fast-foodchains apparently having policies ofproviding free or discounted food to on-duty
police officers. In this corruption? If so,
what is the quid-pro-quo? What does therestaurant receive in return for the freefood provided to the police officer? At best,
the restaurant encourages police officers
to eat on the premises, thereby affordingsome form of security. But is this the kindof behavior that should be made criminal?13
And if so, how much effort should be madeto enforce such laws? The law, then, mustclearly define what acts are criminal andmust make distinctions between breechesof ethics on the one hand and true crimeson the other. Ethical standards can be
enforced administratively without invoking
criminal sanctions. All government
agencies should have standards of conduct,and it is important that such standards be
rigorously upheld, as a lack of suchenforcement may well lead to violations
that are truly criminal in nature.
Redundancy must be built into law
enforcement so that the lack of resources
will never jeopardize detection or
investigation. Jurisdictional jealousies
must be put aside in the interests ofeffective law enforcement, and this may
require a higher level coordinating agency.
Thought should also be given to anindependent agency at both the state andfederal levels in a federal system, and at
the national level in a unitary system, thatspecializes in the detection andinvestigation of official corruption.
Governmental agencies themselves shouldeach have a specific internal unit devoted
to detection and investigation of corruption,
402

such as the internal affairs units commonly
found in US police departments. Finally,
law enforcement must be apolitical. Law
enforcement agency heads should not be
popularly elected nor directly appointed bya political figure, but rather selected by anon-partisan commission of experts in thefield, with the commission also deciding
whether the head is reappointed.
Law enforcement agencies should beaccredited by a national accrediting bodywhich makes periodic visits to the agency,
and there should be minimum standards
for hiring and training at the state level.
Within agencies, recruitment of new
personnel and promotion of existing
personnel must be done according to strict
rules with merit being the only criteria for
both. Regular rotation of personnel is also
an effective method of reducing the
likelihood of corruption. Agencies should
also have probationary periods after initialhiring during which time they can assess
the abilities of their new employees and beable to fire for cause without civil service
protection. Pay must be such that officers
do not have to resort to payoffs to support
a spouse and children, although it is clearthat high ethical standards, rather thanpay, are the best deterrent against
corruption. Retirement pay should beenough that officials will not feel the needto engage in corruption to prepare forretirement.
IV. PROBLEMS AT THE TRIAL
LEVEL
In some nations, investigatory authority
rests almost solely at the law enforcementlevel of the criminal justice system. Where
this is the case, the prosecutor relies almost
entirely on the police to carry out
investigations, making prosecution highly
dependent upon the ability of the law
enforcement agency in whose jurisdiction
the corruption occurred. This issue isdiscussed in the previous section, but

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
inasmuch as inadequacies in law
enforcement may affect prosecution andtherefore the likelihood of conviction, it
must be mentioned here as well. In thosenations where investigatory authority rests
in both law enforcement and prosecution,
there is a redundancy that usuallyenhances the chance of conviction. Whilevirtually all prosecutors in the US have theauthority to investigate, lack of resources
frequently prevents them from doing so.
There may, however, be poor relations
between law enforcement and prosecution,a situation than hinders successfulprosecution. There may be corruption and/or incompetence in either or both. And
there may be political considerations that
affect prosecution. While it is probably truethat corruption is more likely to be foundin law enforcement agencies than inprosecution, there are exceptions. In
Orange County, California, for example, aformer deputy district attorney is being
held without bail on charges that he waspart of a nationwide methamphetamined i s t r i b u t i o n r i n g . 14 P r o s e c u t o r i a lcorruption in the US is , however, quiterare, 15 and we must be careful todistinguish official corruption from simple
law breaking; in the Orange County
incident, for example, the deputy district
attorney used his official position to obtain
information on law enforcement efforts toinvestigate the ring.
Local chief prosecutors in the US are
either elected or appointed. 16 Elected
prosecutors may run in either partisan or
non-partisan races, while appointed
prosecutors are almost always members of
the same political party as the person orgroup who does the appointing. Terms ofoffice of elected prosecutors are usually 4
years, while appointed prosecutors serveat the pleasure of the appointing individual
or group. Whenever prosecutors areelected or appointed it is virtually

impossible to remove politics fromprosecutorial decision-making. Would, forexample, a prosecutor approve prosecution
for corrupt business practices of a major
campaign contributor? Or would aprosecutor prosecute a corrupt member ofthe cabinet of the mayor who appointed
him or her? To what extent will public
opinion affect prosecutorial decisionmaking? Public outcry over a particularly
terrible crime may bring about a rush to
indict and try a suspect or suspects, andthe result may be a poorly prepared casethat results in a not guilty plea, the tryingof the wrong people, or an ill-advised plea
bargain. The failure to obtain a conviction
in one high profile case may be a major
issue when the prosecutor runs for reelection or is up for re-appointment.
It should be noted that only about 10%of defendants charged with a felony in the
US go to trial. The vast majority of cases
are settled through a guilty plea by the
defendant, almost always as a result of plea
bargaining. Plea bargaining involves
consideration given by the prosecution in
return for a guilty plea, with theconsideration often consisting of areduction in the charges or a sentence
recommendation.17 Plea bargaining is avery low-visibility activity, and except inhigh-profile cases, is rarely reported by the
media. As a result, the public can only
evaluate a prosecutor on the basis of a few
well-publicized cases rather than on thevast majority of cases handled by the office.
There are no national standards forprosecutors, nor are there standards inmost states beyond having been a memberof the bar for a specified period of time.
Thus, the quality of prosecution varies
considerably from county to county. This,
coupled with the fact that prosecutors
generally earn less money than an attorneyin private practice, does not lend itself tohaving the best legal minds as

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RESOURCE MATERIAL SERIES No. 56
p r o s e c u t o r s . 1 8 M a n y, i f n o t m o s t ,prosecutors however, choose that positionout of dedication to the administration ofjustice rather than out of financial
considerations. At the same time, theturnover among junior prosecutors tends
to be high in most offices, so that thepercentage of career prosecutors in any
g i v e n o f f i c e i s n o t g r e a t . 19 M a n yprosecutors’ offices in the US, then, aresimply not capable of investigating orprosecuting major corruption cases.
Because most official corruption is also afederal offense, prosecution is frequently
undertaken by US attorneys.
State judges are also either appointed
or elected in the US.20 Regardless of themethod by which a judges reaches thebench, however, politics are involved.
Terms of office for judges generally range
from 4 to 10 years, with the longer terms
providing greater judicial independence.
Federal judges, by contrast, are appointed
for life. As is the case with prosecutors,
judicial salaries are not competitive withthose in large law firms, so those attorneys
who aspire to a judgeship do not do so for
economic reasons. As is the case withprosecutors, there are virtually no
qualifications for becoming a judge otherthan having been a member of the bar fora specified number of years (normally 5).
Judges in the US are not required to have
any training beyond that of law school, anda judge can be elected or appointed to thebench and handle criminal cases without
ever having had any criminal law
experience. The quality of judicial decisionmaking, therefore, varies considerablyfrom county to county and state to state.
Defendants in US, criminal cases havethe right to a speedy trial.21 Generally thismeans that they must be tried within 180
days of being charged.22 In order to assure
the right to a speedy trial there must be a
sufficient number of prosecutors, judges404

and courtrooms. When there are not, there
is great pressure to plea bargain, resulting
in many criminals receiving lesspunishment than they would have gotten
had they been convicted at trial. If the
defendant refuses to plea bargain and theprosecutor must try a case without
adequate preparation, the likelihood of a
not guilty finding increases substantially,as the state must prove the defendant
guilty beyond a reasonable doubt. The
alternative is not to charge the suspect
until the prosecution’s case is solid andthereby run the risk of the suspect’s fleeing
the jurisdiction. State and local
governments can rarely afford the numberof judges, prosecutors, and courtrooms thatare necessary for the effective
administration of justice, so the system isconstantly compromised.
There is a tendency in the US to restrict
the sentencing discretion of judges.
Federal judges must use a sentencing gridthat has six criminal history categories
along one axis and 43 categories of offense
level along the other, while state judges areoften restricted by penal codes that specify
mandatory sentences for certain offenses
or have a “three-strikes” provision. 23
Judges in Hawaii, for example, must
sentence a felon to the maximum term asprescribed by law, with the Paroling
Authority setting the minimum term. 24
This is part of a “get tough” policy toward
crime and a backlash from what many
perceive is a tendency on the part of too
many judges to hand down lighter
sentences than are justified. In some cases,
however, light sentences are a function ofprison overcrowding.25 In other cases, thesentences reflect the philosophy of thejudge. But without flexibility insentencing, judges cannot hand down
sentences that sufficiently distinguish, forexample, between free meals for police
officers and payments to police chiefs tooverlook methamphetamine laboratories.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Because corruption is such a broad
category that encompass a wide variety ofcriminal acts, it is especially important thatthe punishment fit the crime. This is notpossible when a judge lacks flexibility insentencing.
V. POSSIBLE SOLUTIONS
Prosecutors must have the legal
authority to investigate, an authority
shared jointly with the police. Where
prosecutors do not have such authority, or
where they have it but rarely exercise it, it
is not unusual for cases to be returned tothe police for further investigation.
Because prosecutors must prepare a casefor presentation to a grand jury or
preliminary hearing, and ultimately for a
trial (even if ultimately settled throughplea bargaining), their perspective is on
admissibility of evidence and proof beyonda reasonable doubt. Police, on the other
hand, tend to focus on obtaining evidence
sufficient to charge, or a standard ofprobable cause.
Prosecutorial
investigation, therefore, should be
supplementary to police investigation inorder to best use scarce resources.
Nevertheless, additional resources will beneeded by prosecutors who gain
investigatory authority, generally in theform of non-lawyer investigators. In theUS, prosecutorial investigators are
frequently former police officers.
Election, or appointment by elected
officials, of prosecutors necessarily makes
the process, and therefore the position,
political. The same is true with respect tojudges. In the latter case, however, longer
terms of office to some extent offset the
influence of politics, but this influence cannever be completely eliminated. Even
those systems combining election andappointment by a commission have notcompletely avoided politics, but they may
hold the key to a better method of

appointing both prosecutors and judges.
What is needed is a non-partisancommission, perhaps composed ofexperienced attorneys, which solicits
names from the public, evaluates
candidates, and makes the appropriate
appointments. Members of the commission
themselves could be popularly elected.
While some may criticize this process as
undemocratic and elitist, it must be
realized that neither the judiciary nor
prosecution is democratic by nature, asdecisions may have to be made by bothwhich are not supported by the majority.
The judiciary is a check on the tyranny oft h e m a j o r i t y, t h e t h i r d b r a n c h o fgovernment which, among other things,
protects the rights of minorities. The
prosecutor represents the people, not in thesame manner as a legislator, but rather as
an impartial and relatively independent
legal authority. Popularity, then, should
not be the criteria for appointment orelection of judges or prosecutors but rather
independence and legal ability.
Legal ability is not a requirement forappointment or election as a prosecutor ora judge in the US, but prosecutors must be
familiar with criminal law and criminal
procedure, while judges, because theyrarely specialize26, must be familiar withall areas of substantive and procedural law.
This presents the dilemma of seasoned
criminal law attorneys facing recently
elected prosecutors (who have neverpracticed criminal law) in a case heard by
a judge (who specialized in real estate law
before appointment to the bench). Theremust, therefore, be minimum qualifications
for appointment as a prosecutor or a judge.
With respect to prosecutors, minimum
qualifications should include at least 5
years experience practicing criminal law or
one year post-law school training incriminal law and procedure, as well as
public administration.27

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For judges to be truly professional, andtherefore free from political influences andresulting corruptive enticement, they musthave training above and beyond that ofother members of the bar. This training
could take the form of post-law school
education or an institute dedicated totraining potential judges.28 Because thepenal code of each state and the federal
government varies, and because criminal
procedure also varies from state to stateand from the federal system, a national
institute for training judges would have toteach principles rather than the law of eachstate and the federal system. This would
be more economical and efficient thanhaving separate training institutes in eachstate, and would have the added benefit ofbringing together potential judges from theentire nation. Specific training in the lawof individual states and the federal system
could come from an apprenticeshipprogram whereby national institutegraduates spend a specified period of time
as assistants to veteran judges.
Just as specialized training is importantin preparing prosecutors and judges to fightcorruption, so too may be specialization
within those professions in the handlingof corruption cases. Where possible, one
or more prosecutors should be assigned
solely to corruption cases, and reporting
directly to the chief prosecutor. This not
only allows dedication to only one type ofcase, but some degree of independence as
well. In smaller offices, however, this may
not be possible. One possibility that does
not depend upon the size of prosecutors
office or court system is to centralize theprosecution and adjudication of corruption
cases at the state level, with prosecution
handled by a special unit of the Attorney
General’s Office and adjudication by a court
established for that purpose, with branches
in the largest cities of the state. The same
could hold true for the federal system, withdedicated units in larger US attorney’s

406

offices and a court in each federal circuit.
The problem of inadequate resources toprovide speedy trials for all who do not
waive that right can only be solved byallocating substantial sums of money to the
51 different judicial systems in the US. Any
increase in the number of courts and judges
would, of course, have to be met byadditional prosecutors and publicdefenders, again a costly proposition. The
alternative- more corruption, lighter
sentences and dismissal of cases due to 6th
Amendment (speedy trial) violations.
Plea bargaining is, at the same time, astandard practice and a hotly debated topic.
The system could not operate without it,
yet there are acknowledged abuses of it andinjustices in its application. It can beparticularly controversial in corruption
cases, as it leaves prosecutors and judges
open to charges of favoritism as well as
their own corruption. Part of the problem
with respect to plea bargaining is that it isa low visibility process, or a process thatlacks transparency, and a process that the
public does not completely understand. It
is also a problem because it may be used to
avoid, rather than as an alternative to,trials. There is very little case law on plea
bargaining and it is rarely dealt with inrules of procedure. The solution, then, is
to institutionalize plea bargaining while atthe same time making it more transparent.
There should be specific rules of procedure
about plea bargaining and all plea bargains
should be judicially approved prior to aformal change of plea. Some plea
bargaining involves consideration given to
defendants in return for their testimony
against collaborators or co-conspirators.
This is frequently true in corruption cases,
and may result in those guilty of multiple
felonies serving no time in prison in returnfor testimony against high ranking corrupt
officials. While this may not sit well withthe public, it is essential for the effective

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administration of justice that suchbargaining not remain hidden. Finally, allparties to the case, including victims,
should have the opportunity to makeformal input on any and all proposedbargains.
VI. MEASURES TO PREVENTCORRUPT ACTIVITIES OF PUBLIC
OFFICIALS
Many of the suggestions discussed above
constitute measures that would help toprevent corruption among public officials,
but there are more that should beconsidered. The primary focus above has
been on the criminal justice system, but
measures are necessary to deter corruption
among all public officials. The primarymeasures are laws and codes of ethicalconduct. In the US there are numerous
sections of the US Code which contain suchprovisions, while at the state level there
are generally codes of conduct and statutes
prohibiting bribery and other abuses ofpower.29 In short, then, there is no shortageof laws prohibiting official corruption nor
codes of ethical conduct. But do they serve
as effective deterrents?
Deterrence is difficult to measure,although one study found that it is afunction of likelihood of conviction andlength of prison sentences.30 Bribery of, or
acceptance of a bribe by, a public official,for example, is punishable under 18 USC§201 by a fine and up to fifteen years inprison. Is the fine and prison sentence a
deterrent to bribery? The answer, of course,
depends upon the personalities of those
involved, the amount of money of the bribe,and the likelihood of detection andconviction. It very likely deters some anddoes not deter others. So the question iswhether increased efforts at detection andprosecution accompanied by increased
penalties will deter more than the current
penalties, and whether the increased costs

associated with these efforts will bejustified. There are other methods, ofcourse, that might not directly involve
deterrence but would be more effective in
reducing corruption.31
Susan Rose-Ackerman suggests thefollowing approaches to reduction ofcorruption:32
1. Program elimination (of corrupt
programs)
2. Privatization (of current government
services)
3. Reform of public programs (revenue
collection, regulation, social benefits)
4. A d m i n i s t r a t i v e r e f o r m ( m a k eadministration competitive)
5. Deterrent effect of anti-corruption
laws (increase deterrence and reward
whistleblowers)
6. Procurement systems (improve theefficiency of government purchasing)
7. Reform of civil service (substitutecivil service for patronage and ensurethat it is apolitical)
Rose-Ackerman’s suggestions tend to besocietal in scope, and while institution ofsuch reforms would clearly reduce
corruption, their implementation would be
difficult, costly and lengthy. This is not to
say that the effort should not be made, butrather that initial reforms must start at
the micro rather than the macro level.
Most of the recommendations I suggest
above can be made with a minimum of
disruption and political controversy, and amodicum of money, but allow me to suggest
several more.
Just as punishment may deter
corruption, rewards may achieve the same
result. Awards or salary increases could
be given to employees and officials who
detect and report corruption and to those
who themselves are examples of integrity
and honesty. Supervisors should be held407

RESOURCE MATERIAL SERIES No. 56
more accountable for the actions of theirsubordinates, so that both rewards andpunishment would flow to supervisors as
well. Strict laws regulating postgovernment employment should be
i m p l e m e n t e d a n d e n f o r c e d . 33
Transparency, or openness in government,
must be increased. The public must beallowed access to all government meetings,
documents, rules, regulations, etc, withrestrictions only when national security isthreatened. Public reporting laws should
require all agencies to make available dataon corruption and efforts to prevent it.
Coupled with this is the importance of afree press. Only when the press is free fromgovernment restrictions and censorship
can access to information on the operationof government be widely available tocitizens. The press in the US has
traditionally been the primary watchdog
over government corruption.34
VII. INTERNATIONAL
COOPERATION IN COMBATTINGCORRUPTION
Corruption has become a truly
international phenomena, thanks toorganized crime, modern transportation,and computers. Perhaps the mostcorrupting international commodity is
drugs, as the money involved in its
transportation, distribution and sale isastronomical. Bribes to law enforcement
officials constitute pocket change for large
drug cartels, but for the corrupt official thebribe may be many times that person’sannual salary. Despite the best efforts ofgovernments, the internationaltransportation of drugs continues at a highrate.35 International money laundering isa multi-billion dollar business as well, andwhile there seems to be little official
corruption in the US associated with thisactivity, that is not the case in many othernations. And while perhaps not a result ofcorruption, the failure of government

408

regulators to detect and prevent suchlaundering calls for reform of some kind.36
International cooperation is essential infighting these types of criminal activities.
While one can correctly say that the supplyof drugs from South America to the US
would not take place were there not astrong demand for drugs in the US, that
does not mean that the problem is solelythat of the US. The corruption that ispresent in Mexico and Columbia, forexample, is damaging to the citizens of
those nations while at the same time
facilitating corruption in the US. The
problem of drugs if far too complex to
discuss in this paper, but it is an excellent
example of corruption that must be fought
through international cooperation,
cooperation that must take place at every
level, from law enforcement to heads ofstate.
International cooperation in fighting
official corruption, while in the bestinterests of all nations concerned, isunfortunately affected by politics, bothinternal and international. Effective
cooperation cannot exist, for example,
between nations which have no diplomatic
relations. Foreign trade issues may bemixed with anti-corruption efforts.
Political change within a nation may affectinternational cooperation. And culturaldifferences may cause disagreements overwhat constitutes official corruption as wellas the appropriate punishment for it. This,in turn, may affect extradition. Nations
jealously guard their sovereignty, and in
the end, one cannot compel another to fightofficial corruption. Only through mutual
understanding, frequent dialogue,
exchange of officials, and a sharedunderstanding that official corruption is
not in the best interests of any nation, caninternational cooperation prosper.

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NOTES
1. Although the FBI (Federal Bureau of
Investigation) is the best known federal
law enforcement agency, there aremany others: Immigration andNaturalization Service, US Marshals
Service, Federal Bureau of Prisons,
Drug Enforcement Administration(DEA), Internal Revenue Service, US
Postal Inspection Service, US Customs
Service, and the Bureau of Alcohol,
Tobacco, and Firearms (BATF).
2. All states except Hawaii have “statepolice”, but their duties andresponsibilities vary considerably. In
California, for example, the largest
state law enforcement agency is theCalifornia Highway Patrol, which, as
the name implies, is primarily
responsible for traffic enforcement.
3. Traditionally, sheriffs are responsible
for law enforcement in counties. In
practice, sheriffs generally exercise
their law enforcement inunincorporated areas of the county andin those cities and towns which contract
for services from the county.
4. Law enforcement authorities in cities
and towns are usually called “police”,
although other terms may be used aswell.
5. “Prosecutor” is a generic term for those
who prosecute. Actual titles include
district attorney and state’s attorney,
among others. Prosecutors generally
enforce state laws as well as local
ordinances.
6. See, for example, 5 USC §2302.
7. In the state of Hawaii, for example, theCampaign Spending Commission may
investigate alleged violations ofcampaign spending laws, assess
administrative fines, and refer criminalcases to the appropriate prosecutor.
See HRS §11-191 - 11-229.
8. Small law enforcement agencies rarely
have the resources to pursue largescale corruption. Where theseresources are not available, the case isusually turned over to a larger agency
in the same jurisdiction or to federal
law enforcement officials.
9. The Bureau of Justice Statistics of the
US Department of Justice reports that
there were 25 sworn officers per 10,000
residents in 1996: Census of State andLocal Law Enforcement Agencies, 1996.
NCJ 164618, June 1998, p.2.
10. Ibid, p.5.
11. In the 1978 “Abscam” operation, forexample, the FBI used agents posing
as wealthy Arabs who offered bribes to
US legislators. All of the meetings
between the undercover agents and thelegislators were videotaped, and one
senator and four representatives were
ultimately convicted for bribery andconspiracy. The conviction of one
representative was overturned,
however, due to entrapment.
12. Federal legislation on corruption ismuch more comprehensive than thatfound in state penal codes, which
generally deal with bribery and codesof ethics that prohibit conflicts ofinterest, acceptance of gifts, etc. And
all legislation is subject to judicial
interpretation - a recent US Supreme
Court decision held that in order toestablish a violation of 18 USC §201,
bribery of public officials, thegovernment must prove a link between
the gift conferred and a specific official
act for which it was given. US v. Sun-

409

RESOURCE MATERIAL SERIES No. 56
Diamond Growers of California, 98-131(1999).
13. Most, if not all, police departments
have administrative rules prohibiting
officers from accepting gratuities, withfood defined as a gratuity, but they are
rarely enforced.
14. T h e O r a n g e C o u n t y R e g i s t e r ,Wednesday, July 14, 1999, p.B04.
15. Prosecutorial corruption, such as theOrange County case, must be
distinguished from prosecutorial
misconduct, which, while not common,is more frequent than corruption.
16. Those deputies working under the chiefprosecutor may be civil service
employees or may serve at the pleasureof the chief.
17. Plea bargaining is facilitated by thenature of penal codes in the US, wherea given offense may have as many asfour or five degrees. In Hawaii, forexample, there are five degrees ofsexual assault and four degrees of theft.
A plea bargain may involve theprosecutor reducing the charge fromfirst degree sexual assault to third
degree sexual assault; the first ispunishable by 20 years in prison while
sexual assault in the third degree ispunishable by 5 years.
18. T h e a v e r a g e s a l a r y f o r a c h i e fprosecutor in 1996 was $64,000.
“Prosecutors in State Courts, 1996,”
Bureau of Justice Statistics, US.
Department of Justice, July 1998, p.1.
19. The median size of prosecutors offices
in 1996 was 9, 4 of whom wereprosecutors, and the median length ofservice was 6 years. Ibid.

410

20. The are many variations on election
and appointment, such as “merit” plansthat provide for a nominating
commission to supply a set number ofnames for each vacancy to the governor,
who then selects one for appointment.
After a relatively short period of timeon the bench, a retention election isheld and the public is allowed to decide
whether the judge shall be retained on
the bench or not.
21. Amendment 6 to the US Constitution,
as applied to the states through the 14th
Amendment.
22. The Speedy Trial Act of 1974 (18 USC§3161) requires indictment within 30
days of arrest, arraignment within tendays of indictment, and trial within 60
days of arraignment in federal cases.
State requirements vary but do not
exceed 180 days.
23. “Three strikes” is a baseball analogy(“three strikes and you are out”) whichin criminal law refers to statutes which
require, for example, that a felon besentenced to life in prison for the third
violent felony.
24. There are some exceptions to this,where, for example, a judge may impose
a term of probation or grant a deferred
acceptance of guilty plea.
25. Judges may hand down light sentences
because they are aware of prison
overcrowding or, in states where paroleboards determine sentence minimums,
that this body will play the same role.
Prison overcrowding may constitute a
violation of the rights of the prisoner,so states run the risk of lawsuits orfederal supervision if they allow
overcrowding.

113TH INTERNATIONAL TRAINING COURSE
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26. In small jurisdictions a judge will
normally hear every type of case, from
criminal to civil to equity, while inlarger jurisdictions a judge may be
assigned to a criminal court, or aprobate court, or another court dealing
with specific areas of the law. But evenin the latter, it is normal for judges tobe rotated from one court to another.
27. The vast majority of US law school
graduates take only one course incriminal law and one course in criminal
procedure. Chief prosecutors spend asignificant amount of time asadministrators, thus the need fortraining in that area.
28. The National Judicial College, locatedin Reno, Nevada, has trained over
38,000 judges over a 32 year period.
Attendance at this institution, however,is voluntary.

34. The Watergate scandal is perhaps thebest known example of the role of themedia in exposing official corruption,
but media exposure of official
corruption takes place frequently at thestate and local level in the US.
35. See, for example, “Peru’s Drug Success
Erode as Traffickers Adapt,” The New
York Times, August 19, 1999, via <http://www.nytimes/com/library/world/
americas/081999peru-drugs.html>.
36. It was recently revealed that Russianorganized crime laundered billions ofdollars through the Bank of New York.
See “Bank in Laundering Inquiry
Courted Russians Zealously,” The New
York Times, August 20, 1999, via <http://www.nytimes.com/library/world/
europe/ 082099russianslaunder.html>.

29. See, for example, 18 USC §201 - 211,
and 18 USC Chapter 31, for criminal
provisions, and 5CFR2635.02 forstandards of ethical conduct for
executive branch employees.
30. Rajeev Goal and Daniel Rich, “On the
Economic Incentives for Taking
Bribes,” Public Choice, 61:269-275(1989).
31. It is unreasonable to expect that
corruption can be completely
eliminated; at best we can reduce it toa tolerable level.
32. Susan Rose-Ackerman, Corruption and
Government: Causes, Consequences
and Reform. Cambridge: Cambridge
University Press, 1999, pp.39 - 88.
33. See 18 USC §207 is a good example ofthis type of legislation.

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CAMPAIGN FINANCING AND CORRUPTION IN THE US
Anthony Didrick Castberg*
I. OFFICIAL CORRUPTION IN THE
UNITED STATES
Corruption was common in the US in the
19th century. Patronage was widespread,and although the spoils system was createdwith the intention of diversifying
bureaucrats, it became clear that
corruption continued to increase. Rapid
industrialization and westward expansion
not only expanded the role of government,
but also of corruption in government.
Although there was considerable
corruption at the national level andscandals affecting the presidency, such as
those involving the Grant administrationin the 1870’s, most of the corruption in the
US at the time was found at the local level.
Most famous, perhaps, was New York’s
Tammany Hall, which involved politicalparty leaders, politicians, and businessinterests in collusion to control lucrative
government contracts. This corrupt
activity centered on kickbacks, extortion,
election fraud, and bribery. But a growing
consensus among reformers and the
population as a whole saw this corruption
as ultimately detrimental to both politics
and the economy. This consensus led to
the Pendleton Act, which created the firstfederal civil service system in the US. As
a result of this movement, bribery andother forms of corruption decreased
substantially, although it was still to befound at the city, county and state levels,
often through political parties.
Nevertheless, the reform movement spreadto all political jurisdictions and, by theearly part of the 20th century, the moreblatant forms of corruption had been
* Professor of Political Science, University of Hawaii
at Hilo, United States of America.

412

reduced significantly. The reformmovement was frequently aided byoutrageous scandals, such as the Teapot
D o m e s c a n d a l d u r i n g H a r d i n g ’s
administration, and by the press, which
often played a crusading role in bringing
scandals to public attention.
The nation suffered a setback during theprohibition era, 1919 - 1933. Prohibition
was the result of the 18th Amendment to
the US Constitution, which prohibited the
manufacture, import and sale ofintoxicating liquors. Although wellintentioned, the Amendment was illconceived, as it sought to make illegal whatmany, if not most, of the citizens not only
enjoyed but felt was their right. Although
the Amendment tried to eliminate thesupply of alcohol, it clearly did not
eliminate the demand for alcohol. As aresult, a thriving underground enterprise
sprung up virtually overnight to supply thedemand. This enterprise established the
Mafia as a major criminal force in the US,
and with it, widespread corruption of law
enforcement. Such corruption was not only
accepted by many citizens but encouraged,
as it made access to the forbidden
intoxicating liquors much easier. The endof prohibition in 1933 did not mean the endof organized crime nor the end of corruption
in law enforcement, as organized crime
merely shifted its activities and corruptive
influence to other forbidden but desiredcommodities and activities, such asgambling, loansharking, prostitution anddrugs. The US has never completely
shaken loose of the corruptive influencesof the era of prohibition. But politicalcorruption and scandals at the national
level, at least, decreased; there were no
major scandals during the Roosevelt,

113TH INTERNATIONAL TRAINING COURSE
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Kennedy or Johnson administrations.
The US has not, of course, eliminatedpolitical scandals. Perhaps the most
famous political scandal involving
corruption in high offices in recent history
was the so-called “Watergate” affair
involving President Richard Nixon. This
scandal started with what, at the time,
seemed to be a simple burglary of
Democratic Party headquarters in the
Watergate building in Washington, DC.
The burglars were caught in the act andan investigation soon connected them to
Nixon’s re-election campaign staff (theburglars had been trying to obtain
information on Democratic campaign
strategy). President Nixon ordered thatmoney be given to the burglars so that theywould not talk about his involvement in thecrime. There then followed one cover-up
after another. The President used theInternal Revenue Service, the FBI, andother federal agencies against those hethought were leading the efforts to involve
him in the conspiracy. He had a very long“enemies” list. Largely due to an
aggressive press, all of the details ofcorruption in the office of the President
were brought to public attention.
Congressional hearings not only brought
to light the many details of the burglary
and cover-up, but also of illegal campaign
contributions made to Nixon’s campaign
committee. This ultimately resulted in theHouse Judiciary Committee voting for
impeachment, and the President’s
resignation soon thereafter - the first timein US history that an American president
resigned from office.
As is often the case in major scandals,some good resulted in the form of tougherlaws and new protections. The Federal
Election Campaign Act of 1971 wasstrengthened after Watergate, and theFederal Elections Commission wasestablished. The Foreign Corrupt Practices

Act was passed in 1977, and the Ethics inGovernment Act in 1978. The movement
led to a significant increase in the numberof state and local officials charged underfederal law with corrupt practices, anumber that reached almost 500 in 1986.
Despite reform, corruption continued.
The “Abscam” scandal of 1978-80 involved
FBI agents posing as Arab sheiks whooffered various government officials,
including senators and representatives,money for help in obtaining favorable
immigration rulings. Most of this wasrecorded on videotape. Six representatives
and one senator were convicted of bribery.
And in 1986-89 two representatives andmany other officials were convicted ofracketeering, tax evasion, bribery, fraud,
grand larceny, and perjury for accepting
payoffs from military contractors in what
was called the “Wedtech” scandal. In 1987,
five Senators obstructed federal regulatorsin their investigation of a savings and loan
company that had been had been looted byits owner, Charles Keating, of $2 billion.
Those senators received a total of $1 million
in campaign donations from Keating. But
the senators, called the “Keating Five”,
were never charged with any crime or
ethical violation because, while they could
influence federal regulators, they had no
direct control over them. One of thosesenators, John McCain, is now a
Republican candidate for the presidency.
More recently, President Clinton was
accused of accepting large campaign
contributions from several Chinese
businessmen in return for favorable
treatment of China on a variety of matters,
including the sale of satellite technology.
US intelligence agencies allegedlyintercepted information in early 1995
indicating interest on the part of theChinese government in spending money tosupport certain candidates for office in the
coming election, an issue raised by

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RESOURCE MATERIAL SERIES No. 56
Republican legislators but not proven until
subsequent indictments and trials. The
money, however, seems to have bought little
other than access to the President.
Early this year, the New York Times
reported that China had stolen highlyclassified nuclear weapons informationf r o m t h e L o s A l a m o s l a b o r a t o r y,
information that allegedly allowed theChinese to make rapid advancement intheir nuclear weapons program. Although
the theft allegedly took place in the mid
1980’s, during the administration of Ronald
Reagan, it was charged that the theft had
not been detected until 1995, that the
President had not been informed until April
1996, and that nothing was done toinvestigate the alleged theft until 1997.
Congress was not informed until 1998.
Republicans charged that the failure of the
Clinton administration to follow up on thetheft and to promptly notify Congress wasdue to campaign contributions funnelled
through Chinese businessmen in the US
by the Chinese government. To date, noneof these allegations have been proven, andit would seem to be a highly partisan issue.
Earlier this month, it was revealed that
Secretary of Labor, Alexis Herman, wasunder investigation for influence peddlingand soliciting illegal campaign
contributions for the Democratic National
Committee when she was a White House
aide during Clinton’s first term. She wasappointed to her current post by Clinton
in May 1998. Although the investigationis still under way and she has not been
charged with any crime, this is an exampleof how working for a campaign can result
in appointment to a high post. If she didsolicit large campaign contributions, it may
well have been a factor in her being
appointed to her present position. It is wellknown, for example, that individuals whomake very large contributions to apresidential campaign may do so in return414

for being appointed an ambassador.
The examples cited above are, of course,high level corruption. Just how muchcorruption is there in the US at all levels?
We only have official figures on reported
corruption, so the amount of unreported
corruption remains unknown, but the data
we do have gives us some idea of how casesof corruption compare to other offences. It
is interesting to note that the mostwidespread crime reporting system in theUS, the FBI’s Uniform Crime Reports(UCR), does not even list corruption or evenbribery it either Part I offences, thosedeemed to be the most serious, or Part II
offences, those less serious. Nor does datafrom state courts list corruption or bribery
in its data. When we look at data collectedby the Department of Justice’s Bureau of
Justice Statistics, however, we do find casesof bribery and of other forms of corruption.
Under the general category of “other,” acategory that also includes racketeeringand extortion, we find that in fiscal year
1996 there were a total of 405 federal
bribery suspects, of whom only 168 wereprosecuted in US District Courts. Of theremainder, 212 were not prosecuted and 25
were dealt with by federal magistrates (theequivalent of a misdemeanor case). It isdifficult to determine the exact reasons that
212 suspects were not prosecuted. Usingslightly different data, for the 232
defendants whose bribery cases were
terminated in fiscal year 1996 we find that
90.1% of the defendants were convicted,
most of them by a jury, and 16 of the 23
who were not convicted had their cases
dismissed, with only 7 going to trial andbeing found not guilty.
Using data from fiscal year 1998, we findthat official corruption cases have beenbroken down into separate offences.
Corruption in federal law enforcement
resulted in 52 cases and 74 defendants, andof the 46 terminated during this period, 44

113TH INTERNATIONAL TRAINING COURSE
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were through a finding of guilty. One
should also note that there were significant
numbers of state and local corruption cases,
the vast majority of which ended in findingsof guilty. While these figures are alarming,
they must be viewed in perspective. A totalof 902 officials were convicted of offences
involving abuse of public office in 1996.
These figures should be compared to thetotal of over 53,000 defendants convicted
in federal courts alone in FY 1996.
Corruption in the US, then, is a problem,
but it is not as much of a problem as manyother crimes, and as a consequence, does
not alarm the public as much as othercrimes, especially crimes of violence.
II. ELECTIONS IN A DEMOCRACY
A fundamental tenet of a democraticsociety is free and open elections, with few
restrictions on access to political office.
Age, citizenship and residence are theprimary limitations on candidacy forpolitical office in a democracy. The UnitedStates is a democracy, and prides itself on
the diversity of its elected politicians,
diversity measured in terms of gender, age,
ethnicity, race, religion, and political
ideology. A democratic political system may
be multiparty, or it may consist of two
parties, which is the case of the US.
Although over the past two hundred years
third parties have elected their candidates
to local, state and national office, the US
is considered a two party system,
dominated by the Democrats and theRepublicans. Most agree that neither party
is ideological in nature, but it is also truethat the Democrats are more on the liberalside and the Republicans on theconservative side of most issues. The
Democrats, for example, support social
welfare programs and government
regulation of business, while theRepublicans tend to favor less government
and more free enterprise. Over the last 100
years, all presidents and the vast majorityof national legislators have belonged to one
or the other party. In both parties one canfind the wealthy as well as those frommodest backgrounds, but over the past 30
years some things have changed.
Running for political office, or for reelection thereto, in the US is now very
expensive. The average cost of a winning
campaign for the US Senate in 1996 was$4,692,100 and $673,739 for the House,
with the most expensive campaigns foreach house costing $14.5 million and $5.6
million respectively. The 1996 Clinton andDole presidential campaigns spent over$230 million, not including almost $70
million in ads paid for by the Democraticand Republican parties. All of thecampaigns nationwide in 1996 cost an
estimated $2.7 billion. A great deal of thismoney is spent on television
advertisements - the Democratic National
Committee alone spent about $44 million
on such ads (this does not include themoney spent by the Clinton campaign
itself). Television advertising can be very
expensive - up to $500,000 per minute.
Needless to say, only millionaires canfinance their own campaigns for national
office. This means that most aspirants foroffice and incumbents running for reelection must rely on contributors,
contributors who usually expect something
in return for their contributions. That“something” may be as simple as apolitician whose political views are
consistent with those of the contributor, it
may be access to the politician not enjoyedby lesser contributors, or it may be an
explicit quid pro quo - paying for favorable
consideration on an issue over which thepolitician has substantial control. In thelast century and early part of the 20 th
century, the practice of selling votes was
fairly common. Today it is practicallyunheard of, but many argue that campaign
contributions amount to the same thing.

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III. SOURCES OF CAMPAIGN
FINANCING
While political opponents may try to
influence voters by alleging foreign
influence on domestic politics, in fact thevast majority of campaign funds come fromdomestic sources. The single largest
contributors are corporations and Political
Action Committees (PACs). In the 1996
campaign, for example, a tobacco company- Phillip Morris - contributed $4,208,505
million, 21% of which went to Democrats
and 79% of which went to Republicans. The
second largest amount - $4,017,553 million- came from the American Federation ofState, County and Municipal Employees,
99% of which went to the Republicans.
While large individual donors and PACs
accounted for almost 32% of allcontributions, 31% came from small
donations (under $200). Political parties
may legally solicit and receive an unlimited
amount of funds. These funds must, undera 1979 amendment to federal election laws,
be used to publicize the party or present
issues, and may not be used for the benefitof specific candidates. This law was upheldby a 1996 Supreme Court decision that said
that political parties could spend unlimited
amounts of funds on congressional races
as long as they act independently of thecandidates. This has resulted in party
advertisements that devote a great deal oftime to a candidate and only discuss“issues” in passing, a method of meetingthe letter but not the spirit of the law.
Because this money is supposedly used topromote issues, it need not be reported,unlike other contributions.
Money contributed to political parties
and not specified for a particular candidate
is called “soft money,” and there arevirtually no limitations on how much canbe given or how it is spent, as long as the
spending is on “issues,” voter education,
party building, etc. Soft money raised by
the two major parties more than tripledfrom 1992 to 1996, where it amounted toover $260 million. There are, nevertheless,restrictions on soft money contributions,and the Democratic National Committee
admitted that it accepted $2.8 million
illegally or under questionablecircumstances for the 1996 campaign; it
subsequently returned the money to its
donors.
IV. CAMPAIGN SPENDING LAWS
The Federal Election Campaign Act, as
amended in 1974, established strict
disclosure requirements, set limits for
donations, and provided for publicfinancing of presidential campaigns.
Campaigns must list all contributors whogive over $200 per year, and cash
contributions of over $100 were prohibited(as cash contributions are almost
impossible to trace). Limits for donations
were set as follows:

To a candidate or To a national
committee per
party per year
primary or
general election
Individuals
PACs

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$1,000$5,000$20,000$15,000

To any otherpolitical
committee per
year

Total
contribution
per calendar
year$5,000$5,000$25,000
No limit

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These limits also applied to candidates
themselves - they could not even spend
their own money in excess of the specified
limits. All of the reports by candidates are
public, and are available on the Federal
Elections Commission website, and at least
one candidate for the presidency, George
W. B u s h , h a s p r o v i d e d d e t a i l e dcontribution information on his own
website. Bush so far has raised over $50
million - the largest amount ever raised bya candidate in a primary election.
The public financing provision allowed
taxpayers to indicate on their federal tax
return whether they wanted $3 of themoney they owe the government to be putin the Presidential Election Campaign
Fund. The Fund would then match up to$250 of each contribution made to eligible
candidates in primary elections. In order
to benefit from this, the candidate had toagree to spend no more than $50,000 of
their own money. Public funds would not
be available to candidates who exceeded
the limit. Public funding is not available
to candidates for congress, although limits
were set for campaigns for those offices.
Provisions of the law limiting a candidate’s
own expenditures, as well as total
expenditures, were challenged in a suit
filed by a broad coalition of candidates andpolitical organizations in early 1975, anda year later the US Supreme Court handed
down its decision in the case of Buckley v.
Valeo. The Court found that both theoverall spending limits and the limits on ac a n d i d a t e ’s o w n s p e n d i n g w e r eunconstitutional as a violation of freespeech. The Court recognized that abalance had to be struck between freespeech and the prevention of corruption,and stated that contributions to a
campaign are less protected than
expenditures made independent of
campaigns. Therefore, contribution limits
were upheld while money given to politicalparties or PACs could not be restricted.

V. ISSUE-SPECIFICCONTRIBUTIONSContributions to politicians are notalways made specifically for campaigns but
frequently for favorable treatment on
issues of interest to the contributor. The
money contributed, however, must beplaced in the politician’s campaign fundand must be so used. The large amount ofmoney contributed by Phillip Morris noted
above, for example, was very likely
intended to influence votes on tobacco
issues, including an impending
government suit against tobacco companies
for misleading the public about the dangers
of smoking. Issue-specific money was also
contributed in great quantities over the
proposed Telecommunications Competition
and Deregulation Act of 1995. As the titleof the legislation implies, the act was
intended to deregulate thetelecommunications industry and thereby
increase competition, which would
presumably reduce costs and increase
options for the consumer. Although the Act
passed Congress and was signed by the
President, the intended benefits to
consumers have yet to appear. The
campaign funds of many legislators,
especially those on the House and Senate
Commerce Committees, benefited greatly,
however.
The benefit to legislators of controversial
issues that affect large industries should
seem obvious: such issues provoke
significant increases in campaign
contributions. It should be noted as wellthat most such money is not soft money but
rather money from PACs, and therefore
limited to a total of $10,000 per campaign($5,000 for the primary and $5,000 for thegeneral election) per person. Because hardmoney is accountable and limited, it ispreferred for specific issues. But one
wonders whether some issues are invented
as a means of creating controversy and

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RESOURCE MATERIAL SERIES No. 56
therefore increased campaign
contributions rather than for the public
good. Many of these issues are highly
complex and, while they have a significant
impact on the public as a whole, are often
buried beneath more sensational but
ultimately less important legislation. For
the most part, only large corporations,interest groups, and legislatures play thisgame - the “little guy” is left out.
VI. INDIRECT SPENDING:LOBBYING
There are methods by which legislators
can be influenced on particular issues in
addition to campaign contributions, themost important of which is lobbying.
Lobbying is an important but low visibility
process, and it can be highly lucrative forthe lobbyist himself or herself. There areat least 12,000 registered lobbyists, anumber of whom are former legislators or
political appointees. While there is nothingillegal or necessarily unethical withindividuals and organizations trying to
influence legislators, many feel it is wrong
for former legislators and staff members
to get rich as a result of their former status
and the access that it brings. The lobbyist
is supposed to provide information to thelegislator as well as argue for a particularcause, but the lobbyist can also help bolstera legislator’s campaign fund indirectly bybringing together those who wantsomething from Congress with those who
can provide it. Thus, the former legislator,
now a lobbyist, continues to practice thefine art of seeking campaign money as wellas influencing legislation, but now forsomebody else.
Federal law prohibits most federal
employees and elected officials from taking
positions in private industry that theymight have been in a position to benefit
from through their prior position until atleast two years after they have left office.

418

The same law applies to lobbying, but toget a conviction under the law, 18 USC 207,
the government must prove, among otherthings, that it had a direct and substantial
interest in the matter and that the former
official had direct responsibility for theparticular matter within one year of theirretirement (except for executive branch
officials, where the time period is two years
if the matter was pending under that
person’s official responsibility). There aremany laws that govern the activities ofcurrent and former government officials.
Some of them are listed below:
5 USC 2302
5 USC 7353
18 USC 201
18 USC 203

18 USC 207

18 USC 208

18 USC 211

18 USC 666

18 USC 1510

Prohibited
personnel practices
Gifts to federal
employees
Bribery of public
officials and witnesses
Compensation tomembers of congress,
officers, and others inmatters affecting thegovernment
Restrictions on former
officers, employees, andelected officials of theexecutive andlegislative branches
Acts affecting apersonal/financial
interest
Acceptance orsolicitation to obtain
appointive political
officeTheft or bribery
concerning programs
receiving federal funds
Obstruction of criminal
investigations

These are only a few of the many federal
laws dealing with crimes of official
corruption. In addition to these criminal
laws, there are standards of ethical113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
conduct, such as 5CFR2635.
VII. WHY THE GREAT DESIRE TOGET ELECTED?
It is likely that many people run for officebecause they genuinely want to serve thepublic. They may feel that the many
problems of their constituency are notbeing adequately addressed, or they may
simply want to be in a position where they
have a greater impact on society than justvoting. There are those however who seek
office because of selfish motives. The latterare probably a minority, but social andpolitical commentators are saying that
there seems to be an increase in these typesof people running for office. Note the titlesof two recent books on the subject: The
Buying of the President, by Charles Lewis,
and The Corruption of American Politics,
by Elizabeth Drew. Some politicians are
deciding either not to run for re-election orfor higher office. Christine Todd Whitman,
governor of New Jersey, recently changed
her mind and decided not to run for the
US Senate seat being vacated by SenatorFrank R. Lautenberg. She said thedemands of fund raising would interferewith her duties as governor. It also seems
clear that she would have a very difficult
time raising enough money to match thefunds available to Democratic candidate
Jon Corzine, the former chairman ofGoldman Sachs & Company, who has apersonal fortune of about $300 million.
Corzine has already put $500,000 of that
fortune into his campaign spending fund,while Whitman had raised over $2 million.
Nevertheless, Corzine has said would
spend as much as necessary to becompetitive, and it was clear that Whitman
could not match her fund raising against
his fortune.
This also raises the interesting questionof why a person like Corzine would spend
so much to win an election. It is highly

unlikely that he would consider money
spent on a ‘campaign’ as an investment he could never recoup the money spent on
the campaign, legally or illegally. Why
would a person who has such a fortune
want more? What he wants, and whatmany people who run for office want, is notmoney but power. As chairman of Goldman
Sachs, Corzine made important decisions
and controlled billions of dollars, but he still
had to rely on his elected representatives
to make the decisions that affected theeconomic environment in which he worked.
It is often the same motivation that makes
attorneys in the US want to be judges - they
will very likely make less money as a judge,
but they will have far more power andinfluence.
If we accept, then, that many, if not most,candidates for office or for re-election are
motivated by power, not money, what thenof those who make large contributions tothese politicians? As suggested at the
beginning of this paper, it is safe to say thatmany of the contributions are made witheconomic motivation. Corporations, PACs
and individual contributors who spend
large sums of money on those running forpolitical office expect something in returnfor their investments, and this puts
pressure on the winning candidate toreciprocate. As long as that politician
wants to be re-elected, s/he must act in thebest interests of those contributors. As longas the politician and the contributors do
not violate any laws, there has been no
corruption as defined by law. But hasn’t
the political process been corrupted?
Haven’t the interests of the rich andpowerful been put above those of the poorand powerless, the very people who mostneed the assistance of government? The
answer, of course, is yes.
VIII. WHAT CAN BE DONE?
The answer to many of the problems

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RESOURCE MATERIAL SERIES No. 56
cited above is campaign finance reform.
There are already enough laws and ethicalstandards to take care of criminal andunethical behavior, but the fundamental
problem - the corrupting influence of moneyin election campaigns - needs additional
attention. There is no shortage of reform
proposals, but despite public
pronouncements by many political leaders,little progress has been made. Part of the
problem is partisanship. The Democrats
generally support limits on soft money,
while Republicans do not, unless there are
restrictions on spending by labor unions(which traditionally support Democrats).
Republicans argue for raising the limits on
individual contributions, in part because
large individual contributions are mostfrequently made to Republican candidates.
But the fact is that the status quo favors
those in office, those who are the only ones
in a position to bring about change. One
current bill, which is backed by Democrats
and some Republicans, would prohibit
political parties from raising or spending
soft money, and would make a clear
distinction between issue advocacy andadvocacy of a particular candidate. The
limits on hard money would also apply tosoft money, and there would be stricter
disclosure requirements and higher
penalties for violations. It is unlikely,
however, that this bill will pass before
Congress adjourns in October. It is, after
all, difficult for those who benefit fromexisting law to change them, even thougha majority of voters want such reform. In
the end, we come back to the people, thevoters. They elected the current politicians
who benefit from an essentially corrupt
system and only they can throw them outof office. But will they? Only time will tell.

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ILLEGAL DRUGS: THE CHALLENGE TO LAW ENFORCEMENT
Anthony Didrick Castberg*
I. INTRODUCTION
That illegal drugs are a major problem
in the US is not news, nor is the corruptive
influence of drugs on law enforcement
news. Nevertheless, few people reallygrasp the true impact of drugs on American
society, in part because there is a great
ambivalence, and even hypocrisy, about
drugs. Drug offences have frequently beencalled “crimes without victims,” and there
is an active movement in the US to legalize
drugs. It is argued that those who use
drugs harm only themselves, that somedrugs (primarily marijuana) havemedicinal benefits, that legalization would
reduce the cost of drugs and therefore thenecessity of committing other crimes tosupport a drug habit, and that a great dealof money is spent on detecting, prosecuting
and incarcerating drug offenders, moneythat could be better used for drug educationand for the reduction of violent offences.
They point to the widespread use and abuseof alcohol and tobacco, both legal drugs.
The argument against drug use is based
primarily on social, moral and medical
grounds. Many drugs, the opponents
argue, are harmful to the body. As a result,drug users are not productive members ofs o c i e t y, a r e p o o r p a r e n t s , r e q u i r e
disproportionate social services of thegovernment, and account for much of thecrime in society. There must, they say, besometing wrong with people who
constantly desire the kind of feeling
induced by drugs. They use the alcohol
argument as well, saying that whileprohibition was a failure, and the likelihood* Professor of Political Science, University of Hawaii
at Hilo, United States of America.

of banning it again is virtually impossible,
it nevertheless is responsible for may ills
in society, ills that would be compoundedwith the legalization of other drugs. And,the opponents say, drug use is largely
responsible for the spread of AIDS in theUS.
Despite the public support for keeping
drugs illegal, there is neverthelessambivalence among the public that freely
uses legal drugs (alcohol, tobacco andcaffeine) and considers illegal drug use acrime without a victim. Most citizens see
no inconsistency between an abstract moral
belief that drugs are harmful and should
therefore remain illegal, and their own useof legal drugs. So not only is there a great
demand for drugs by those who use them,
there is little public support for a criminal
justice system that places too muchemphasis on combating drugs. What the
public fears most is violent crime, and while
many understand that a great deal ofviolent crime is associated with drugs, few
fear that this crime will affect them, as they
are not involved with drugs. The public
perception is that violent drug-related
crime is primarily directed at those
involved in the illegal enterprise, not the
average citizen. At most, the average
citizen fears he or she will be a victim of aproperty crime committed by a drug addict
to support his or her addiction. So while
not entirely ‘victimless’, drug-related
violent crimes are primarily directed atthose involved in drug activity. Without
widespread and strong public support, it
is very difficult for criminal justiceprofessionals to make much headway
against well-organized and financed drugorganizations.

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RESOURCE MATERIAL SERIES No. 56
Regardless of the arguments of the
proponents of drug decriminalization,
however, public policy in the US is clearlyand firmly against the legalization of drugs,
with the possible exception of marijuana
for medical use. There is currently a legal
debate between the State of California andthe US Government over this issue, with
California upholding an initiative approvedby voters that decriminalizes marijuana for
medical use, and the federal government
arguing that federal law on drugs prevails
over state law. This debate is currently inthe courts. California, however, is not
typical of the United States as a whole, andin most states marijuana remains illegal
for any use, a situation that is not likely tochange in the foreseeable future.
The opponents and the proponents ofdrug legalization, however, rarely point tothe corruptive influence of drugs on law
enforcement and how this corruption
affects society. Nor do they often discuss
the international implications of drug
abuse in the US. The Asian Wall Street
Journal recently (September 27) ran an
editorial entitled “The Cokeheads’
Country,” placing much of the blame forproblems in Columbia on the thirst forcocaine in the US : “If it weren’t for the factthat so many Americans working for
Fortune 1000 companies think the mostimportant thing in life is sucking cocaine
up their noses, the sovereign nation of
Columbia might not be on its way to
becoming the world’s first drug republic.”
The international implications of the US
drug problem will be explored in moredetail below, but it there is no question that
the Journal has raised an important point
in its editional.
II. EXTENT OF THE PROBLEM
Louis J. Freeh, Director of the Federal
Bureau of Investigation (FBI), addressed
the problem of drugs in the US at the 1996
Annual Meeting of the World Economic
422

Forum in Davos, Switzerland, by statingthat it was a global crime threat. In theUS, he said, it was both a social andeconomic problem:(i)

Law enforcement agencies in the US
spend approximately $25 billion
annually on drug control efforts.
(ii) Drugs cost an additional $67 billion
each year in terms of crime, medical,
and death-related expenses.
(iii) The annual costs of drug abuse tobusinesses in terms of absenteeism,
industrial accidents, insurance
premiums, and lack of productivity
was estimated at $60-$100 billion.
The GAO (Government Accounting
Office) has estimated that the total cost ofillegal drugs in the US amounts to $110
billion. Whether it is $60 billion or $110
billion, these amounts are greater than the
GNP of many countries in the world. The
figures listed below further illustrate theproblem:(i)

In FY 1996, US attorneys dealt with
30,227 suspects in drug cases, or
31.7% of all suspect in federal crimes.
(ii) In 1998, there were 1,559,600 stateand local arrests for drug crimes, afigure 1% higher than in 1997, 17%higher than in 1994, and 20% higher
than in 1989.
(iii) DEA drug arrests in 1998 increased
11% over the previous year, andnearly doubled since 1995. Most ofthese arrests, 45.5%, were for cocaine
offences, while 20.7% were formethamphetamine crimes. The rest
were for heroin, dangerous drugs,
and marijuana.
(iv) Slightly over 20% of state and local
drug arrests were for the sale or
manufacture of drugs, while theremaining arrests were forpossession.
(v) In 1997, 98% of the 1,451 illegal drug

113TH INTERNATIONAL TRAINING COURSE
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laboratories seized by federal
authorities were used for the
manufacture of methamphetamine.
(vi) Also in 1997, the Drug Enforcement
Administration’s (DEA) program formarijuana eradication destroyed
241,000,000 plants in 69,665 plots,with 17,070 arrests, seizure of 4,713
weapons and $39.5 million in assets.
(vii) In 1998, the DEA seized 2,568.5
kilograms of methamphetamine,
70,440.9 kilograms of cocaine, 624.6
kilograms of heroin, and 364,081.1
kilograms of marijuana.
(viii) In 1996, 15.8% of all jail inmates said
they committed their offence to getmoney to buy drugs. In the same
year, 15,289 homicides, or 5.1% of all
murders, were drug-related.
(ix) In 1997, 33% of state prisoners and
22% of federal prisoners said they
had committed their current crime
while under the influence of drugs.
(x) In 1996, 82.4% of all state and local
jail inmates and 73% of federal
inmates said they had used drugs in
the past.
The figures listed above leave no doubtthat drugs are a major law enforcement
problem in the US. What they do not show
is the human misery caused by drug
addiction, nor do they show the strain on
law enforcement agencies, prosecutor’s
offices, the courts, and the correctional
system caused by efforts to contain the
problem. The drugs that cause the mostharm, both social and medical, are cocaine,
heroin and methamphetamines, all havelong been drugs of abuse in the US, butwhich are now appearing in new forms or
purity.
Cocaine is derived from the cocoa plant,
which is indigenous to the Andean
Mountain areas of South America. In thelate part of the 19th and early part of the20th centuries, cocaine was widely used asa local anesthetic, but development of more
effective anesthetics, as well as abuse of
the drug, led to its being made illegal.
While previously used primarily in its
powder form (cocaine hydrochloride) byinhaling, it is currently most often used inits crystalline form, usually called “crack”.
Crack cocaine is smoked using a pipe, andresults in an almost immediate intense,
euphoric feeling that soon passes. The
effect is very much like that ofmethamphetamine. Because of the shortduration of the feeling, users crave
additional doses frequently.
Heroin, derived from the opium poppy,
was also used as an anesthetic, and later
criminalized. It has traditionally been usedby subcutaneous injection, but recent
availability of very pure heroin, as well as
the fear of HIV/AIDS transmission via usedneedles, has led to smoking and snorting(direct inhalation of the powder). Whilemost heroin today comes from Southeast
Asia, an increasing amount of the Mexican“black tar” variety is being smuggled into
the US. Heroin, too, produces a feeling of
euphoria, and while it is not as intense, it
lasts longer than that of cocaine. It is acentral nervous system depressant, andtherefore overdose can be fatal.
Methamphetamine, derived fromamphetamine, a drug used as a nasal
decongestant, is a stimulant that produces
a “high” that lasts for up to 8 hours. It has
been used to treat attention deficit disorderand obesity, but has been supplanted bymore effective drugs, and currently has few
legitimate uses. In its pill form it is know
as “speed” or “meth”, while in its crystalline
form it is called “ice” or “crank”. In thislatter form it is particularly intense andaddictive and is ingested by smoking. It
has quickly become a drug of abuse inepidemic proportions in some parts of thecountry.

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RESOURCE MATERIAL SERIES No. 56
Marijuana is the mostly widely abused
drug in the US today, but does not havethe severe effects, both personally andsocially, as those discussed above. It
produces psychoactive effects which peak
10 to 30 minutes after smoking, and which
may last hours. In low doses it gives theuser a relaxed, dreamy state of well being,
while in higher doses it heightens thesenses of sight, smell, taste and hearing.
It has, according to some proponents,
medical use in relieving nausea for thoseundergoing chemotherapy and inincreasing the appetite of AIDS patients.
It also has some negative effects in highdoses and/or long-term use.
There are, of course, a number of otherdrugs of abuse, and new or “designer,”drugs are being created ever year. Those
listed above are the most widely used and,with the exception of marijuana, create thegreatest damage to the individual and tosociety as a whole.
III. DRUG RELATED CORRUPTIONIN LAW ENFORCEMENT
Drug crimes are investigated by law
enforcement agencies at the local, state andfederal level. This amounts to over 700,000
sworn personnel at the state and local level,
and over 13,000 federal law enforcement
officials whose duties involve theinvestigation of drug offences (FBI and
DEA, amongst others). The 700,000 plus
sworn law enforcement officers at the stateand local level are employed byapproximately 19,000 different agencies.
In addition, there are 2,343 stateprosecutors’ offices, employing over 71,000
personnel and 93 US attorney’s offices in
the US. The large number of different
agencies and jurisdictions involved in theinvestigation and prosecution of drug
crimes creates logistical and coordination
problems, but this system of law
enforcement is well-established and not424

likely to change in the US. It also createsmany opportunities for corruption.
Corruption of criminal justice personnel,
by those involved in illegal drugs, primarily
takes the form of bribery. While the bribe
may be in the form of drugs themselves, it
is most often in the form of cash. With thevast amounts of cash available to drug
dealers and organizations, the money used
to bribe criminal justice personnel
constitutes petty cash. Yet that money may
be highly attractive to those whose annual
legitimate income is relatively small,
attractive enough that they will risk losing
their jobs, family, freedom, and perhaps
their lives, for the enrichment it provides.
What is given in return for bribe may takea number of forms. Among them are:(i)

Information on law enforcement
intelligence.
(ii) Overlooking drug possession, sale or
manufacture.
(iii) Protection of drug dealers.
(iv) Elimination through arrest of rival
dealers.
(v) Elimination through murder of rival
dealers.
(vi) O v e r l o o k i n g o r f a c i l i t a t i n g
smuggling.
In addition, criminal justice personnel may
be blackmailed in order to obtain the above
services or considerations.
The targets of corruption include all of
those working in the criminal justicesystem: local police and sheriffs; statenarcotics officers; federal Customs,
Immigration, and Coast Guard personnel;
FBI, DEA, BATF (Bureau of Alcohol,
Tobacco, and Firearms) personnel; local,
state and federal corrections personnel;
local, state and federal regulatory officials;
and prosecutors and judges at all levels.
While there is no agency that has the
responsibility of accumulating data on the

113TH INTERNATIONAL TRAINING COURSE
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drug-related corruption of public officials,
the FBI does provide an annual report on
corruption cases opened and officers
convicted each year, and the GAO provides
studies for Congress and the public on theissue. A 1998 GAO report not only points
out the lack of any database from which todetermine the extent of drug-related
corruption among law enforcement, butalso states that drug-related corruption
cases may not always be identifiable assuch, since they may be listed as perjury,(for lying as a witness during a trial), or
theft (for stealing drugs from seized
evidence).
In FY 1997, for example, there were atotal of 190 cases of law enforcement
corruption opened by the FBI (often inparticipation with state and/or local
agencies), 48% of which were drug-related.
I n t h e s a m e f i s c a l y e a r, 1 5 0 l a w
enforcement officers were convicted ofcorruption-related offences, 53% of which
involved drugs. To put these figures inp e r s p e c t i v e h o w e v e r, t h o s e l a w
enforcement officers convicted of drugrelated corruption constitute .02% of all law
enforcement personnel.
While official corruption cases are
inherently difficult to investigate, those
involving drugs pose particular problems.
As Deputy US Attorney General, Eric H.
Holder, Jr., stated at an international
conference in February, 1999:(i)

Prosecutors are often reluctant toinvestigate and prosecute police
officers or other prosecutors withwhom they regularly associate.
(ii) Police agencies sometimes cannot be
trusted to investigate themselves.
(iii) Judicial corruption investigations cancause judges to distort their decision
making process in unrelated cases tocurry favor with their investigatorsor otherwise influence the outcome of

the investigation.
(iv) Aggressive investigative techniques
like undercover operations andelectronic surveillance are often
needed to make a provable case, butthese techniques can destroy themorale of honest judges, prosecutors
or police officers.
(v) A code of silence or a culture of noncooperation frequently keeps police
officers from coming forward withinformation or otherwise cooperatingwith investigations involving
corruption by fellow officers.
(vi) Decisions not to investigate orprosecute allegations of judicial orlaw enforcement corruption are often
difficult to justify publicly and can beperceived as efforts to cover up
enbarrassing misconduct.
Despite the difficulties cited above,
criminal justice personnel are investigated,
prosecuted and convicted. Here are somerecent examples:(i)

An Orange Country, California,
district attorney was arrested in Junefor being part of a major drug
distribution and money launderingring.
(ii) Thirteen corrections officers in
Miami, Florida, were charged, alongwith 30 others, with running a drugdealing operation in the Miami-Dade
County jails.
(iii) A county sheriff in Texas was arrested
for stealing almost $12,000 in seizeddrug money and trying to replace itby selling marijuana.
(iv) A veteran Chicago police officer wasamong 10 people charged withrunning a drug ring that transported
millions of dollars of cocaine andheroin between Chicago and Miami.
(v) T h r e e c o r r e c t i o n s o f f i c e r s i n
California were charged withsmuggling marijuana,

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RESOURCE MATERIAL SERIES No. 56
methamphetamine, cocaine andheroin into state prisons.
(vi) A Pennsylvania State trooper,
addicted to cocaine, was charged withstealing 2.5 kilograms of cocaine fromthe State Trooper evidence locker.
(vii) Tw o I N S ( I m m i g r a t i o n a n dNaturalization Service) inspectors
and one former inspector werecharged with taking bribes
amounting to hundreds of thousandsof dollars to allow Mexican drug
dealers to smuggle cocaine across theborder.
(viii) Six local sheriffs in Texas werecharged with helping to smuggle 800
kilograms of marijuana across theborder.
(ix) A former INS inspector in Arizona
admitted to accepting a $75,000 bribe
for allowing 585 kilos of cocaine tocross the border when he was on duty
in 1996. Another officer is charged
with attempting to import, possess,and distribute cocaine in return for
accepting bribes totaling $32,500.
The border between the US and Mexico
poses a particular problem. It stretchesfrom Brownsville, Texas, to Imperial
Beach, California, a total of 1,962 miles(3,157km). It is manned by approximately
1,300 INS and 2,000 Customs inspectors
at the numerous points of entry, andpatrolled by over 6,300 INS Border Patrol
agents at points in between. Even with allof these inspectors and agents, assisted byhigh-tech surveillance devices, it isvirtually impossible to prevent thesmuggling of drugs from taking place; and,it would seem, from preventing corruptionof these personnel.
A 1999 GAO report details the cases of
28 INS and Customs personnel convicted
for corrupt acts related to drugs between
1992 and 1999. Among the offences
committed were the allowing of drug-filled426

trucks to drive through ports of entry,
coordinating the movement of drugs acrossthe border, transporting drugs themselves
across the border, selling drugs, andproviding confidential information to drug
dealers. Of the 28 convicted, 19 were INS
employees and 9 were Customs employees,
and they were stationed in California,
Arizona and Texas.
IV. WHY DOES THIS CORRUPTIONTAKE PLACE?
The simple answer to this question ismoney. One might well ask, using theexamples cited above, whether the risktaken by these officials was worth $32,500,
or even hundreds of thousands of dollars.
To the vast majority of criminal justiceofficials the answer is clearly “no”. But all
it takes is one corrupt officer to allow drug
smuggling and distribution to take place,and given the huge profits made by thesecriminals, money spent on corrupt officials
is an excellent investment. One can point
to low salaries, poor morale, inadequate
training, amongst other factors leading tocorruption, but it is often a complex seriesof factors in each event that leads to an
actual crime.
Law enforcement salaries in most police
and sheriffs offices is quite low-often lessthan $35,000 per year for experienced
personnel, while prosecutors rarely earnover $75,000 per year and judges $100,000.
Bribes equal to or several times thesesalaries are a small part of the operating
expenses of major drug operations. This
money can be very attractive, especially tothose who are in debt or already living
beyond their means. It is also difficult forlaw enforcement personnel when they
compare their lifestyle to that of those they
arrest-honesty and integrity don’t buy theluxuries that those in the drug businesshave in quantity. But there are many otherreasons as well.

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A May 1998 study by the GAO identified
a number of factors that are correlated withdrug-related law enforcement corruption;and distinguishes this type of corruption
from other forms of police corruption.
Drug-related corruption, for example, often
involves protecting criminals or ignoring
their activities, as noted above, as well asactive involvement in the commission of anumber of crimes, including drug theft,robbery, selling of drugs and perjury. It also
has in common with other forms ofcorruption the police “code of silence” andcynicism about the criminal justice system.
The report lists a number of factors thatare associated with drug-related
corruption:(i) Opportunities.
(ii) Recruitment standards.
(iii) Training.
(iv) Police culture.
(v) Supervision.
(vi) Code of integrity.
(vii) Internal affairs.
(viii) Police brutality.
(ix) Family or neighborhood pressures.
And, I would add, the decentralized natureof law enforcement in the US.
A. Opportunities
The nature of law enforcement
necessarily involves many opportunities toengage in illigal acts, ranging fromaccepting $5 not to write a traffic citation,
through taking small amounts ofmerchandise from burglarized stores, toprotection of organized crime. With respect
to drugs, there are opportunities to keepsome of the drugs seized, or to keep someof the cash seized, during arrest. A recent
scandal in the Los Angeles Police
Department involved, among other things,
the theft of a substantial quantity of
cocaine from a police evidence locker. The
use of undercover officers in narcotics

operations is especially troublesome, as it
not only exposes the officers to seamy, but
often exciting, drug culture. It may, undersome circumstances, require that theofficer actually use drugs as part of theundercover operation. That, in turn, may
lead to addiction.
B. Recruitment Standards
The large number of law enforcement
agencies in the US is due to historical andtraditional decentralization of thatfunction. That in turn means that each
local agency enjoys a great deal ofindependence from both the state andfederal government. While there are state
standards for police training in most states,
and minimum requirements forrecruitment in some, there is no national
standard for either. Nor is there any widely
accepted accreditation process for law
enforcement agencies. So recruitment
standards vary widely. As a result,departments may hire those totally
unsuitable for police work. Few law
enforcement agencies at the state or local
level require either a community or fouryear college degree, although some arestarting to require “some college
education”. Some agencies give preference
to veterans, but few, if any, require priormilitary service for hiring. Psychologicaltesting varies greatly, from none toextensive background investigations.
Federal agencies, such as the FBI and the
DEA, have higher standards, requiring aminimum of a bachelor’s degree as well as
passing an extensive background check,
psychological testing, and a polygraph (“liedetector”) examination.
C. Training
As noted above, training standards varyfrom state to state and from department
to department. Some departments,
especially the larger ones, do their own
training, training which may be quite
comprehensive and last for one year or

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RESOURCE MATERIAL SERIES No. 56
more. Smaller departments may pay fortraining at a regional academy, frequently
run by a university or community college.
Other may essentially use on-the-job
training, putting virtually all of theemphasis on learning through experience.
Regardless of which method of training isused, police departments or regional
academies tend to place more emphasis ontechniques of arrest, firearms training,crime scene investigation, routine patrol,
etc, than on moral and ethical issues.
D. Police Culture
The GAO report listed the following
characteristics of a police culture that
supports corruption :(1) A c o d e o f s i l e n c e w i t h g r a v econsequences for those who violate it;these cosequences may include thefailure to “back up” an officer indangerous situations if that officer isperceived of as having violated thecode of silence, even if that silence
covers up serious crimes.
(2) Loyalty to other officers above all
else-your life may depend on it.
(3) Cynicism about the criminal justicesystem and public support for law
enforcement - a common
characteristic of veteran police
officers, especially those in large,
urban, high-crime areas.
(4) Indoctrination on the job as to whatis acceptable behavior - “forget what
you learned in the academy - this is
how it is really done”. In general,police officers feel that only otherofficers can understand their job andthat they can only trust other officers;
all other citizens are by definition“suspects”.
E. Supervision
Although police departments virtually
all have military-like command and rank
structures, they are very unlike the428military in several important aspects. Most
importantly, perhaps, is that police officers
tend to either work alone or with a partner,
rather than in squads or platoons as in the
military. This means that they often workwithout direct supervision. Supervisors
respond only when needed, and rarely havethe opportunity to directly observe theirsubordinates carrying out their normal
functions. They most often rate theirsubordinates on the basis of written
reports, number of arrests made, numberof citizen complaints, and other such
numerical criteria. The higher in rank one
rises, the less that person is aware of or
primarily concerned with the day-to-day
aspects of policing. Instead they must deal
with budgets, purchasing and political
functions.
F. Code of Integrity
There are a number of codes of conduct
or codes of integrity in law enforcement.
What is lacking, however, are effective
methods and efforts to teach and enforce
them. Most professional law enforcement
agencies teach ethics in their academies,
but they rarely have in-service training of
ethics and integrity, nor do they use
integrity as a criteria for promotion.
Integrity training is especially importantfor officers assigned to units responsible fordrug enforcement.
G. Internal Affairs
Most law enforcement agencies haveinternal mechanisms for dealing withviolations of procedures, as well as
violations of the law. These internal affairs
units, as they are called, are tasked withinvestigating citizen complaints about
officers, as well as taking proactive means
to ensure adherence to procedures and thelaw. This duty is, however, generally
distasteful, and officers assigned tointernal affairs units are frequently
referred to as “headhunters”. They cannot
adhere to the code of silence, nor can they

113TH INTERNATIONAL TRAINING COURSE
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cover up for officers guilty of violations. But
in practice in many departments, internalaffairs units are less than effective. Manyof the police departments of the larger cities
in the US, such as Los Angeles, Chicago
and New York, have failed over the pastten years to effectively deal with corruption
and brutality, among other offences. Dueto the nature of their work, officers
assigned to drug enforcement often tend
to be immune from internal affairs
investigations.
H. Police Brutality
Police brutality is one of the mostfrequent complaints investigated byinternal affarirs units, and one of the mostwidely publicized by the media. The
Rodney King incident in Los Angeles took
years, and a violent riot, before it was
finally resolved. Similarly, the recent
brutalizing of an African immigrant by
New York City police officers madeheadlines worldwide. Several studies havefound that officers involved in drug-related
corruption also have histories of complaints
made against them for the use of excessive
force.
I. Family or Neighborhood
Pressures
Although many law enforcement
agencies have policies that effectively place
their officers on duty 24 hours per day, by
requiring them to take action in any serious
crime, even when off-duty, the practicalreality is that police officers are citizens
like everybody else. They have families andthey live in neighborhoods. But sometimes
families and neighborhoods create conflictwith their duties to enforce the law. In
several of the cases cited above, law
enforcement personnel were enticed into
corruption by family members. In othercases, neighborhood norms may put theofficer in conflict with the norms of law
enforcement. This is especially a problem
in those cities which require their officers

to live in that city.
J. Decentralized Law Enforcement
The very nature of law enforcement in
the US lends itself to inefficiency and lackof oversight. State and local law
enforcement agencies in the US are
essentially self-governing and are rarely
subject to the oversight of a higher
authority. There is tension between local/
state agencies and federal agencies that islong-standing, and while the FBI, forexample, has statutory authority toinvestigate corruption in state and local
law enforcement agencies, it is frequently
difficult to carry out that authority due topolitical pressures and lack of cooperation
among local or state officials. Stateagencies, such as the Office of the Attorney
General, rarely investigate local law
enforcement agencies and rarely prosecutelocal law enforcement officials who aresuspected of being corrupt. Drug
enforcement units within police
departments tend to be isolated andinsulated from the rest of the department,in large part for the purpose ofconfidentiality. Therefore, corruption inthese units it rarely detected.
V. INTERNATIONAL IMPLICATIONS
As noted above, the sources of the mostabused and dangerous illegal drugs in the
US are primarily foreign. Columbia is thesource of most of the cocaine used in theUS, while heroin comes from Southeast
Asia and Mexico, the latter also being thesource of much of the methamphetamine
consumed in the US. Mexico, in addition
to being a source of many of the drugs in
the US, is also a major transit area as well
- just last week 1,290 people were arrested
in Jamaica, the Dominican Republic andHaiti, for drug trafficking. In the same
week, 30 drug traffickers, including a
number of major figures in Columbia’s drug
cartels, were arrested. The Colombian429

RESOURCE MATERIAL SERIES No. 56
operation is said to have been shipping 30
tons of cocaine into the US each month, orabout $60 billion a year worth of cocaine.
The Colombian cartel used sophisticatedcommunications equipment withencryption devices, but authorities wereable to intercept the messages and breakthe encryption. Whether the Colombians
will be extradited to the US, however, is
not clear, even though they were arrested
based on indictments handed down in
Miami. Columbia restored extradition with
the US in late 1997, which means that even
if the drug traffickers are extradited theycannot be tired in the US for crimes
committed prior to December 17, 1997. It
should be noted that the penalties for drugs
in the US are much more severe than thosein Colombia.
As The Asian Wall Street Journal
editorial cited above indicates, however, thereal problem lies in the US. The US is
giving Colombia $289 million in antinarcotics aid this year, but Columbia claims
that this figure is not enough and has
recently asked for $1.5 billion over the next
three years. Much of this money is foreradication of cocoa plants and payments
to farmers for alternatives to this form of
agriculture, as well as for equipment
ranging from high-tech surveillance
devices to helicopters. It is also safe to saythat some of that money will be used tofight left-wing guerilla groups that support
the drug traffickers.
The situation in Mexico is no better.
Mexico is rife with drug-related corruption,
corruption that has reached to thepresidency of that nation. It is estimatedthat about 60% of the cocaine in the US
comes across the US -Mexico border, withmuch of the rest coming through the
Caribbean. As noted above, Mexico is alsoa major source of methamphetamine,heroin and marijuana. This has resulted
in very large drug cartels in Mexico and430

the resultant corruption of police,prosecutors and judges.
Columbia and Mexico are poor countries,
and the amount of money available throughdrug manufacture and trafficking isenormous. Neither nation has industries
or government jobs that can offer salaries
that pay a fraction of what one can earnfrom illegal drugs. Who can blame poor
farmers for growing cocoa or marijuana, or
peasants for making methamphetamine,when other jobs are virtually non-existent?
Similarly, who can blame poorly paid
criminal justice personnel from taking
bribes, when obeying the law andmaintaing one’s integrity does not put foodon the table? The real dilemma is thatjust as citizens of these countries are
seduced by drug money, high officials are
seduced by US aid or by drug money, orboth. All because of the enormous appetite
for illegal drugs in the US.
This drug appetite has created aninternational disaster - politically, socially,
and morally. The US should be working
with its Latin and South Americanneighbors to achieve economic and politicalstability for the welfare of all its citizens,but instead all three nations findthemselves working to stamp out drug
manufacture and trafficking, neither ofwhich results in much stability. It isthought by many that US efforts against
Colombian drug traffickers have helped therise of the leftist guerilla movement in thatcountry, and of large organized crimegroups in Mexico. While both countries
have historically suffered from corrupt
public officials, money associated with thedrug trade has increased corruption
significantly.
The huge appetite for drugs in the US,
therefore, has created significant
international problems for all of theAmericas. Issues of sovereignty are raised

113TH INTERNATIONAL TRAINING COURSE
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by the presence of US drug agents
operating on foreign soil and flying inforeign skies. Economic development ofthese countries suffer because of the energy
and money that goes toward fighting drugs.
There is no question that fighting drugtraffickers is an international problem that
requires international efforts, nor is there
any question that this effort is necessary the US cannot adequately guard its
coastlines and borders against smugglers,so it must try to reduce or stop the flow ofdrugs from the countries of origin. But theprice is high and there is no light at theend of the tunnel.
VI. SOLUTIONSSolutions to the problems discussed
above can be divided into two categories:
law enforcement and the rest of society.
The first category is perhaps the easiest to
solve, but only in comparison to the second.
Despite the decentralized nature of law
enforcement in the US, it is possible tosignificantly reduce corruption in thoseagencies, whether drug-related or not. So
the question is not whether it is possible,
but rather when there is enough publicpressure and official commitment to seethat it happens. Let us, then, examine theproblems listed above and seek solutions
to each of them.
A. Opportunities
The nature of police work will always
involve opportunities to engage in corrupt
activities. But that is true of otherprofessions and occupations as well. Bank
tellers work with large sums of money
daily, physicians have access to many
drugs, and office workers have access to
office materials. So there is always thetemptation to embezzle, use drugs andsteal. Opportunities can be reduced
through effective supervision, andtemptations reduced through effective
recruitment and training.

B. Recruitment Standards
The President’s Commission on Law
Enforcement and the Administration of
Justice in 1967 issued a massive reportwhich, amongst many other issues,
addressed the recruitment issue. It
suggested that all law enforcement
agencies in the US start phasing inincreased educational requirements forrecruitment, eventually requiring aminimum of a bachelor’s degree for hiring.
This has not happened. The debate stillrages over whether a college education
makes a person a better police officer. At
the same time, however, it is widely
recognized that the federal agencies,
especially the FBI, have far less corruption
and are better trained than the vast
majority of state and local departments. In
large part this is due to higher recruitment
standards, which not only include a college
degree, but a comprehensive selection
process as discussed above.
C. Training
It used to be thought that the emphasison training prospective law enforcement
officers should be in the areas of the use offorce - how to subdue an opponent and how
to shoot accurately - as well as otheroperational requirements. Thinking has
gradually shifted, however, so that moreemphasis is placed on interpersonalcommunication, psychology, sociology andother “academic” subjects. What is lacking,however, is extensive and ongoing integrity
training and the use of integrity measuresfor promotion. It is essential that thistraining takes place, and that it besupported by appropriate operational
policies and by all supervisors. In addition,
law enforcement officers should be required
to make full and complete disclosure of all
income, assets and debts. Departments
should consider integrity testing, although
it is recognized that this is controversial
and may well be opposed by law
enforcement unions.

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RESOURCE MATERIAL SERIES No. 56
D. Police CulutureThis is one of the most significant
problems facing those those who are trying
to reduce or eliminate corruption in law
enforcement. It is even more of a problem
among narcotics officers, as narcotics units
are cultures within a culture. Narcotics
officers tend to associate only amongst eachother, and are generally under much lesssupervision than patrol officers or
detectives. While some separation from therank and file may be necessary for reasonsof confidentiality, too much separation is
not healthy. Nor is long-term assignment
to undercover narcotics work. It is truethat major drug investigations may takeyears, and undercover officers may haveto maintain that status for years, but assoon as arrests have been made and theofficer’s identity known, the officer shouldbe transferred to another division or unit.
Rotation of personnel, then, is importantin general in law enforcement, andespecially important in drug units, as ameans of reducing corruption.
E. Supervision
As noted above, police supervisors(generally, sergeants and above) actuallyengage in very little direct supervision.
The vast majority of supervision is doneon paper, and subordinates are evaluatedby paper (reports, arrests, traffic tickets,etc). Corruption in US law enforcement
is, for the most part, at the lower levels ofpolice departments. The higher up in the
chain of command one gets, the less likelythat person will be corrupted for the simple
reason that those administrators are notin a position to make decisions that will
benefit drug dealers. In very small
departments, of course, this is not the case,but most of the corruption in the US isfound in larger departments. Therefore,
supervision of those in the lower echelons
is vital to effective law enforcement and theelimination of corruption. Many of thefunctions of higher ranking police

432

supervisors can be handled by civilian
personnel. Ranking police administrators
belong where they can effectively supervise
those under them. Police supervisiors mustbe held strictly accountable for the actionsof those they supervise.
F. Code of Integrity
As noted above, there are numerous
codes of law enforcement integrity, but they
are meaningless unless they are effectively
inculcated into the agency itself. Integrity
training must be a continuous process,taking place both in the classroom and thefield. It should be one of the criteria forevaluation and promotion, andadministrative practices must make it
clear to all officers that the agency does nottolerate breaches of integrity. Whether alaw enforcement agency has an internalaffairs unit responsible for maintaining
integrity, or depends on an external unit,
is not as important as the effectiveness of
the unit itself. There has been a great dealof controversy over civilian review boardsin the US. These boards have been
established to serve as a watchdog agency
over law enforcement, which would reduceor eliminate police brutality andcorruption. But they have not been very
effective, primarily because they rarely getmuch cooperation from the agency they aresupposed to be monitoring. This is anotherexample of the police culture, which saysthat “only a police officer can understandthe actions of another police officer”. So
internal affairs units are more likely to beeffective, but only with the total support ofsupervisory personnel.
G. Police Brutality
This problem has been addressed above,
to some extent, but the problem is a serious
one. Police are faced with many dangerous
and volatile situations where their lives
and those of innocent civilians may be atrisk. The majority of uniformed police
patrol officers and detectives in the US

113TH INTERNATIONAL TRAINING COURSE
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routinely wear body armour because thethreat of being shot is very real. Given thisperceived constant threat that can comefrom anybody - male or female, young or
old - police are justifiably apprehensive,
especially when involved in a situation that
could result in violence. Just where to draw
the line with respect to the use of force may
be clear in academy training and generalorders, but on the streets in the fastmoving, confusing situations that officers
in many cities face every day, it is not thatclear. Police officers are usually taught touse an escalation of force which isnecessary to control the situation - use
pepper spray to control a violent, unarmed
person; use a baton to control a violent
person who is not affected by the spray; usea firearm only when necessary to protect
your own life or that of an innocent civilian,etc.
In theory this is a good policy, but inpractice it is not always so easy to adhere
to. It is quite difficult, for example, tohandcuff a suspect who resists. Even two
officers may not be able to cuff a resisting
suspect. If more than one officer isinvolved, it may well seem to a civilian
bystander that police are acting in a brutal
manner. The suspect himself may sustain
injuries in the process, which he will later
claim were caused by police brutality.
There is no easy answer to this problem,
but it is clear that with good supervision
police brutality will be minimized. The
Rodney King incident in Los Angeles is an
excellent example of this - Sgt. Stacey Koon
did not exercise good leadership and as aresult, Rodney King was treated in a brutal
m a n n e r b y o f f i c e r s u n d e r K o o n ’s
“supervision”. So we come back to thesupervision issue, which is of primary
importance in law enforcement.
H. Family or Neighborhood
Pressures
The solution to this problem is quite

staightforward: when one pins on thebadge, one’s primary loyalities shift to thecitizens he or she serves. A police officer
may well find that his or her pre-police
friends and social groups are no longer
appropriate. An old friend may drink too
much and then drive home, or somebody
may take out a marijuana cigarette in asocial setting. What is the off-duty police
officer supposed to do under thesecircumstances? This, unfortunately, gives
rise to the police culture, but as noted
above, there are ways that this problem canbe minimized. It must be clearly
understood when one applies to become apolice officer that certain sacrifices must
be made, and that may include somealienation from family and friends in thehigher interest of protecting society as awhole, protection that cannot occur if a
police officer gives his or her primary
loyalty to family and friends.
I. Decentralized Law Enforcementin the US
This is the one problem that does notseem to have a solution. The historical andpolitical roots of this form of law
enforcement are so firmly embedded thatchange is virtually impossible. Therefore
the inefficiencies caused by it must be madeup for through better communication andcoordination.
VII. CONCLUSION
It is realized that even though solutions
are suggested, there are no easy answers
to any of the problems enumerated above,and implementaion is never easy because
there are always economic and politicalconsiderations. Nor will the same problems
and solutions be applicable to law
enforcement agencies in all nations. The
principles involved, however - integrity,honesty, ethics, morality, and lawfulness apply to all cultures, even though they may
not present in all cultures. These solutions

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RESOURCE MATERIAL SERIES No. 56
cannot work without the support of thesociety as a whole. From the highest
elected officials to the lowliest voter, there
must be support for a corruption freesociety, and with it, corruption-free law
enforcement. A good place to start is tohave no tolerance for drug use, for as longas the great thirst for drugs remains, there
will be people willing to pay large sums ofmoney to obtain those drugs, and that willin turn create a ruthless and well-financed
group of people who supply the drugs to
those who demand them. Bribing law
enforcement officers or anybody else in thecriminal justice system becomes part of thecost doing business, and creates problems
that are international in scope. Until every
society rejects this vicious cycle, until drug
use becomes unacceptable, there will be
police corruption. And as long there ispolice corruption, we will all suffer.

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113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSCORRUPTION IN JAPAN AND THE US
Anthony Didrick Castberg*
I. INTRODUCTION
Comparing corruption in countries isalways difficult, and this is no less true
when the two countries are Japan and theUnited States. While both countries areadvanced industrial democracies, thesimilarities generally end there. Japan’s
legal system is based on French andGerman models, and is therefore a civil law
system, while the legal system of the US isbased on the English system, making it acommon law system. Japan has a multiparty parliamentary political system, while
the US has a two-party, republicanfederalist system. The list can continue
almost indefinitely, but let us rememberthat not only are the systems ofgovernment quite different, so too are thecultures. Thus, one would expect the typesof corruption, if not the amount, to vary as
well.
This paper will not attempt to determine
the relative amounts of official corruptionin each country, but rather the nature ofsuch corruption and the measures used tocounter it. Measuring corruption isparticularly difficult in this case because“corruption” is not a crime, but a generalclassification for a variety of criminal acts,
including bribery, abuse of authority,
breach of trust, and misappropriation of
public funds. The definitions of thesecriminal acts differ between Japan and theUS, and more importantly, all of Japan issubject to one penal code, and therefore asingle definition, while the US has 50
different penal codes (one per state) as well
as a national (federal) code, resulting in* Professor of Political Science, University of Hawaii
at Hilo, United States of America.

numerous definitions. Finally, while Japankeeps detailed statistics on corrupt acts,
the US has no centralized record keeping
for corrupt acts. This paper will, therefore,
discuss differences in types, causes, andefforts to reduce, rather than amounts.
II. CORRUPTION IN JAPAN
Corruption in Japan generally takes theform of bribery of high officials in thevarious ministries or prefectural governors,
or those of lesser rank. This bribery cantake the form of direct payments of cash
for favorable consideration, of
entertainment (“wining and dining”) ofofficials by those currying their favor, of giftmemberships in expensive golf clubs, or it
may take the form of unlisted stocks whose
value will rise once they are offered to the
public as a whole. In recent years there
have been cases of corruption involving the
Ministries of Labor, Education, Finance,
International Trade and Industry, andHealth and Social Welfare, as well as
politicians in a number of prefectures inJapan.
Corruption in the US tends to take place
at lower levels than in Japan. There arevery few recent corruption cases involving
high officials, although several cabinet
officials during the Clinton administration
were investigated but not charged.
Corruption among law enforcement
officers, at both the local/state and federal
levels, occurs with some regularity, just as
it does in Japan. In neither nation is suchcorruption extensive. From time to time astate public official is convicted ofcommitting a corrupt act, but it is rare foranybody at the secretarial level (equivalent
to ministerial level in Japan) to be

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RESOURCE MATERIAL SERIES No. 56
convicted of a corrupt act. Henry Cisneros,
former Secretary of Housing and Urban
Development, pleaded guilty earlier thisyear to a misdemeanor charge of lying to
the F.B.I about payments he made to aformer lover. The payment was not frompublic funds and the case had nothing to
do with his official duties. The
investigation took 4 years, cost $10 million,
and was seen by many as motivated bypartisan political concerns. Former
Secretary of Agriculture, Mike Espy, wascharged with bribery and acceptance offavors, but was found not guilty.
Corruption in the US is most prevalentin political campaign financing, where laws
are violated with regard to individual andcorporate campaign contributions, butwhere the candidate rarely personallybenefits financially. What is sought iselection or re-election rather than cash,
although election or re-election may haveclear financial implications. As noted inan earlier paper, those who contribute topolitical campaigns, legally or illegally,
expect something in return, so one could
argue that politicians who accept suchcontributions are in effect accepting bribes.
It would, however, be extremely difficult
to connect such acceptance to subsequent
specific acts of favoritism by the politician.
So the corruption that is seen in suchsituations is a generalized corruption of thepolitical process, rather than specificcorrupt acts by specific public officials.
Problems of the corruptive influence of
campaign contributions also are prevalentin Japan. As the Asahi Evening News noted
in a recent (September 12) editorial, “Theheavy dependence of parties and politicianson corporate donations has been a breeding
ground for corruption.”
What explains the differences in thenature of corruption in the two countries?
As we have seen, campaign financing
corruption is common in both nations, but436

the relative lack of corruption of highofficials in the US, and relative prevalencein Japan, requires some discussion. Highranking officials, secretaries of cabinet
agencies in the US and ministers ofagencies in Japan, are appointed by thechief executive in each country. In Japan
this is the Prime Minister, and in the US it
is the President. In Japan, a Prime
Minister may remain in that post for as
long as his party, or a party coalition, is in
power. Over the past ten or 15 years, thelongevity of Japanese prime ministers has
not been great, with some administrations
lasting less than one year. In contrast,
presidents in the US enjoy a minimum offour years in office, and frequently eight.
High-ranking appointed officials generally
remain in their positions for at least thefirst term of the president who appointed
them, and it is not unusual for them to staylonger if the president is re-elected. In
Japan, however, short administrations
mean short terms in office for political
appointees. With little job security, thetemptation of bribes must be strong,
especially when the bribe includes
promises of future employment in the
sector overseen by the minister. In the US,
as in Japan, political appointees lose theirpositions when the administration
changes, but many of these high-ranking
officials obtain jobs in private industry,
universities, or run for elective office.
Because they know when their term willend, they can plan their futures. When one
never knows when one’s term will end, it
is difficult to plan a future and there may
be, therefore, the temptation to obtain asmuch money as possible while in office, as
well as set one’s self up for a lucrative
position in private industry as soon as
possible, perhaps through favours given to
private industry.

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III. MEASURES AGAINSTCORRUPTION
Both Japan and the US have numerous
laws against corrupt acts. In Japan, theselaws may be found in the Penal Code, theNational Public Service Law, the Local
Public Service Law, and in the Unfair
Competition Prevention Law. In the US,
the penal codes of all fifty states containprovisions against such corrupt acts asbribery, abuse of power, and embezzlement,
and the federal codes contain numerous
provisions against corrupt acts by bothfederal and state/local officials. A
significant portion of the federal laws
against corrupt acts in the US is of recent
origin, the result of the “Watergate”
scandals in the Nixon administration. In
addition to state and federal penal codes,
US law contains codes of ethical conduct,administrative regulations, andpresidential orders. Under many of theselaws, regulations, codes, and orders,administrative, civil, and criminal
sanctions may be imposed. The US also
has the Foreign Corrupt Practices Act,
which makes the paying of bribes to foreign
officials (private or public) a crime; it is the
only nation with such a law. There is, then,no shortage of laws against corrupt acts inJapan or the US.
It is doubtful that either nation needs
additional legislation to deal withcorruption of public servants, although
Japan might consider a law similar to theForeign Corrupt Practices Act. More severe
sanctions in Japan for corrupt acts may
serve as a deterrent, but the widespread
publicity given to past and current
scandals, and the resulting sanctions
imposed on former high-ranking
politicians, would seem to serve that
purpose. If one examines the sanctions
given to these former officials carefully,
however, one finds that they are not thatsevere. Imprisonment is often suspended,as judges feel that public exposure may beenough punishment. So rather thanincreased penalties in the Penal Code andother relevant legislation, perhaps judges
should treat such corruption more seriously
by imprisoning corrupt officials.
In the US, by contrast, the penalties forcorrupt officials are usually quite severe,
especially if the case was tried as a federal
crime. Federal US judges have little
discretion in sentencing, so those who areconvicted normally serve a prison term.
There is not as much consistency in statecases, as state sanctions vary, as does
judicial behavior, but it is still safe to saythat the vast majority of public officials
convicted in state courts of felonies
involving corruption will serve some timein prison.
IV. PROSECUTION AND
ADJUDICATION
One finds major differences between
prosecution and adjudication in Japan andthe US. This is due to differences in thenature of those offices, differences that arereflected in the manner in which cases areprosecuted and adjudicated. In Japan, bothprosecutors and judges are career public
officials. Both have been trained in theelite Legal Training and Research Institute(Shihoo Kenshousho), the only law school
in Japan, to which only about 3% of its
applicants are admitted. In the US,
however, the only requirement to becomea judge or a prosecutor is to have graduatedfrom an accredited law school, of which
there are hundreds with significant
differences in quality, and to have passed
the bar exam of the state in which theperson is to serve. Many states require thatthose who aspire to a judgeship be amember of the bar for a minimum periodusually five years- but no special training
is required. State judges may be either
appointed or elected, while federal judges

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RESOURCE MATERIAL SERIES No. 56
are appointed by the president with theconsent of the Senate. State judges haveterms of office ranging from 4 to 10 or 12
years, while federal judges serve “during
good behavior,” meaning for life.
Judges in the US, therefore, must beconcerned about politics. If they want tobe re-elected or re-appointed, they must
make certain that their decisions will notwork against them when the time comesfor re-election or re-appointment. Even
where terms of office are lengthy-10years,
for example- decisions can be held against
a judge or a prosecutor by those who arepolitically powerful. Federal judges do nothave such concerns, as they can be removed
from office only by impeachment. But
political considerations play a major rolein their initial appointment, so the result
may be the same. Many of President
Clinton’s judicial appointments have notbeen approved by the Senate because ofideological differences between
conservative Republican members of the
Senate Judiciary Committee and thePresident. In order to make sure an
appointee is confirmed then, a president
must select candidates whose political
ideology will pass muster in the Senate.
Thus, the federal judiciary is shaped bypartisan politics.
Chief or head prosecutors in the US are
either appointed or elected at the statelevel, while US attorneys at the federal
level are appointed by the President.
Lower ranking prosecutors may also be
appointed by the chief prosecutor, or may
be hired through a civil service system.
Only a small percentage of prosecutors in
the US make prosecution a career, however,and turnover is frequent. Good prosecutors
can almost always make more money inprivate practice, and their status in thelegal community is generally lower thanthose in private practice, especially private
practice in large firms.

438

Those prosecutors who choose to makea career in public office tend to be either
highly dedicated to law enforcement orincapable of getting a better position
elsewhere. This is quite different than thestatus of prosecutors in Japan, whose
status ranks with that of judge, and isoverall quite high. More importantly,
however, is the fact that prosecutors in the
US are politicized, while in Japan they arenot. That is not to say that there are nopolitics in prosecutor’s offices in Japan, butthat the office itself is not political andprosecutors do not have to run for reelection or worry about re-appointment.
Prosecutors in Japan are also morecohesive than those in the US - they tend
to have the same values, use the same
methods and approaches, and have acollegiality that is not found in most officesin the US.
What this means is that there may beclear political considerations in thedecision-making of many prosecutors andjudges in the US, as their careers may
depend upon making the correct decisions,whereas such is not the case in Japan. This
is not to say that most prosecutorial
decisions in the US are political decisions,as most criminal cases are routine, butrather that in major corruption cases
involving prominent suspects, politicalconsiderations are more likely to play a role
than in Japan.
V. CONCLUSION
Volumes could be written on the
differences in official corruption between
Japan and the US. This paper has only
scratched the surface, but I hope that theessential differences between the corrupt
acts themselves and the manner in which
they are dealt with by the respective
criminal justice systems is apparent. It is
not likely that the corruption experienced
in Japan will become common in the US,

113TH INTERNATIONAL TRAINING COURSE
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although the reverse may happen. Nor isit likely that the successful structural
aspects of the Japanese criminal justicesystem will be adopted by US prosecutors.
But there is no reason why the US cannot
insist that its prosecutors and judges bebetter qualified and better trained, nor thatthe role of politics in prosecutorial andjudicial decision-making be reduced
significantly. I hope that by comparing thetwo systems both will benefit, and as aresult, official corruption will be minimized
and the citizens of both countries will havemore confidence in and respect for theirpolitical leaders.

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PREVENTION AND REPRESSION OF CORRUPTION WITHINA LAW ENFORCEMENT AGENCY
Michael A. DeFeo*
I. INTRODUCTION
My remarks today will begin with adescription of the FBI’s system of internal
investigation, discipline and ethics
instruction. Please understand that thismethod of presentation is not intended topresent the FBI system as a model to beimitated. Even if it were my intention to
persuade an audience to adopt one or moreelements of the FBI’s internal
investigative, disciplinary or ethics
instruction approach, the mostunpersuasive and counterproductive
argument possible would be an arrogant
assertion that our system is a model to becopied. In my opinion, the organizational,
legal and social realities between countries
are so different that a proposal to copy
another country’s system would be not only
insulting but also technically unfeasible.
We do believe that our system functions
well for us, but only because it is custom
designed to serve our agency populationand organizational culture, as any systemshould be. The reason why my remarks
first focus on the FBI system is that it isalways safest to begin a discussion with asubject you know well, and then to expand
the discussion from that point of departure.
Describing how the FBI conducts internal
investigations, imposes administrative
discipline and provides ethics instruction
to its employees will provide a convenient
frame of reference for discussing how otherlaw enforcement agencies address common* Assistant Director, Office of Professional
Responsibility, Federal Bureau of Investigation, US
Department of Justice, United States of America.

440

problems and how they solve them.
Because we are a multinational group,
it would be helpful to begin our discussion
with a comprehensive explanation of theFBI’s jurisdiction, to provide a context fora description of its integrity mechanisms.
Unfortunately, a comprehensive and logicalexplanation of that jurisdiction is not
feasible, because the allocation of law
enforcement responsibilities between thestate and federal governments in the
United States has developed as a result ofhistorical accidents, rather than in any
coherent fashion. Accordingly, the FBI is
responsible for an odd mix of violent crimes
and offenses against national sovereignty,
for espionage investigations and healthcare fraud offenses. Its drug trafficking
jurisdiction is shared with other agencies,
and it investigates brutality and corruption
by local police agencies.
In an effort to sort some sense out of avery confused jurisdictional situation, theFBI’s strategic plan establishes threepriorities. Primary importance is dedicatedto terrorist, espionage or organizedcriminal activities which threaten thenational security, such as computer
intrusions into sensitive systems.
Secondary importance is given to criminal
enterprises that impact significantly on
public safety or government integrity, suchas street gangs and public corruption. The
least emphasis is assigned to the crimes
traditionally associated with the FBI in the
popular imagination, which are crimes
against individuals and property, such as
kidnaping persons for ransom and bankrobbery.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The FBI currently has about 11,700
Special Agents with full law enforcement
powers and 16,800 non-law enforcement
personnel who perform clerical, technical,
scientific, legal or linguistic duties. Reports
reflecting disciplinary actions against ouremployees for Fiscal Year 1997 and 1998
have previously been distributed. Tosummarize their content, we investigate
about 500-600 employees each year forallegations of crime and serious
misconduct, screened from among
thousands of insubstantial or minor
complaints, which are left to our field orother headquarters divisions to address.
About half of those serious misconduct
inquiries are at least partiallysubstantiated, meaning that we investigate
about 2% of our employees per year anddiscipline about 1%. Among the mattersinvestigated, the incidence of criminalcases is low. 60% of our employees are nonagent support employees, with varying
degrees of skill and education, and anumber of those will be dismissed each year
for commission of state offenses, such astheft, assault and fraud. However, thenumber of such cases is probably less than
10 per year.
For agents, criminal offenses are
sometimes spectacular, but rare. One
agent murdered an informant/girlfriend in
the late 1980s. Others have been convicted
for stealing drug evidence, travel voucher
fraud, bribery and using informants tocommit cargo thefts. Counting bothoffenses prosecuted by state authorities
and crimes relating to corruption in office,which are investigated internally andprosecuted as federal offenses, only two to
three agents per year are prosecuted anddismissed. In the last three years we have
had highly publicized federal convictionsof three agents for crimes related to theirofficial positions: an agent who spied for
Russia for money; a supervisor in Miami
who stole $400,000 in seized currency andoperational funds to support his gamblinghabit; and a young agent in New Orleans
who tried to extort a drug dealer to support
his spending habits.
While not numerous, theseembarrassing prosecutions and the several
hundred administrative punishments
imposed yearly reflect that FBI
management does not suppress misconduct
for public relations motives. A criticism
alleged against former FBI Director
Hoover, during his tenure from the 1920s
to the 1970s, was that an FBI agent caught
committing a crime would be allowed toresign rather than be prosecuted, to avoid
embarrassing publicity which would
damage the image of the organization.
That is certainly no longer the practice, if
there ever was any truth to the allegation.
As a practical matter, we recognize that the
proportion of reported to unreported
misdeeds is an unknowable mystery. Whatis important to us is that, to the extent
misconduct does go unreported, the reason
is because it is concealed by the guilty
parties and not because of negligence,
tolerance or concealment by the institution.
The title of our course is “The Effective
Administration of Criminal Justice for thePrevention of Corrupt Activities by Public
Officials.” Corrupt and criminal activities
are at the low end of the range ofprobabilities for FBI employees because of
a number of integrity-reinforcing factors
and processes. Some of those factors andprocesses are criminal in nature and someadministrative, but they will be discussed
together in this presentation because weregard them as inseparably intertwinedmeans of preventing corrupt activities.
II. INTEGRITY REINFORCING
AND CONTROL FACTORS RELIEDUPON BY THE FBI
Among integrity-reinforcing features,the first which comes to mind is personnel
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RESOURCE MATERIAL SERIES No. 56
selection. Despite the many otheropportunities available in a boom economy,
the FBI still receives 30 applicants forevery position, and enjoys a wealth ofchoice. Every applicant selected, fromentry level clerical staff and maintenanceworkers to senior executives, must undergoa full background investigation justifying
the granting of a security clearance. That
investigation includes criminal record andcredit checks, verification of family,
education and employment history, as wellas interviews of classmates, former coworkers, relatives, neighbors, ex-wives andformer romantic interests about thec a n d i d a t e ’ s h o n e s t y, r e l i a b i l i t y,truthfulness, work ethic, alcohol
consumption, drug use, and any
vulnerabilities. One condition of
employment is successful completion of apre-employment polygraph, or lie detector,
examination on issues such as drug use andcontacts with foreign intelligence services.
The age of new Agent Trainees now
averages between 29 and 30, depending on
the training class, so every one is a known
quantity with a proven record ofaccomplishments as a law enforcement or
military officer, as a professional in law,teaching or accounting, or in the fields ofb u s i n e s s , s c i e n c e o r t e c h n o l o g y.
Admittedly, even the most rigorous
background investigation cannot
guarantee good character, but it can ensurethat a candidate has achieved a successful
adult career without demonstrating bad
character, which is as good a predictor of
future conduct as can realistically beachieved.
Once an agent or support employee ishired into the FBI, it is very much in theirfinancial and psychological self interest to
avoid misconduct. A senior agent can earnmore than USD $75,000 per year in a
metropolitan area with a high cost of living,with salaries of $100,000 for a mid-level442

manager. Agents are eligible for retirement
at half pay at age 50 after 20 years ofservice, and can reach a maximum
retirement benefit near 80% with an
exceptionally long career. Few stay longer
than 25 years because they enjoy
outstanding prospects for a second careeror part-time employment in the business,financial services or private security fields
or in local law enforcement. Support
employees are also well compensated, andvalue the status conferred by theiremployment so much that many havecareers of 35 and even 40 years. Despite
cynicism in our society about mostinstitutions, employment by the FBI is still
one of the most respected occupations in
the United States and confers significant
social status on employees and theirfamilies.
Our employees almost universally dovalue and appreciate their positions, andfear the possible loss of both position andrespect. That fear is reinforced by therealization that our disciplinary systemdeals severely with any conduct which may
bring discredit on the institution, and isadmittedly draconian for integrity offenses.
We operate under what is called the BrightLine policy - that lying under oath,cheating, stealing and similar integrity
offenses, whether committed on or off duty,
are inconsistent with the values of the FBI
and can be expected to result in dismissal.
If an off-duty employee is caught stealinga small amount of merchandise in a store,
what we call shoplifting, and the evidence,such as a confession or a videotape, provesthat the employee committed attempted
theft, that employee will be dismissed, even
if no prosecution results. If an agent
commits an offense which normally would
be punished by a suspension from duty
without pay for five or 10 days, but thenlies about the facts during the disciplinary
inquiry, we will normally dismiss thatagent for having lied under oath, absent

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
some exceptional mitigating
circumstances. One drunken driving
offence, whether involving a government
or personally owned vehicle, results in asuspension of thirty days without pay, anda second offence results in dismissal.
Everyone knows the rules and demands
that they be enforced even handedly. Like
the Central Intelligence Agency and otherintelligence agencies in our government, weare exempt from the civil service laws
which can make it very difficult tosuccessfully discipline most of ourgovernment employees. With the exceptionof a small percentage of employees who
have combat military veteran status, ouremployees have no recourse to the courts
against a disciplinary action, including
dismissal.
Employees are required to reportwrongdoing and are disciplined for failure
to do so, particularly if they havesupervisory responsibilities. If thewrongdoing constitutes a possible crime,
we immediately inform a prosecution office
and warn all possible subjects that theyneed not talk to our investigators because
anything they say may be used as criminal
evidence against them. Once theprosecutors have decided that no criminal
prosecution is possible and the inquiry
focuses on whether administrative
discipline should be imposed, we compel
employees to respond to questioning underoath and will dismiss them for failure to
do so. We also regularly use polygraphexaminations in aid of both criminal andadministrative inquires.
The July, 1999 Report for the Fiscal Year1998 by the FBI’s Office of Professional
Responsibility, reveals that 301 employees
were disciplined, of whom 32 weredismissed. Of those dismissed, 11 wereSpecial Agents, or law enforcement officers,
and 21 were Support Employees, that is
non-law enforcement employees. 26

additional employees were terminated fordisciplinary reasons during their period ofprobationary employment or resigned or
retired after receiving notice of proposed
discipline. 32 dismissals and 26 other
involuntary departures from FBI service
total 58 persons, which is approximately
10% of the number of persons investigatedyearly.
Perhaps surprisingly, there is very little
employee protest against the system andpolicies which produce these results. One
reason why our employees accept such rigor
without complaint is that they take pridein their reputation and competence inholding citizens criminally responsible for
their actions and are not particularly
sympathetic to wrongdoing, even by theirco-workers. Collectively, if not always
individually, they consider it a point ofhonor to hold themselves and theircolleagues responsible for any deviationfrom established standards of integrity andperformance. They may sometimes
disagree with the sanctions we impose for
performance errors, for exercises of bad
judgment or violations of administrative
rules, but they are not in the least tolerantof intentional wrongdoing or dishonesty.
When we discuss disciplinary statistics
with our employees’ advisory andprofessional groups and explain that a highpercentage of dismissals involve integrity
offenses, their typical reaction is agreementthat we need to remove from theorganizations those persons who will not
uphold its standards and character.
Obviously, cleansing the ranks of dishonest
persons as soon as they demonstrate lackof character is far preferable to allowing
them to continue as employees until they
commit some criminal abuse of their office.
Referring again to the July 1999 reportfor Fiscal Year 1998, it reveals thatinquiries were initiated on 517 employees,
which is slightly less than 2% of the present

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RESOURCE MATERIAL SERIES No. 56
total workforce of 28,500 employees.
Inquiries were closed on 615 employees, ofwhom 301, or nearly 50%, received someform of discipline. Those 301 employees
represent approximately 1% of the total
employee population, meaning that the FBI
investigates approximately 2% of its
employees each year for crimes or serious
misconduct and imposes discipline on
approximately 1%. Among the 2% of the
population who are investigated, thestatistics demonstrate that the mostcommon offenses are administrative rather
than criminal violations. The mostcommon offense is unprofessional conduct,
which covers a multitude of sins nototherwise specified, such as becoming
involved in a traffic altercation anddrawing a weapon, or a domestic assault
not resulting in an arrest. The next mostfrequent offense category involved false or
inaccurate statements or documents, with
42 persons disciplined and four dismissed.
Another unfortunately common offense
was driving while intoxicated. 27 out of
the 31 persons investigated for driving
while intoxicated were disciplined, 25 ofwhom were suspended for more than 15days without pay and two of whom weredismissed. I should explain here, thatwhile we use this report for public
information purposes, its primary goal is
to educate our employees and thereby deter
misconduct. Statistics like those involving
driving while intoxicated are powerfularguments to persuade our employees tocontrol their alcohol consumption, because
drinking to excess is quite obviously a very
high risk proposition which will be treatedwith unforgiving discipline. Of course,
while excessive alcohol consumption may
lower inhibitions and lead to misconduct,
it is not in itself corruption, so you may askwhy is it being discussed in a lecture about
how to prevent law enforcement
corruption?

444

The answer is that the entire FBI
environment is focused on encouraging
conformity with clearly recognized
standards of integrity and professionalism,
enforced by detailed administrative
procedures and safeguards, so that deviant
behavior is immediately recognized andcorrected or punished, preferably before it
escalates to criminal conduct. We feel that
if we can succeed in motivating our
employees to observe the administrative
rules, both by appealing to their selfinterest and to their idealism, thencriminal or corrupt behavior will be so
unusual that it will quickly be recognizedand eradicated. Rather than concentrating
our resources on corruption once it occurs,
the traditional approach in the FBI has
been to identify and deter administrative
misconduct, such as falsification of reports
or covering up minor violations by coworkers, before they lead to or can be used
to facilitate corruption. Former Director
Hoover may have been a difficult
personality, but he was unquestionably an
administrative genius. During his nearlyfive decades heading the FBI he created aseamless, even obsessive, system of manual
provisions and performance and quality
controls. Particular attention is paid tocontrolling the riskiest operations weapons handling, dealing withinformants, seizing drugs, custody ofevidence and handling of money.
Immense resources are invested in the
Inspection Division. The inspection systemacts as a Headquarters control on local field
office’s supervisors and managers, auditing
and checking every important operational
and administrative aspect of a division’s
operation at least every three years, ormore frequently when warranted.
Particular attention is paid to areas ofpossible misconduct, once again using
administrative controls as an early
warning system and defense against
corruption and criminal conduct.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Informant payments are verified.
Financial and evidence audits are
performed. Outside contacts are made withjudges, prosecutors and local law
enforcement executives to uncover any
information which may have come to theirattention about misconduct or deficiencies
by our employees in the performance of
their duties. Both agents and support
personnel are interviewed and any
indication of sexual harassment,
mishandling of evidence, falsification ofrecords or concealment of wrongdoing isreported to our Office of Professional
Responsibility. While this comprehensive
system of controls and double and triple
checks has undoubted costs in
administrative resources, and arguable
costs in frustrated creativity, it produces
an immense integrity dividend, as I will
explain.
A commission which investigatedcorruption in the New York City Police
Department years ago categorized corrupt
officers as either grass-eaters or meateaters. The grass-eater designation wasused to refer to situational offenders, police
officers who knew right from wrong but
were weak-willed and engaged incorruption when exposed to temptation orpressured by corrupt associates. The meateater was the predator with no moral
scruples or conscience, who saw a law
enforcement position as a means to exploit
opportunities for profit, sex or other ego
gratification, and who often compromised
entire groups.
A rigid system of internal transparency
and close supervision serves as a defense
against misconduct by both types ofoffenders. The grass-eaters who mightyield to temptation when left to their own
devices, may, precisely because of theirmore malleable character, perform
creditably in a structured ethicalenvironment with clearly enunciated rules,

conscientious supervisory attention,
consistent disciplinary enforcement andpeer pressure from honest colleagues ofstrong character. The predatory meateater, on the other hand, is both identified
and made vulnerable by a comprehensive,well-supervised administrative system.
Carnivores need the freedom to roam. By
nature they are unlikely to have thepatience and self-control necessary to avoid
conflict with rigorous supervisory
enforcement of a multitude ofadministrative regulations. Ultimately
these meat eaters are likely to leave theorganization, sometimes voluntarily and if
necessary by dismissal, because theycannot conform to an environment
specifically structured to deny them all
those illicit pleasures which the predatory
animal seeks.
III. INTERNAL INVESTIGATION
AND DISCIPLINE
Turning now to a discussion of how our
Office of Professional Responsibility
performs its investigative and disciplinary
functions, our practice is to respond to any
specific and credible allegation of criminalor administrative wrongdoing. Sources
include citizen, judicial or legislativecomplaints, anonymous allegations,referrals from the Inspection Division,
reporting by management or individual
employees, accusations by hostile exspouses or lovers, or derogatory
information turned up during the
mandatory five-year security reinvestigation to which all of our employees
are subject.
If an allegation suggests that criminal
conduct is ongoing and merits a covert
inquiry, we utilize the operational
resources of the entire Bureau, bringing insurveillance squads and technicalassistance from distant offices to apply
whatever resources and tactics are

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appropriate to resolve the allegation,
including electronic surveillance, ruses or
decoys. To furnish an example, we received
an allegation several years ago through adefense attorney in New Orleans,Louisiana that his client, a suspected drug
dealer, was being extorted by theinvestigating agent. We approach suchallegations with great care, because
defendants and their lawyers sometimes
fabricate them to provoke an internal
investigation which can be manipulated todamage the credibility of the investigatorat trial and cast suspicion on theprosecution. So that we cannot be easily
manipulated, or accused of rejecting
potentially meritorious allegations based
upon subjective judgements about their
credibility, we utilize a standard procedurein such situations. That procedure is to
first ask the person making the allegation
to voluntarily submit to a polygraph, or lie
detector examination, to screen out
unfounded complaints. In the New Orleanscase, even though this agent had a goodrecord and reputation and was not believed
to be engaged in any impropriety by the
management of that division, we followed
this standard procedure and requested thedrug dealer to submit to a polygraphexamination.
To our surprise, the drug dealer ’s
assertions that he had received
extortionate demands for money from ouragent showed no indications of deception.
We then made arrangements to monitor
telephone and personal contacts between
the witness and our agent. We brought ina surveillance aircraft and a special
surveillance squad from other cities, bothto limit knowledge of the investigation in
the local office and because the agent mightrecognize fellow agents conducting
surveillance of his movements. A scenario
was orchestrated at our direction in which
the drug dealer requested certain
confidential information from FBI files, the446

agent was recorded agreeing to provide thei n f o r m a t i o n f o r m o n e y, a n d a f t e r
overwhelming evidence was secured of his
corrupt efforts to secure the informationfrom our records and to trade it for money,
he was arrested, convicted and has been
imprisoned.
The reality in the FBI is that such meateater cases are rare. The vast majority ofthe misconduct we investigate is the
product of human frailty rather thanaggressive venality. Most inquiries arereactive and administrative rather thanconvert and criminal. In overt inquiries
we inform our employees promptly when
they come under investigation so that they
can secure the assistance of counsel, if
desired. Interviews are conducted underoath, and polygraph examinations are used
to eliminate suspects and to resolve
credibility issues, particularly because suchexaminations frequently result in pre-and
post-polygraph admissions of misconduct.
Our staff of approximately 70 in the
Office of Professional Responsibility
delegates all cases of minor misconduct and
75% of our inquiries into serious
administrative misconduct to field
divisions or to other headquarters divisions
for investigation. We feel that it would be
a waste of taxpayers’ money to send a teamfrom Washington to Chicago or Los Angeles
to investigate a drunken driving arrest ofa non-supervisory employee or the theft of$100 from someone’s purse. We reserve ourheadquarters investigative resources forcases in which the credibility or sensitivityof the inquiry requires that it be conductedwith independent resources, such as anallegation against a member of the
management of an office or involving
criminal activity.
Because we delegate cases to otherdivisions, and levy on field resources fromthroughout the country when we conduct

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSa criminal inquiry, one must make certain
projections and calculations to estimate thetotal resources dedicated to the FBI’sinternal integrity program. Adding
together Headquarters personnel
dedicated exclusively to the disciplinary
function, the number of Headquarters’ andfield resources which we levy upon to
support our efforts, and the resources usedby the field and other Headquarters
divisions to handle delegatedinvestigations would yield a total of about
140 - 150 work years, or about half of one
percent of our total personnel resources.
We consider ourselves unusually
fortunate and believe that for the moment
our system seems to be working well andcost-effectively, insofar as we candetermine. The current scarcity ofdangerous internal criminality permits us
to concentrate resources on deterrence
without having to resort to tactics which
would erode employee support for our
integrity enforcement efforts. We conduct
random and reasonable suspicion drug
tests as a condition of continued FBI
employment, but we do not use random
integrity testing without some specificinvestigative predicate. By integrity
testing I mean such techniques as planting
information through an informant that a
particular apartment contains large
amounts of illegal drugs and money, andinstalling a concealed video camera to
determine if agents steal drugs or money.
We do not recruit convert agents-in-place
among New Agent Trainees or infiltratethem into the field divisions, both becauseof the considerable morale costs of suchtactics and their immense logisticaldifficulties. When agencies are tempted to
set up such programs, one must consider
the problems of documenting and reporting
intelligence and information, and of
disclosure risk. The longer such an
operation runs, and the more operatives it
utilizes, the greater the risk of compromise.

The costs of controlling that risk quickly
escalate once action is taken based on theinformation being generated or the
personnel who initially organized andoperated the program rotate out of internalaffairs duties into other operational ormanagerial assignments.
Nevertheless, our choice not to use suchtechniques up until now is not a moral
conclusion that such tactics might not benecessary if one had to confront pervasive
corruption. While we are always concerned
about the constant risk and sometimes
serious incidents which occur with drug
and undercover investigations, and withinformants and money, the FBI has simply
not yet experienced or perceived integrity
problems serious enough to persuade usthat random integrity testing tactics would
be cost-effective. We hope that vigilant
prevention will make recourse to
extraordinary tactics unnecessary, but if
the incidence of corruption escalated, wewould be compelled to consider more
dramatic remedies.
IV. COMPARATIVE DISCUSSION
At this point it may be helpful tocompare our system with how other
American law enforcement agencies deal
with comparable issues. With respect topersonnel recruitment and selection, theFBI is blessed with an unusually adequate
personnel budget which permits the hiringof persons with professional degrees. By
way of contrast, many police departmentsin the United States and elsewhere recruit
employees who have barely passed theirteenage years and have minimal
educational qualifications. Such hiring
policies by a police organization are notnecessarily inappropriate, because hiring
authorities have to balance the financial
resources provided by political authorities
with the available labor pool, the nature of
the duties to be performed, and many other447

RESOURCE MATERIAL SERIES No. 56
factors. Nevertheless, the public and themass media should recognize that the lessselective a police organization can afford
to be in choosing its candidates, the more
integrity problems the community should
expect. Law enforcement agencies will
never be able to outbid drug organizations
for the loyalty of an officer, but to maintaintheir integrity they must be able to pay
salaries which allow them to build up acadre of persons with maturity anddemonstrated good character, who can set
a moral and professional example for theorganization.
A current concern to us in the FBI is theexperience of police departments whichhave encountered serious integrity
problems as a result of too much urgency
in hiring. This typically happens when abudgetary increase or resolution of alitigation dispute, which are unfortunately
common in our society, presents theopportunity or the need to hire a large
number of officers within a short period oftime, which several years later leads to anincrease in integrity problems among those
hired in haste. Because our Congress has
authorized the hiring of additional FBI
agents during the last several years tocombat domestic and international
terrorism and computer crime, we aretaking pains to identify and avoid thefactors which cause an increase incorruption and misconduct to result froma rapid increase in hiring. The mostobvious factor is that many departments
lower standards in order to secure enoughacceptable candidates quickly. We hopethat our increased hiring has been gradualand selective enough to avoid that risk.
However, we are also concerned that there
may be a more subtle risk, a form oforganizational indigestion which makes it
difficult for an institution to assimilate,train and properly indoctrinate new
recruits with its values if there are too
many recruits in comparison to the448experienced cadre. There are sociologicalstudies which speculate about whatpercentage of immigrants a country can
assimilate without social disruption andfriction arising from frequent clashes ofdiverse or inconsistent value systems andcustoms. We are similarly concerned about
the assimilation of large numbers of new
recruits, many of whom come in with yearsof experience in other law enforcement
agencies or the military, where they havealready formed certain values and habits.
Similarly, we are concerned in the FBI
whether we can do an adequate job
communicating and ensuring the adoptionof our existing value system when morethan 20% of our agent population have lessthan three years experience, and 35% haveless than five years experience. When
three or four new recruits are assigned to
an office with a complement of 100 agents
per year, it is relatively easy to find veteranagents with eight or 10 years experience
to serve as mentors, what we call a fieldtraining agent. That training agent has
the official responsibility to offer practical
instruction to the new recruit and tooversee their professional development.
Normally, that training agent and therecruit’s supervisor will be important
influences in communicatingorganizational culture and values. Finding
three or four experienced agents who also
are good moral examples to serve as
mentors is not difficult. However, when
the number of new agents to be trained
each year increases to six, seven or 10,
there are obviously fewer veteran agentsavailable who are not fully occupied withother duties, and correspondingly evenfewer veterans who can serve as
outstanding examples of both professional
competence and good character.
One response to this concern is our ethics
training program, which in the past wasadministered by our Training Division, but

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
early this year was placed under the
management of our Office of Professional
Responsibility. The purpose for thatchange was to better integrate our practicaldisciplinary experience into what we teachour recruits. FBI New Agent Trainees
undergo 16 weeks of law enforcement
training, and those 16 weeks include 16
hours of ethics instruction. We recognizethat one cannot teach an adult to be honest.
What we do communicate during our 16
hours of instruction are the ethicalstandards which are important to a federal
law enforcement officer and what ourduties are under our Constitution and ourlegal system. We insist that our agents
understand why society has authorized
them to lie in an undercover assignment
but not as a witness in court. We also try
to inform our employees about the practicalproblems they will face in reality, so thatthey will not make mistakes or becompromised through failure to foresee theconsequences of their actions.
We remind our agents that any personalor professional compromise with aninformant, such as accepting gifts orengaging in a sexual relationship, places
the agent at the mercy of that informant
or of others who may learn of therelationship. Some confidential sources are
sincerely motivated citizens, but those withthe most knowledge of underworld
activities are usually seeking personaladvantage by betraying their criminal
associates. It should come as no surprisethat a person who would betray theircriminal associates for personal advantage
would do the same to the officer who is theircontact in law enforcement. Consequently
we urge our agents to focus on the practicalrisk, as well as the moral consequences, ofallowing their integrity to be compromisedin any way by a personal relationship witha confidential source.

Similarly, we urge them to think ahead
and to discuss the thousand ethicaldilemmas which may arise in the course of
their career. It is not enough to avoid
personal wrongdoing. If colleagues falsify
the hour at which they begin or leave work,
should a new agent make a report to asuperior? Perhaps not, because we should
not concern ourselves with de minimis
violations, because the primary
responsibility for enforcing time andattendance rules lies with a supervisor, andbecause one agent may not know if
someone who leaves work early is being
given compensatory time off for a night
surveillance or extra-long work days, or has
experienced a family emergency. On theother hand, if colleagues falsify the chainof custody for a piece of evidence or testify
falsely in court, what should the new agent
do? If fellow agents or a police officer wereto strike a handcuffed prisoner, and thevictim filed no official complaint, whatshould an agent who witnessed the violencedo?
We want our people to think throughthese problems so they will not make awrong decision based on panic or a failure
to recognize what duties are paramount.
We attempt to educate them about what
ethical values are most important. We
would consider it normal that an agent did
not report another agent leaving work
early, absent some personal knowledge ofserious intentional abuse. Because ouragents work such long hours, particularlyin emergencies, even proof of an isolated
intentional abuse would normally beconsidered primarily a performance issue
to be addressed by the agent’s supervisor,
and we in the Office of Professional
Responsibility would not be greatlyinterested unless a pattern of abuseexisted. We insist, however, that ouragents recognize their individual andindependent responsibility to protect our
citizens and the integrity of our criminal

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RESOURCE MATERIAL SERIES No. 56
justice system. That responsibility meansthat they must intervene to stop any clearly
unnecessary use of force, must immediately
report conduct which they believe may
constitute a falsification of evidence or
brutality by their colleagues, and that they
will be punished for failing to do so.
Returning to a discussion of differences
between FBI practices and those of otherlarge American law enforcement agencies,
a significant distinction exists with respect
to the staffing and conduct of internal
investigations. While the FBI’s Office ofProfessional Responsibility devises thestrategy for a corruption inquiry, selects theresources to implement that strategy,
oversees its tactical execution and normallyconducts the crucial interviews, we do nothesitate to levy upon operational assets
from our investigative divisions. That
approach differs from most American police
departments and other federal agencies,
which create wholly self-sufficient internal
investigative units. Such units are staffedwith sufficient personnel and resources,
including technical equipment andexpertise, to conduct investigations
without the knowledge or participation of
personnel from the operational divisions of
the organization. The United States Drug
Enforcement Administration and Customs
Agency Service have internal affairs field
offices distributed geographicallythroughout the country, and do not rely on
investigative assistance from operational
offices to the same extent as we do in the
FBI.
The FBI has never felt the need to createa standalone operational capability to
conduct disciplinary inquiries without theassistance of field resources for two
reasons. The first is that cases of serious,
meat-eater type corruption are stillcomparatively rare. It would not be costeffective to staff, equip and pay the travel
costs of a Headquarters surveillance squad

450

or technical team to work four or fivecorruption cases a year, when that numberof cases can be staffed far more efficiently
by commandeering field resources fromanother office. The second related reason
is that we have no history of investigations
being jeopardized by security breaches
from within, resulting from the use ofresources borrowed from field divisions.
Utilizing the operational resources of theentire system is also consistent with ourorganizational philosophy, which regards
a vigilant response to any suggestion ofcorruption as an overriding responsibilityof every field and Headquarters division.
Even though our office exercises decisional
authority in an internal investigation, theoperational managers in our field divisions
normally want to be involved todemonstrate that they individually, and thedivisions which they head, are intolerantof any form of corruption.
Moreover, involving the management of
an FBI field division when we must conduct
an investigation of one of that division’s
employees parallels the way the FBI
approaches its responsibility to investigate
corruption in state and local police
agencies. The FBI functions as anoversight mechanism for other police
agencies because, by federal statutes, weare assigned the legal competence toinvestigate brutality and other abuses ofcivil rights. Moreover, almost any form ofpolice corruption would violate federal
racketeering, extortion, fraud, bribery orother laws. In combating police corruption,
our field divisions regularly encounter
situations wherein corruption involves anumber of police officers, and may reachup the chain of command within an
organization. In such circumstances, onemust assume that anyone in that agency
could be a potential conduit of informationback to the subjects of the inquiry, not allof whom would be known in the early
investigative stages. Despite that need for113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
secrecy and caution, our field executives
normally make great efforts to find atrustworthy representative of thatorganization at the executive level, or if
necessary at the political oversight level,
who can safely be notified of the existenceof the investigation, and who caneventually be given public credit forcooperating in the investigation.
You may ask, why is that symbolic
contact considered important? There are
a number of reasons to enlist someone at
the executive or political level of a target
agency. If a responsible executive can betrusted, the investigation thereby gains
information and access to the internalmechanics of the target group, which may
be crucial in creating investigative
opportunities, protecting evidence andwitnesses, and focusing the inquiry alongproductive lines. The courteous gesture of
sharing credit with a representative of theorganization whose members are being
investigated also helps to avoid or to heal
the resentment which otherwise may comefrom prosecution of well liked local police
officers and impede future cooperation withthat department or agency. Perhaps mostimportant, however, is the fact that sharing
credit with an honest representative of thelocal police agency expresses ourinstitutional belief that public confidence
is essential to the performance of a law
enforcement agency’s mission.
Even if a local police organization is
being investigated for systemic corruption
by an FBI field divisions, organizationally
we recognize that at the end of theprosecution, our agents will move onto
other cases, and that the local police
department will still be responsible forpublic security within its jurisdiction.
When the FBI is confronted with evidenceof corruption in a local police agency, it
would be foolish to expect spontaneousreformation. Outside intervention isnecessary, and aggressive tactics may berequired, including decoys, integrity
testing, surreptitious electronic
surveillance, forcing colleagues to spy on
and incriminate each other, and all thetechniques used to secure evidence against
ordinary criminals. Ultimately, however,that police agency needs to regain theconfidence of the citizens in its community
in order to gain their cooperation andassistance. Yet citizens cannot realisticallybe expected to have confidence in a police
force if they are led to believe that it istotally corrupt and that only the FBI orsome other outside agency can be trusted
to effectively confront its corruption. That
is why we try, whenever feasible, topreserve an image of cooperation with someelement or representative of a local police
agency being investigated, in order tocommunicate the message that there aretrustworthy elements within everyorganization in whom citizens can place
their confidence. Maintaining some degreeof public confidence in a police agency is
the first step toward its rehabilitation in
public opinion, which ultimately will benecessary for that agency to stand on its
own in protecting the community.
This approach of attempting to preserve
some degree of public trust in police
agencies whose officers are underinvestigation by the FBI is unquestionably
influenced by the reality that the FBI onlyintervenes occasionally against police
corruption in a given community. Our
oversight role is essentially episodic, a parttime endeavor with regard to any
particular community or police agency,
because we are a general purpose law
enforcement body with many other
responsibilities and priorities. We also
recognize, however, the emergence of atrend in other contexts toward singlepurpose control agencies with the full-time
mission to monitor, displace or even totallyreplace the internal integrity mechanisms

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RESOURCE MATERIAL SERIES No. 56
of a particular police organization. Oftenmodeled on the Hong Kong Independent
Commission Against Corruption, theseagencies may also have powers of public
education and program auditing for thepolice and other government agencies. In
Australia, the Police Integrity Commissionof New South Wales and the Criminal
Justice Commission in Queensland,
together with Ombudsman offices andother bodies, have been given substantial
jurisdiction over police corruption andmisconduct. Such bodies are typicallycreated after a governmental investigative
commission has revealed entrenchedcorruption of such a magnitude that the
public loses trust in the integrity of theo f f e n d i n g p o l i c e a g e n c y. I n s u c hcircumstances, drastic measures arenecessary to neutralize the citizens’
suspicion sufficiently so that public ordercan be maintained and some minimal
respect for governmental authority
restored.
The measures chosen to reassure public
opinion in Hong Kong and Australia wereto subject the police to extremely close
oversight by a permanent independent andparallel authority with sufficientcompetence and investigative resources tooversee or take over any significant police
investigations of internal criminality or
misconduct. My impression in studying
those institutions is that they also try to
work in partnership with the police agency
employing the suspected officer. There aremany practical reasons which may call forcooperation, but it would be interesting toknow if those Independent Commissions
also consider a need to maintain publicconfidence in the agency they oversee as areason to work in partnership with thatagency’s management or internal affairs
component.
As indicated previously, we consider
ourselves fortunate to have a relatively low

452

current incidence of corruption andcriminality in the FBI, but recognize thatan influx of new agents could upset the
ethical equilibrium of the organization andcause more serious problems in the future.
If that were to occur, we would have toconsider techniques which we now do not
employ, but which have been successfulwhen used by other police organizations.
For example, we use integrity testing only
on the basis of reasonable suspicion. The
London Metropolitan Police Service has
used such tests to uncover corruption
among experienced detectives and retired
officers, and is now considering their use
on a routine basis. Such an approachrequires new and innovative thinking andexpectations. The goal of targeted integrity
testing is to come very close to a 100%
success rate, since only persons seriously
implicated in corruption by confidential
information or circumstantial evidence will
be tested, and numerous tests which
revealed no corruption would be both
expensive and would cast doubt on theintelligence or evaluation techniques of theintegrity unit.
To the contrary, the institutional goal ofroutine testing is to devise a cost-efficientmanner of random, universal testing withthe ultimate goal of achieving a high rateof non-incriminating results as a result of
ethics training and the deterrent effect ofpublicizing the routine testing technique.
To m y s u r p r i s e , I u n d e r s t a n d t h eMetropolitan Police Service labororganization has received this proposal
favorably, which would be a farsighted
response. If a police organization could
demonstrate to a policymaker and to the
public that nine out of 10, or 95 out of ahundred officers will refuse the opportunity
to steal or to be bribed, I think that much
public cynicism and suspicion about thepolice would be cured.

113TH INTERNATIONAL TRAINING COURSE
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The concept of integrity testing can bealso expanded to other contexts. The New
York City Police Department has sufferedterribly in the last year from adverse
publicity about brutality and the use ofexcessive force. In response, it has
experimented with an imaginative
approach of brutality testing. As thetechnique has been described to me, anofficer whose record demonstrates repeateduse of excessive force is assigned to respondto a violent domestic dispute in anapartment. On arrival the officer isconfronted by a subject who is verbally
abusive but neither uses nor threatens
violence, and who in reality is anundercover Internal Affairs Division officer
attempting to learn if the officer will
overreact to verbal abuse by using
unnecessary violence. The scene is recorded
and carefully monitored in a way so as tominimize the risk of serious injury to theundercover officer, with other officers readyto intervene immediately if the suspect
officer begins to use unnecessary force.
Fortunately, the nature of our work in the
FBI does not require us to confront routine
allegations of physical brutality, butdifficult and dangerous techniques are
sometimes necessary to confront serious
abuses.
V. CONCLUSION
Earlier in this paper reference was madeto the inability of any police organization
to compete financially with a drug dealer
in bidding for the loyalty of an officer or
agent. We are public servants and we
recognize that the taxpayers will never pay
their guardians as much for our honest
services as criminals would pay to corrupt
us. The officers or agents of some law
enforcement organizations arecomparatively well compensated, but mostare not so fortunate. However, financial
calculations alone do not determine theability to resist temptation. We have foundto our sorrow that even well-paid FBI
agents have betrayed their country andtheir institution for money. At the sametime, police officers who are paid much lessgenerously resist opportunities forcorruption, undergo hardships daily, andforego many pleasures and advantages forthemselves and their families, because they
believe that serving and protecting theirfellow citizens is valuable, important work.
A decent living wage is essential to honest
law enforcement, but it is not enough toachieve integrity.
The old proverb, that man does not liveby bread alone, expresses the concept thatmaterial considerations cannot explain all
human decisions. That concept is
extremely relevant to police work. Rational
persons cannot be paid enough money tomake a purely financial choice to risk theirlife by confronting armed robbers. Thereis no monetary calculation which explains
why an honest law enforcement officer isimmune to bribe offers worth many times
a year’s salary. The only reasons which canjustify such dedication and honesty are
non-material ideals. Such ideals can resultin unselfish, altruistic sacrifices, and caninspire whole institutions. Different
societies at different times have recognized
codes of conduct which rose above
individual self-interest, ennobled thehumans who observed them, and benefitted
all of society. Those codes of conduct may
have been called chivalry in Western
Europe, Bushido in Japan, or honor andduty in military organizations, but theircommon element is that they recognize andharness the idealism of the human spirit.
My observation of police organizations isthat the most successful are those which
capture that idealism, both to stimulate
performance and to avoid misconduct andcorruption. No system of internal affairs
and discipline can realistically hope torepress misconduct among persons withthe power, discretion and investigative

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RESOURCE MATERIAL SERIES No. 56
training and practical experience of police
officers, absent some system of sharedvalues and the internal motivation toobserve those values. Accordingly, theconcept which I would like to emphasize
in closing today’s presentation is theimportance of pride, self-respect,community status, and a sense of honorand duty in preventing corruption. Very
frankly, my impression is that many othersocieties traditionally recognize andappreciate this concept much more than wematerialistic Americans do. Consequently,
I hope that during our discussion time wecan explore examples of how othercountries foster an esprit de corps, a senseof pride and even elitism, to bring out
values and performance in their law
enforcement officers far beyond that which
can be accounted for by mere material
rewards.

454

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSPREVENTION AND REPRESSION OF CORRUPTION IN
NON-LAW ENFORCEMENT AGENCIES
Michael A. DeFeo*
I. INTRODUCTION
My previous paper dealt with how law
enforcement agencies, including the agency
which I represent, the FBI, attempt toprevent and repress internal corruption.
The focus in this paper will be on how ourlaw enforcement agencies can deal withcorruption in the non-law enforcement
agencies of government. Phrasing the focus
in that way involves an initial definitional
decision, which is that we will not discuss
corruption which takes place exclusively
within the private sector. Some countries
do penalize the corruption of a purchasing
agent of a business corporation or of a bankloan officer with the same substantive
statutory provisions applied to penalize thecorruption of a government purchasing
agent or a cabinet minister with the power
to issue government grants. It can beargued that in many ways the economic
and social harms of private and public
corruption are similar. In my opinion,
however, the preventive and repressive
mechanisms available to deal with public
corruption are much different from thoseneeded to combat private corruption, so thearbitrary decision has been made to limit
this discussion to public corruption.
To avoid violating copyright laws, should
they be applicable, I also wish to make it
clear that the basis for this paper is a
publication which I prepared for the United
Nations Centre for Social Development andHumanitarian Affairs and its Crime* Assistant Director, Office of Professional
Responsibility, Federal Bureau of Investigation, US
Department of Justice, United States of America.

Prevention and Criminal Justice Branch,which was published as Numbers 41 and
42 in the UN International Review of
Criminal Policy entitled Practical
Measures Against Corruption.
II. LEGISLATIONThe UN publication began with theobservation that a prerequisite of any
campaign to effectively combat corruption
is an adequate body of penal law
prohibiting those forms of official
misconduct most harmful to honest
government and to the citizenry. A numberof commonly penalized corruption offenses
were described in some detail because thatpublication was written for a generalaudience. Since this audience is composedof experienced criminal justicepractitioners, we need not spend a great
deal of time discussing what penal statutes
are desirable to combat corruption, otherthan to mention a few common problems.
Obviously, a theft statute, or somecomparable legislation, must be broad
enough to include intellectual property,
computer crime and information, and othergovernment assets worth being stolen or
misappropriated.
Common law systems which have notmodernized the traditional offenses ofbribery and extortion generate troublesome
questions about who introduced the corrupt
suggestion, which determines whether apayment is a bribe or an extortion. All ofthese offenses become problematic when
the public official acts for improper motives,
but not for a quid pro quo or any material
advantage.

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The problem of a public official favoring
family, friends, clan or political party
members rather than taking action or
distributing benefits impartially, to theextent that it is addressed in penal
legislation, is usually regulated by statutes
defining abuses of position or conflicts ofinterest. Because of the powerful politicaland social interests involved, what isprohibited as an abuse of position or aconflict of interest tends to be narrowly
defined by legislatures and courts. In many
countries it is assumed that elected
officials, and politically appointed
executive officials, will favor their own
constituents and supporters, rather thanbe scrupulously impartial. Penalprohibitions sometimes only prohibit action
on behalf of a family member or when theofficial has some direct financial interestin the matter, and do not reach other formsof favoritism and cronyism, which are left
to be dealt with by the political process.
In my experience, it is rare to find a total
failure to penalize anti-corruption offenses,
but it is common to encounter a lack ofoperability because anti-corruption
statutes are antiquated or practically
unenforceable. For example, a theft statutetoday which applies only to tangible objects
without penalizing unauthorized taking of
information is not worthless, but it iscertainly inadequate unless supplemented
by a specific law protecting intangible
information. A common deficiency,
sometimes intentional, is a grand sounding
law with no means to collect the evidence
necessary for enforcement.
Bribery is a covert, consensual activity
which will not be spontaneously revealed
and as to which there is normally nocomplainant and no means to identify
witnesses. If a legislature penalizes thecrime itself, or increases the penalty forbribery in response to some highly
publicized scandal, the community is likely

456

to be favorably impressed. The public,
however, and particularly the news media,
should also examine whether those samelegislators have rejected all feasible meansof collecting the evidence necessary to prove
corruption offenses. Penal anti-corruption
statutes can easily be emasculated byfailing to authorize electronic surveillance
for the crime of bribery, or to provide an
immunity procedure to compel one party
to the bribe transaction to provide evidence
against the recipient, or to fund an anticorruption unit to investigate such crimes.
Indeed, the most commonly overlooked
element of penal legislation is how it canbe enforced in practice. For example, themost cost-effective way of enforcing a penal
statute against consensual criminal
activity, like bribery, may be to utilize
undercover agents and so-called “sting”
operations to make such crimes visible andpunishable. To make an undercover
approach feasible, it is necessary to
anticipate technical defenses, to plan ahead
and to penalize an offer or agreement toperform an official act, even if that act could
never be performed in reality because it is
only part of an undercover scenario.
One type of anti-corruption statutewhich comes into fashion periodically is afinancial disclosure law, requiring elected
or appointed officials to declare various
assets, income and business transactions.
Those statutes can function effectively if amonitoring government agency, political
opponents, or the news media devote
sufficient energy to expose discrepancies
between what is reported on the form andwhat the minister or official reallypossesses or controls. However, at least in
our American government, so many career
government officials, some at very low
levels, are required to execute disclosurestatements that the forms are normally
filed with only a cursory review. There may
be a designated ethics officer, frequently

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
located within the General Counsel orLegal Advisor’s office in each agency, whochecks to see that all the blanks are filled
in and that the information looks regularon its face, but there is rarely an effective
control on the accuracy of the information
being disclosed. Without an effective
control entity which actively checks thedisclosures against the reporting
employee’s life style, expenditures andholdings, disclosure can be what doctors
call a “placebo,” a sugar pill, a harmlessbut totally ineffective remedy administeredto patients for test purposes or to keep them
happy, but without any curative effect.
Typically, legislatures enact disclosure
requirements, or executives impose themon subordinates, because filling out a form
is a low cost initiative which sounds as
though some dramatic monitoringmechanism is being established which will
prevent and/ or reveal corruption. A useful
litmus test which can help reveal thesincerity and significance of any disclosure
program is to ask what budgetary
resources are being provided to control theaccuracy of disclosure forms. If thoseresources consist of file clerks, storage
cabinets and perhaps one or two
professionals to verify the procedural
regularity of the forms, with noinvestigative resources to test thetruthfulness of the disclosures, then do not
expect any integrity dividend unless thenews media, or political or bureaucratic
opponents, target the disclosures ofparticular officials.
III. ORGANIZATIONALSTRUCTURES
A fundamental question with regard tocorruption control relates to the structures
necessary to effectively implement anticorruption measures. Is a specialized anticorruption unit necessary or can thatfunction be handled within existing

structures? With regard to police,prosecutors and magistrates there are bothadvantages and disadvantages to separate
units. Among the disadvantages are
rivalries and barriers to communication
between a new authority and existing
structures, greater administrative costs
and personnel rigidities, and a diminution
in the prestige and morale of the generaljurisdiction organization by the loss of anticorruption authority and resources. A
separate anti-corruption unit is likely tocreate greater administrative costs andpersonnel rigidities. It is also likely to
provoke or continue controversy over whatorganizational factors should determine
whether specialized units should be set up
with respect to drug trafficking, gang
violence, art theft, environmental crimes
or any other crisis of the moment, and if sowhat relationship that unit should have toexisting structures. Finally, the questionof a separate specialty unit frequently
raises serious issues relating to reporting
relationships and organizational loyalties,
all of which can be very disruptive tomorale and the esprit de corps of an
institution.
The advantage of a separate unit are
specialization, greater security and control
and control of information, and direct
accountability. Accountability may well be
the greatest of these virtues, as it permits
policy makers to measure what success isbeing achieved with given resources andplaces anti-corruption responsibility on
identifiable persons. This highly visible
responsibility and ability to identify andmeasure results is particularly importantbecause of corruption’s nature as a covert
criminal activity which may never be
detected without aggressive law
enforcement efforts. At least in American
government, there is a distinct tendency
for corrupt situations to continue until
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RESOURCE MATERIAL SERIES No. 56
accountability is best achieved by creating
separate or even independent police,prosecutorial or magistrates’ units, or by
fixing the responsibility within existing
entities, should normally be determined by
local bureaucratic conditions andtraditions. Given the organizational
inertia which must be overcome to create
a separate unit, the natural bureaucraticcompromise would be to create a
specialized capability subject to existing
program management, such as anticorruption units within the overall criminal
investigative division, or perhaps within its
fraud section.
An overriding factor, however, is often
crucial in determining whether a separate
anti-corruption unit will be created, andthat is political or public pressure resulting
from a highly publicized scandal.
Announcing the creation of a new anticorruption unit is a splendid diversion fora political figure beset by continual bad
publicity about a scandal. Viewed from amore positive perspective, such scandalspresent a rare opportunity for an alert law
enforcement executive to secure resources,
jurisdiction or political consent for thecreation of an anti-corruption capability, ata time when the political powers are
unusually motivated to be seen as leading
law enforcement efforts to combat
corruption.
Normally, management by crisis is avery ineffective technique, but the creationof anti-corruption units in reaction to
scandals may be one of the rare exceptions
to that rule. One reason is that politicalmotivation to dedicate any resources tocombating corruption is frequently lacking
until a scandal erupts. Another reason isthat while resources may be dedicated to a
separate specialized anti-corruption unit
primarily for public relations purposes, theexistence of that unit achieves the essential
value of accountability, although it may

458

implicate other organizational frictions andcosts. Creation of a specialized anticorruption unit overcomes the core problem
of diffused responsibility which results
when a multi-functional bureau or office isinstitutionally responsible for combating
corruption, together with multiple othercompeting demands, but that responsibility
is not fixed in any one individual withdefined resources. When no individual isassigned dedicated resources with which
to work corruption cases, a lack of cases
may be justified organizationally because
no indicia of corruption were reported or
because higher priority cases of fraud,
subversion or other threats were being
pursued. Because of its covert, consensual,mutually profitable nature, a corrupt
situation or practice may continue for
decades without coming to the attention oflaw enforcement. Only when an aggressive
investigator is assigned a quantity ofdedicated resources and a defined mission
and held personally accountable to produce
useful intelligence or evidence on
corruption, will an agency be likely to haveany kind of reliable appraisal of the extent
to which corruption exists.
Another interesting organizationalquestion, which perhaps might have been
covered in my first presentation, is the
exclusivity of anti-corruption jurisdiction.
When a quantity of resources is dedicatedexclusively to a corruption matters, it is
tempting, as a matter of managerial andlogical clarity, to give the entity which has
been created to operate those assets amonopoly over development of all relevant
corruption investigations. This would
mean that a police or investigative agency
assigned the competence for drug control
would have exclusive jurisdiction toinvestigate drug trafficking, or that an
Inspector General within a ministry
distributing agricultural subsidies would
be given exclusive jurisdiction toinvestigate fraudulent subsidy claims and113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
associated bribery or prohibited
transactions. The exclusive assignment ofa function has the virtue of being easily
understood, and if other agencies orelements are permitted to pursue
allegations or instances of corruption there
probably will be failures to share necessary
information, investigative overlap andother indicia of inefficiency. However, thedemonstrated susceptibility of humannature to the corrupting influence of power
and to the temptations and wrongful
opportunities which come with authority
argues against the orderly logic of exclusivecompetence. The Latin maxim of quis
custodiat ipsos custodes reminds us toalways ask who will watch the watchmen.
A little redundancy and even competition
can be a healthy antidote to corruption,
because no one person or entity has thepower to protect or license illegal activities.
It may be inefficient to allow both
headquarters and local police units, or bothnational and state prosecutorial
authorities, or both the police and an
Inspector General’s Office, to investigate
allegations of the same type of corruption.
Indeed, an obligation to refer or report all
corruption investigations to a primary or
central anti-corruption authority may beappropriate, with some flexibility as to thetiming of the reporting obligation.
Nevertheless, just like multiple engines ona passenger aircraft, redundancy in a highrisk situation is generally a worthwhile
investment. The legislative andmanagerial challenge in this area is toallow just enough redundancy, and evenrivalry, to deter corruption or to expose it
if the primary anti-corruption authority
fails to do so, without disproportionately
reducing the flow of intelligence and ofprosecution opportunities to the primaryauthority.

IV. PROCEDURALIMPLEMENTATION OF AN
ANTI-CORRUPTION PROGRAM
When an investigating authority, be it apolice unit, a prosecutor or an investigating
magistrate, is initially faced with an anticorruption task, certain fundamental
management questions may need to beresolved. If the investigator’s jurisdiction
is previously defined, and the matter arises
within that jurisdiction in a routine
manner, such as a police report to aprosecutor or investigating magistrate,then little discretion or room for maneuveris left in defining or managing the task. In
non-routine cases, however, policy levelauthorities often feel the need to make newor special arrangements. Sometimes thisis not because the existing structures arenecessarily deemed inadequate on the
merits, but simply because a clamorous
scandal tends to dictate a politicallydecisive, aggressive-appearing response.
Creating a new unit or assigning a newleader to an investigating authority may
be of absolutely no substantive advantage
in terms of improving performance of theunit, but it can have an undeniable shortterm publicity and public relations value,w h i c h m a y b e t h e p o l i c y - m a k e r ’s
immediate interest. In other situations,the existing investigative authority may
need to be replaced or supplemented
b e c a u s e o f i n e f f i c i e n c y, l a c k o ftrustworthiness, or simply because a newform or method of corruption is forcing a
new response. To use the example
mentioned before, if the Inspector Generalof a ministry distributing agricultural
subsidies has failed to prevent or identify
illicit bribe payments associated with 25%
or 30% of the funds expended, and that
degree of corruption is revealed by aparliamentary inquiry, then executives of
the national judicial police should begin
planning for the eventuality that they orsome new entity may be called upon to459

RESOURCE MATERIAL SERIES No. 56
assume organizational or individual
responsibility for investigating that type offraud.
A law enforcement executive called upon
to assume a new or extraordinary
responsibility to deal with a corrupt
situation or an anti-corruption program
will often find the situation very fluid.
Occasionally a timetable will have alreadybeen announced for a report or theconclusion of the inquiry, perhaps by apolicymaker with little grasp ofinvestigative realities, while otherpolicymakers will realize thatinvestigations often dictate their own
timetable. However, even a policymaker
who has announced an unrealistic
completion date for the inquiry will behappy to transfer not only the investigative
responsibility, but also the responsibility
for placating news media and public
interest, to the newly designated anticorruption authority or executive.
Policymakers may well be unaware of andrelatively uninterested in how a corruption
inquiry will be conducted or what will need
to be done, and may be willing to agree toany reasonable sounding terms or
conditions, so long as the terms do notthreaten to provoke an adverse media or
political reaction.
Consequently, a new or speciallyappointed anti-corruption authority or
executive may have the unaccustomed
luxury of negotiating or self-defining thescope, resources and configuration of thetask or entity. The executive who thinks
and plans ahead, and promptly analyzes
the anticipated needs of the inquiry to be
conducted, may have unprecedented
leverage to secure desirable resources andpowers. In the midst of a public clamorthat effective actions be taken against
recently exposed corruption, many
bureaucratic concessions may willingly bemade simply so that the policy maker460

bedeviled by media and legislativeinquiries and criticism can announce somedecisive action. Once a tentative selectionof a new or specially appointed anticorruption authority has progressed to
discussions with the candidate about
execution of the task, a policymaker
experiences a temporary loss of bargaining
power vis-a-vis the candidate, even if thatcandidate is an organizational subordinate.
Most policymakers would be loath to refuse
the resources or powers which wereconsidered necessary to a successful
investigation, for fear that blame for
eventual failure of the inquiry would be laidat their door. Also to be feared would be
the embarrassment and suspicion which
would result from a disclosure that thecandidate declined the appointment or
responsibility because denied adequate
resources to do an effective andprofessional job.
On the other hand, once the media andlegislative fixation on a scandal has passed,
once a new crisis has claimed the public’s
attention, there is very little reason to reevaluate or enlarge the resources or power
previously assigned to the anti-corruption
unit or investigator, and even a resignation
or request for transfer by the unit’s leader
is unlikely to be as feared as it would havebeen initially. Therefore, questions of thescope, power and configuration of the anticorruption unit which require external
action and assistance should be resolved
at the moment of the authority’s creationor unit leader’s designation. If special
decrees must be issued to create theauthority, the leader-designate should
insist on the ability to review them toensure that all necessary provisions areincluded. Special attention should be paid
to potential overlap and conflict with otheragencies. Those types of problems are
rarely satisfactorily resolved by two
independent competing entities without
intervention of a superior power at the113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
ministerial or political level. To resolve
bureaucratic problems it is advantageous
to seize the momentum of the moment
when political interest and sympathetic
attention are engaged and motivated by theneed to contain a scandal.
A request to investigate an act of alleged
bribery in one small aspect of a massive
and highly suspicious contract, may deal
only with the tip of the iceberg, with a hugemass of other corrupt practices andpayment lurking just beneath the surface.
The investigator must then make someeducated guesses, and take some risky
gambles, about the desired scope of theauthority’s desired mission. Should thatmission be narrowly defined to the initial
corrupt act of bribery or embezzlement ofgovernment program resources, which may
be proved without encountering serious
political resistance because only low level
persons are involved and the existing
publicity has made them expendable? Or,
recognizing the probable breath and depthof corruption in the program, should abroad mandate be sought? The first, moreconservative approach may permit theinvestigating authority to build a record ofsuccess by proving the suspected bribery
and identifying the indicia of morewidespread corruption, leading to an
expanded mandate.
However, one must recognize thatpolicymakers may not grant that expanded
mandate, requiring consideration of thesecond, riskier course of insisting on abroad mandate initially. If it is chosen, andthe inquiry develops evidence that theinitial allegation was indeed representativeof systemic corruption at the highest levels,
initially supportive policymakers may
become less enthusiastic supporters of theinquiry. This lack of enthusiasm may notnecessarily be an indicator or result ofcorruption. Rather it may simply reflectthat an anti-corruption authority or

executive may be created or appointed asmuch to abate a public relations problem
for a political administration or apolicymaker as for the law enforcement
goal of prosecution and incarceration. The
unpleasant political consequences of a
successful corruption investigation, which
renews negative publicity, will notnecessarily be welcomed by policymakers.
Bluntly stated, the foregoing discussion
is intended to convey that an anticorruption authority or executive should
arm itself at its strongest moment, which
will almost always be its moment ofcreation or selection, or at whateversubsequent moment when public attention
to its work is at its highest. If requests forforeign evidence, tax or personnel records,
or other official documents present thorny
legal issues or could be subject toobstructive delays, the moment of greatest
bargaining strength should be exploited togain guarantees of expeditious cooperation.
If high-ranking officials are potential
witnesses but can be expected to evade
testifying or producing records, an orderat a sufficiently high level of government
should be sought requiring that all public
employees will cooperate in the inquiry.
Of course, many other realities oforganizational and supervisory relations
and of legal limitations will dictate whatpowers and resources an anti-corruption
authority can secure at the time of
appointment. Diplomacy may well dictatethat more can be gained by polite requests
and patience than by the making of
demands and the setting of conditions.
However, it would normally be highly
desirable to create a written record which
would demonstrate that the powers incharge of responding to corruption were put
on notice as to what resources and powers
were necessary to its exposure andprosecution. Subsequent inquests andattempts to impose accountability, or

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political blame, are common consequencesof corruption scandals. A written record
will protect the personal and professional
reputation of the anti-corruption executive,
who asked for but was denied adequate
tools to do a professional and successful job,
and will not enhance the reputation of thepolicymaker who rejected or ignored thoserequests.
V. PROFESSIONAL REPUTATION
Law enforcement professionals who
have dedicated a lifetime to upholding thevalues of honesty and integrity naturally
value their professional reputation andneed to be concerned about protecting theirindividual reputation and that of the anticorruption investigation unit to which they
belong. The problem of protecting those
reputations looms particularly largely inthose situations wherein it is highly
probable that a corruption inquiry will beinconclusive or unsuccessful, giving rise to
media or politically inspired accusations ofincompetence or of a cover-up.
Some types of cases, such as efforts totrace suspected international bribery
activity, may face almost certain failure,particularly after memories have or can beclaimed to have faded, records havedisappeared and defenses have been
fabricated. An anti-corruption authority
must realistically evaluate the probableinability to uncover the true facts due tothe consensual nature of bribery, thepassage of time, the often subtle ways inwhich corruption may occur, and thesophistication and resources available toshield the criminals. In such situations any
appearance of impropriety on the part of
the anti-corruption investigator isproverbially as damaging to publicconfidence as is impropriety itself.
One’s professional duty may require thatan inquiry be conducted which will be462

sensational, even though a realistic
prognosis is that a successful outcome ismost unlikely. When a high profile inquiry
is unproductive, those who are prone tobelieve in grand conspiracies and those who
can profit in a political or journalistic way
by alleging a cover-up can be expected to
do so. Consequently, the executive
directing a high risk corruption inquiry
should think defensively, documenting
requests for resources and instructions
received from political superiors. The
inquiry may need to be conducted evenmore exhaustively than may be costeffective to preclude or provide a response
to allegations of laxity or compromise. In
certain communities accusations against
investigating authorities of misconduct,abuse of position, and even insubordinationand dishonesty are a routine aspect of anticorruption inquiries. If such a
counterattack is foreseeable, it may be wise
to seek an understanding with politicalsuperiors in advance as to what procedure
will be followed in the case such allegations
are made, and who will have thecompetence to investigate theinvestigators.
VI. TARGET SELECTIONSTRATEGIES FOR AN
ANTI-CORRUPTION UNIT
To effectively counteract corruption,
information from a variety of sources
should be developed, including citizens, themedia, other criminal justice agencies, andperhaps most efficiently, honest membersof management or of the work force within
an agency whose programs or executives
are being corrupted. Yet an anti-corruption
agency can be overwhelmed by the sheer
number of complaints and the mass of data
being received from governmental auditors,
dissatisfied citizens, anonymous
allegations, news media exposes, and fromits own inquiries. Accordingly somecoherent principle or plan is called for to113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
organize an anti-corruption agency’s
application of its limited resources.
Obviously, any management strategy musttake into account political and legal
realities. If a cabinet minister has
appointed an anti-corruption authority torespond to a scandal over bribe paymentsin the granting of large military contracts,that minister is not likely to support adiversion of anti-corruption resources toinvestigate agricultural subsidy
corruption. If a country’s legal systemembodies the principle of mandatory
prosecution, then an anti-corruption unit
must mandatorily open at least a formal
inquiry for every allegation which legallyqualifies, as notification of a crime.
However, even in systems of mandatory
rather than discretionary prosecution,
choices must be made as to which matterscan be sent to the archives without action
because of a lack of an identifiable suspect,
and which cases merit investment ofi n v e s t i g a t i v e r e s o u r c e s . Va r i o u sinvestigative targeting strategies may beconsidered, including reactive strategies,
intelligence-based targeting, and a decoy
and integrity testing approach. In
American police science the last-mentioned
integrity testing approach would be called
proactive, to contrast it with reactive.
Beginning with reactive strategies,
probably the least effective long-run
approach is a practice of responding to thestimulus of a complaint or a news media
story based upon the resources available
at the moment, without any objective
selection criteria or master plan. Thisapproach may lead to frequent
reassignment of investigative resources.
Such a response allows investigative
resources to be applied in an uncontrolled
fashion depending on what seems like themost vulnerable or newsworthy target ofthe moment. This approach, which can belabeled a “default” strategy, risks theabsorption of substantial resources in cases

which are simple to solve or interesting andexciting to investigate, but which havelittle programmatic impact. Apprehension
and conviction of laborers stealing
inventory from a government storage depot
may deter some similar thefts among those
who learn of the prosecution, but probably
not as much as would sound inventory
control and security procedures.
Meanwhile, the consumption of numerous
workdays and expensive overtime paynecessary to secure evidence of such thefts
through physical surveillance may
preclude pursuit of more tedious
documentary inquiries into alleged
kickbacks on the purchasing of all
government supplies. If the level ofinventory leakage due to employee theft is
5%, whereas the typical kickback on thematerials being purchased is 10%, thedistortion of priorities is evident.
VII. TRIAGE
A more defensible and efficient reactive
strategy evaluates externally presented
referrals and complaints in order toperform some form of triage, which is a
judgment of whether to apply resources toa case depending on its potential value
according to conscious criteria articulated
in advance and consistently applied. For
obvious reasons, inquiries and complaints
from the legislative branch or arising frommass media sensationalism may be
accorded immediate attention rather thaninquiries which are still covert and not in
the public domain. Some inquiries can be
declined immediately or with minimal
action if the offender cannot be identified
without disproportionate expenditure ofresources. Other inquiries may demand
immediate action before crucial evidence
is lost, or while the offense is ongoing, suchas the investigation of the corrupt FBI
agent in New Orleans which I described in
my first paper. Wrongdoing falling on theborderline between criminal and

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RESOURCE MATERIAL SERIES No. 56
administrative misconduct, such as petty
theft and cheating, can be made subject tointernal guidelines, if applicable legal
principles permit, to permit the employee’s
prompt discharge from government service
and a bar from re-employment, thereby
saving criminal investigative andprosecutorial resources for more important
cases.
Both of the above targeting strategies, adefault strategy or some form of response
based upon classifying the urgency,
severity and probability of solution, arereactive to outside stimuli. Such reactive
strategies may not achieve maximum
efficiency, but they have the negative virtueof being non-controversial. When it isapparent that an anti-corruption agency issimply responding to a public controversy
or to an official referral, it is much better
equipped to defend itself from accusationsof partisanship, bias or seeking publicity
by targeting public figures. The
disadvantages of reactive strategies derivefrom the consensual and covert nature ofcorruption. Reactive strategies are likely
to reach only the most blatant andunsophisticated forms of corruption,
thereby perpetuating the status quo,placating public opinion without reallythreatening high-level corruption.
Reactive strategies invite the cynicalconclusion that the system is designed toprotect the corrupt but powerful elite bysacrificing clumsy, petty thieves to convey
the appearance that corruption is being
controlled. These anti-democratic
consequences of reactive strategies andtheir obvious inability to ever reach wellhidden corrupt practices suggest the needto develop alternative target selection
strategies.
VIII. INTELLIGENCE BASEDTARGETING
One such alternative strategy may

464

allocate some fixed percentage of resources
to be applied in a reactive fashion against
targets of opportunity. However, its
principal focus is upon the application of asignificant percentage of investigative
resources to the collection, analysis andgeneration of criminal intelligenceidentifying targets with substantial
programmatic impact. The majority ofresources are then applied to thedevelopment of cases targeted as a resultof this intelligence gathering andevaluation process, with careful attention
being paid to the verification of intelligencesources and methods, and the developmentof new intelligence as a result of theagency’s own investigations. Using
intelligence methods to identify cases to beinvestigated may involve sophisticated,computer matching of multiple databases
or simply identifying any public officials atsocial functions hosted by a local crime or
drug boss. Review of passports,
immigration control and air travel records,
may reveal public officials who should beheld to explain the source of funds for theirexpensive foreign travel. Sources in public
accountancy firms may provide theirevaluation of the integrity and motivation
for the award of certain construction
contracts or issuance of city bond issues.
Intelligence based targeting may also focus
on the integrity risk of a program, rather
than on the conduct of an individual,
concentrating on vulnerability to abuse,
effectiveness of internal and external
controls, audit results, degree of discretion
granted to program officials, number ofcomplaints, amount of competition in themarket regulated, comparative costs, andsimilar criteria.
IX. DECOYS AND INTEGRITYTESTING
While intelligence-based targeting cannever be free from allegations of improper
motivation because its selection criteria are113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
discretionary, at least the means ofinvestigation tend to be fairly routine. Far
more controversial is a targeting strategy
which employs decoys and integrity testingtactics. The criticisms of these devices aresubstantial. They arguably express anintolerably cynical view of how the police
should operate, which damages public
respect for law enforcement. Some
societies may categorize such tactics as theimpermissible use of an agent provocateur
manufacturing imitation crime when none
really exists. It can be argued that the
weakness of human nature permits law
enforcement to target, trap and destroy
almost any political, personal or ideological
opponent which it chooses.
Notwithstanding these objections,
integrity testing devices are employedbecause law enforcement executives knowthat hidden corruption can continue
indefinitely unless exposed, and that noother technique is as cost-effective in
penetrating bribery and other secretabuses of office. Allow me here to introduce
a case study about a corruption inquiry
which was a very controversial event in the
United States of America when it occurred
and which still provokes widely different
reactions among audiences. This casestudy involves what was called the
ABSCAM investigation in the UnitedStates in the 1ate 1970s. This inquiry
began with an FBI undercover operation
utilizing a cooperating witness with a long
criminal record. The cover story was thata business representing Arab royalty
sought opportunities to invest some of thefabulous wealth accumulated during thethen-recent oil shortage and embargo by
the Organization of Petroleum ExportingCountries. The FBI’s internal code namefor the case, which eventually became know
to the public, was ABSCAM, a combinationof the notional business front for theinvestments, called ABDUL Enterprises,
and the word “scam” meaning trick.

It was planned that the operation would
use the cooperating criminal’s underworld
associations to purchase stolen artworks
and securities, and ultimately to baseprosecutions on evidence gathered during
the operation. These goals were soonachieved, and in the process, thecooperating witness and later anundercover FBI agent, were introduced tothe mayor of a New Jersey city, who offered
to arrange the payment of a $100,000 bribeto the Vice-Chairman of the New Jersey
State Gambling Commission to influence
the issuance of a gambling casino license.
As the corrupt mayor and his associates
spent time socializing with the undercover
FBI agent, they talked about other mattersconsistent with the undercover scenario
involving wealthy Middle Easterninvestors. One topic was the desire of themythical Arab sheik to guarantee that hewould be allowed to immigrate to theUnited States if a revolution occurred in
his country. Since immigration is within
the competence of our national or federal
government, the corrupt mayor offered to
introduce the undercover team to friends
who were members of the United States
Congress and who would accept bribes toensure that a law was passed to allow the
Sheik to reside in the United States.
The corrupt mayor suggested a $100,000
payment to guarantee that one
Congressman would introduce legislation
to admit the Sheik to the United States,on the grounds that such private bills wereusually passed without controversy. The
undercover agent refused to pay more than
$50,000, arguing that the help of several
Congressmen might prove necessary. In
one day a Member of our House ofRepresentatives was videotaped personallyaccepting $50,000 and filling his pockets
with the currency after agreeing to
introduce the legislation, and a US Senator
was recorded promising to help with thelegislation in the Senate in exchange for a

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RESOURCE MATERIAL SERIES No. 56
20% concealed interest in mining
corporations for which he promised to help
secure government contracts. As theinvestigations progressed other Membersof Congress took bribes in a brown paperbag, in briefcases, in person and throughintermediaries, all in exchange forpromising to support legislation to allow
the Sheik to immigrate into our country.
When the investigation became public
in 1980 the publicity was enormous.
Prosecutions and convictions of a UnitedStates Senator and six Members of theHouse of Representatives, and numerous
local officials, lawyers and businessmen
followed. At the same time, both houses of
our Congress conducted hearings tocritique the propriety of the investigation.
It may be stimulating to discuss some of
the issues debated during those
Congressional hearings.
A. Were Innocent Persons
Entrapped?
There is no juridical difference between
the way an American judge and jury decide
the guilt of a trafficker who sells drugs toan undercover agent for money and a
Congressman who sells a promise tosupport legislation for money. In both cases
the common law legal tradition permits apossible defense of entrapment. The jurors
are instructed by the judge that they should
absolve the accused if they believe that hehad no predisposition, intent or willingness
to commit the crime and was entrapped
into doing so by government persuasion.
Despite strenuous efforts to find any
possible vulnerability in the ABSCAM
operation, neither the Senate nor theHouse of Representatives committees
claimed that the accused officials were
innocents lured into the perpetration ofcrimes which they had no predisposition
to commit. Such a claim would have lacked
public credibility because the crucial
encounters were all recorded, and almost

466

all were videotaped. The videotapes
showed the greed of the accusedcongressmen, stuffing envelopes in theirpockets and grabbing at bags or briefcases
full of money, and boasting that in deciding
how to vote they listen to money, not words.
B. Is Integrity Testing a Law
Enforcement Technique Which
Should be Used Against Elected
Representatives?
The dangers of allowing the executive
branch of government to tempt legislators
are obvious. The moral independence ofindividual legislators and the institutional
independence of the legislative branch are
at risk when their integrity is tested, as
we are all imperfect human beings subjectt o t e m p t a t i o n . F o r t u n a t e l y, t h e
Congressional hearings on the ABSCAM
operation established a complete absenceof political targeting, and in fact all of the
defendants were from the party in powerat the time.
Moreover, those same hearings revealed
that ABSCAM was not a moral crusadeagainst corruption in Congress. None ofthe persons responsible for the operation
would have disputed the principle that itis the electorate, the voters, and not
criminal justice authorities who areprimarily responsible for the moral caliberof our elected representatives. The original
intent of the operation was to recover stolen
property. When a demonstrably corrupt
local mayor offered to arrange bribes toMembers of our Congress, the offer was
accepted because none of the investigativeor prosecutorial executives involved could
suggest any persuasive reason why weshould use the operation to buy illegallypossessed artwork and securities but not
to buy illegally promised votes. We
Americans are an intensely pragmatic
people. Public opinion was greatly
impressed by the very high percentage ofelected officials who came into contact with

113TH INTERNATIONAL TRAINING COURSE
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ABSCAM who were willing to promise
their votes for money. During theCongressional hearings an argument took
place over whether 80% or only 63% of theelected representatives accepted illegal
payments. The calculation depended on
how one counted persons who died before
prosecution or were convicted for otheroffenses. The argument ended when oneof our prosecutors reminded the Senatorialcommittee that either percentage
suggested that the operation was amply
justified. With the issue phrased in that
context, and with public opinion solidly infavor of the numerous prosecutions andconvictions, our Congress shifted its focus
from whether undercover tactics could be
used in investigations of elected
representatives to examine what
appropriate controls should be in place.
C. What are the Appropriate
Controls for UndercoverOperations Testing the Integrityof Elected Representatives?
Our House of Representatives proposeda change in federal law to require that all
future undercover operations should
require judicial authorization, but no such
legislation was ever enacted, primarily
because our citizens felt that Senators andRepresentatives should accept the risk ofwalking into a meeting and being offered abribe for a vote, since they could and should
refuse the offer, and could even go so far as
to report it to the proper authorities.
F r a n k l y, o u r i n v e s t i g a t i v e a n dprosecutorial authorities were much moreconservative than the public in their viewof what kind of testing was allowable. The
Director of the FBI and the prosecutors at
the politically appointed policy level of the
Department of Justice applied controls to
avoid random integrity testing, and to offer
bribes only to a selected group of persons
to whom there was founded suspicion of acorrupt predisposition to accept an illegal

payment. The standard for authorizing ameeting with an elected official was thatan intermediary with proven criminal
credentials had represented that the intent
of the public official in attending themeeting was to seek a bribe. Once a
meeting took place, no bribe could beoffered until recorded preliminary
discussions confirmed the elected
representative’s awareness that an illegaltransaction was to be discussed. These
precautions had the desired effect of
persuading public opinion and responsible
Members of Congress that the defense ofentrapment and the internal law
enforcement for undercover operations
adequately safeguarded legislative
independence.
D. Did the ABSCAM Experience
Establish a New Regime in Which
Investigative Authorities Now
Use Integrity Testing at Will
Against Elected Officials?
Despite the numerous convictions
resulting from ABSCAM, all upheld on
appeal, and the reluctance of our Congress
to risk voter displeasure by limiting
undercover operations or integrity testing
techniques, no operation of similar scope
has taken place since 1980. When I lastresearched the issue several years ago, only
one additional conviction of a Congressman
and one of a federal judge had resulted fromdecoy or undercover tactics, although it is
now used routinely against elected andappointed officials in state and local
governments.
If the ABSCAM operation were such astatistical success, if its convictions wereaffirmed against all legal challenges, and
if Congress did not pass legislation limiting
law enforcement powers as a result, one
may ask why it has not been repeated. My
opinion, which is strictly personal and does
not reflect any official position or analysis,is that various factors are at work. One

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could be called the scorpion factor. For law
enforcement authorities, initiating another
ABSCAM project would be like a scorpion
entering a bottle with a stronger and morepoisonous scorpion. If the weaker strikes
the stronger, the weaker will suffer serious
injury or worse, with no means of escape.
The Congressional reaction after ABSCAM
teaches that if law enforcement authorities
were to again test the integrity of ourCongress, multiple convictions might result
but restrictive legislation would be almost
inevitable.
Other factors also discourage therepetition of an ABSCAM operation. One
is recognition of the sensational manner inwhich the news/entertainment media treat
criminal investigations. One of the painful
aspects of the ABSCAM investigation wasthat it was terminated after an innocent
Senator was introduced to the undercoveragent by an intermediary whomisrepresented that the Senator wished to
trade his vote for money. No bribe was evereven discussed, because the undercoveragent realized that the Senator thought hewas there to receive a legitimate campaign
contribution. This probably occurredbecause the criminal intermediaries had
exhausted their contacts with corrupt officeholders whom they knew were eager forbribes and arranged a speculative meetingin the hope of receiving a percentage if the
Senator were offered a bribe and decided
to accept it. Whatever the reason for the
event, the result was painful and terribly
unfair. Because of the mass media
coverage when the investigation became
overt, the Senator suffered damage to his
reputation. Law enforcement executives
with a sense of public responsibility cannot
pretend to be blind to such realities. The
consequence is that the number and scopeof undercover operations must be severely
restricted to eliminate any involvementwith innocent persons whose reputations
might be unfairly ruined by such contact.

468

There may also be a fear that integrity
testing is simply too effective a technique.
We know the ABSCAM percentage of 63%
to 80% is not statistically representativeof the Members of Congress willing topromise their votes for money, because
strenuous efforts were made to deal onlywith a preselected, corrupt population.
However, our society may not want its law
enforcement agencies to determine exactly
what percentage of our elected
representatives would be willing to takeillegal payments under the constantpressure of political fundraising andcampaigning. It may be that in ABSCAM
we looked into the abyss and were
frightened by what we saw, and that oursociety will not willingly approach the edgeof that abyss soon again.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’
PAPERSPARTICIPANTS’ PAPERSINVESTIGATION OF CORRUPTION IN JAPAN
Tamotsu Hasegawa*I. CORRUPT PRACTICES BY
GOVERNMENT OFFICIALS IN
JAPANJapan’s prosecutor’s offices handle andprocess bribery offences committed bygovernment officials. According tostatistics for 1997, there were about 170
government officials under arrest, of whom
150 were accused of taking bribes.
According to a breakdown by public officeof the accused, the largest number recorded
was: 80 for local government officials,
followed by 50 assembly members of local
government. The remainder consisted of
10 police officials and 10 officials in the
National Tax Administration.
In Japan, as mentioned above, thenumber of cases in which public servants
are exposed as being involved in bribery
are few, but such crimes are carefullyplanned and are secretive in nature. So
the proportion of cases that remain hidden
are rather more than with other criminalcases, and the actual number exposed
through the courts is rather small. Thusin Japan, finding out illegal actions by
public servants, such as bribery, is quite
an important issue for investigating
authorities.
There are typical examples in which
bribery is committed by government
officials in Japan. Administrative
bureaucrats exercise their administrative
rights at their own discretion, in a broad
sense. Information on decision-making
processes is inadequately disclosed byadministrative organizations. Under such
* Public Prosecutor, Tokyo District Prosecutors Office,Japan

circumstances, bribes are offered to secure
special business favors from government
officials in connection with the granting ofgovernment licenses or the awarding ofgovernment contracts for public works.
These kinds of bribery cases receive
public attention. In one such case, the ViceMinister of Health and Welfare took a bribefrom a business owner in return for the
granting of a construction subsidy for anaged persons welfare facility. In anothercase, an executive director of a securities
company provided a high-ranking officialof the Ministry of Finance with luxurious
business entertainment, which constitutes
the offence of taking a bribe for favors given
in relation to government approval of afinancial product.
In Japan, nomination is made forselection of contractors under a competitive
bidding system. Contracts to carry out
public works are awarded by local
governments to the successful bidder(s)among the nominated contractors.
Prospective contractors have offered bribes
to government officials in return forfavoritism during the selection of
nominated bidders. Government officials
have taken these bribes from prospective
bidders to disclose the lowest bid price inthe bidding procedure. These corrupt
officials were accused of bribery.
In addition to bribery offences committed
by administrative bureaucrats, there aremany recorded occasions of members of theDiet being involved.1 Diet members havestrong business connections withparticular industries. They have been
1

The Diet is the Japanese parliament.

469

RESOURCE MATERIAL SERIES No. 56
known to approach an administrative
organ to formulate an industrial policy thatis advantageous to one particular industry.
In this process, the particular industry
offers inducements to the Diet members to
influence political decisions in its favor.
Here are some examples of members of
the Diet being involved in bribery. In recent
years, the Fair Trade Commission
attempted to accuse certain construction
companies of consulting among themselves
to orchestrate predetermined exaggerated
bids for public works before the bids wereopened. The chairman of the Fair Trade
Commission was subjected to politicalpressure from a member of the Diet, who
was consequently accused of receiving abribe from the construction companies toprevent the proposed accusation. Similarly,
in a tax evasion case, a member of the Diet
was accused of receiving political donations
from many construction companies, withthe sole aim of collecting the money for his
personal use.
In Japan, those in government service
should never accept, for themself or theirf a m i l y, f a v o r s o r b e n e f i t s u n d e r
circumstances which might be construed
as influencing the performance of his or her
governmental duties. In general,
government employees, including
officeholders, adhere to the Code of Ethics
for Government Service. Bribery is notnecessarily rampant as a social custom. On
the other hand, Japan’s social structure
and the environment surrounding
government employees contains manyfactors that could be seen as a hotbed forcorruption. In Japan, investigating
authorities are under great pressure to
expose corrupt practices by government
employees, especially by office holders in
the national government - high-ranking
government officials and members of the
Diet.

470

II. BRIBERY INVESTIGATIONS OF
GOVERNMENT OFFICIALS
A. Public Prosecutor’s Involvementin Bribery Cases that are
Exposed by Police Officers
In Japan, the police force is the primary
investigating authority in criminal cases.
In principle, public prosecutors conduct
supplementary investigations of criminalcases referred to them by police officers,
before determining whether or not toinstitute prosecution. A public prosecutor’s
office is an independent investigating
authority, as are police stations. As ageneral rule, these two investigating
authorities work in close cooperation witheach other.
In bribery cases, police officers conduct
the criminal investigation if they
themselves expose the leads. To perform
effectively during the investigation of abribery case, police officers require a solid
understanding of investigative techniquesand legal interpretation. As the courts
make ever more complicated rulings that
expand the rights of the defendants, thelegal requirements for the admissibility ofconfessions may appear different in certain
jurisdictions. Public prosecutors are often
involved at the initial stage of criminal
investigation, thus exercising control andsupervision over the police work. This is
to rectify improperly handled
investigations and ill-advised conduct on
the part of law enforcement officers,
especially incomplete interpretation of thelaw and evaluation of physical evidence.
Good cooperative relations aremaintained between public prosecutor’s
offices and police stations. Publicprosecutors and police officers often holdmeetings to discuss a particular case indetail before an identified suspect istransferred from the police station to the
public prosecutor’s office. Even after the113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
case is referred to the prosecutor’s office,the police maintain a close liaison with theprosecutor’s office for competent collectionof physical evidence.
B. Independent Investigation by
Public Prosecutors
In Japan, a public prosecutor is
authorized to conduct a criminal
investigation into any type of crime as he/she sees fit. In addition to cases referredto them by the police, public prosecutors
identify particular cases and conduct theirown criminal investigations.
Statistics for 1997 show the number ofpeople questioned by police officers
compared with suspects interrogated bypublic prosecutors. The police officers
questioned about 150 suspects, rather morethan the 20 suspects interrogated by publicprosecutors. The number of criminal
accusations is small on the part of publicprosecutors, but the majority of bribery
offences committed by government officials
or members of the Diet were exposed in thecourse of independent investigation by
public prosecutors.
Public prosecutors are expected to
conduct preliminary investigations ofbribery offences committed by officeholders in the national government - highranking government officials andpoliticians. In practice, public prosecutors
perform their investigative duties during
investigation of bribery cases. This ispartly because the public prosecutor is askilled practitioner of such diverse skills
as legal interpretation and investigativetechniques for white-collar crimes, andpartly because the public prosecutor’s office
is independent.
The Public Prosecutor ’s Office Law
provides that no person in the office of
public prosecutor can be removed nor
disadvantageously treated, even by the

Minister of Justice, without reasonablecause. Moreover, the Law stipulates that,for the purpose of protecting the exercisingof prosecution rights, especially for the
purpose of eliminating any politicalpressure and interference of theinvestigative procedures of a publicprosecutor, the Minister of Justice may only
command the Prosecutor-General of theSupreme Public Prosecutor’s Office withrespect to investigations or prosecutions ofindividual cases. This means that the
Ministry of Justice cannot interfere directlywith criminal investigations or the solvingof crimes conducted by any publicprosecutor. In this way, the independenceof the public prosecutor is secured. Publicprosecutors remain neutral in exercising
their prosecution rights against politicalgroups.
III. ORGANIZATION OF PUBLICPROSECUTORS OFFICES
As described earlier, public prosecutors
are authorized to conduct criminal
investigations at their own discretion, afactor that is characteristic of the Japanesepublic prosecutors system. Criminal
investigation relies heavily on theinvestigative duties of public prosecutors,
including the institution of publicprosecution and the maintenance of public
trials.
In Japan, the public prosecutor’s officehas a special investigative department thattakes charge of investigations into bribery
and economic crimes committed bygovernment officials. These special
investigative departments are establishedat the District Public Prosecutor’s Offices
in Tokyo, Osaka and Nagoya. In addition,
special criminal departments have been
established at 10 district public prosecutors
offices throughout Japan.

471

RESOURCE MATERIAL SERIES No. 56
At the Tokyo District Public Prosecutors
Office, the Special Investigation
Department has a total of 125 legal
officials, comprising of 40 publicprosecutors and 85 public prosecutor ’s
assistant officers. These 40 publicprosecutors are made up of one director,
three deputy-directors and 36
subordinates. All 36 public prosecutors areprofessionals with four to 18 years ofexperience since assuming office. They aregrouped into three special investigative
teams headed by the three deputydirectors.
The following sections address thecurrent situation of independent
investigations conducted by the Special
Investigation Department and the
problems of investigative procedures.
IV. DETECTION OF A BRIBE IN
PROGRESSThe Special Investigation Department
employs three investigative techniques tofind leads for suspicious activities while abribe is in progress. Firstly, publicprosecutors examine news coverage, suchas in newspapers and magazines. Anothersource of information is the question andanswer proceedings during the Diet or local
government assembly sessions. Publicprosecutors look for any suspicious activity
conducted by government officials or
politicians. Extensive interviews andbackground investigations are initiated toi d e n t i f y s u s p e c t s . I n p a r t i c u l a r,
examination of the contents of speeches
made by Diet or local government assembly
members is one important investigativetechnique to solicit leads in a bribery-inprogress case. Public prosecutors always
monitor trends in the Diet and local
government assemblies. If a matter ofbusiness interest is discussed at a meeting
held by a particular corporation ororganization, the minutes are made472

available for examination by publicprosecutors.
Secondly, a public prosecutor’s officeaccepts complaints or accusations from acomplainant or accuser for crimes ofcorruption. The Special Investigation
Department has a public prosecutor who
takes charge of accepting written
complaints or accusation and letters frominformants. Suspicious situations worthyof investigation are detected frominformation contained in written
complaints or accusations and anonymous
letters. In recent years, an employee of acorporation accused an executive directorof a wrongful act. An executive officer of apolitician’s support association revealed thecorrupt practices of the politician. These
insider accusations are a major source of
information for detecting leads into ongoingbribery cases.
Thirdly, public prosecutors look for signsof suspicious activity during investigations
into the crime in question, thus adding
weight to the suspicion that some othercrimes have been committed. In a tax
evasion case, seized account books are
examined to identify the flow of funds, thus
revealing whether bribes were offered togovernment officials who could then be
accused of bribery. When an identified
suspect or witness is questioned withrespect to cases of embezzlement or breachof trust by executive directors of acorporation, statements are obtained
unexpectedly to detect corrupt practices,thus leading to the prosecution of briberyin-progress.
V. INVESTIGATIVE TECHNIQUESUSED BY THE SPECIALINVESTIGATION DEPARTMENT
During the course of investigation of abribery case, the Special Investigation
Deparatment conducts a thorough search

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
for evidence to collect as many physicalitems of evidence as possible. Seized
evidence is examined to prove an alleged
offence of corruption. A search for evidence
usually begins in the area to be raided,
while the suspect is under arrest. In aserious crime, all people present aremobilized while the raid is conducted andphysical evidence searched for. The
number of people mobilized during the
conducting of specific tasks often exceeds
100. All evidence recovered is seized during
the raid, including account books, businessdiaries, and any other items related to thealleged offence. Seized evidence is often
packed in hundreds of corrugatedcardboard boxes during a raid on the officesof a big company. The seized evidence isthen examined by public prosecutors indetail. They are then used as evidence thata crime was committed.
Secondly, during an investigation into
bribery, it is important to clarify the sourceof funds offered as bribes and how they
were used. To locate the source of funds
for bribes requires a thorough analysis ofaccount books. To this end, the Special
Investigation Department dispatches
public prosecutor’s assistant officers to the
National Tax College and a Regional
Taxation Bureau to develop skills inmaking an analysis of account books. Somepublic prosecutor ’s assistant officers
receive instruction in bookkeeping at
vocational schools. These publicprosecutor’s assistant officers, who haveacquired a working knowledge ofbookkeeping, are assigned to special tasks- the analysis of bank deposit slips,
vouchers used for business transactions,and ledgers, thus playing an increasingly
important role in conducting financial
investigations.
Thirdly, public prosecutors conduct
intense questioning of suspects or
witnesses to obtain their statements todetermine the truth about a fact inquestion. Bribery is a carefully planned andconcealed crime, making it difficult to prove
because physical evidence is not easy togather. So a statement made by an
identified suspect or witness is extremely
vital to ensure that successful evidence ispresented in court. Moreover, the fact thatthe money received was a bribe is quitedifficult to prove without a confession.
Public prosecutors do their best to makepreparations by collecting objective
evidence before beginning any
interrogation. This procedure assists the
public prosecutors in obtaining a statementfrom an identified suspect or witness. A
statement obtained from an identified
suspect or witness is checked against any
available background information on thesuspect or witness, thus establishing thecredibility of the statement. Finally, thep u b l i c p r o s e c u t o r ’s r e c o r d o f o r a lstatements is prepared and presented as
evidence in court.
As described earlier, the Special
Investigation Department follows basic
investigative techniques and procedures for
detecting leads during the course of
independent investigation into bribery
cases. No special authority is delegated to
the Special Investigation Department. No
special investigative techniques are used
for criminal investigations. In a bribery
case, criminal investigations conducted by
the Special Investigation Department
reflect the breadth of practical experience,
working knowledge, and investigative
methodologies on the part of each publicprosecutor.
VI. CHALLENGES TO BRIBERYINVESTIGATIONS
Public prosecutors in today’s society face
many challenges. Serious crimes such asbribery often results in lengthy, exhaustive,
and highly complex criminal

473

RESOURCE MATERIAL SERIES No. 56
investigations. This requires a heavy
allocation of manpower. As describede a r l i e r, t h e S p e c i a l I n v e s t i g a t i o n
D e p a r t m e n t o f t h e To k y o D i s t r i c t
Prosecutor’s Office - the largest prosecution
team - has only 40 public prosecutors
assigned to criminal investigations. As aneffective way of managing a complex
investigation into serious crimes such asbribery and large-scale economic cases, themanpower shortage is replenished by thedispatch of additional public prosecutors
from other departments or other District
Prosecutors Offices throughout Japan. In
a world of frequent and dramatic changes
in information technology, social attitudes
and legal opinion, criminal offences arelikely to become more and more complex
in the future. Conducting complex
investigations in an efficient and proper
manner requires improvement ofinvestigative methodologies, as well as anincrease in the number of publicprosecutors in office.
In addition, criminal investigation into
bribery poses a major problem - how tosecure the appearance of an identified
suspect or witness. As Japanese citizens
become increasingly aware of their legal
rights, the suspect has full opportunity tocontact their defence counsel prior toquestioning. If identified suspects or
witnesses are summoned by theinvestigating authorities, they often refuse
to appear. Such suspects or witnesses
refuse to talk during questioning. To copewith these new trends requiresconsideration to be given to theintroduction of new investigativetechniques, such as an immunity system.
In contrast, Japanese citizens have strong
inhibitions about adopting newinvestigative techniques, such as
exemption from legal proceedings andentrapment.

474This situation would cause anotherproblem in Japan. The investigation’s
progress is often hindered by the suicide ofindividuals being questioned or important
witnesses, a contributing factor that has
significant effect on criminal
investigations. In Japan, a person being
questioned often commits suicide to avoid
any inconvenience being caused to theirorganization or immediate supervisor if he/she belongs to an organization. In recent
years, news media tends to disclose thenature of an alleged offence and theinvestigation’s progress. The suicide of aperson being questioned is often
attributable to the disclosure ofinvestigative information through news
media.
In a bribery case, a confession obtained
from an identified suspect or witness
constitutes extremely important evidence.
Another problem is how to establish incourt the voluntary nature and credibilityof a confession. In a bribery case, aconfession obtained from an identified
suspect at the criminal investigation stage
is often revoked by the accused, who denies
the voluntary nature and credibility of theconfession in court. When the criminallyaccused challenges the voluntary natureand credibility of the confession madeduring investigation, their arguments isthat he/she was intimidated into confessing
because he/she was locked in theinterrogation room during intensive
questioning.
If the voluntary nature and credibilityof confessions is tested at trial, any publicprosecutors who conducted aninvestigation of the case in question will
be called to testify in court to establish thefacts about the circumstances under which
the interrogation was conducted. The
admissibility of a voluntary confession
obtained during interrogation isestablished in court by a public prosecutor

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
who testifies that the contents of thevoluntary confession match the objective
evidence and statements made by all theparties involved. If there is a possibility
that the voluntary nature and credibilityof a confession is tested in court,
consideration should be given to the use ofvideo or tape recorders for transparency of
the investigative process.
To prevent the investigating authorities
from placing over-reliance on a confession,and to facilitate prosecution of a bribery
crime, the burden of proof should bechanged or presumption regulations should
be provided for. These effective proceduresshould be taken into consideration.
VII. PREPARING FOR COURT
In a bribery case, the defence counseland defendants have a legitimate right totest the admissibility of physical evidence
presented in court by public prosecutors.
When prosecuted bribery or economic cases
often involve complex fact finding andrequire a comprehensive list of all physicalevidence, the public investigator’s recordof oral statements and witnesses
interrogations. These procedures require
enormous effort to establish in court thatthe alleged crime was committed. The
Tokyo District Public Prosecutor’s Officehas a Public Trial Department and aSpecial Public Trial Department - anadditional department assigned to bribery
or economic cases. These departments
present truthful, objective information thatis effective in establishing the guilt of
criminals.

475

RESOURCE MATERIAL SERIES No. 56

THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICEFOR THE PREVENTION OF CORRUPT ACTIVITIES BY
PUBLIC OFFICIALS: THE NIGERIAN POSITION
Onuoha Emmanuel Ifeanyi*
I. THE PHENOMENON OF
CORRUPTION
In a world where man’s wants are
insatiable and the resources limited, it is
not uncommon for individuals and interest
groups to compete for the control of theseresources as a means of satisfying theirneeds. This exercise becomes corrupt if thecompetitiors employ foul means to achieve
their objective.
In Nigeria, we are genuinely worried
about corruption which, though a universal
phenomenon, seems to have become soendemic in our body politic that most
discourse about Nigeria, at home and ininternational fora, centers on the highascendancy of corruption in our public life.
According to the Communique on the1988 National Conference on Corruption
and other Economic Crimes in Nigeria,
corrupt activities are not the exclusive
preserve of a particular section of thesociety, but rather an ill-doing that cuts
across all social barriers and strata. It is
not only the politicians and the executives
that are corrupt in our society, but thebureaucrats, public servants, bankers,
insurance brokers, officials involved withthe administration of justice in the country,
law enforcement agencies, the press,
religious leaders and other members of the
public.
* Officer-in-Charge, Management Informarion
Systems, Interpol Section Criminal Investigation
Department, Nigeria Police Force, Nigeria.

476

Olusegun Obasanjo aptly captured thescenario in a speech he made on the day of
his inauguration as President of theFederal Republic on Nigeria on 29 May,
1999; an excerpt of which is reproduced
hereunder:“Corruption, the greatest single baneof our society today, will be tackled
head-on... No society can achieve
anything near its full potential if it
allows corruption to become the fullblown cancer it has become in
Nigeria’’.
II. REASONS FOR CORRUPTION
In various literature, corruption in
Nigeria has been alluded to as an improperdevelopment strategy resulting in politicoeconomic and administrative inefficiency
which, in turn, leads to inadequacy or
scarcity of goods and services. Thus, theacquisition of such goods and services
becomes a special privilege, rather than anormal entitlement.
Adedokun Adeyemi, in a paper entitled“Corruption in Nigeria: The Criminological
Perspective’’, linked corruption to theupbringing and socialization process. He
opined that in a society whose traditions
permit polygamy, children of polygamous
homes do not enjoy adequate paternal
contact resulting in emotional insecurity
and stability. The combined effect of
scarcity of goods and services tends to
produce in such children exaggerated fear
for the morrow. The result is that they
develop a strong propensity to acquire

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
wealth to satisfy their exaggerated fears.
Further reasons adduced for the growthof this national canker-worm include mass
illiteracy, general poverty and frustration,
conflict of values, weakness of social andgovernmental enforcement mechanisms,
tribal sentiments and nepotism. So also
are the acquisitive propensity of a society
where people are judged and accepted bywhat they have and not that they are, theuse of political office as the primary meansof acquiring wealth, lack of patriotism andgeneral disregard for the laws of the land.
Obviously, corruption on the part ofpolitical office-holders, bureaucrats, public
servants, the press and the general public
has tended to stigmatize the image ofgovernment, weaken its credibility andreduce the effectiveness of the development
programs and policies and also, to a great
extent, weaken the economy of the nation.
III. EXISTING MEASURES AND
MECHANISMS FOR CONTROL OF
CORRUPTION
The existing measures for the control ofofficial corruption in Nigeria include:(i) The criminal/penal codes, the policeand other enforcement agencies, andthe courts are the formal
conventional instruments forcontrolling corruption.
(ii) Another set of existing measures andmechanisms for controlling
corruption may be categorized as“target-directed efforts’’. These
include the defunct Corrupt Practices
Investigation Bureau, the Public
Complaints Commission, and theCode of Conduct Bureau.
(iii)I n t h e p a s t a l s o , j u d i c i a l /administrative tribunals of inquiry

were set up for instances of
discovered or revealed large-scalecorruption, especially those involving
high-ranking government officials.
(iv) A t o t h e r t i m e s e d u c a t i o n a linstitutions, religious bodies andtraditional rulers, and human rights
groups have joined the combat
against corruption.
IV. CRIMINAL LAW PROVISIONSAGAINST CORRUPTION
A. Official Corruption
Section 98 of the Criminal Code of
Nigeria provides:“Any person who:(a) being employed in the public service,and being charged with theperformance of any duty by virtue ofsuch employment, not being a duty
touching on the administration ofjustice, corruptly asks, receives, or
obtains, any property or benefit of
any kind for himself or for any otherperson on account of anything doneor omitted to be done, by him in the
discharge of his office; or(b) corruptly gives, confers, procures orpromises, or offers to give or confer,or to procure or attempt to procure,
to, upon or for, any person employedin the public service, or to upon, orfor any other person, any property or
benefit, of any kind on account of any
such act or ommission on the part ofthe person so employed is guilty of afelony, and is liable to imprisonment
for seven years’’.
B. Extortion by Public Officers
Section 99 of the Criminal Codeprovides:477

RESOURCE MATERIAL SERIES No. 56“Any person who, being employed in
the public service, takes or accepts
from any person, for the performanceof his duty as such officer, any reward
beyond his proper pay andemoluments, or any promise of suchreward, is guilty of a felony, and isliable to imprisonment for three
years.’’
C. Judicial Corruption
Section 114 of the Criminal Codeprovides:“Any person who:(a) being a judicial officer, corruptly asks,
receives or obtains, or agrees or
attempts to receive or obtain any
property or benefit of any kind for
himself or any other person on
account of any thing already done oromitted to be done, by him in his
judicial capacity; or(b) corruptly gives, confers, procures orpromises, or offers to give or confer,or to procure or attempt to procure,
to, upon or for any judicial officer, or
to, upon or for any other person, any
property or benefit of any kind on
account of such judicial officer, isguilty of a felony and is liable toimprisonment for fourteen years.
The offender cannot be arrested
without a warrant. The term
“judicial officer ’’ in this section
includes a member of a native
tribunal, an arbitrator or umpire, andany person appointed to act ascommissioner under theCommissions of Inquiry Ordinance,or before whom (under the provisionsof any Ordinance) proceedings aretaken in which evidence may betaken on oath; but in the case of an
offence committed by or with respect478

to any such judicial officer, the longest
term of imprisonment is seven years.
A prosecution for any of the offences
firstly defined in this section cannot
be begun except by the direction of alaw officer’’.
Sections 151 - 121 of the Penal Codeapplicable in the northern states of Nigeria
made similar provisions on corruption.
Part of rule 8 of the ten specific rules or
prohibitions provided for past and present
public officers and their agents by the Codeof Conduct Bureau provides inter alia:“No person shall offer a public officer
any property, gift or benefit of any
kind as an inducement or bribe forthe granting of any favour or for thedischarge in his favour of the public
officer’s duties’’.
The Constitution charges the Code of
Conduct Bureau with the responsibility ofreferring cases of breach of the Code of
Conduct to the Code of Conduct Tribunal,
which is to be appointed in accordance withthe recommendation of the Federal Judicial
Commission.
The Public Complaints Commission isan administrative body charged with the
responsibility of investigating abuse ofadministrative power, and it is recognized
as existing in law under section 274(5) of
the 1979 Constitution. Its main functions,specified in section 4(2), provides that acommissioner shall investigate either on
their own initiative or following complaints
lodged before him/her by any other person,
any administrative action taken by federal
and state ministries, local governments,
statutory corporations or companies
incorporated pursuant to the Companies
Decree 1968, or other public institutions
including the office or servants of thesebodies.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERSTABLE 1
Extract from Summary of Crime and Offence Figures 1987-1998
Year

Total Number of

Number of Cases ofPercentage ofCases Known to

Official Corruption

Official Corruption

Policeto Total Numberof Cases (%)

1987
280,879
424
0.15
1988
320,411
329
0.1
1989
309,771
268
0.09
1990
285,859
297
0.10
1991
253,741
314
0.12
1992
271,614
136
0.05
1993
295,878
139
0.05
1994
247,038
224
0.09
1995
241,916
390
0.16
1996
240,354579
0.24
Source: The Nigeria Police Abstracts of Crimes and Offences Statistics
V. DATA REGARDING THE
DISCOVERY OF CORRUPTACTIVITIES BY POLICE RECORDS
Available crime statistics over a ten-year
period (1987-1996) show that the incidence
of official corruption is insignificant inrelation to the national crime level (seeTable 1). This is at variance with the public
opinion on the subject, as manifest in
newspaper reports and the daily experienceof the ordinary citizen in society. Some of
the reasons adduced for the low rate ofreported cases includes the lack ofconfidence in the administration of
criminal justice, the fear of prosecution(since a victim is equal to an offender interms of rights, as required by law) andlack of a clear understanding of what
constitutes official corruption.
VI. PROBLEMS MITIGATINGACTION AGAINST CORRUPTION
A. At the Investigation Level
The following factors constituteunnecessary obstacles to efficientinvestigation of cases of corrupt activities
in Nigeria:(i) The Official Secrets Act often stands
between the investigator and theinformation necessary for theprosecution of a case of official
corruption.
(ii) The agencies charged with theinvestigation of corrupt activities
often lack the required manpower
and financial resources necessary toeffectively monitor the phenomenonor perform their job.
(iii)Sometimes members of the security
agencies do not have the requiste
training and equipment to perform
effectively.
(iv) L o w m o r a l e a m o n g s o m eenforcement agencies arising frompoor salary structure, harsh working
conditions, inadequate facilities andlack of adequate residential

479

RESOURCE MATERIAL SERIES No. 56
accommodation.
(v) Corruption is an offence of low
reportability. Factors responsible forthis range from the fear ofprosecution arising from the fact thatboth the offender and victim arecriminally liable, to lack of confidence
in the system of administration of
criminal justice.
(vi) The law on the subject of corruption
is far from clear. Because neither“corruption” nor “corruptly’’ is definedin the Criminal Code, theirinterpretation has been left to thewisdom of judicial officers. Also, theemphasis of the provision is
exclusively on public or judicial
officials and only for “bribery’’ and“extortion’’. Furthermore, there are
no provisions making corporate
bodies criminally liable.
B. Problems at the Trial Level(i) During the recent military regimes,
independence of the judiciary
suffered setbacks such as arbitrary
removal of judges from office, thepromulgation of decrees with
provisions ousting the jurisdiction of
the courts on the subject.
(ii) Due to inadequacy in the number ofjudges/magistrates, the courts areoften congested thereby causing
delays in the disposal of cases.
(iii)In the past, there was lack of will on
the part of government to review laws
relating to corruption to make themcomprehensive and effective.
(iv) There is a provision in our criminal
law that empowers the AttorneyGeneral to discontinue any case atany point before judgement isdelivered, in the “public interest’’.

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There is no doubt that the said law issubject to misuse, especially by acorrupt regime.
(v) M o s t c o u r t s s t i l l u s e m a n u a lrecording systems which arestrenuous and time-consuming.
There is a general lack of know-how
in the area of information systems
management.
VII. STRATEGY TO PREVENT THE
CORRUPT ACTIVITIES OF PUBLIC
OFFICIALS
The following strategy is recommended
for the control of official corruption:(i)

Corruption should be attacked
simultaneously in both the public andprivate sectors of society.

(ii) It is important to delineate the ambitof the offence. As much as possible,
the definition should not be
amorphous.
(iii) There is the need to establish a
National Corruption Control
Commission as the various agencies
currently handling issues regarding
official corruption have too much todo, with too little resources.
Already, the President of Nigeria haspresented a bill to the National Assembly
which, if passed into law, will address theissues raised in the recommendations
above.
VIII. INTERNATIONAL
COOPERATION IN CORRUPTIONCASESThere are problems associated with theprovisions relating to corruption under thedomestic jurisdiction when it assumes aninternational character, because hitherto
the Constitution of Nigeria does not permit

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
trial of an accused in absentia. In thecircumstances, the investigators can only
rely on rules of international criminal
procedure if there is any existing legislation
or treaty in that sphere.
The procedures of extradition, judicial
assistance, recognition of foreign panel
judgements in domestic courts, and thetransfer of offenders and execution ofsentences of foreign courts within domestic
jurisdiction, are long and painstaking tofollow, even where a treaty is in existence.
Efforts of the government to secure cooperation with other foreign countries have
led to the promulgation of Mutual
Assistance in Criminal Matters Within the
Commonwealth (Enactment andEnforcement) Decree No.13 of 1988. Under
the Decree it will be possible to co-operatewith Commonwealth states in areas
dealing with the location of witnesses,
tracing, seizure and forfeiture of theproceeds of crime.
Also in 1984, Nigeria entered into a
Criminal Investigation Co-operation
Agreement with the Requblic of Benin,
Ghana and Togo. There is also an
Extradition Treaty between the Republicof Benin, Ghana and Togo with Nigeria.
The exploitation of the provisions ofthese co-operation agreements, and the
expansion of such relations toaccommodate relevant countries, will assist
in the retrieval of the proceeds ofcorruption, thus controlling the menace.

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THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICEFOR THE PREVENTION OF CORRUPT ACTIVITIES BY
PUBLIC OFFICIALS
Sadar Muhammad Raza*
I. INTRODUCTION
Corruption in different forms and shapes
has existed in this World since time
immemorial. It exists in the form of humandeceit, wrong, treachery, unfaithfulness,
intrigue and cunningness that has changed
the destinies of human races, dynasties andkingdoms.

the officials became bold and thetransactions became open, with the resultthat corrupt elements in government,
public, trade and industry went on
becoming powerful, rich and resourceful,controlling and dominating every outlet,
opportunity and activity of life.
II. DEFINITION OF CORRUPTION

When Pakistan came into existence inthe year 1947, the evils of corruption andbribery were of course there, but in a mild
form. As the Nation was fighting forindependence, there was a missionary
spirit in every citizen, particularly the
public servants. Before 1947, the CID used
to have an eye on government officials,
their social contacts, general reputationand efficiency. With the increase of
population and with the increase of theevils, the Special Anti-corruption Police
force was created, which expanded with the
expansion in the government and publiclife. With the passage of time, as is natural
with a nation achieving independence,
there started a struggle for richness, andtherefrom emerged selfishness. The desire
to attain riches and power gave strength
to pulls, fights, cliques and intrigues forpromotion and for holding posts of benefit
among the officials. Such a race for power
and wealth was obviously at the cost ofhonesty and morality.

Bribery or corruption among public
officials has multifarious manifestations
and styles, like paying money to get undue
advantage, creating friendship, causing
undue influence and indulging in praise
and undue respect to get undue advantage;
having underhand connections,
understandings or dealings; to overcharge,
hoard, smuggle or adulterate; to exploit,
swindle, misappropriate or earnfraudulently; to evade any tax orgovernment due; to take any personaladvantage or benefit from power, positionor post; to give undue advantage, benefit
or facility for any consideration monitory
or otherwise; to neglect any duty, wastetime, money and public property; toprejudice, mutilate, misguide and spoil; tointentionally give wrong and unjustified
decisions, opinions, verdicts and comments;
to get favour or remuneration prejudicing
the right of fellow citizens; and hundredsof similar actions and omissions, arecorruption.

In the early stages there was lot of
precaution, secrecy and shyness in thegiving and taking of bribes, but gradually

III. INTERNATIONAL REMEDIES* Judge, Peshawar High Court, Pakistan.

482

With the passage of time and withsociety becoming complex at theinternational level, and with the world
becoming smaller and smaller day by day,

113TH INTERNATIONAL TRAINING COURSE
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the octopus of corruption in every country
has gone beyond previous frontiers. The
proceeds of corruption, the payment ofbribes, kick-backs and commissions
obtained through corrupt practices areoften transferred abroad in safe deposits,
away from the public view. Swiss bankaccounts are used for the transfer of illgotten wealth by corrupt officials, as well
as by drug traffickers, arms smugglers andmoney launders. Kickbacks andcommissions are offered by the multinationals and management officials of thedeveloped countries to their counterpartsin developing countries, for the allotmentof contracts or procurement of goods.
The first resolution on corruption ingovernment was adopted in 1990 at the 8th
United Nations Congress on the Preventionof Crime and Treatment of Offenders. The
resolution concedes that the problems ofcorruption in public administration are
universal, which may have deleterious
effects on nations with vulnerable
economies. The resolution known as theresolution of fraudulent enrichment was
passed in 1992 by the United Nations
Human Rights Commission and consideredsuch corruption to be a human rights
problem. The Council of Europe introduced
a framework for mutual legal assistancewhich provides for mutual assistance toeach other in identifying persons andseizing evidence, so as to combat
corruption. This procedure, having been
adopted by the Commonwealth countries
in 1986, attempted to facilitate the quick
disposal of cases and punishment ofoffenders. In terms of combating
corruption, provisions have been
incorporated concerning the freezing,seizing and forfeiture of proceeds of thecrime corruption. Similar procedures weredevised in the United Nations Convention
against Illicit Trafficking in Narcotics,
Drugs and Psychotropic Substances 1988.
As business, trade and commerce are

becoming increasingly global, the effects ofbribery can no longer be restricted to theconfines of a particular country. In 1994,
the Organization of Economic Co-operation
and Development (OECD) recommended
six different areas of reform for its member
countries.
These included thecriminalization of bribery; terminating thesystem of tax deductibility for foreign
bribes; changing the banking laws to makebanks the instrument of fighting
corruption, rather than being an
instrument of corruption. Such
recommendations asked the Member
States to take specific steps to deter,prevent and combat the bribery of foreign
public officials in connection withinternational public transactions, andfurther to report to each other on the efforts
and meaningful steps which they havetaken in reviewing/reforming their laws
and procedures, to realize the objectives of
the recommendations.
IV. NATIONAL REMEDIESThe Constitution of Pakistan contains
specific provisions for disqualification of
public representatives who indulge incorrupt practices. Article 62 provides thata person intending to become a public
representative should be of good character,must abstain from major sins and berighteous, honest and trustworthy(Ameen). Article 63 provides that a person
found guilty of corrupt or illegal practicewould be disqualified from or from being
elected as a member of the legislature.
Honesty, selflessness, resistance toinfluence against their official conduct ordecisions, are the necessary ingredients of
the oaths prescribed for the president,
governor, prime minister, chief ministers,
federal/provincial ministers and membersof parliament/provincial assemblies.
Eradication of social evils and thepromotion of social justice are sanctioned
by Article 37 of the Constitution, while

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RESOURCE MATERIAL SERIES No. 56
Article 38 guarantees the promotion of thesocial and economic wellbeing of the people.
This is so because corrupt and illegal
actions affect the citizen’s right to life andthe enjoyment of the quality life enshrinedin Article 9 of the Constitution. Our
Supreme Court in Shehla Zia vs. Water andPower Development Authority (PLD 1994
SC 693) and Employees P.I.C. vs. Ministryof Housing and Works (1994 SCMR 1548)
held the view that the right to life does not
simply mean vegetative or animal
existence, but the enjoyment of allamenities and facilities essential for
quality of life and a dignified existence.
Corrupt practices are also violative of
Articles 23 and 24 of the Constitution, as
any loss of national resources amounts todepriving people of their right to enjoy
property rights. It is thus obvious that theConstitution of Pakistan does notcountenance any corrupt deed or practiceby public representatives, state officials ora member of the public. Laws exist which
criminalize corrupt practices and prescribe
stringent punishment for infringement.
V. LEGISLATIVE MEASURESAGAINST CORRUPTION
A. Pakistan Penal Code 1860
Section 161-171 of the Pakistan Penal
Code (PPC) contains a specific chapter
related to offences committed by or in
relation to public servants. Offering or
taking gratification or anything valuable
without consideration are declared as penal
offences, punishable with imprisonment aswell as fine. Sections 171A-171-J of the
PPC provide for offences relating toelections. Thus, the grant or acceptance ofa bribe, with a view to induce the exerciseof electoral right, undue influence or
personation at elections, and illegal
payment in connection with an election, aredeclared as actionable wrongs, punishable
by imprisonment as well as fine.

484

B. The Prevention of Corruption Act
1947
This Act provides for the prevention ofbribery and corruption by a public servant.
A public servant who accepts or obtains, oragrees to accept or attempts to obtain, any
gratification, or anything valuable without
consideration or for inadequate
consideration, or dishonestly or
fraudulently misappropriates or converts
for their own use any public property
entrusted to their care, or by corrupt orillegal means or by otherwise abusing theirposition, obtains any valuable thing or
pecuniary advantage, or if s/he or any of
their dependents, are in possession ofassets/property for which s/he cannot givereasonable account, or possesses property
dis-proportionate to known sources ofincome, shall be guilty of criminal
misconduct, punishable withimprisonment as well as fine. Thoughstringent, the law provides for an adverse
presumption against the public servant if
it is proved that the public servant acceptedor obtained any gratification or valuable
thing, or the same was given or offered tothem. A similar adverse presumption isdrawn against them if his/her property/
assets are found to be disproportionate totheir known sources of income, thepresumption being that s/he had acquired
such property/assets illegally or throughcorrupt means. In case there is any prima
facie evidence against such a public
servant, the burden shifts on them to provethat s/he is not guilty, i.e did not acquire
the property/assets by illegal and corrupt
means. The punishment prescribed for theoffending public servant is imprisonment
for and upto seven years, as well as fine.
C. Public and Representative Office(Disqualification) Act 1949 (Proda)
This Act provided for the debarring of
public and representative office holders
found guilty of misconduct. Misconduct
includes bribery, corruption, robbery,

113TH INTERNATIONAL TRAINING COURSE
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favouritism, nepotism, wilful maladministration, wilful mis-application or
diversion of public money or any otherabuse of official power, position or any
abetment thereof. The Act applies to theprime minister, chief ministers, federal/provincial ministers, parliamentary
secretary and members of the federal/provincial legislature. References for thispurpose are filed by the Governor Generalor Governor in the Federal Court or a twomember tribunal established for the
purpose. The jurisdiction of other courts
is ousted. Persons found guilty of
misconduct are debarred from holding
public office or availing representative
capacity for a period upto ten years.
D. Effective Bodies (Disqualification)
Order, 1959 (EBDO)This law applies to persons holding any
office, post or position including
membership of any elective body (federal/provincial assembly or local government
institutions), or in connection with theaffairs of the federation/province.
In this law, misconduct includes all theoffences mentioned in PRODA, in addition
to indulgence in subversive activities, thepreaching of any doctrine or the doing of
any act which contributes to politicalinstability; abuse of power; any attempt,
act or abetment of such misconduct. The
reference is to be filed by the President or
the governor, and the case is to be decided
by a tribunal consisting of three members
appointed by the President or the governor,
as the case may be. The punishment
prescribed is disqualification from holding
membership of an elective body for a periodof seven years. Persons who are dismissed,
removed or retired from service on a charge
other than inefficiency, or are detained
under the preventive detention law called
the Secrecy of Pakistan Act 1952, orconvicted for any offence and sentenced to
imprisonment for more than two years,

were also to be declared disqualified. The
accused person may volunteer to retire
from public life, in which case s/he stands
disqualified but is not proceeded against.
In case the person is found guilty, thetribunal, besides declaring him/her as
disqualified, may also oblige him/her tomake good any loss which s/he may havecaused by their misconduct. Again, thejurisdiction of the ordinary court is ousted.
E. Holders of Representative Office(Prevention of (Misconduct) Act
1976)
This Act provides for the prevention of
misconduct amongst the holders ofrepresentative offices, like federal/provincial ministers, ministers of state,parliamentary secretaries and members ofparliament or provincial assembly. The
Prime Minister and chief ministers are
excluded from the domain of this law.
Misconduct is defined as accepting or
obtaining any illegal gratification,
anything valuable without consideration or
for an inadequate consideration;
dishonestly and fraudulently
misappropriating public property bycorrupt, dishonest or illegal means;obtaining any valuable thing or pecuniary
advantage and possessing pecuniary
resources or property disproportionate to
known sources of income. An adverse
presumption is to be drawn against suchholders of representative office. Offences
are triable exclusively by a bench of theHigh Court, comprising of two judges.
References are to be filed with the approvalof the Prime Minister. The guilty standdisqualified from being or from being
chosen to be a member of parliament/
provincial assembly until the holding of thenext general election.
F. Parliament and Provincial
Assemblies (Disqualification for
Membership) Act 1976
This Act provides for the disqualification

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RESOURCE MATERIAL SERIES No. 56
of a person holding the office of federal/p r o v i n c i a l m i n i s t e r, m e m b e r s o f
p a r l i a m e n t / p r o v i n c i a l a s s e m b l y,parliamentary secretary, attorney generaland advocate general. Misconduct includes
all those Acts already defined in the former
laws. Cases are decided by a division benchof the High Court, comprised of not lessthan two judges. References are filed forthis purpose by the Prime Minister or Chief
Minister, with the prior approval of thisPrime Minister. Persons who volunteer toretire from public life are not tried, butstand disqualified. Persons found guiltyof the offence stand disqualified from beingor from being chosen to be a member ofparliament/provincial assembly, until theholding of the next general election.
G. Holders of Representative
Offices (Punishment for
Miscomduct) Order, 1977 (PPO 16
of 1977)
This law was promulgated during
Martial Law in 1977, providing severe
punishment. It applies to the president,
governor, prime minister, chief ministers,
federal/provincial ministers, ministers ofstate, advisors, parliamentary secretary,
members of parliament/provincial
assembly, attorney general and advocate
general. It defines misconduct as before.
Offences are triable by Special Courts
consisting of a judge of the High Court, withthe right of appeal to the Supreme Court.
The punishment prescribed isdisqualification for/up to seven years frombeing elected as a member of parliament/
provincial assembly. Persons convicted forany of the offences listed in the schedule,e.g offences under the Income Laws,
Foreign Exchange Regulation, Official
Secrets Act, Customs Act, Pakistan Arms
Ordinance etc are also disqualified for aperiod of seven years from being elected asa member of parliament/provincial
assembly.

486

H. Parliament and Provincial
Assemblies (Disqualification for
Membership) Order 1977 (PPO 17
of 1977)
This law is applicable to the persons andmisconduct as defined in the laws
mentioned previously. Offences are triable
by Special Courts consisting of a judge ofthe High Court, with the right of appeal to
the Supreme Court. The reference is filedby the president or the governor, and thepunishment prescribed is disqualification
for/up to seven years from being elected asa member of parliament/provincial
assembly. The jurisdiction of the othercourts is barred.
I. Martial Law Regulation No. 21(MLR 21)
Promulgated in September 1977, itapplies to persons who remained membersof the national assembly, senate or aprovincial assembly during the period from
December 1970 to July 1977. Suchmembers were required to submit detailed
statements of their properties and assets
to the Martial Law Administration. Aftermaking an investigation as to thecorrectness of the statements, it wasdetermined whether such property orassets were acquired by lawful or unlawfulmeans. Furnishing false or incorrect
information was made punishable withimprisonment for/up to seven years, as wellas with fines, and the possible forfeiture of
the whole or a part of the property andassets. An option was given to members tovoluntarily surrender lawfully acquired
property/assets, in which case no further
action was to be taken. Any failure to
surrender such property/assets waspunishable with imprisonment for/up to
fourteen years, in addition to fine andforfeiture of all or any part of the property.
A person found to be in possession ofproperty/assets disproportionate to known
sources of income stood disqualified frombeing elected as a member of parliament

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
or provincial assembly.
J. The Representation of People Act
1976
This deals with the conduct of elections
to the national/provincial assemblies. The
emphasis is on the conduct of elections
through a fair and impartial manner,prohibiting any use of illegal or corrupt
practices. The law placed an embargo on
persons from contesting elections who have
either written-off any loan or havedefaulted in the payment of a loan, taxes
or utility expenses like telephone,electricity, gas and water charges.
A successful candidate is to submit astatement of the assets and liabilities inrespect of themself, their spouse and any
dependent family members. Any candidate
to the election can inspect such a statement
furnished by another candidate. All
members of parliament/provincial
assembly are required to submit a yearlystatement of their assets and liabilities.
A candidate returned to an assembly isrequired to submit a statement of expenses
incurred in connection to their election
compaign. A ceiling of one million rupees
is fixed for the election to national assemblyand six lacs rupees (six hundred thousand)for provincial assembly. Candidates foundto have incurred expenses beyond theprescribed limit stand disqualified for aperiod of five years.
K. Ehtesab Act 1997
For the effective administration of
criminal justice, in order to check corrupt
activities, the promulgation of the Ehtesab
Act 1997, was a milestone in the history of
the laws of accountability in Pakistan.
The public clamour for accountability
became louder as the media revealed
scandals and stories of the plunder ofnational wealth by public representatives

and public officials. Repeatedly raised by
the political parties, vehemently stressedby the pressure groups and the public atlarge, the demand for accountability
became more pronounced. The government
responded by introducing a bill called theFifteenth Constitutional (Amendment)
Bill, 1996. It sought to enforce theaccountability of public representatives,
public servants etc. It provided for thecreation of a special committee ofparliament to send references against
corrupt persons to court, to be decided by a
two-member bench of the High Court. The
punishment prescribed included
imprisonment for/up to seven years and theimposition of a fine. Such persons also
stand disqualified from being or from being
chosen to be a member of parliament/
provincial assembly for a period of five
years. The bill proposed the constitutionof an Ehtesab (Accountability)
Commission, consisting of a serving judgeof the Supreme Court as chairman, and twoserving or retired judges of the Supreme
Court or High Court as members, to try
and decide cases of misconduct.
Due to acrimony and confrontation
among the government and the opposition,
no consensus could be reached inparliament on either of the two bills, andconsequently no legislation could beenacted.
The newly installed care-taker
government responded to public pressure
for accountability by promulgating an
ordinance called the Ehtesab(Accountability) Ordinance 1997. Just
before the ordinance promulgated by thecare-taker government could lapse (in 120days), the government quickly moved andadopted the Ehtesab (Accountability) Act
1997.
With some variations, the Act borrowed
the provisions of the Ordinance; it applies

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to the holders of a public office, including aformer president or governor, present or
past prime minister/chief minister, federal/provincial ministers, ministers of state,advisors, consultants, political secretarie,
special assistants or holders of a post or
an office with equal rank or status,
secretary, members of parliament/
provincial assembly, speakers, deputy
speakers of the national/provincial
assembly, chairmen and deputy chairmenof the senate, attorney general and law
officers of the federal government, auditor
general, advocate general, additional
advocate general and assistant advocate
general.
The law also applies to a public servantof the federal/provincial government or a
local council in basis pay scale (BPS-18)
and above or equivalent thereof incorporations, banks, financial institutions.
The Law is further extended to chairman/
vice chairman of Zilla (District) councils,
municipal committees, municipal
corporations or metropolitan corporations.
The law is also made applicable to theholders of an office or post in BPS-17 or
below, if such an officer is found to be
involved in the commission of an offencewith the public servants earlier mentioned.
The Law excluded the institution of the
judiciary and the members of armed forces,
except when a person who is a member ofany such force is holding or has held anequivalent post or office in any pubic
corporation, bank, financial institution or
any other institution.
There is no material deviation in thedefinition of corruption or corrupt practices
as given in the previous laws. They also
provide for a presumption against theaccused, in that it is presumed that theproperty/assets are illegally acquired if theaccused cannot satisfactorily account forthem or if they are disproportionate to
known sources of income.

488

The Ehtesab (Accountability) Act assigns
the responsibility of conducting enquiry
into and investigating exclusively theEhtesab (Accountability) Cell; to becompleted within one month and its
findings to be communicated to the Chief
Ehtesab (Accountability) Commissioner.
The Ehtesab (Accountability) Cell isheaded by a chairman who is appointed by
the governor.
It provides for the establishment of theEhtesab (Accountability) Commission,
headed by the Chief Ehtesab(Accountability) Commissioner, appointed
by the Federal Government in consultation
with the leader of the opposition in the
National Assembly and the Chief Justiceof Pakistan. Qualifications forappointment as Chief Ehtesab(Accountability) Commissioner, requires
the person to be a serving or retired judgeof the Supreme Court. S/he is appointed
for a period of four years and cannot be
removed except by the Supreme Judicial
Council, on the grounds and as per theprocedure prescribed in Article 209 of theConstitution.
Reference against the accused isinitiated by the Chief Ehtesab(Accountability) Commissioner either onreceipt of a reference from the federal/provincial government or on a complaint
from any citizen or on his/her own accord.
On completion of an enquiry, the Ehtesab(Accountability) Cell communicates thefindings to the Chief Ehtesab(Accountability) Commissioner, who
evaluates the evidence and decides
whether or not to refer the case to court.
These offences are non-bailable and no
court, other than the High Court, has
jurisdiction to grant bail. Bail is not
permissible if there are reasonable grounds
for belief that the accused is prima facie
guilty.

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On voluntary return of the property, thetrial proceedings are discontinued but theaccused is required to resign from office andthe court may impose an additional fine orp e n a l t y.
The Chief Ehtesab(Accountability) Commissioner (CEC) cangrant a pardon to an accomplice, subject toapproval by the federal government. The
Law applies not only to the recipient ofillegal gratification and/or pecuniary
advantage but also to the one who gives oroffers the same. In case a complaint
succeeds up to the final stage, thecomplainant may be entitled to suchrewards as may be determined by the court.
However, in case the complaint is proved
to be false, malafide or made for someulterior motive, the complainant may bepunished with imprisonment for/up to
three years, as well as by fine.
This law is most likely to achieve its
object in eradicating corruption fromsociety, provided the machinery thereof(constituted by the government itself) is notpartisan and discriminatory with thepotential to be abused and misused against
opponents, dissenters and non-conformists,and provided it is given effect from a yearthat includes the period of the ruling
government as well. The Law Commissionof Pakistan has recommended that the Lawof Accountability should be amended andmade applicable with effect from 14th
August 1947, the day the country came into
existence, and that it should not grant
immunity to certain incumbent holders of
public office or the functionaries of certain
institutions like the army and the judiciary.
The immunity of the judiciary is not thatalarming because it has its own system ofa c c o u n t a b i l i t y, p r o v i d e d i n t h eConstitution.
L. Wafaqi Mohtasib (Federal
Ombudsman)
The institution of Wafaqi Mohtasib(Ombudsman) was established in 1993 inorder to check the excesses of the officialsof various departments, without resorting
to lengthy judicial processes. The public
was to have quick and inexpensive redressof their grievances, seek rectification ofwrongs and get compensation for acts ofmalfeasance/misfeasance on the part of agovernment agency or its officials. The
Mohtasib (Ombudsman) has been given
powers to investigate complaints against
any office of the federal government, except
the judiciary and the armed forces. Its
functions include diagnosing,investigating, redressing and rectifying
acts of injustice or mal-administration.
D u r i n g i n v e s t i g a t i o n / e n q u i r y, t h eombudsman is not bound to strictly follow
judicial procedure. S/he may choose andadopt any appropriate procedure and may
also seek the settlement of disputes
through any informal method, e.g
conciliation. Against the orders of the
Ombudsman, a representation can be filed
before the President of Pakistan.
VI. CONCLUSION
The discussion so far has brought us tothe conclusion that the levels of corruption
are of two kinds. One is at the higher/
government level and the other is among
the lower strata of government officials.
Notwithstanding the plethora of criminal
laws for the prevention and punishment ofcorruption among public representatives
and government servants, the results havenot been very encouraging. Hardly any
prominent figure has been convicted. The
reason for such dismal failure may be
scribed to the selective, rather vindictive,u s e o f t h e l a w, b y t h e s u c c e s s i v egovernment against their opponents.
Unfortunately, the process of accountability
could never acquire the level of legitimacy
and credibility which the people expected.
Lack of political will to initiate the processof accountability and apply the law inearnest, without fear or favour, has

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resulted in a situation where corruption is
not only tolerated but allowed to spread.
I cannot avoid recalling the words of a
Chinese sage philosopher, Confucius, who
said in the middle of the sixth century,
before Jesus, that;“If a ruler is himself upright, his
people will do their duty withoutorders; but if he himself be not
upright, although he may order, they
will not obey”.

and to reduce the gap between the rich andthe poor. Such a yawning gap between thetwo gives impetus to the race for money
and hence, corruption. Lack of education
is another factor that leads to corruption.
Lack of nationalistic feelings have been
observed to be the most powerful factor
which makes public servants irresponsible,
less honourable and more greedy. If allthese factors are universally available, itwould be much easier to identify the
culprit, investigate the crime and to takethe guilty to task.

In another place, he said:“ When a ruler loves good manners,
his people will not let themselves be
disrespectful; when a ruler loves
justice, his people will not letthemselves be unsubmissive; when aruler loves good faith, his people will
not venture to be insincere.”To give a bribe to a public servant has
been considered a usual thing amongst
under-developed and developing countries
for centuries. As the bribes are paid
secretly, it is really difficult to procure
evidence in order to prove the crime.
Another complicated phenomenon ofcorruption is that both the receiver, as wellas the giver, are happy at the same time,
gaining advantage simultaneously. Suchcrimes are difficult to identify, investigate
and prove.
Experience has shown that the more
stringent the laws, the higher the rate ofpayment. It is therefore necessary thatvarious measures are organized as to makean appeal to the conscience and moralityof the public in general, and of publics e r v a n t s i n p a r t i c u l a r. Tr u e a n dundistorted religious teachings should begiven to the people serving in various
offices of government. Economic policies
should be devised so as to eliminate poverty

490

ANEXURE I
CAUSES OF CORRUPTION
1.
2.
3.
4.

Lack of morals.
Lack of nationalism.
Poverty.
Low salary of investigating officers andjudges.
5. Wide gap between the cross-section ofpeople qua their wealth.
6. S e n s e o f f a l s e s t a n d a r d s a n dcompetition in the race for money.
7. Lack of education and employment
protection for the children of civil
servants.
8. Lack of protection to civil servants after
retirement.
9. High rate of inflation.
10. High rate of population in developing
and underdeveloped countries.
11. Bad customs regarding various social
cultural ceremonies and a sense of false
competition theirabout.
12. Pressure from political high-ups andtheir own superiors.
13. Lack of basic facilities.
14. If one can do wrong under the orders
from an other, why not such dishonesty
for his/her own monetary benefit.
15. Lack of accountability. Those whointerfere, they protect from.
16. Uncertainty about the future.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
CAUSES OF LACK OF CONVICTION
1. Sub-standard investigation
2. Lack of protection to the complainant
and witnesses.
3. Low education of the investigating
officers.
4. Insufficient training of investigating
officers.
5. Complicated record of offences relating
to accounts.
6. Lack of competence among publicprosecutors.
7. Incompetent people appointed as publicprosecutors.
8. Good lawyers not inclined to work inpublic agencies.
9. Witnesses transferred, influenced or
won-over.
10. Interest lost - matter forgotten by the
public.
11. Public not vigilant nor reactive.
SOLUTIONS

between the rich and poor completely
eliminated.
9. Complete legal and physical protection
to complainants and witnesses.
10. Strict laws be enforced to eliminate
extravagant expenditure on social
customs.
11. A l l p o l i t i c a l i n t e r f e r e n c e b e
discouraged, taken serious notice of andpolitical authorities be subject to
impeachment without delay.
12. Means of communication be improved
so that witnesses are served on time toappear in court.
13. Number of courts to be increased, atleast to double the existing number.
14. Strict action to be taken against
lawyers at the court level, as well as
Bar Council level, who are found using
delaying tactics and thus impeding thecourse of justice.
15. Highly educated officers, academicallyas well as technically, be apointed as
investigating officers.

1. Extensive teachings about honesty,
morality, nationalism, good conscience,
humanity and religion to children fromthe day they attain understanding.
2. Enhancement of the salaries ofinvestigating officers, publicprosecutors and court staff.
3. Enhancement of the salaries of judges
and magistrates, and provide them freebasic facilities of life like accomodation,
conveyance, petrol, healthcare,telehone, gas and electricity.
4. Provide club and other cultural
facilities to judges where they do nothave to mix with other people.
5. Full retirement benefits to judges, as
they have during service.
6. No allurement, i.e, judges expectationof political and other jobs after
retirement.
7. Equip the police and court officers withthe most modern electronic devices andthorough training thereof.
8. Fair economic standards with the gap

491

RESOURCE MATERIAL SERIES No. 56

THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICEFOR THE PREVENTION OF CORRUPT ACTIVITIES BY
PUBLIC OFFICIALS
Roderick Kamburi*
I. INTRODUCTION
Recent years have witnessed a growing
awareness of the nature and extent of thethreat posed by transnational criminal
activities. The initial concentration onorganised international drug trafficking for
instance, or terrorism, has gradually
started to broaden to include other criminal
areas. Areas such as fraud, corruption,
counterfeiting and money laundering yieldhigh profits. Such forms of organised
transnational criminality is characterisedby the ability to diversify operations andengage in new activities or in newgeographical areas as soon as they appear
promising.
Corruption in public life is not a newphenomenon of the 1990s. However it has
taken an alarming dimension in recent
years. Such activities became a global
concern as countries around the world
began to realise that corruption, fraud,counterfeiting and money laundering has
become a multi-dimensional, national andinternational problem. As a result, it hashindered development, created poverty,
destroyed confidence in the legal andpolitical system, and undermined good
governance.
Having identified this problem,
countries around the world moved into
introducing anti-corruption bodies such as
Interpol, Europol and Transparency
International. Countries such as Australia,* Acting Director, Leadership Division, Ombudsman
Commission of P.N.G., Papua New Guinea.

492

Singapore and Hong Kong for instance,
have ready introduced anti-corruption
agencies of their own. As we acknowledge
that corruption in the public service hasflourished to an extent that almost nothingcan stop its continuous germination, what
can the authorities do to minimise, orrather terminate entirely, corruption in the
public service?
In my paper I will look at the level ofcorruption as I see it in my country (PNG).
I will look at individuals and agencies
engaged in this illegal activity. I will also
look at the laws and legislation that deal
with corruption matters and explain therole of anti-corruption agencies such as the
Ombudsman Commission and the police
force; the problems faced by theseorganisations in carrying out their duties;
and suggest ways to improve on the current
system of combating corruption.
II. LEVEL OF CORRUPTION
Corruption in the public service is notnew. In PNG it has reached the stage
where politicians and senior bureaucrats
are frequently taking bribes, especiallyfrom foreign companies intending to dobusiness in the country. Those that are
already operating in the country also
contribute to this illegal activity. It hasreached the stage where corruption has
become part of everyday life in the public
service. This is evident from the statistics(appendix A) that those who have beenprosecuted for corruption related offences
are people who occupied high offices.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Our records shows that politicians tend
to be the ones up-front accepting bribes in
return for favours (eg, awarding
government contracts to a road
construction company whose owner is afriend of the Minister for Works). Major
foreign companies are also the main sourceof corruption. They offer tempting gifts andfavors with the intent to lure those inauthority to submit to their demands. Cashtransaction is the main form of corruption
in the country.
III. PROBLEMS ASSOCIATED WITH
CORRUPTION(i) Bad organisational structure(ii) Poor recruitment policy(iii) No Code of Ethics / old Code of Ethics(iv) Low salary / no promotion(v) Laws and legislation (draconian/weak)(vi) Desire for wealth (greed, selfishness)(vii) Inadequate training(viii) I n a d e q u a t e a u d i t i n g a n dmanagement system(ix) L a c k o f n o n - f o r m a l p e n a l t i e s(transfers, publication)(x) Organisational culture
IV. LAWS AND LEGISLATION
Besides other relevant legislation, theCriminal Code deals with almost all theserious crimes committed in the country.
It imposes a maximum penalty of life
imprisonment.
V. THE ANTI-CORRUPTIONCOMMISSION AGENCIES
There are two distinct anti-corruption
agencies operating in the country, the police
and the Ombudsman Commission.
However, a number of organisations,through their unique functions, indirectly
assist these two agencies in the fightagainst corruption. I will take you throughthese organisations later in this report.

But first, let us look at what the police andthe Ombudsman Commission do.
A. Police Force
A division of the police force known as
the Fraud Squad is responsible forinvestigations into matters concerning
fraud and corruption. They have beensuccessful in getting a number ofconvictions, some of which have received
long term custodial sentences. Although
the Constitution guarantees independence
for the police force (eg, it is not subject todirection or control by anyone) it is reallyat the will of the politicians.
1. A p p o i n t m e n t o f t h e P o l i c e
Commissioner
The Police Commissioner is appointed
by the Cabinet though recommendation of
the Minister of Police. Therefore, it isalways the Minister’s candidate who gets
appointed to the position. Past experience
shows that Police Commissioners havebeen subject to direction and control bypoliticians through the Office of the Police
M i n i s t e r. T h e r e f o r e , u n l e s s a n
independent appointment committee is set
up to appoint the Police Commissioner,
there is no guarantee that the police force
is independent, as the Constitution allows.
Our police force is a member of Interpol,
which means it has connections with otherinternational police forces who are also
members of Interpol.
B. Ombudsman Commission
The Ombudsman Commission wasestablished under Section 217 of theConstitution. There are three (3) Membersof the Commission (MOC); the Chief
Ombudsman and two Ombudsman.
1. Appointment
The members of the Commission are
appointed by the Head of State (Governor
General) acting to and according to the493

RESOURCE MATERIAL SERIES No. 56
advice of an Ombudsman Appointment
Committee consisting of:(i) Prime Minister(ii) Chief Justice(iii) Leader of the Opposition(iv) C h a i r m a n o f t h e P e r m e n a n t
Parliamentary Committee on
Appointments(v) Chairman of the Public Service
Commission.
2. Qualification
The Chief Ombudsman must be a personof very high personal qualities. It does notnecessarily mean being a person with aparticular qualification.
3. Ombudsman
The Constitutional Planning
Committees Report, to the then House of
Assembly, recommended that the two
Ombudsman should have the qualificationof an accountant and a lawyer. However
the Constitution does not clearly indicate
whether the Ombudsman should acquire
specific qualification. Therefore, anyone
can be appointed as Ombudsman.
4. SalaryThe salary terms and conditions of the
Chief Ombudsman shall not be less thenor inferior to the salary and otherconditions of a Judge, other then the Chief
Justice and Deputy Chief Justice.
Likewise, the salary terms and conditionsof the Ombudsman shall not be less thanor inferior to the salary and otherconditions of a public prosecutor.
5. Term and Removal from Office
The term of office is six (6) years. There
are only two grounds upon which an
Ombudsman can be removed from office.
First, by reason of physical and or mental
disability, and secondly, removed inaccordance with Division 2 (LeadershipCode) of the Constitution.

494

6. Functions
The Ombudsman Commission has three
primary functions conferred by Section 219
of the Constitution. They are:(i)

To investigate alleged wrongfulconduct and defective administrative
practice by government departments,
statutory authorities and othergovernmental bodies: the so-called
traditional role of the Ombudsman;and(ii) To investigate alleged or suspecteddiscriminatory practices; and(iii) To supervise enforcement of thenational Leadership Code.
My paper is based on the third item the Leadership Code which, in the absenceof an Independent Anti-corruption
Commission, operates as a de facto anticorruption agency in the country.
VI. LEADERSHIP CODE
The Leadership Code, and the
Ombudsman Commission charged to
enforce it, both came into being at our
independence in September 1975. At thetime of our independence, few Papua New
Guineans were exposed to western
influence, foreign ideals or were proficientin the English language. The majority ofour people were, and still are, living invillages, practicing their traditional
economy of barter and give and take, where
social obligations are so closely knit thatleadership is a natural outcome of suchsocial interactions. Today, PNG has leadersin many different areas of involvement wholook after our interest at the national andprovincial levels, as well as at the local andvillage community levels.
Our constitutional planners saw that as
an independent country, we could go
through a period of adjustment where ourleaders would have to be strong and113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
committed in order to steer our country
through all kinds of influence, both goodand bad, so that the dominant culture of
the west would not undermine oursovereignty and independence.

upper echelons of public office-holders. The
only high public office holder excluded fromthe ambit of the Leadership Code is theGovernor General, who is the Queen’s
representative as Head of State.

It was for this reason that ourconstitutional planners decided that weshould write into the Constitution a
Leadership Code which would regulate thebehaviour of our national leaders, who not
only have the responsibility of guiding, butalso of determining, the destiny of ourpeople. The third goal of our Constitution
accommodates this:C. Why the Leadership Code applies
only to Leaders
We believe that the success of the nation
depends ultimately on the leaders and thepeople. Therefore, as the leaders are people
who occupy positions of power, authority
and influence, they are vulnerable to theoffer of tempting gifts and favours fromoutside forces. In accepting the offer, theleader will no doubt compromise theirposition thus placing themself in a
potential conflict of interest situation.
Therefore, in order to ensure that our
national leaders do not fall victim to theoutside force, the Leadership Code wasdrafted specifically to regulate the conductof the leaders whilst performing theirofficial duties’ as well as their private life.

“We declare our third goal to be for
PNG to be politically andeconomically independent, and our
economy basically self-reliant. We
accordingly call for our leaders to becommitted to these national goals anddirective principles, to ensure that
their freedom to make decisions is not
restricted by obligations to or
relationship with others, and to makeall of their decisions in the national
interest...”A. What is a Leadership Code?
The Leadership Code is a set of rules
which have been written into the national
constitution and the Organic Law on the
Duties and Responsibilities of Leadership(OLDRL) to serve one purpose only. That
purpose is to regulate the behaviour andconduct of our national leaders who occupy
positions of power, authority and influence.
Breach of these rules may result in theleader being prosecuted in the Leadership
Tribunal for misconduct in office.
B. Who does the Leadership Codeapply to?
Section 26 (1) of the Constitution
provides that the Leadership Code applies
to a wide range of public office holders. In
short, the Leadership Code applies to the

D. How is the Leadership Code
Enforced?
The Ombudsman Commission conducts
investigations into allegations against aleader, and when it finds that there is a
prima facie case of misconduct in office, it
is obliged under the Constitution to refer
the matter to the Office of the Public
Prosecutor for prosecution before an
Independent Leadership Tribunal. The
Tribunal consists of the chairman, who isa judge of the National Court, and twosenior members from the magisterial
service, all appointed by the Chief Justice.
Offences considered as “misconduct inoffice” range from immoral behaviour tocriminal offences capable of being
prosecuted both in civil and criminal
courts.
Section 27 of the Constitution verybroadly defines general acts of misconduct
in office. In addition, the Organic Law on

495

RESOURCE MATERIAL SERIES No. 56
the Duties and Responsibilities of
Leadership, which was enacted to
implement the Leadership Code, prescribes
in detail some very specific acts that
constitute or amount to misconduct inoffice. These are not exhaustive provisionsof the Organic Law, nor are they quoted
word for word from the relevant law.
E. Double Prosecution
It is not a bar for those found guilty inthe Leadership Tribunal to be tried before
the Criminal Court or vice-versa, based on
the same facts. The Tribunal is consideredan administrative proceedings and not acriminal proceeding as such. Therefore, thequestion of double jeopardy is immaterial
under our law.
F. Standard of Proof
The standard of proof required in the
Leadership Tribunal is proof on the balanceof probability. Although this is the case,judges sitting as chairman of the tribunals
have aired serious concerns on thestandard of proof and insist that in any
leadership tribunal, the standard of proof
should be raised to almost equivelent tothat of the case brought before the criminal
courts, although rules of evidence do not
apply in the Tribunal proceedings.
G. Penalties
The maximum penalty for anyone foundguilty by the Leadership Tribunal isdismissal from office. The dismissal
remains in force for three years from thedate the Governor General signs the
instrument of dismissal from office. Thismeans that the person cannot hold any
public office for a period of three years. The
Alternative Penalties Act also provides forlesser penalties if the Tribunal considers
that the offence committed is not so serious
to order dismissal from office.
H. Independence
The Ombudsman Commission is496

established directly unde.r Section 217 (5)of the Constitution, which states that in
the performance of its functions, theCommission, is not subject to direction orcontrol by any person or authority. Section
217 (6) states that the proceedings of theCommission are not subject to review inany way except by the Supreme Court or
the National Court, and only on the
grounds that it had exceeded its
jurisdiction. History shows that the
Ombudsman Commission has been vigilant
in its defence of the independence theConstitution has conferred upon it.
I. Cartoon Incident
In March 1992, the three Members of theCommission were summonsed before thebar of the National Parliament to give an
explanation for the inclusion in the annual
report of the Ombudsman Commission ofseveral cartoons dealing with the ethicalstandards of parliamentarians andministers in particular. The cartoons wereconsidered by the Parliamentary Privilege
Committee to be offensive, and an apology
was sought from the Ombudsman
Commission. However, the then Chief
Ombudsman, Sir Charles Maino, declined
to appologise. Instead, he gave what wasin effect a measured and rational
explanation to the MPs on the educational
value of the cartoons and the need tomaintain ethical standards in public life.
Subsequently there were in parliament
some rather undignified attacks made on
the Ombudsman Commission, and a draft
resolution was circulated which called forthe immediate sacking and imprisonmentof the three Members of the Commission.
Fortunately, it was soon realised that theParliament had no power of imprisonment
nor did it have the power to remove themembers of the Commission.
J. How does the Leadership CodeFight Corruption?
Corruption takes place between two

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
persons, the giver and the taker. In almost
all cases, takers are people who occupy
positions of trust, authority and influence.
Therefore, the Leadership Code acts as aregulator and prevents policy makers andthose in high offices from making decisions
which will benefit themselves, theirfamilies, friends and relatives. The
Leadership Code also helps to eliminate
those who seek to compromise theirposition for the benefit of others whose aim
is to manipulate and underpin thelegitimate process. In fact, theOmbudsman Commission is referred to as
the watchdog of the nation and is a verymuch feared anti-corruption agency in the
country.
VII. OTHER ORGANISATIONSWHICH HELP FIGHT CORRUPTION
The following organisations also play
important roles in the fight against
corruption in the country. They are:(i) Judiciary(ii) Correctional Institution Services(CIS)(iii) Auditor General(iv) Media(v) Transparency International
A. Judiciary (Courts)
There are five different court systems in
the country:(i) Supreme Court(ii) National Court(iii) District Court(iv) Local Court(v) Juvenile Court(vi) Village Court
The Supreme Court is the highest courtin the country. It sits to hear appeals andjudicial reviews on the decisions of thenational courts. The courts play animportant role in deterring the level andextent of the criminal activities by
imposing punishment provided by law.
Such punishment may include a custodial
sentence, fine, good behaviour bond, parole
or even confined to ‘Boys Town’ (if ajuvenile). These are measures the courts
can take to deter the further commissionof serious crimes.
So far, since the establishment of thecourt system in the country, the neutrality
and independence of the judiciary has
always been maintained. It is arequirement under the Constitution thatthe courts are given independence and areneutral at all times. The courts have aseparate budget, which they get throughsubmission in Parliament.
The problems of speedy administrationof trial depends entirely on theeffectiveness of the institutions involved in
the criminal justice process, such as the
public prosecutor, public solicitor, CIS,
police and courts working together. Right
now we have a shortage in the number ofjudges available to sit on trials and havethem processed.
Sentencing to goal remains the lastavailable resort, depending upon thecircumstance of the case. Alternatives togoal are quite popular, such as fines andprobation, but the lack of available
resources such as probation officers,
halfway-houses and rehabilitation centers,
make it quite difficult for alternative
sentencing options to be considered.
Constant and immediate communicationand cooperation amongst government
agencies and statutory organisations is
non-existent. This is because someinstitutions felt that the laws under which
they operate guarantees their
independence; eg, they are not subject todirection or control by anyone, or that they
are not obliged to disclose to anyone the497

RESOURCE MATERIAL SERIES No. 56
nature and extent of their affairs, except
to the Parliament. This is bad in theadministration of criminal justice becausesuch situations do not help the anticorruption agencies to fight corruption.
There should be constant dialouge between
each criminal justice agency andadministrative organisation. As I haveindicated earlier, problems of co-operationand co-ordination occur due to the creationof institutions to be independent from any
influence.
1. I n t e r n a t i o n a l C o - o p e r a t i o n i nCorruption Cases
At the Legal front, we are currently
corroborating with neighboring South
Pacific countries and South-East Asian
countries for the purpose of facilitatinginternational co-operation on money
laundering, environmental pollution,
sharing of expertise, etc.
In so far as the extradition treaty isconcerned, we do not have in place anextradition law or a treaty with otherneighboring South Pacific and Asian
countries. However, we do operate under
the commonwealth banner for the purposeof the extradition of fugitives and otherrelated matters. Meanwhile, government
lawyers are currently putting together adraft bill, soon to go before Parliament, forthe enactment of our own law in dealing
with extradition cases.
B. Correctional Institutional
Service (CIS)
The main function of this institution isto rehabilitate prisoners to live a normallife when they return to the community.
The rehabilitation programs conducted inthis institution are:(i) Education(ii) Religious programs(iii) Conflict resolution courses(iv) Prison industry

498(v) Community out-reach
The institution plays an important rolein changing one’s life through these
programs.
C. Auditor General
The Office of the Auditor General was
created by an Act of Parliament. The dutiesof this office are mainly to audit the booksof government departments and statutory
bodies which exercise governmental
functions. The Auditor General tables his/her report in Parliament annually, withfindings and recommendations.
Auditors play an important role in
exposing, or rather revealing, what can bestealing, misappropriation or even an
abuse of power by those in authority (eg,approval granted for the funding of acertain project without following tendering
procedures). Exposure by the Office of the
Auditor General helps organisations suchas the police and the Ombudsman
Commission in many ways. It shows where
the inquiry should start, and generally sets
the foundation for an indepth investigation.
D. MediaMedia also plays an important role in
exposing shady and questionable deals,
negotiations and agreements made insecret and in confidence by certain public
officials which are considered improper andbad in substance. Independence for the
media is guaranteed under theConstitution. Therefore there are no
sanctions whatsoever, resulting in its rightto report on almost anything.
In PNG, we have a private run television
station called EMTV. It is the only
electronic media we have in the country.
There is also a government owned radio
station called the National Broadcasting
Commission (NBC).
It has its
headquarters based in the capital, Port

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Moresby, with stations located in all the
19 provinces. There are also two private
owned radio stations called NAUFM andYUMIFM.
There are four print media publicationsin the country. They are the Post Courier,
The National, The Times and Wantok. The
Post Courier and The National are printed
daily from Mondays to Fridays, whilst theTimes and Wantok are printed once a week.
Exposure by the media immediately sets
the clock ticking the moment it ispublished, thus it greatly assists the police
and the Ombudsman Commission.
Unfortunately, I was unable to collect dataon the media reports. However, I can saythat about two to three corruption related
matters are exposed by the media eachmonth.
E. Transparency International
Transparency International was
introduced in PNG in 1998. Although theinstitution is quite new in the country, it
made its presence known when it organised
a number of seminars and workshops in
the nation’s capital, Port Moresby, toexplain what it can do to help fightcorruption in the country.
F. Independent Anti-corruption
Commission
The Government will shortly be
introducing in Parliament an Independent
Anti-corruption Commission bill. We
expect this to happen before the end of theyear.
VIII. PROBLEMS FACED BY
ANTI-CORRUPTION AGENCIES
Problems faced by anti-corruption
agencies vary very much from country tocountry. For instance, some countries havelaws which gives their anti-corruption
agencies autonomy, independence and thepowers that other anti-corruption agencies

do not have in their countries. For
example, some have the power of search,arrest and seizure without warrants, whilst
others don’t. Extradition laws, for instance,
are one of the main barriers in somecountries. For this and other reasons, itcannot be said that anti-corruption
agencies operating in their respective
countries face similar problems as those inother countries. Nevertheless, I have listed
below some problems faced by myorganisation in its fight against corruption:(i) Poorly resourced in terms of budget
allocation(ii) Poorly staffed(iii) Lack of skilled staff(iv) Inadequate training for staff(v) Bad organisational structure
IX. SUGGESTIONS FOR
IMPROVEMENT(i) T h a t P N G t a k e a l l t h e s t e p snecessary to rectify the problem areas
mentioned in this report.
(ii) That PNG should introduce an
Independent Anti-Corruption
Commission, given powers similar tothat of the Ombudsman Commission.
This organisation should have thepowers of search, arrest and seizureof properties (without warrant) which
are considered illegal.
X. CONCLUSION
Though we have come a long way since
our independence, we are still trying toimpress upon those who are affected by the
Leadership Code the significance of the law
and what it means in practice. We still
have problems in our hands, that is why I
am here in search of the answers to our
problems.

499

RESOURCE MATERIAL SERIES No. 56
ANNEXURE A
LEADERSHIP TRIBUNAL
YEAR
1976
1978
1981
1982
1983
1985
1988
1989
1990
1991
1992
1993
1995

OFFICEMP (1)
Statutory Body (2)Suspended (1)MP (1)MP (1)MP (1)
Statutory Body (1)Manager - NPF
MP (1)PNGBC - Chairman
MP (1)MP (1)MP (1)MP (1)MP (2)MP (4)MP (1)MP (1)MP (1)MP (1)
1996
MP (1)*
MP = Minister of Parliament

RESULT
Dismissed
Reprimanded (1)Dismissed
Resigned
Dismissed
Fined
Fined
Fined
Dismissed
Resigned (later jailed five years on
the same crime)
Resigned (later jailed for the sameoffence. Resigned prior to dismissal)
Resigned
Dismissed
Resigned
Dismissed (later jailed for thesame crime)
Fined
Dismissed
JailedOFFICE DISMISSED RESIGNED REPRIMANDED FINE SUSPENDED TOTAL
MPS
10
7
2
19
OTHERS
1
2
1
4

500

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERSGRAFT AND CORRUPTION: THE PHILIPPINE EXPERIENCE
Nelson Nogot Moratalla*
I. INTRODUCTION
This paper will present a condensed
report on graft and corruption in thePhilippines. Information was compiled by
the author from documents, articles,
newspaper clippings and other data
gathered from the reports and journals of
the Ombudsman and the Sandiganbayan,
two of the constitutional bodies mandatedby Philippine law to investigate and act oncomplaints filed against public officials andemployees for violations of graft andcorrupt practices. More specifically, thisreport will cover input from an unpublishedresearch paper prepared by scholars fromthe University of the Philippines, Collegeof Public Administration, whom I will
accordingly acknowledge in this work.1
This report will generally follow theoutline as provided. The first portion will
introduce the theoretical perspective andcontext of corruption in the Philippines. It
clarifies the national context within which
corruption operates. It will look into theintersection of corruption and Philippine
history and culture. It will likewise discuss
some public perceptions of corruption.
Estimates of the extent and losses ofcorruption in the Philippines will be briefly
discussed. The history of the Philippine* Deputy Director / Dean of Academic, Philippine
National Police Academy, Philippine Public Safety
College, Philippines.
1 “Initiatives Taken Against Corruption: The
Philippine Case”; unpublished paper prepared by
Ledivina V. Cariño, University Professor and Dean,
Gabriele R. Iglesias, Assistant Professor, and Ma.
Fe V. Mendoza, Associate Professor, College of
Public Administration, University of thePhilippines.

fight against corruption will be taken up
i n t e r m s o f l a w, a n t i - c o r r u p t i o nconstitutional bodies, and othergovernment agencies and non-government
initiatives. Finally, there will be anassessment of the anti-graft and corruption
programs, and recommendations on whatmight be done in the light of Philippine
democracy, culture and development.
II. THEORETICAL PERSPECTIVE
We view corruption as an agent’s
departure from the principal’s demand forthe responsible use of power in society. As
such, although it is centered on a public
official’s act and is indicated by a violationof law, it does not involve the state alone.
Rather, it is embroiled in the accountabilityof public officials, and indeed of the state,
to the people. Thus, in analyzing andcombating corruption, we look beyond thestate. Corruption shows up what thesociety views as the responsible use of
power and thus what it will accept andsupport. In this light, any attack against
corruption must come to terms not onlywith the law, but also with the country’s
history, ie what is accepted by the culture
and the behavior of civil society as well.2
III. THE CONTEXT OFCORRUPTION IN THE
PHILIPPINES
In the late 1980’s, the Philippines
entered the Guinness Book of World
Records for allegedly the biggest corruptionof all time, referring to the period of the
dictatorship of the former President,
2

Ibid, “Initiatives Taken Against Corruption: The
Philippines Case”; p.4

501

RESOURCE MATERIAL SERIES No. 56
Ferdinand Marcos. Marcos was ousted
from his twenty-year presidency by abloodless people’s power revolution in
February 1986. To describe the corruptionof his regime, “kleptocracy” and “plunder”
became part of the Filipino’s political
vocabulary and discourse.3 “Governmentby thievery” did not stop with theenactment of the Republic Act No. 7080 in
1991, entitled “An Act Defining Plunder”.
Indeed, although both laws and agencies
to combat corruption have increased in the
post-Marcos period, it remains one of theprime problems complained of by thepeople. The currency and gravity of the
problem are manifested in the following
clippings from a September 7, 1998 issueof the Philippine Daily Inquirer:“On board a Philippine Airlines
chartered flight to Manila from
Mindanao where he inspected ongoing government infrastructure
projects, President Joseph Ejercito
Estrada... thought of a slogan
reminding Filipinos that he is serious
in fighting graft and corruption in thegovernment. Dubbed “Supilin, pigilin
ang pagnanakaw sa pamahalaan,”( “ Wi n o v e r, s t o p t h i e v e r y i ngovernment”), he thought of puttingup such a message on billboards, huge
posters and the like to remind people
in government and the private sector
not to succumb to the “evils of stealingfrom government coffers.” Stealing,
if aggregated with othermisdemeanors of public service andtheir “transactees,” he said, would
sum up to about 20 percent of thenational budget. With a proposed
budget of more than 500 billion in
1999, “this means roughly 100 billion
3

Lengthy discussion on this is presented in “Politics
of Plunder: The Philippines Under Marcos”, Belinde
Aquino, Great Books Trading and UP College of
Public Administration, 1987.

502

pesos will go to waste if corruption
remains unchecked.”
While the figure cited above is a ballpark
figure that cannot be validated, the concern
of President Estrada is certainly warrantedby the findings of this research. It is also
not a recent phenomenon but one that has
been identified and decried since the
Spanish colonization in the 16th century.
A. Filipino Culture and Corruption
Corruption has been viewed as a“cultural and psychological phenomenon ina country marked by incompatible legal andcultural norms” (Tapales 1995:407). The
former emphasizes “rationality anduniversal principles of action” as against
and in conflict with “reliance and obligation
toward kinship, friendship and primarygroups” (Bautista 1982). This conflict ishighlighted in the use of the alibi of a giftgiving culture to justify bribery andextortion, or the Filipino regard for theother (pakikipagkapwa-tao) to justify
giving benefits to unqualified but
personally known recipients.
This is a real problem, but it can be
overblown. For instance, both culture andlaw similarly define cases of corruption andrectitude. One’s kin may ostracize abureaucrat who chooses to stay within thelaw. The state may, however, leave themalone, provided they do not compromise
their official role. Another case is when an
official participates in a decision involving
kin, even if they vote against that person’sinterest, that official (under the Republic
Act 3019) can still be charged withcorruption. For an official similarly
situated, but who bends over backwards tomake sure their kin gets a prized
government contract engages in so called“favour corruption”. This is indeed thequintessential conflict between culture andlaw.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
The idea of cultural acceptance ofcorruption also needs to be re-examined in
the light of a string of public opinion polls
where Filipinos decry it as a major problem.
The media, church pastoral letters andother culturally valued sources likewisedenounce this. Indeed, the long list of laws
enacted against them manifest that graft
and corruption are not colonial impositions
but are desired by Filipinos themselves.
B. Public Perception of Graft and
Corruption
In a speech in 1988, Jaime Cardinal Sin,
Archbishop of Manila, stated that“corruption was the biggest problem of themall” (Murphy, October 9, 1988). In 1989,
after months of declaring the rectitude of
the government she heads, President
Corazon C. Aquino despaired, “Corruption
has returned, if not on the same scale, atleast with equal shamelessness(Cagurangan, 1989).” Apparently, many
Filipinos agree with her. In a survey
conducted in July 1989 in Metro Manila
by the Social Weather Station (SWS), a
respected public opinion polling firm, asmuch as 58 percent of respondents agreed
that given current conditions, corrupt
government officials are a greater threat
to the country than the NPA (New People’s
Army, communist guerrillas who lost
ground after Aquino’s assumption to office).
Those who were satisfied with theperformance of the Aquino administrationin fighting graft and corruption decreased
from 72 percent in March 1987 to 26
percent in July 1989 (Guidote, 1989). In
her State of the Nation Address in July
1989, President Aquino shared the people’s
exasperation that she would leave as aproblem the very issue that she wanted toleave as a legacy: a clean and accountable
government.
Indeed, her successor, Fidel V. Ramos,
ranked graft and corruption as third among
the major problems that obstruct thecountry’s achievements in his development
strategy for the Philippines 2000. The SWS
poll of September 1993 validates this fear:
89 percent of the respondents felt that
corruption would indeed be a big obstacle
to attaining this vision.
Other SWS polls since have produced
consistent results. An August 1990 survey
conducted in Metro Manila asked
respondents to state their satisfaction withthe activities of several agencies in
reducing graft and corruption. The
proportion of dissatisfied respondents is
consistently higher than those satisfied, foreach agency. They stated that graft andcorruption is big in the Presidential
Commission on Good Government (PCGG),
the Bureau of Internal Revenue (BIR), theCabinet as a whole, the courts of justice,
the Bureau of Customs (BOC), and in thepolice force. They considered corruption in
the courts and in the military as small.
Very few thought that there was nocorruption in any of these government
institutions.
In November 1991, 41 percent of thosepolled agreed that most high-ranking
government employees are not suited totheir positions based on their knowledge
and capabilities, and 62 percent noted thatthe performance of government employees
has not improved from 1986 (SWB, July1993). In a February 1992 nationwide pollon the attributes of high officials ingovernment, 40 percent of its respondents
stated that, based on personal observation,“most” of these high officials are corrupt,
and another 27 percent said “some” of themwere, a total of 67 percent weighing in on
the positive side (SWB, July 1993).
The public verdict on the judiciary is
mixed. In 1985, a Bishop-Businessmen’s
Conference poll revealed that 30 percent
agreed and 29 percent disagreed with thestatement that most judges could not be

503

RESOURCE MATERIAL SERIES No. 56
bribed. In 1993, a similar split in half canbe discerned. While 50 percent said noneor few judges could be bribed or bought, 49
percent thought many or most could (SWB
July 1994). However, one out of two
Filipinos considered the degree of
corruption in the judiciary serious (SWB
July 1993).
Over the years, the performance of thegovernment in fighting graft andcorruption was evaluated more poorly thanthat of the overall performance. It
indicated that the government
performance in fighting corruption has
indeed has been dismal. Philippine
Ombudsman, Aniano Desierto, in a nationwide public affairs TV program, Firing
Line, aired on September 14, 1998, statedthat the Philippine anti-corruption
landscape “is improving as evidenced by thegood marks the country is getting frominternational groups like Transparency
International (IT) and the Political andEconomic Risk Consultancy (PERC), Ltd”.
The Hong Kong based Political Economic
Risk Consultancy Ltd, likewise graded 12
Asian countries and ranked the Philippines
the 4th least corrupt country in its survey.
As PERC (1998:1) hinted, most survey
grades deteriorated probably as a reflectionof the change of sentiment in businessmen
from “turning a blind eye to corruption
when economic times are good. As economic
conditions worsened, however, suchtolerance disappeared... Economic
conditions were becoming more difficultand it was easier for businessmen to see thelink between that deterioration andcorruption.” On the whole, the results ofnational and international surveys
consistently depict the Philippines as
riddled with corruption and unable toeffectively fight corruption.

C. The Magnitude of and Losses due
to Corruption
It is difficult to estimate the total losses
due to corruption. The best measure is theamounts involved in cases filed with the
Ombudsman. The Office of the
Ombudsman (OMB) reported that about P9
billion was lost to government due tomalversation, estafa (swindling) andviolation of the provision of RA 3019 (theAnti-Graft and Corrupt Practices Act) fora period of eight and a half years (1990 toJune 1998) (OMB 1998). In the
Ombudsman’s report, 63 agencies anddepartments contributed to the losses.
However, the top ten of these agencies
alone accounted for almost P8.5 billion.
Large though these sums are, bigger
amounts are involved in cases involving the
Marcoses. From the Office of the Special
Prosecutor under the Ombudsman, themoney value of cases filed against the
Marcoses involving the same offences(malversation, estafa and RA 3019
violations) for the same period was P1,117
billion. These cover cases of behest loans,both filed and under review andinvestigation, forfeiture cases, PCGG cases
for recovery, criminal cases against Marcos
cronies, and criminal cases against otherpublic officials. The Ombudsman claimed
that, “the government lost P1.4 trillion andcontinues to lose P100M daily since the
Office began investigating corruption ingovernment since 1988.”4 This is similarly
pointed out by President Joseph Estrada
when he said, “at least P24.13 B of what
the Philippine government spent last year
for various projects was lost to graft andcorruption, or barely 20% of all projectfunds are lost to grafters.”5

4
5

504

Desierto, Philippine Daily Inquirer, July 10, 1999.
Estrada, Philippines Daily Inquirer, June 10, 1999.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
III. ANTI-CORRUPTION POLICIESAND PROGRAMSPhilippine initiatives against corruption
have taken the form of law and anti-graftbodies created by the Constitution, law and
executive orders. In addition to the state,others institutions have been active in thefight against graft and corruption.
A. Anti-corruption Laws
The accountability of public officials isenshrined in the Constitution of 1987, as
it has been in the Malolos Constitution of1898, the Commonwealth Constitution of1935 and then the Constitution of 1973, theMartial Law period. Article XI of the 1987
Constitution, entitled “Accountability of
Public Officers”, states the fundamental
principle of public office, as public trust.
It requires full accountability and integrity
among public officers and employees. The
President, Vice-President, members of theSupreme Court, members of theConstitutional Commissions and the
Ombudsman may be impeached forviolations of the Constitution, treason,
bribery, graft and corruption, other highcrimes, and for betrayal of public trust.
Other public officials committing such acts
can be investigated and prosecuted throughthe regular judicial process provided bylaw.
The Philippine government is directed
to maintain honesty and integrity in the
public service, and to take action against
graft and corruption (Section 27, Art. II).
It is also directed to give full public
disclosure of all transactions involving the
public interest (Section 28, Art. II). This
provision is complemented by the Bill of
Rights within the Constitution, which gives
people the right to information on mattersof public concern, including official records,
documents and papers pertaining to official
acts, transactions or decisions, and to
government research data used as the basis
for policy development (Section 7, Art. III).

The Anti-Graft and Corrupt Practices
Act (RA 3019) was passed in 1960. It
enumerates what may be considered
corrupt practices by any public officer,
declares them unlawful and provides thecorresponding penalties of imprisonment(1 month, 6 years and 15 years), perpetual
disqualification from public office, andconfiscation or forfeiture of unexplained
wealth in the favour of the government. It
also provides for the submission by all
government personnel of a statement ofassets and liabilities every two years.
Considered landmark legislation at thetime, it also elicited the following wry
comment:“The anti-graft law was passed not
because there was a need for it but
only to appease public opinion. There
was no urgent need for anti-graft
legislation because the Revised Penal
Code and other laws were sufficient
to bring the guilty to court”(Congressman Manuel Zosa, quoted
in G.U. Iglesias, 1993:35).
B. Laws During the Martial Law
Period (1972-1986)
Presidential Decree no.6, which tookeffect six days after the imposition ofMartial Law, was the “legal” basis for thepurge of almost 8,000 officials andemployees in the first year of the
dictatorship. The provision for summary
proceedings was reiterated in Presidential
Decree No. 807, the Civil Service Act of theperiod and was repealed by the Corazon
Aquino administration. All other anti-graftpresidential decrees remain in effect. This
includes:(i) Presidential Decree No. 46 (1972),
making it unlawful for government
personnel to receive, and for private
persons to give, gifts on any occasion
including Christmas, regardless ofwhether the gift is for past or future

505

RESOURCE MATERIAL SERIES No. 56
favors. It also prohibits entertaining
public officials and their relatives.
(ii) Presidential Decree No. 677 (1975)
requires the statement of assets andliabilities to be submitted every year.
(iii) Presidential Decree No. 749 (1975),
granting immunity from prosecution
to givers of bribes or other gifts andto their accomplices in bribery
charges if they testify against the
public officials or private persons
guilty of these offences.
C. Laws of the Redemocratization
Period (1986 to the present)
Immediately after Aquino’s assumption
to office, she promulgated the “Freedom
Constitution” which, among otherprovisions, declared all government
positions vacant unless otherwise
identified (Section 3, March 28, 1986). This
Freedom Constitution was the basic law of
a revolutionary government and wassuperseded by the Constitution of 1987. Six
new anti-corruption laws emerged under
its operation.
The Administrative Code of 1987
(Executive Order No. 292)6 incorporates ina unified document the major structural,functional and procedural principles andrules of governance. It reiterates public
accountability as the fundamental
principle of governance. In 1989, theRepublic Act No. 6713, the Code of Conduct
and Ethical Standards for Public Officials
and Employees was passed. It promotes ahigh standard of ethics and requires all
government personnel to make an accurate
statement of assets and liabilities, disclose
net worth and financial connections. It also
requires new officials to divest ownership
6

Executive orders promulgated by President Aquino
during the revolutionary period when she was solelegislator (1986-87) have the force of the law.

506

in any private enterprise within 30 days
from assumption of office, to avoid conflictof interest. The Ombudsman Act of 1989
(RA 6770) provides the functional andstructural organization of the Office of the
Ombudsman. The Act further defining theJurisdiction of the Sandiganbayan (RA8249) places the Sandiganbayan as a
special court on par with the Court ofAppeals.
D. Constitutional Anti-corruption
BodiesThe 1987 Constitution establishedspecial independent bodies to support the
principles of honesty, integrity and public
accountability. These are:(i) the Office of the Ombudsman as thepeople’s protector and watchdog;(ii) the Civil Service Commission as thecentral personnel agency;(iii) the Commission on Audit as thesupreme body responsible for
auditing the government’s
expenditures and performance; and(iv) The Sandiganbayan as a special courtthat hears cases of graft andcorruption.
To ensure that these organizations andtheir commissioners can fulfill their duties
without fear of reprisal from other agenciesof the government, the Constitution grants
them fiscal autonomy7 (Section 2, Article
VIII). Their actions are appealable only to
the Supreme Court.
The Office of the Ombudsman was
created to investigate and act promptly oncomplaints filed against public officials and7

Fiscal autonomy in that their approved annual
appropriation shall be automatically and regularly
released, so that there can be no undue delay inthe execution of their duties. Their annual
appropriation cannot be reduced from that of theprevious years.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
employees, and to serve as the people’s
watchdog of the government. It is an
institution with the biggest responsibility
to prevent graft and corruption. It provides
for a Deputy Ombudsman for the military,
and at least one each Deputy for thegeographical divisions of Luzon, Visayas
and Mindanao.
The Civil Service Commission is thecentral personnel tasked to promote
efficient and responsive public service
delivery, to establish a career service,strengthen the merit system and humanresource development, promote public
accountability and enforce the Code of
Conduct and Ethical Standards for Public
Officials and Employees (RA 6713). It
undertakes anti-corruption functions, suchas values orientation workshops andemployee voluntarism.
The Commission on Audit, while
primarily regarded as an evaluator of thegovernment’s performance in handlingfunds, also has as a function on the input
side, as it conducts audits on the income
and revenues of government. Aside fromensuring financial accountability, theCommission may also inquire as to theeffectiveness and impact of programs, andnot alone into the economy, efficiency or thelegality and regularity of government
operations.

organizing a committee of cabinet officials
rather than an agency with full-time
personnel, the President’s Committee on
Public Ethics and Accountability (PCPEA).
Its framework advanced the inseparabilityof accountability from other acts ofgovernance, the idea that corruption canbe tackled by management actions that
increase its risks and decrease its benefits,
and decentralized graft-busting.
President Fidel V. Ramos created thePresidential Commission against Graft and
Corruption (PCAGC) under Executive
Order No. 151 dated January 11, 1994. It
was tasked to investigate presidential
appointees charged with graft andcorruption. Likewise, it functions as acoordinating body in the efforts ofinhibiting the practice of graft andcorruption, to expeditiously prosecute suchpractices by officials in the executive
department, and to monitor the
implementation of the Moral Recovery
Program.

The Sandiganbayan, literally “the pillarof the nation”, is a special court withjurisdiction over civil and criminal cases
involving graft and corrupt practices.

Unlike other presidents, President
Estrada has not created his own anticorruption body and has allowed theRamos’ created PCAGC to continue in
office. He seemed to be inclined to use
instead the Inter-Agency Anti-graft
Coordinating Council, composed of theCommission on Audit, Civil Service
Commission, the Ombudsman, theDepartment of Justice, the National
Bureau of Investigation and thePresidential Commission against Graft and
Corruption.

E. Presidential Anti-corruption
BodiesEach president has appointed his or her
anti-graft or investigating agencies “as an
exercise of the president’s power to probe
into the anomalous members of his/heradministrative organization (Alfiler, 1979:
329)”. President Aquino broke tradition by

F. The Rank and File as Graft
Busters (Cariño, 1992)
Because of their knowledge of theworkings of both formal and informal
processes, employees are natural sourcesof information about deviations fromaccountability. It was in the Aquino regime
in 1986, that the potential of employees as

507

RESOURCE MATERIAL SERIES No. 56
graft-busters was tapped. Several unions
had tangled with their respective
management on the issue of theiraccountability and performance. The unionin the National Electrification
Administration has unearthed anomalies
and delays in the implementation of someprojects such as the USD$ 192 million rural
electrification revitalization program, ajoint project of the World Bank and the
Office of Economic Cooperation Fund ofJapan (Manila Chronicle, November 13,
1995:4). The most successful effort is stillthat as described by Gaffud (1994), which
was able to remove the top administratorsof an agency in 1990. The union questioned
transactions worth P176 million, including
overpricing, purchases made without being
utilized, purchases made for non-existentprojects, etc. After being ignored by the
Department of Justice and the higher
officials of the department to which it is
attached, the union finally found alistening ear in an NGO (non-governmentorganization), the Gising Bayan
Foundation, which then filed complaints
with the Ombudsman. After investigation,
President Aquino dismissed three assistantadministrators, but not the headadministrator.
Since 1986, the leadership of at least
seven other unions faced harassment,
intimidation, and sometimes, removal fromoffice for their anti-corruption stance.
Nevertheless, they have succeeded inbringing cases of corruption, abuse andnepotism practiced by their superiors to theattention of control bodies such as theCommission on Audit, the Ombudsman
and legislative committees for further
investigation.
G. Participation of the Nongovernmental Sector
People power energized in the EDSA
inflamed non-government organizations(NGOs) to get concerned about issues of508

integrity and corruption. Their initialapproach centered not on punishingcorruption, but in being involved in keeping
government operations clean and effective.
The Community Employment andDevelopment Program (CEDP) of the late1980s became the laboratory for this new
partnership of government and causeoriented groups. For instance, the National
Movement for Free Elections (NAMFREL)8
branched from election cases to themonitoring of CEDP implementation invarious local areas. Based on this virtual
experiment, the government promulgatedguidelines on the use of such volunteer
groups for exception monitoring.
Some associations focused directly on
preventing corruption. Operasyong
Walang Lagay (OWL), its name connoting
a movement to prevent bribery, assisted
some departments and local governments
in streamlining procedures and improving
bidding committees. However, it folded in
1989 because the volunteers could not copewith the increasing demands on their time,a very real problem for volunteerism in a
growth field such as corruption.
The National Coalition of Transparency
was launched in 1989 to show that public
support for measures to enhanceaccountability could still be mustered.
Composed of over thirty NGOs, including
Bishop-Businessmen’s Conference (BBC),NAMFREL, and other groups that were in
the forefront of the anti-Marcos struggle,
it put forward a comprehensive approachto the problem as it recognized the private
sector’s incrimination in the continuationof governmental corruption. Lacking selfrighteousness, its first campaign was for
its membership to pay the proper taxes,
and thus be morally capable of censuring
the dissipation of public revenues by
8

NAMFREL is now active in sponsoring seminarworkshops on Japan’s koban system of policing.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
government. It was in meeting with themthat the President admitted the return ofshameless corruption in her administration(Cagurangan, 1989).
Anti-corruption organizations associatedwith religious groups include the BBC, theGising Bayan Foundation 9 and thereligious right, calling itself Citizens Battle
Against Corruption (CIBAC) 10 . The
Nationalista Party, a political party, also
formed an anti-graft panel, composedlargely of former officials of the Marcos
regime (Manila Bulletin, June 4, 1989),
making it suspect as a political neutralbody.
Meanwhile, the Anti-Police Scalawag
Group (APSG) is focused on police
corruption. It recently called on thePhilippine National Police (PNP) to curb
rampant “tong” and payola collection fromoperators of illegal gambling, ironicallyperpetrated by members of the PNP’s own
illegal gambling task forces. An APSG
spokesperson disclosed that in Metro
Manila alone, there were about 30 to 45
gambling “maintainers” of vice dens suchas video karera, sakla, hi-lo, 11 lottery,bookies, and prostitution dens who give
goodwill money ranging from P500, 000 toP1 million, aside from the monthly “payola”
for protection of P100, 000 to P500, 000(Philippine Daily Inquirer, August 10,
1998:22).

9“Gising Bayan” means “Wake Up Nation.” It was
originally the title of a radio program under Radio
Veritas, the Catholic station.
10 CIBAC is coined from the Tagalog word “sibak”
which means to cut down.
11 These are local gambling practices consideredillegal.

IV. THE OMBUDSMAN'S STRATEGYAGAINST GRAFT AND
CORRUPTIONIn this portion, I will present some datafrom the Ombudsman and the
Sandiganbayan that can provide us withinsight on the results of the Philippine anticorruption effort. These efforts are focusedon the intriguing causes of corruption:(i) I n d i v i d u a l c a u s e s w h i c h a r e
attributed to weak moral fiber anddistorted values among bureaucrats,
such as materialism, lack of integrity
and nationalism;(ii) Organizational causes refer to
deficiencies, in the bureaucratic
apparatus such as low salary, poor
recruitment and selection
procedures, and red tape ingovernment; and(iii) Societal causes where corrupt
behavior is itself the norm of society.
A. Programs of the Office of the
Ombudsman
The OMB is mandated under theConstitution to protect the people fromabuse or misuse of power by government,
its agencies or functionaries. It must fightfor justice for all citizens, prevent loss ofgovernment funds and bring the culprit tojustice. It faces a gigantic challenge inc a r r y i n g o u t t h e g o v e r n m e n t ’s
determination to rid itself of undesirablesin the public service. The conferment of
this extensive authority by theConstitution insulated the Office frompolitical influence or interference by:(i) Stating that the Ombudsman isremovable from office only by
impeachment;(ii) Prescribing a fixed term of office forseven years without reappointment;(iii) During the term, his/her salarycannot be diminished;(iv) Leveling the Ombuman’s rank with509

RESOURCE MATERIAL SERIES No. 56that of a Supreme Court justice.
B. Five (5) Major Functions12
The Ombudsman performs five major
functions, such as investigation, graft
prevention, public assistance, prosecution,
and administrative adjudication. It is
invested with corresponding authority to
be able to carry out these functions. The
investigative function of the Office involves
determination of violations of the anti-graft
laws by public functionaries through factfinding or evidence gathering. It also
includes the finding of probable causethrough formal preliminary investigation
for the purpose of prosecution.
In graft prevention, the Office has theauthority to prevent the commission ofgraft by ordering or stopping theimplementation of government contracts
that are found to be disadvantageous to thegovernment. In the exercise of its public
assistance, the Office of the Ombudsman
extends assistance to citizens in getting
basic public services from the government.
In prosecution, the Office may file charges
or prosecute cases in court against erring
public officials and private citizens foundto have connived with them. The Office of
the Special Prosecutor may prosecute thecase in the Sandiganbayan. In the regularcourts, regular prosecutors are deputizedby the Office of the Ombudsman to handle
prosecution.
Under its administrative adjudication
function, the Office has the authority to
conduct administrative penalties where theerring public official or employee, including
Cabinet Secretaries, may be suspended or
dismissed from public service. It holds
disciplinary authority over all government
functionaries, except the president andmembers of congress and the judiciary andother impeachable officials. In all other
12 The Ombudsman Primer, p.2.

510

criminal cases, however, all public officials
and employees, without any exception, areunder the Ombudsman’s investigative
jurisdiction.
In consonance with all these functions
performed by the Ombudsman, s/he shallact on all complaints, but not limited to acts
or omissions which:(i) are contrary to law or regulations;(ii) are unreasonable, unfair, oppressiveor discriminatory(iii) are inconsistent with the generalcourse of an agency’s function, thoughin accordance with law;(iv) proceed from a mistake of law or an
arbitrary ascertainment of facts;(v) are in the exercise of discretionary
powers but for an improper purpose;or(vi) are otherwise irregular, immoral or
devoid of justification.
In its effort to solve the twin evils of graft
and corruption, the Office of the
Ombudsman employs a two-pronged
strategy: confrontational and psychologicalapproaches.
The confrontational approach involves
the administrative and criminal
investigation and prosecution of erring
members of the bureaucracy. In thisregard, a number of criminal cases werefiled in the Sandiganbayan involving highranking officials and about 2,500 cases
referred to the ordinary courts involving
low-ranking members of the bureaucracy.
To complement this capability, the InterAgency Consultative Committee with theCommission on Audit (COA), Civil Service
Commission (CSC), Philippine Commission
Against Graft and Corruption (PCAGC),
and the National Bureau of Investigation(NBI) have been formed and organized for
effective coordination.

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
As part of the strategy, the tripod system
was adopted to enforce honesty andefficiency. This system includes theestablishment of Corruption Prevention
Units (CPUs), Junior Graftwatch Units(JGUs) and installation of the Offices of the
Resident Ombudsman. The CPU’s wereorganized to broaden community
participation and serve as the
Ombudsman’s eyes and arms, closely
monitoring critical and substantially
funded government projects and/ortransactions in their respective areas ofconcern. They also serve as a front desk toreceive and facilitate requests forassistance, complaints, or reports of any
anomalous or corrupt practices. In
addition, the CPU’s work hand-in-handwith the Office of the Ombudsman inpromoting the objectives of the latter
through the conduct of various activities
involving community participation, such as
consultative workshops, symposia,
seminars and conferences, developing

moral values of honesty, as well as
educating the public on preventive
measures in its fight against graft andcorruption. At present, about 200 CPU’s
have been already organized from amongcivic-minded non-governmentalorganizations.
The Junior Graftwatch Units (JGU’s)
have been organized to mobilize the youth(both at high school and college level,
including the out-of-school youth) in thefight against graft and corruption, by
encouraging them to become the primary
coordinating arm of the Ombudsman withrespect to the educational and motivational
projects involving youth, and as an effective
ally of the Office of the Ombudsman. Allover the country, there are already seven
hundred and seventy-four (774) Junior
Graftwatch Units accredited by the
Ombudsman. These are organized todevelop and strengthen their instinct ofgoodness and idealism which is anchoredFigure I. THE POLICY OF GRAFT PREVENTION
Stages of Graft Prevention

UNCOVERING PLANS FOR
CORRUPTIONSTOPPING ON-GOING ACTS
OF CORRUPTIONDETERRINGCORRUPTIONCONDITIONING THE MINDAGAINST CORRUPTIONPROACTIVE
GRAFTPREVENTIONRESIDENT OMBUDSMENJUNIOR GRAFTWATCH UNITCORRUPTION PREVENTION UNITS

511

RESOURCE MATERIAL SERIES No. 56
in the principle that a child who grows up
in an environment of honesty will bedifficult to corrupt when s/he attains
maturity.
The Office of the Ombudsman believes
that in empowering the citizenry to practicetheir innate virtues of honesty anduprightness, and getting them involved in
the Ombudsman’s struggle for the rightvalues, we can expect a citizenry with evenstronger moral fiber in the future. The
Office’s graft prevention efforts are directed
at sustaining the support of all sectors ofFilipino society, which is a healthy sign ofempowering the citizenry in nationbuilding. It has likewise installed Resident
Ombudsmen (ROs) in 22 important
departments of the government to serve as
watchdogs and guardians of integrity andefficiency. They closely monitor the
performance of government functionaries,
thereby producing strong deterrence tobureaucratic corruption and inefficiency.

See Figure I for the stages of graft
prevention as conceived by the
Ombudsman.
The psychological approach adopted has
been designed to create and nurture an
environment of integrity in the Philippine
society. This proceeds from the principlethat corruption cannot thrive in a milieu
of honesty. This approach, which has along-range objective, is expected to have alasting effect because it aims to develop astrong moral fiber for the citizenry.
For this purpose, the Office has worked
with the Education Department on
introducing graft prevention modules thatwill teach students old Filipino values ofhonesty and integrity. It has forged anagreement with the Movie and Television
Review and Classification Board (MTRCB)
to ascertain that corrupt practices pictured
in movie films and television programs
have redemptive values or punishment of

Figure II. THE OMBUDSMAN’S TOTAL STRATEGY AGAINSTGRAFT AND CORRUPTIONCONFRONTATIONALAPPROACH

Investigation

Protection

Administrative
Adjudication

Enforcement of Laws on Public Accountability

Community
Mobilization

Values Formation& Reorientation

GRAFT-FREE
BUREAUCRACY/SOCIETY

Strengthening of the Citizens’ Moral
Fiber; Graft Deterrence

PSYCHOLOGICALAPPROACH

512

PublicAssistance

Graft Prevention
Education

Resident
Ombusmen

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
the corrupt. Orientation seminars for new
government entrants are also conducted toprovide a deeper understanding of public
service values and of the accountability
attached to their positions in thegovernment. It has continuously conductedvalues orientation seminars/workshops toenhance organizational effectiveness andstrengthen the moral fiber of the personnel.
The totality of the Ombudsman’s strategy
against graft and corruption is shown in
Figure II.
C. Focus on New Initiatives: Dealing
with “Graft-prone Agencies”
Given the fact that stolen money isusually never recovered, even if aconviction is obtained, the Ombudsman
decided that the problem must be
confronted before it is committed. A
psychological approach was developed toaddress the social environment within
which graft and corruption occur. The
approach as previously mentioned
attempts to strengthen the citizen’s moral
fiber and deter the opportunities for graft.
In determining the graft-prone agenciesof the government, the Ombudsman adopts
three criteria:(i) the size of the budget of the agency,(ii) the number of its personnel; and(iii) the number of cases filed in the
Office of the Ombudsman.
As may be noted, the first two criteria
relate to the presence of opportunities forcorruption, while the third relates to actual
cases uncovered by complaints andinvestigation. The agencies meeting thesecriteria are the following:(i)

Department of Education, Culture
and Sports (DECS)(ii) Department of Public Works andHighways (DPWH)(iii) Department of Environment andNatural Resources (DENR)(iv) Department of Agriculture (DA)(v) Department of Health (DOH)(vi) Department of Transportation andCommunication (DOTC)(vii) Department of Interior and Local
Government (DILG)(viii) Department of National Defence(DND)(ix) Department of Foreign Affairs (DFA)(x) National Irrigation Administration(NIA)(xi) National Power Corporation (NPC)(xii) B u r e a u o f I m m i g r a t i o n a n dDeportation (BID)(xiii) Philippine Economic Zone Authority(PEZA)(xiv) Philippine Ports Authority/Bureau of
Customs (PPA/BOC)(xv) Bureau of Internal Revenue (BIR)(xvi) Board of Investment (BOI)
For these agencies, the Resident
Ombudsmen reviews processes to cut red
tape, and inspects bidding requirements
and contracts for evidence of graft.
This program appears to be a worthwhile
initiative to the extent that the
Ombudsman assists an agency inimproving policies and programs to prevent
corruption. In that sense, it is proactive,and views corruption from a systemic
perspective. However, the work that the
Resident Ombudsman is given should not
duplicate or take away the responsibilityof the management, through a working
internal control unit, in supervising theperformance of the functions assigned tothat agency. To transfer this responsibility
to an outside agency may enmesh the
Ombudsman in implementation problems,
as well as corruption opportunities, anddecrease its capacity for enforcement andprovision of sanctions. This seems to us
similar to the pre-audit functions that used
to be performed by the Commission on
Audit, until it recognized that management

513

RESOURCE MATERIAL SERIES No. 56
should wield this important power, forwhich it is responsible.
Another problem may be in the labellingof agencies as graft-prone. Bigness alone
is not necessarily a prelude to corruption.
Besides, the third criteria of the numberof cases may be misleading if they
primarily consist of cases still underinvestigation, rather than resolved. A
litigation-prone agency may not be
equivalent to a corruption-prone one. We
may point out that this issue shows theurgent need for the Ombudsman toexpeditiously dispose of cases brought toits jurisdiction.
VI. CONCLUSION AND
RECOMMENDATIONSThe Philippines has unleashed many
weapons against irresponsible behavior in
the government. It has a comprehensive
set of laws that may have ascertained all
the possible instances of graft andcorruption that can be devised. The anticorruption agencies have been given ample
powers to identify and punish offenders.
They recognize the burden of power, withspecial agencies to give priority to catchingthe “big fish” and grave offences, over theacts of lower ranking personnel. They
started on their own to coordinate witheach other for greater over-all effectiveness.
They approach corruption in both apreventive and punitive way. They
recognize that the task is not only with thegovernment, and have enlisted civil society
in the struggle. For their part, citizens
have also volunteered, in cooperation withstate agencies or by themselves, in fighting
corruption. On the whole, the Philippine
approach has used democratic means,relying on due process, transparent
procedures, and volition in effecting manyof its aspirations. Yet corruption continues.
What else needs to be done?

514

A. Re-examination of Existing Laws
The Philippines does not need any morelaws against corruption. If anything, what
it needs is a re-examination of anticorruption laws not only to remove
duplication, but also to ensure that thoseexisting are accepted by the populace andenforceable by the anti-corruption
agencies. We can only cite a few areas forfurther study. There are at present someprovisions that, in their strictness, may
encourage their breach:(i) The Anti-gift Decree has never been
implemented, but it can conceivably
be used against a completely
innocent, generous person, who(being a devout Christian) cannot
help but give gifts on Christmas day,an act sanctioned by PD 46 andignored by almost everybody
immersed in Philippine culture.
(ii) T h e s t a t e m e n t o f a s s e t s a n dliabilities, a simple but potentiallystrong mechanism to findunexplained wealth, is submitted
yearly by all public officials, but noone ever studies them. In any case,
any well-paid accountant can hide
unexplained wealth, and so the only
people potentially at risk are civil
servants that cannot afford to haveothers write their statements.
(iii) Other provisions may work against
getting good people in government,
for example, by the requirement fordivestment. This approach topossible conflicts of interest will be
met by well-qualified people entering
into the highest reaches of the state
apparatus. The current divestment
procedure may be too harsh, since it
could effectively mean that no top
industrialist for instance can be
Secretary of Trade and Industry, andno top banker may be Central Bank

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Governor. That would be denying thegovernment valuable humanresources.
A possible alternative is to put moretrust in transparency and the press(which requires an amendment ofexisting law). When a president
chooses a person who shows
reluctance because of the divestment
requirement, exemption must be
made for that person, provided thathe or she discloses in detail andpublicly all personal interests thathave public implications. This could
mean that the citizenry could keep
track of the development of therelevant businesses and industries,
while a valued member is in public
office. Conversely, the problem ofconflict of interest must be tackled
head on by removing persons whose
personal interest prospered while
they were in office. This is amply
provided for in RA 3019 and RA 6713,
even without the divestment
requirement.
(iv) The schedule of penalties may also
be looked into. In some cases thepenalty may be too low, e.g, themaximum imprisonment forcorruption under RA 3019 is 15 years.
In others, it may be too high, e.g, thesole penalty for grave misconduct on
first offence is dismissal from theservice. Extreme penalties do not
encourage prosecution of offences,even when they are blatant, becauseof the cultural trait of “sayang” (wasteof time) for those who will merit only
low penalties and “awa” (pity) for
those who will be hit by harshpunishment.
B. Enforcement
The Philippines has an impressive
number of laws to tackle practically allcases requiring fast actions. However,enforcement of these laws leaves much to
be desired. The retention of officials whom
the President’s anti-graft agency itself
recommended to be removed suggests alack of political will, and the priority ofpartisanship over the public interest. This
would have provided an occasion forarticulating the Administration’s ethicalvision, catching a big fish, and warning
everyone that the leadership means
business.
The people expect not only equal
enforcement of the law, but even morestrictness on persons perceived to be in the
President’s inner circle. Decisivenesswould also be perceived if the public is
informed of a clear connection between theofficial’s misdeed and his/her removal. Partof the popular dissatisfaction with theconduct of accountability is the lack ofclosure of cases. The number ofinvestigations that were not finished, or
have “softer” findings and conclusions
when no longer laboring under the publiceye, does not increase public confidence inthe anti-corruption programs.
C. Leadership in the Anticorruption Drive
Leadership of the organizations
primarily focused on fighting corruption
requires higher qualifications than what
is normally demanded. This applies
particularly to the Ombudsman and to theheads of other agencies specifically created
for this purpose. The very concept of an
Ombudsman requires a person of highintegrity whose very presence provokes
respect and rectitude. The Philippines has
not been blessed with the appointment ofsuch persons to this office. Instead, they
have been controversial, such that theyraised questions about the Office, itself not
only about its head. The President who
appoints the Ombudsman should becognizant of the high expectations of the515

RESOURCE MATERIAL SERIES No. 56
people to bring to the Ombudsman’s officepersons known for their ethical rolemodeling, non-partisanship, and good
judgement.
D. More Resources for Enhancing
Accountability
Resources for enhancing accountability
and attacking corruption must be provided.
This is an investment that will pay off in
the long run. Guardians must be supported
in their programs and given incentives not
to stray from accountability. The funds,
personnel, technology, and other resourcesof the Ombudsman and the
Sandiganbayan must allow them to keep
in step with the corrupt they are trying tocatch. The personal income of such officials
should be competitive with the private
sector, subject to the conscientious
performance of their duties. Theirorganizations should be provided with thenecessary equipment high-tech devices like
hidden cameras, etc and mundane matterssuch as paper clips, envelopes, filingcabinets as is needed in their work.
Incumbents should be imbued with a senseof mission early, via a well-plannedorientation program, and keep them goingwith peer group and leadership support,
and a hotline for counseling on the
problems they meet.
Civil servants who perform exceptionallywell should be recognized. The Civil
Service Commission program to this effectis a step in the right direction, but it honors
too few people. The increase of salaries
across the board through the SalaryStandardization Law is a way to keep up
with inflation, but it has had the pernicious
effect of eating up any resources that may
be given competitively. Merit increases andpromotion can signal that an agency
recognizes that one official is doing better
work than the others are.

516

E. Better Public Administration
The management approach started
under the Aquino administration should becontinued and improved. Persons indecision-making positions should betrained and encouraged to thinkstrategically. The challenge is to use
whatever capacity there is towards workthat is focused on enhancing the public
interest. There is also a need to
institutionalize some of the efforts thathave been put into enhancing
accountability since 1986. This means the
support of agency reform measures, as wellas the establishment of new procedures, topave the way for cleaner administration.
F. Encouraging Public Sector
Unions
Democracy is developed in thebureaucracy as the rank and file are given
the chance to air their grievances, press forbetter working conditions, and demand
responsibility and rectitude from the
management. Even with Civil Service
Commission encouragement, unions still
face an uphill battle in being heard by theirbosses. An arrangement where the union
keeps its independence while remaining
open to a partnership for service withmanagement would provide the best
avenue not only for policing how
accountable management is, but also for
improving the performance of everyone at
all levels of the organization.
G. Reform of Politicians andBusiness People
Changes should also focus on the main
corrupters, the politicians and the private
sector. The NGOs that require theirmembers to pay the right taxes and conduct
activities towards corruption prevention
within their ranks should be encouraged.
Political parties should reform themselves,primarily through the continuous trainingof their members on party principles andpolicies, and their acceptance of the113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
principle of political neutrality among civil
servants. Pending that, the passage of thelaw required by the Constitution against
political dynasties, and increased recourse
to and encouragement of the activities of
the Ethics Committees of both Houses
would be more immediate steps. Causeoriented groups and public sector unions
may assist politicians, especially those who
regard themselves as non-traditional, indeveloping support groups to re-enforce
their desire for true public service, not mere
patronage.
H. Transparency and Accountability
Make transparency real, allowing civil
servants and the public to accessinformation in government. A question
hour in Congress, or a radio-TV programwith questions and comments to beanswered by executive officials may help
inquiries into any aspect of their policies
and performance. Reports of investigations
should be made available to the public. The
support of the mass media in theseendeavors, accompanied by their own
efforts at reforming their ranks, would be
crucial to the success of these efforts.
Accountable performance would be
supported if the public is informed about
what the agency does and why. It is ameans of ensuring that the personnel
themselves know its mission. At the sametime, both they and the public would alsothen understand the reasoning behind
what seem to appear only as red tape.
Information sharing - particularly of steps
in service delivery - also makes it
unnecessary for the client to seek out a‘fixer’. Open transactions can build a senseof partnership between the government
and the people the agencies serve.

While cultures cannot be changed
overnight, support for value changes must
be developed through a system of rewards
and punishments that becomes regularized
in standard operating procedures. Also, themeting out of positive and negative strokes
must be swift but fair, and even-handed.
Value development seminars should becase-oriented, thought provoking, and able
to encourage innovative behavior, whileraising alarm about continued violations.
J. Role of the People
There is a need for popular involvementin ethics and accountability. Paying theproper taxes, obeying regulations, being
well informed about government services these are only the first steps in moving toa disciplined but democratic society. In
addition, support for politicians who
promote causes rather than just theircharm and personality would also make theline of accountability clearer. The
development of parties with coherent
platforms should then be a focus of people’s
participation, to tie up with the reformssuggested above. These are all in addition
to the encouragement of NGOs that are
non-partisan in exposing corruption andbringing violators to justice. The start ofmany of these measures has already beenmade. They are in tune with democratic
principles, as well as the culture. One
hopes that many more financial, humanand moral resources will be placed at theservice of accountability in the country.

I. Moral Reform
Having role models, a code of ethics andvalue formation exercises speak of a desire
for moral reform within the government.

517

518

OMB Cases Received during the year
Cases received back to pending
Old Tanodbayan Cases
Carry-over from the previous yeaer
Total Workload of Criminal/
Administrative Cases/ Complaints
Disposed ofDismissed/ Closed and terminatedPenalty Imposed
Prosecution
Regular Courts
Pending
6

6,592
3,056
2,996

1,868
1,862
1,862

3,536

60

2,814
6

1,811

9,159

1998
8,551
18

8,511 11,690 14,422 18,205 22,397 20,839 21,736 20,651 17,728
2,108 2,885 4,494 5,416 7,772 7,864 9,263 11,492 10,816
1,908 2,278 3,839 3,605 4,851 4,262 5,109 8,986 8,397
73
93
95
179
296
253
200
607
655 1,738 2,828 3,507 3,975 2,210 2,166
405
393 1,378 2,198 2,988 3,734 1,722 1,700
603 8,805 9,928 12,789 14,625 12,975 12,473 9,159 6,912

1991 1992 1993 1994 1995 1996 1997
5,142 5,303 8,172 9,454 6,122 8,117 8,150
19
92
28
998
145
314
105
154
46
552
3,536 6,403 8,805 9,928 12,789 14,652 12,975 12,473

1988 1989 1990
57 3,722 3,997

Table 1OFFICE OF THE OMBUDSMANSTATISTICAL REPORT ON CRIMINAL/ADMINISTRATIVE CASES
From 1988 to 1998

RESOURCE MATERIAL SERIES No. 56

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Table 2
WORKLOAD AND STATUS OF CRIMINAL AND ADMINISTRATIVE CASES(as of December 31, 1997)

Particulars

Cases received during the year
Referred by the other OMB office
Disposed cases reverted back to pending
Carry-over from 1996
Total workload of criminal
and administrativecases
Less cases recalled to central
office / transferred to OMB office
Net workload of cases
Disposed
Dismissed / exonerated
Prosecution
Penalty imposed
Closed and terminatedPending

Central
Luzon
OfficeVisayas Mindanao Military

Total

1,246
8
0
3,980

1,494
13
0
2,460

2,075
0
0
1,932

1,150
49
28
3,244

2,185
0
0
857

8,150
445
28
12,473

5,234

3,967

4,007

4,471

3,417 21,473

186
5,048
3,249
2,812
254
148
35
1,799

68
3,899
1,772
1,337
383
15
37
2,127

177
3,830
2,094
1,527
357
86
124
1,736

9
4,462
2,034
1,520
451
47
16
2,428

5
445
3,412 20,651
2,343 11,492
989
8,185
765
2,210
0
296
589
801
1,069
9,159

Table 3
WORKLOAD AND STATUS OF CRIMINAL CASES(as of December 31, 1997)

Particulars

Cases received during the year
Referred by the other OMB offices
Disposed cases reverted to pending
Carry-over from 1996
Total workload of criminal cases
Less cases recalled to central
office / transferred to OMB offices
Net workload of criminal cases
DISPOSED
Dismissed
Closed and TerminatedProsecution
with regular courts
with Sandiganbayan
Pending

Central
Office

Luzon

880
7
0
2,989
3,876

1,125
13
0
1,997
3,125

1,242
0
0
1,281
2,523

847
46
25
2,765
3,683

1,370
5,454
255
321
0
25
756
9,788
2,381 15,855

179
3,697
2,749
2,460
35
254
176
78
948

2
3,123
1,480
1,097
0
383
244
139
1,643

132
2,391
1,440
1,070
13
357
291
66
951

6
3,678
1,746
1,295
0
451
309
142
932

3
321
2,378 15,267
1,643
9,058
878
6,800
0
48
765
2,210
752
1,772
13
438
735
6,209

Visayas Mindanao Military

Total

519

RESOURCE MATERIAL SERIES No. 56
Table 4
WORKLOAD AND STATUS OF ADMINISTRATIVE CASES(as of December 31, 1997)

Particulars

Cases received during the year
Referred by the other OMB offices
Disposed cases reverted back to pending
Carry-over from 1996
Total workload of
administrative cases
Less cases recalled to central
office /transferred to other OMB offices
Net workload of administrative cases
DISPOSED
Dismissed / exonerated
Penalty imposed
Closed and terminatedActive / awaiting final disposition

Central
Office

Luzon

366
1
0
991

379
0
0
463

833
0
0
651

303
3
3
479

815
120
0
101

2,696
124
3
2,865

1,358

842

1,484

788

1,036

5,508

7
1,351
500
352
148
0
851

66
776
292
240
15
37
484

45
1,439
654
457
86
111
785

4
784
288
225
47
16
496

2
124
1,034
5,384
700 11,492
111
1,385
0
296
589
753
334
2,950

Visayas Mindanao Military

Total

Table 5TOTAL WORKLOAD OF CRIMINAL AND ADMINISTRATIVE CASES(as of December 31, 1996)

Particulars

Cases received
Referred by other OMB offices
Disposed cases reverted back to pending
OSP / TBP transferred cases
Carry-over from 1995
Total cases received
Less cases recalled to central
office /transferred to other offices
Net workload of cases
Disposed
Dismissed
Prosecution
Penalty imposed
Closed and terminatedPending

520

Central
Office

Luzon

1,342
19
0
6
4,718
6,085

1,525
13
0
1
2,063
3,602

2,026
1
5
1
2,062
4,095

1,140
16
87
544
3,079
4,866

2,084
8,117
243
292
0
92
0
552
654 12,576
2,981 21,629

65
6,020
2,974
2,063
350
21
0
3,046

7
3,595
1,135
879
185
65
6
2,460

210
3885
1,765
1,472
201
46
46
2,120

6
4,860
1,219
909
221
39
50
3,641

4
292
2,977 21,337
2,121
9,214
741
6,604
549
1,506
8
179
823
925
856 12,123

Visayas Mindanao Military

Total

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Table 6WORKLOAD AND STATUS OF CRIMINAL CASES(as of December 31, 1996)
Particulars

Cases received
Referred by other OMB offices
Disposed cases reverted to pending
OSP/TBP transferred cases
Carry-over 1995
Total criminal cases received
Less cases recalled to central
office /transferred to other offices
Net workload of criminal cases
DISPOSED
Dismissed
Closed and terminatedProsecution
with Regular Courts
with Sandiganbayan
Pending

Central
Office

Luzon

1,028
18
0
6
3,402
4,454

1,213
13
0
1
1,657
2,884

1,424
1
4
1
1,342
2,772

828
10
76
544
2,605
4,103

1,228
5,761
178
220
0
80
0
552
605
9,611
2,011 16,224

60
4,394
2,339
1,989
0
350
195
155
2,055

7
2,877
880
695
0
185
181
4
1,997

144
2,628
1,159
941
17
201
153
48
1,469

5
4,098
936
701
14
221
194
27
3,162

4
220
2,007 16,004
1,252
6,566
703
5,029
0
31
549
1,506
542
1,265
7
241
755
9,438

Visayas Mindanao Military

Total

Table 7ADMINISTRATIVE CASES / COMPLAINTS(as of December 31, 1996)

Particulars

Cases received
Referred by the Central Office
Disposed cases / reverted back to pending
Carry-over 1995
Total administrative cases received
Less cases recalled to central
office /transferred to other offices
Net workload of administrative cases
Disposed
Dismissed / exonerated
Penalty imposed
Closed and terminatedActive / awaiting final disposition

Central
Office

Luzon

314
1
0
1,316
1,631

312
0
0
406
718

602
0
1
720
1,323

272
6
11
474
763

856
65
0
79
970

2,356
72
12
2,965
5,405

5
1,626
635
614
21
0
993

0
718
255
184
65
6
463

66
1,257
606
531
46
29
651

1
762
283
208
39
36
479

0
970
869
38
8
823
101

72
5,333
2,648
1,575
179
894
2,685

Visayas Mindanao Military

Total

521

RESOURCE MATERIAL SERIES No. 56
Table 8TOTAL WORKLOAD AND STATUS OF CRIMINAL AND
ADMINISTRATIVE CASES (as of December 31, 1995)
Particulars

Cases received
Referred by the Central Office
Disposed cases / reverted back to pending
Referred by the other OMB offices
OSP / TBP transferred cases
Carry-over 1994
Total criminal / administrative
cases received
Less cases recalled to central
office /transferred to other offices
Net workload of criminal /administrative cases
Disposed
Dismissed
Prosecution
Penalty imposed
Closed and terminatedPending

Central
Office

Luzon

1,203
0
0
27
9
5,855

0
1,142
0
18
0
1,692

1,159
109
0
6
0
2,257

1,354
137
19
19
1
3,459

7,094

2,852

3,531

4,989

30

2

85

231

7,064
1,984
1,637
307
1
39
5,080

2,850
1,416
1,140
252
24
0
1,434

3,446
1,475
1,143
246
15
71
1,971

4,758
1,834
1,311
379
55
89
2,924

Visayas Mindanao Military

617
248
0
285
36
602

Total

4,333
1,636
19
355
46
13,865

1,788 20,254
7355

1,781 19,899
1,155
7,864
473
5,704
336
1,520
0
95
346
545
626 12,035

Table 9CRIMINAL CASES(as of December 31, 1995)
Particulars

Cases received
Referred by the Central Office
Disposed cases reverted back to pending
Referred by the other OMB office
OSP / TBP transferred cases
Carry-over 1994
Total criminal cases received
Less cases recalled to central
office /transferred to other office
Net workload of criminal cases
Disposed
Dismissed
Closed and terminatedProsecution
Pending

522

Central
Office

Luzon

955
0
0
21
9
4,372
5,357

0
852
0
15
0
1,272
2,139

710
85
0
4
0
1,446
2,245

1,135
100
11
10
1
2,796
4,053

295
3,095
217
1,254
0
11
250
300
36
46
559 10,445
1,357 15,151

26
5,331
1,576
1,266
3
307
3,755

2
2,137
1,105
853
0
252
1,032

64
2,181
929
648
35
246
1,252

206
3,847
1,397
987
31
379
2,450

2
300
1,355 14,851
775
5,782
439
4,193
0
69
336
1,520
580
9,069

Visayas Mindanao Military

Total

113TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Table 10ADMINISTRATIVE CASES / COMPLAINTS(as of December 31, 1995)
Particulars

Cases received during the year
Referred by the Central Office (CO)Disposed cases / reverted back to pending
Referred by the other OMB office
Carry-over from 1994
Total administrative cases received
Less cases recalled to CO /transferred
to other office
Net workload of administrative cases
Disposed
Dismissed
Prosecution
Closed and terminatedActive / awaiting final disposition

Central
Luzon
OfficeVisayas Mindanao Military

Total

248
0
0
6
1,483
1,737

0
290
0
3
420
713

449
24
0
2
811
1,286

219
37
8
9
663
936

322
31
0
35
43
431

1,238
382
8
55
3,420
5,103

4
1,733
408
371
1
36
1,325

0
713
311
287
24
0
402

21
1,265
546
495
15
36
719

25
911
437
324
55
58
474

5
426
380
34
0
346
46

55
5,048
2,082
1,511
95
476
2,966

523

REPORTS
OF THECOURSERESOURCE MATERIALSERIES
No. 56
GROUP 1CURRENT SITUATION OF AND RECENT TRENDS IN THE
CORRUPT ACTIVITIES OF PUBLIC OFFICIALS, AND
CRIMINAL LEGISLATION AGAINST CORRUPTION
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Visiting Expert
Advisers

Mr. Joma Zidan
Mr.Chandrashekara
Mr. Asmadi Bin Hussin
Mr. Pravit Roykaew
Mr. Li Hai-Teng
Mr. Hiroshi Matsui
Mr. Naoki Ujita
Mr. Yoji Tanaka
Mr. Masahiro Okamura
Mr. Hector Efrain Castillo Guevara
Professor Antony Didrick Castberg
Professor Shoji Imafuku
Professor Chikara Satou
Professor Hiroshi Tsutomi(Palestine)(India)(Malaysia)(Thailand)(China)(Japan)(Japan)(Japan)(Japan)(Venezuela)(USA)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
All members of this group agree that nocountry in the world is safe from
corruption. The only difference is thatsome countries are suffering from serious
and widespread corruption, so much so thatin certain countries corruption has become
the norm, if not a culture, while corruption
in other countries is at manageable level.
Group one was given the task to discuss
the current situation of and recent trends
in the corrupt activities of public officials,
and criminal legislation against corruption
in three sub-topics. The first part dealt
with the phenomenon of corruption,
reasons and background (including by
domestic/transnational organized crimegroup). The objective of this sub-topic was
to examine the concept of corruption, which
segment of the public service is involved,
the reasons why the perpetrators ofcorruption committed the offence, impact
of corruption and the involvement oftransnational organized crime groups incorrupt activities.
524

Secondly, sub-topic two required thisgroup to discuss the current provisions
against corruption and their judicial
interpretation. In every country in theworld, legalistic approaches are thedominant countermeasures against
corruption. Over time, laws are made andamended when the need arises, tostrengthen the fight against corruption. In
recognition of the role played by legislationin stamping out the menace of corruption,
this group exhaustively discussed issues
regarding the criminal provisions against
corruption, and a comparison of thecriminal provisions relating to corruption
between countries represented by thisgroup and their judicial interpretation.
Lastly, in sub-topic three this group
discussed and proposed effective domestic
and international criminal legislative
countermeasures against corruption.
Considering that current legislation
against corruption in the respective

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
countries is inadequate, and also the needto intensify the fight against corruption,measures to rectify this defect by amending
existing legislation and creating better
legal provisions should be taken
immediately. Proposals for model domestic
and international criminal legislative
measures were discussed and proposed bythis group. Various international
documents were referred to during thediscussion in order for this group to comeup with better and more effective
legislative countermeasures, be it for
application domestically or internationally.
II. THE PHENOMENON OF
CORRUPTION, REASONS ANDBACKGROUND
A. Definition of Corruption
Considerable time was given in
discussion on whether to develop auniversally acceptable definition ofcorruption between the members. As it isextremely difficult, if not impossible, todefine what constitutes corruption, allmembers agreed to explain and illustrate
what constitutes corruption, rather thanto define it.
As the participants come from different
countries with different political systems,
criminal justice systems, cultural values
and beliefs, and levels of economic
development, to have consensus on adefinition of corruption is something wedared not endeavor to do. Nevertheless,members of the group agreed for reference
and guidance purposes to use the definitionof corruption of the Council of Europe:“bribery and any other behavior in
relation to persons entrusted withresponsibilities in the public...which
violates their duties that follow fromtheir status as public officials...andis aimed at obtaining undue
advantages of any kind for themselves

or for others”.
Actions by public officials whichconstitute corruption are as follows.
1. Bribery
The penal provisions of most countries
include the offence of bribery, where private
parties offer or promise money or otheradvantages to public officials in order toinfluence their decisions while exercising
their official duties or functions. Bribery
offences may be committed as variationsof deceitful acts such as attempts,
promises, giving, soliciting, or acceptanceof a bribe. Demanding, soliciting andextorting anything of value by public
officials may be called ‘active bribery’, while
accepting bribes can be safely be referred
to as ‘passive bribery’.
Another form of bribery is receiving
illicit payments. This situation covers
public officials who solicit or accept monies
in order to do something or not to dosomething which the official has, by natureof the official’s duty, to do or not do anyway.
These payments are often referred to as“speed money”, and are paid to public
officials in order to expedite a decision
making or other process, to cut ‘red tape’and bureaucratic delays.
2. Leaking Information
A situation whereby public officials giveconfidential information belonging to thegovernment to a particular businessenterprises or individual, which enables
that business enterprise or individual togain an advantage over competitors.
3. Abuse of Power
Whenever public officials abuse or
misuse their power and discretion for
personal benefit, or for the benefit ofanother person related to the official, suchactions constitute corruption. They range
from favoritism, nepotism and cronyism,

525

RESOURCE MATERIAL SERIES No. 56
to illegal discrimination through misuse of
the powers and discretion bestowed upon
public officials. In countries where
privatization policies are carried out in theprocess of the liberalization of economies
and development, the wide discretionary
powers given to the public officials havebecome a ripe field in which to benefit
themselves and others related to them byabusing their designated power anddiscretion. Instances of public officials
awarding government tenders to theirchildren, buying stocks of companies thatthey know will be awarded a contract by
the government (the value of which will
surely go up), and disclosing a competitor’s
bid for public construction work, are allvery common in those countries engaging
in privatization policies.
4. Breach of Trust
Whenever public officials are entrustedwith power or anything tangible to beadministered, and he/she misuses that
entrusted power for personal benefit, he/she is committing the offence of breach oftrust. Public officials may divert publicmonies, funds, resources or properties tothemselves, their relatives, or to those notrelated to them. History has shown thatsome autocratic rulers and despotic
regimes are best known examples of thiskind of systematic looting of their country’s
wealth.
5. Conflict of Interest
This situation occurs when public
officials contaminate their decision making
process with personal interest, resulting inbias. These types of public officials
completely disregard their obligation to be
fair, impartial, trustworthy and efficient intheir public roles. Instances of public
officials taking part in decision making
processes affecting enterprises orcompanies in which their wives, children,
or siblings are shareholders or directors areexamples of this kind of corrupt practice.

526

6. Misappropriation of Public Funds
This situation occurs whenever a public
official dishonestly uses public funds orother assets of the government for theirbenefit or for the benefit of others not
authorized to receive them. Domestic andinternational financial institutions arefavorite places to hide the loot, taking
advantage of the protection of banking
secrecy laws.
Based on the above discussion, it may
be safely said that corruption involves two
main elements:(a) Receiving advantage, either economic
or non-economic, for personal profit,
gain and enrichment.
(b) Misuse of one’s official capacity, duty,
and discretion for personal benefit or
the benefit of others who have arelationship with that public official.
B. Aims of Corruption
All members of this group agreed thatthe aim of the perpetrators of corruption
may be classified into two categories:(a) Economic
The perpetrator of corruption can besaid to have committed that offence
for economic reasons, perhaps
influenced by insufficient income,greed, traditional customs ofaccepting gratification, enrichingthemself because of a limited tenureof office, and collaborating withorganized crime groups.
(b) Non-economic
Non-economic motives include apublic official’s desire to obtain fame,
power, or status through corruption.
This also includes cases where they
may be ordered by a superior tocommit corruption.

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
C. Subject (Who)All members of the group were given theopportunity to discuss the level ofcorruption in their respective countries.
After extensive discussion, it was agreed
that corruption practices involve not only
low ranking public officials, but also those
who hold high positions in government.
Corruption among lower ranking public
officials may be called small scalecorruption and may cause little detriment,
but a high degree of severity of corruption
involves persons holding high positions.
Lower ranking public officials include
traffic police asking for money frommotorists who commit traffic violations,clerical employees who falsify overtime
claims, etc.
Small-scale corruption in some countries
constitutes the bulk of prosecution casesin courts of law, perhaps because corruption
by high-ranking government officials is
often more difficult to expose andinvestigate. Secrecy by certain
governments does not allow the law to takeits course to bring perpetrators to justice.
Bribery by politicians involved in votebuying was hotly debated by members of
the group. The argument was whether apolitician who contested an election, andwho eventually becomes a public official,
can be considered a public official. One
point of view is that a candidate in anelection is not a public official until andunless he/she wins the election, but he/she
is possibly a future public official. If thecontestant who engages in a vote buying
process is elected, his/her election iscontaminated by corruption. One who
resorts to corrupt practices is prone tocommit the same while in office.
Special attention must be given tocorruption amongst criminal justiceofficials, such as judges, public prosecutors,

and public defenders who are government
employees. If corruption is allowed topenetrate this area, it will destroy theadministration of justice and the public willlose confidence in the nation’s justicesystem.
D. Impact of Corruption
If corruption is allowed to flourish,
especially corruption involving highranking public officials, the nation may be
severely damaged economically. Business
opportunities and wealth will be restricted
to those who are connected to the ruling
elite, and this will reduce or eliminate
competition in the business sector.
Collusion and nepotism will become therule of the day. This in turn will lead topolitical instability, as well as depriving
citizens access to basic needs. The people
will feel frustrated and the general
population’s distrust will rise andeventually chaos will reign. Foreign
investment will also be curtailed if
widespread corruption is in place. This willaffect the country’s development.
Corruption directly increases the cost ofa transaction. If a business pays a bribe to
be awarded a contract, it will pass on thatcost to the purchaser. Prices skyrocket andthe purchasing power of consumers will
decrease.
E. International Dimension of
Corruption
All members of the group agreed thatcrime cannot always be solved with theeffort of each country alone. All social
phenomena have become transnational asa result of the remarkable progress intransport and communication. Crime,
which is the negative side of social
phenomena, is no exception.
Accompanying the internationalization ofcommercial activities, it is frequently
reported that companies offer bribes toforeign officials. It is been alleged, for527

RESOURCE MATERIAL SERIES No. 56
example, that several major Asian
construction companies bribed officials inSoutheast Asia to obtain favorable
treatment of their bids on major projects.
With respect to organized crime, it canbe said that it is natural for crimeorganizations to move the main sphere of
their activities from their own country toother countries, to avoid strict control orin expecting more benefit. On the other
hand, the criminal justice power ofenforcement authorities does not extend
beyond national boundaries. This fact will
spur the internationalization of crime.
Corruption of public officials is no
exception. When a criminal organization
seeks enormous profits abroad, they needto avoid any control and get advantageous
treatment. Then temptation to corrupt
foreign public officials by crimeorganizations increases.
Crime organizations obtain enormous
profits in cooperation with otherorganizations through the smuggling ofdrugs or weapons, intermediation of illegal
immigration, traffic in persons etc.
Temptation of public officials who areresponsible for detecting such illegal
activities, e.g customs officers, immigration
officers, police officers, prosecutors andtheir assistants, judges and court officials
etc, is not only an international concern but
also a serious problem which damages thebase of each state. The main instances ofthis reported by members of the group are
as follows.
1. Trafficking of Illegal Immigrants
As Malaysia during the past nine years
has been enjoying an economic boom, it has
attracted illegal immigrants from
Pakistan, Bangladesh, China and othernations to come and work. It is alleged thatillegal immigrants use the services oftransnational organized crime groups for

528

transportation into Malaysia, andMalaysian registration officials accept
bribes from transnational organized crimegroups to issue registration cards. Becauseof the high incidence of this activity andthe difficulty of finding sufficient evidence
to bring the culprits to court, thegovernment has to use preventive
detention to detain those suspected ofengaging in this illegal activity.
2. Trafficking of Illicit Drugs
It is common knowledge that outlaw
gangs in Colombia bribe police, customs
and immigration officials to facilitate theeasy passage of narcotics throughVenezuela for distribution in the UnitedStates. Drug trafficking provides an
excellent, but appalling, example of the roleof transnational organized crime groups incorruption. The demand for cocaine has
resulted in a supply line that starts in the
Andean Mountains of South America, flows
through Latin America and the Caribbean,and ends up on the streets of almost every
city in the US. This demand and supply
process involves billions of dollars, some ofwhich is used to bribe public officials in
Colombia, where the coca plants areprocessed to produce cocaine, in Mexico andsome nations in the Caribbean, which aremajor transit routes, and in the US, thedestination of the drugs. The head of
Mexico’s drug enforcement agency wasarrested in February 1997 for drugtrafficking, organized crime, bribery, andillicit enrichment, and in August 1999
Mexico’s number two prosecutor was
indicted in the US for laundering morethan $9 million in drug payoffs through abank in Houston, Texas. In the US,
between 1992 and 1999, 28 Customs andImmigration and Naturalization agents
stationed along the US-Mexican borderwere convicted for a number of crimes
involving facilitating drugs crossing theborder. In fiscal year 1997, 150 law
enforcement officers in the US were113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
convicted of corruption-related crimes, overhalf of which involved drugs. These arejust a few examples of a much larger
problem of drug-related corruption
affecting many countries in the Americas.
F. Causes/Background of
Corruption
The problem of corruption is a problem
of systems and institutions, combined withhuman factors. Causes of corruption,
which are examined and discussed, are as
follows.
1. Lack of Transparency andAccountability
Transparency and accountability are
related to the right to information. Corrupt
practices, especially amongst public
officials holding political power, goesunchecked and undiscovered because there
are insufficient mechanisms to control their
exercise of power. The right to information
is sometimes curtailed through theimplementation of various laws that
protect disclosure of the improper exercise
of power and discretion. In order to expose
any wrongdoing committed, investigating
agencies need to have unrestricted power
to examine public records, financial
institution documents and other relevant
documents in the possession of theconcerned bodies. Nevertheless, in mostcountries, banking secrecy laws are themost common hindrance to investigation.
Corrupt public officials, especially in
dictatorial regimes, almost always avoid
prosecution by manipulation of theseloopholes in the law.
2. Wide and Broad Discretionary Power
Wide and unfettered discretionary powerin the hands of public officials can generate
temptation and motive for corrupt
practices. Without the proper mechanismsof transparency, and checks and balances,public officials will have ample opportunity
to take undue advantage of their powers.

Discretionary powers vested in public
officials opens the door of corruption.
Public officials may use their discretionary
powers as an instrument to seek illegal
gratification. Delaying processing certain
documents has becomes a very common
practice in government departments. In
order to speed up applications submitted
for approval, the public has to grease thepalms of public officials.
3. Monopolistic or Oligopolistic Situations
This situation means that in a given
market economy, one or a handful ofcompanies are given tasks to perform or
carry out specific development projects orprovide certain services. This happens
quite commonly in developing countries
that intensify privatization policies, andalso in the field of defence projects.
Controlling the market has become a tool
to commit malpractice, such as
overcharging, providing low quality work,
manipulating prices etc. Companies
hoping for a monopolistic market normallybribe public officials to secure specificdevelopment projects.
4. Low Salary
It is a common belief that poverty tends
to encourage public officials to commit
corrupt acts. With low salaries, they find
it difficult to attain a modest standard ofliving, so much so that they have to revert
to corruption to enhance their income. But
if corruption has become accepted in the
public sector, however much public officials
salaries are increased, the temptation ofcorruption will forever exist. However, one
may argue that this notion is notnecessarily true, since in developed
countries where public officials have very
high incomes and ample welfare,corruption among public officials still
exists. Thus, one may conclude that low
salary alone is not the real reason for
corruption, but is used as an excuse to
indulge in corrupt activities.

529

RESOURCE MATERIAL SERIES No. 56

5. Lack of Ethical Consciousness
Ethical consciousness is interrelatedwith moral values. Public officials with low
ethical consciousness succumb to thetemptation of corruption easily, comparedto those with firm ethical standards.
6. Greed Factor
This factor explains above all why highranking public officials and politicians withhigh salaries and adequate means are
involved in corruption. The pursuit of
personal satisfaction, which has no limit,
means that these kinds of public officials
never have enough, and corruption is the
only way to seek satisfaction.
III. CURRENT CRIMINALPROVISIONS AGAINSTCORRUPTION AND THEIRJUDICIAL INTERPRETATIONS
A. Criminal Provisions against
Corruption
Summaries of the criminal provisions
against corruption in the respective
countries of these group members are as
discussed below. The specific provisions ofeach country represented in the group may
be found in the Appendix.
1. China
Corruption offences in China may be
divided into two broad categories, which
are as follows:(a) Bribery and embezzlement(b) Abuse of power
One significant difference between
China’s legal provisions on corruption andthose of the other countries of this group isthat the maximum punishment that canbe imposed by the court is death. If an
accused person is convicted of corruption
offences where the amount of the bribe or
embezzlement exceeds RMB100,000, a530

death sentence may be imposed, but is notmandatory. Even though the court has thepower to impose a death sentence, it is notcommonly exercised if the convicted canreturn the amount that has been taken. A
unit may be the subject of bribery
allegations, and may be punished if foundguilty. In addition, public officials whose
property or expenditures exceed theirlawful income, the source of which cannot
be explained properly, may also be
penalized. Corruption is becoming complex
and rampant as China opens its doors to amarket economy, so there is a need to enact
separate legislation to deal with corruption
effectively and to establish a special agency
to investigate and counter corruption.
2. India
There are two laws which deal withcorruption in India:(a) The Indian Penal Code (1860)(b) Prevention of Corruption Act (1988)
Both statutes seem to have similar
provisions, but under the Prevention of
Corruption Act, punishment is more severe.
Imprisonment under this Act may be a
maximum of 7 years, whereas under the
Penal Code the maximum imprisonmentthat can be imposed is 3 years. Minimum
sentences are also provided for, with orwithout fine.
It is to be noted that neither the word
“corruption” nor “bribery” is used in the
Indian penal provisions against corruption.
Instead, the word “gratification” appears
in Indian criminal legislation against
corruption. But neither in the Penal Codenor the Prevention of Corruption Act is theword “gratification” defined. The
Prevention of Corruption Act does notprovide for confiscation. Confiscation
proceedings can be initiated under the
Criminal Law Amendment Act of 1944.

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Although there is no definition of“bribery” and “criminal misconduct,” what
constitutes these offences are describedunder the relevant sections of law.
However, under section 169 of the Penal
Code there is a provision for confiscationof the property bought or bid for by a public
servant through misuse of their office.
3. Japan
Criminal provisions against corruption
are mainly found in the following statutes:(a) Penal Code(b) National/Local Public Service Law
The Penal Code covers the offences ofbribery, abuse of power, fraud, and larceny
by public officials. Prohibitions against
disclosing official secrets are found in the
National Public Service Law and also in
the Local Service Law. Public officials who
assume positions as directors or advisors
in private companies contrary to the law
may, if convicted, be punished under the
National Public Service Law.
4. Malaysia
Penal provisions against corruption may
be found in the following statutes:(a) Penal Code(b) Customs Act of 1967(c) Anti-Corruption Act of 1997(d) E m e r g e n c y ( E s s e n t i a l P o w e r )Ordinance No. 22 of 1970
In Malaysia, corruption was first madean offence in 1871 with the introduction ofa Penal Code copied from India by the
British colonial masters. These provisions
are still preserved in the Penal code. A
separate enactment dealing withcorruption was first introduced in 1938.
Since then, the specific legislation has been
the subject of numerous amendments, andin 1997 the government introduced theAnti-Corruption Act, which came into effecton 8 January 1998. Another feature ofcorruption legislation in Malaysia is theuse of emergency powers to combat
corruption. In order to tackle certain
practices which would have escaped the netof the Prevention of Corruption Act of 1961,
which was the predecessor of the AntiCorruption Act of 1997, the Supreme Kingof Malaysia on 21 February 1970
promulgated the Emergency (Essential
Powers) Ordinance No. 22, which is
popularly known as Ordinance 22.
With the coming into effect of the AntiCorruption Act of 1997, which is considered
to be the comprehensive law regulating
corruption practices, the government on 23
October 1998 passed a resolution in the
Dewan Rakyat (The Lower House of
Parliament) repealing the Ordinanceretrospectively from 8 January 1998. At
the time of passing of the resolution,
several prosecutions under the Ordinancewere still pending in the court. Arguments
were put forward in those cases as to thelegality of the charges under the said
ordinance, as the law was considered tohave no effect after it was repealed. In thecase involving the former Deputy Prime
Minister of Malaysia, the defence teamraised a preliminary objection that as theLower House of Parliament has repealed
the Ordinance, charges under theOrdinance were no longer sustainable.
After hearing arguments from theprosecution and the defence team, thelearned trial judge ruled that, as theOrdinance was promulgated under Article
150(2) of the Federal Constitution at a time
when a grave emergency existed, theOrdinance will only cease to have effect if
both Houses of Parliament pass a
resolution annulling such a law as
stipulated by Article 149(2) of the Federal
Constitution. As the Dewan Negara (theUpper House), which is the othercomponent of Houses of Parliament, has

531

RESOURCE MATERIAL SERIES No. 56
not passed a resolution annulling theOrdinance at the time of the trial, it washeld that the trial was not a nullity andwas therefore sustainable.

Laundering Act which, inter alia, empower
the court to order confiscation, even though
the assets have been transferred to anotheror have changed form.

5. Palestine
Corruption offences in Palestine may begrouped into three different classes of
misbehavior:

There is also the Mutual Legal
Assistance Act and Extradition Act whichempower investigative agencies to provide
assistance to a requesting country tofacilitate the investigation of corruption,and to seek the assistance of anothercountry in bringing to justice perpetratorsof corruption who have escaped fromThailand and have taken refuge in anothercountry. The same principle applies viceversa to other countries which seek
Thailand’s cooperation.

(a) Bribery(b) Embezzlement(c) Abuse of Power
Bribery offences are stipulated underPenal Code No. 41 of 1944, by sections 106,
107, 108 and 109. The punishment
provided ranges from one to three years’
imprisonment, depending upon theseriousness of the offences committed.
Embezzlement is punishable under Penal
Code No. 57 of 1946, which carries amaximum of one year of imprisonment
upon conviction. Abuse of power andtyranny are dealt with under the same law,and can be punished with a maximum of
two years imprisonment.
6. Thailand
Legal provisions to combat corruption in
Thailand can be separated into two
categories:(a) The Penal Code(b) Supplementary legislation to rectify
loopholes in the Penal CodeApart from the prescribed punishment,
the court in certain offences can impose
confiscation of the property or assets
acquired through corruption. But thisprovision has it shortcomings, as it cannot
be imposed if the property or assets havebeen transferred to another person, or havebeen changed or transformed into anotherasset which is different than the original.
To rectify this situation, the Thaigovernment has enacted the Money532

7. Venezuela
There are two penal provisions dealing
with corruption in Venezuela:(a) The Venezuelan Penal Code(b) Organic Law for Safeguarding Public
Administration
Recently, political changes took place inVenezuela whereby a new democratic
government was elected after a long periodof corruption and a degenerative processwith a democratic mask. The Venezuelan
Parliament is in the process of enacting a
new constitution and it is expected thatwith the changes to the legal system, newlaws relating to corruption will be enacted.
B. Judicial Interpretation of
Corruption Offences
1. China
In China, a new criminal law which has
two independent chapters against
corruption just came into force two years
ago. It is new legislation, so almost all
definitions of corrupt activities are foundin the law. Judicial decisions relating tocorruption cases mostly focus on strategies
to tackle the recent trends of corrupt
activities and judicial countermeasures.

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Recently, with assistance from various
legal experts, the Supreme People’s
Procoratorate (SPP), China’s top criminal
watchdog, drafted judicial explanations
concerning 52 crimes related to corruption,bribery, dereliction of duty and the violationof the personal and civil rights of citizens,
committed by officials. The object of theoffences of bribery and embezzlement isrestricted to money or property only, and if
one accepts intangible things, such asentertainment, it is not considered a crimeof corruption.
2. India
Neither the word “bribe” nor“corruption” is defined in the Indian penal
provisions against corruption. “Illegal
gratification’’ is used to denote the offenceof corruption in the Indian Penal Code andin the Prevention of Corruption Act of 1988.
Judicial decisions over the years haveinterpreted illegal gratification to include
all improper and selfish exercises of power
and influence attached to a public office orto the special position one occupies in publiclife. It has to be viewed from the entire
gamut of moral values, social ethics, andacknowledged norms of behavior in publiclife. In other words, “gratification’’ is not
restricted to pecuniary gratification, but
encompasses intangible things. Thus,
anything which affords satisfaction to one’s
mind or body, and does not form part of apublic servant’s legal remuneration and is
obtained as a motive or reward for showing
favor or disfavor in the course of theirofficial act, would be gratification. Elected
representatives, such as members oflegislatures, are public servants as held by
the Supreme Court. Trapping bribe-takers
red-handed is held to be part of theinvestigation, under a Supreme Court
ruling.
3. Japan(a) Bribe
The word “bribe” under the Penal Codehas been interpreted by the court as not
only restricted to tangible things, but also
to intangible things. This may include
money, interests, favors, entertainment,
etc. Examples:(i) Tangible Things
The case of a former Vice-Minister of
Health and Welfare who was accusedof having accepted cash of about 60
million yen from a director of a social
welfare company in return for giving
it advantages in distributing
subsidiaries. He was convicted by the
Tokyo District Court and sentenced
to imprisonment for 2 years andforfeiture of the bribe money.
(ii) Intangible Things
In the ‘Recruit’ case, high-ranking
governmental officials, including
political appointees, gave preferential
treatment to the Recruit Company inreturn for a special offering of stockof the company before its public
release. The court ruled that thebenefit of such an advantageouspurchase of such stock, which wascertain to increase in value, was abribe.
(b) Official Duty
The bribe must be taken or obtained bypublic officials in relation to their official
duties. In a Supreme Court ruling it washeld that “official duty” includes, but is not
restricted to, their designated duties.
4. Malaysia
Under the Malaysian criminal
provisions against corruption, the words“bribe” and “corruption” are not used.
Instead, the word “gratification’’ is foundin the Penal Code and Anti-Corruption Act
of 1997. The Penal Code does not define
what constitutes gratification, but underthe Anti-Corruption Act of 1997, the word
“gratification” is defined as:

533

RESOURCE MATERIAL SERIES No. 56(a) Money, donation, gift, loan, freereward, valuable security, property,
interest in property, being propertyof any description, whether movableor immovable, or any other similaradvantage;(b) Any office, dignity, employment,
contract of employment, or service,
and any agreement to give
employment or render service in any
capacity;(c) Any payment release, discharge or
liquidation of any loan, obligation, orother liability, whether in whole or in
part;(d) Any valuable consideration of any
kind, any discount, commission,
rebate, bonus, deduction or
percentage;(e) Any forbearance to demand any
money or money’s worth or valuable
thing;(f) Any other service or favor of any
description, such as protection fromany penalty or disability incurred orapprehended or from any action orproceedings of a disciplinary, civil or
criminal nature, whether or notalready instituted, and including theexercise or the forbearance from theexercise of any right or any official
power or duty; and(g) Any offer, undertaking or promise,
whether conditional or unconditional,of any gratification within themeaning of any in the preceding
paragraph.
In one celebrated case involving an
officer of the Immigration Department who
asked for sexual favors in return for
immediate processing of an application forrenewal of a passport, it was held toamount to soliciting gratification, which is
an offence under Section 4 of the oldPrevention of Corruption Act 1961. This
interpretation is still applicable for offences
under the Anti-Corruption Act of 1997,

534

since the content of both provisions is thesame.
Under the Emergency (Essential Power)
Ordinance No. 22, the subject of corruption
is in the form of misusing the office or
position for pecuniary or other advantages.
“ P e c u n i a r y a d v a n t a g e s ’’ h a s b e e ninterpreted by the High Court, in the caseof Public Prosecutor vs. Dato’ Tan Swee, tomean wrongful or undue gain, that issomething to which a person is not entitledor is not yet entitled to or is getting
something more than s/he is lawfully
entitled to. “Other advantages” also has
been subject to judicial interpretation. In
the case of Nunis vs. Public Prosecutor, it
was held that the words “other advantages”
includes favoring circumstances or benefitsof some of kind, other than pecuniary.
In the case of Public Prosecutor vs. Dato’
Seri Anwar Bin Ibrahim, the accused wascharged with four offences of corrupt
practices under section 2 of Ordinance 22.
It was revealed by witnesses that theaccused, while holding the office of Deputy
Prime Minister and Minister of Finance,
had used his position to order two police
officers to get retraction statements fromtwo persons, in order to save him fromembarrassment and criminal prosecution.
It was held that saving oneself fromembarrassment and criminal prosecution
amounted to “other advantages’’ stipulated
by section 2 of Ordinance 22.
5. Palestine
In Palestine, the offence occurs only
when the bribe-taker receives or demands
tangible things such as money, cars, land,
etc. Intangible things, such asentertainment, cannot be the object of abribery offence.
6. Thailand
Corrupt activities in Thailand can beclassified into two main groups. The first

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
group can be called “misuse of power” or“abuse of power’’. The relevant sections
that may be grouped into this category ofoffences are 147, 148, 151 and 152. The
essential elements which the publicprosecutor has to prove are:(a) The accused or offender is a public
official; and(b) Such a person unlawfully andwrongfully exercises his functions fora particular purpose.
The second group can be termed“bribery”. Sections 149, 150, 201 and 202
are grouped into this. The essential
elements of crime in this are:(a) The accused or official is a public
official (including members of theState Legislative Assembly, memberof the Municipal Assembly, etc); and(b) The accused accepted, demanded, or
agreed to accept any undue property
or benefit for themself or anotherperson; and(c) For exercising or not exercising anyof their functions, whether such
exercise or non-exercise of theirfunctions is wrongful or not.
The Public Prosecutor, however, has theburden to prove a strong link between thecorrupt activities and the official’s
designated functions in both groups.
As for the offence of bribery, nowhere in
the Penal Code or any other legislation
defines the meaning of “bribe”. However,in the relevant sections, they use thewording “property” and “any other benefit’’
to express the meaning of “bribe’’. The
Supreme Court interpreted these twowords as interchangeable. The Civil andCommercial Code of Thailand provides thedefinition of “property” in this context:
property is anything, tangible andintangible, which an individual person or

persons can retain, having in theirpossession, and having pecuniary value,
can be sold or transferred to anotherperson. Thus, under the Thai judicial
interpretation, “bribe” is restricted topecuniary benefit, or to benefit that can be
estimated in money. Other forms of benefit,
such as entertainment, service or meals,
is out of the scope of the bribe.
To apply the law to a real situation,
however, is sometimes difficult because
there still is a legal vacuum in thedefinition of cash or property to beconsidered as unlawfully obtained. Thereis no any legislation in Thailand which
prevents a public official from receiving
cash, property or any other kind of benefit,
due to affection or appropriate amount of
reward on traditional occasions. Thus, itappears very often that the accused usually
argued that such money or property had
not been obtained corruptly, but was given
as a token of affection or as a reward.
Another controversial issue about
judicial interpretation, before the year
1999, was the interpretation of Sections 33
and 34, which stipulated the rule offorfeiture or confiscation. A Thai court
ruled that property forfeited by means ofthese sections should be property acquired
directly through the commission of an
offence. Thus if the property wastransferred, sold or changed in form, these
two sections are inapplicable. However,since August 20, 1999, the Money
Laundering Control Act has come into
force, and this kind of situation should not
be a problem anymore.
7. Venezuela
In Venezuela, the interpretation of“bribe” is different from case to case. The
principle of binding precedent is notapplicable in the Venezuelan judicial
system. The lower court is not obliged tofollow the higher court’s decision. This

535

RESOURCE MATERIAL SERIES No. 56
situation has created inconsistency injudicial interpretation of the subject matterof bribery. Thus, both tangible andintangible objects can be the subject matterof bribery, depending on the judge’s
discretion.
IV. PROPOSED DOMESTIC AND
INTERNATIONAL CRIMINALLEGISLATIVE MEASURESEFFECTIVE AGAINSTCORRUPTION
Noting the increasing complexity andgrowing sophistication of corruption, as
well as the multiplicity and diversity of the
problems it creates at the national andinternational level, proposed legislative
improvement must be made to various
legislation, including criminal andprocedural legislation, administrative
regulations, as well as international
mutual legal assistance related provisions.
One can expect that in response to thenew measures or legislation, corrupt
activities will become more sophisticated.
Offenders always probe for weak spots inlegislation, seeking new avenues, venues
and persons to exploit. Reviewing,
modernizing and harmonizing existing
substantive and procedural legislation toensure their continued relevance, efficiency
and adaptability to the various forms ofcorrupt practices, including elaborating
and adopting new laws and regulations
designed to meet the challenges posed by
the complexity and sophistication oforganized crime and corruption, should be
carried out by every country on a regularbasis.
A. Domestic Substantive Criminal
Law
1. Punishment
To enhance their capacity to respond to
all forms and manifestations of corruption,
as well as to any conduct assisting or

536

facilitating corrupt activities, every country
should review their criminal legislationand identify lacunas in the existinglegislation and make necessary
amendments to rectify such defects. Everycountry should examine the inadequacy of
their penal sanctions in dealing withcorruption cases, which indirectly helps
this evil activity to flourish.
Existing legal sanctions against
corruption offences should be increased
substantially where necessary. Mandatory
custodial sentences upon conviction might
be necessary to reflect the government’s
policy in corruption cases. Mandatory
imprisonment sentences may act as adeterrent to committing the offence, notonly for the offender but also to the publicat large.
In addition to custodial punishment,
penal provisions should include the power
to impose fines. The imposition of fines
should not only apply to the bribe-taker,
but also to the bribe-giver. Courts should
be given the power to inflict substantial
fines, as nominal fines do not have adeterrent effect. The amount of fine thatcan be imposed should be equivalent to theamount received as the bribe, or a larger
figure, such as two or three times theaccepted amount.
Among the participating countries inthis course, only China and Vietnam
empower their courts to impose capital
punishment in corruption cases. The
question of whether capital punishment
should be provided for in corruption
legislation is a matter of policy for thatparticular country and should not be
subject to criticism by any other country.
Any sovereign country must be allowed tocarry out any policy that is consideredappropriate to suit its own domestic
situation.

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
2. Subject Matter of Corruption
It was agreed by all members of thisgroup that the subject matter of corruption
offences may include monetary worth or
benefits, as well as indirect benefits suchas dinner, entertainment, discharging ofdebts, etc. Legislatures in every country
should consider legislation that defines
corruption as including such indirect
advantages. Experiences in some countries
have shown that without clear andcomprehensive provisions, there will beambiguity in the interpretation of the law.
3. Exercise of Confiscation or Forfeiture
It is commonly agreed that confiscation
has a strong deterrent effect on potential
perpetrators of corruption. Since
corruption is frequently committed forpecuniary reasons, taking away the fruitof corruptly gained assets, equivalentmonetary value, or the proceeds of thecrime, is an effective preventive measure.
In addition to imprisonment and fines,
courts should be given the power to impose
confiscation orders on the offenders’unlawfully gained assets or other property
that the offender cannot prove to be his/
her true and lawful property, and that noother person is entitled to that property.
In cases where the benefit or advantage
accepted by the accused person is notpecuniary in nature, such as sexual favors,confiscation orders can not be pronounced
by the court. In cases such as these, as a
substitute, the court should be given thejurisdiction to impose equivalent penalties
upon conviction of the accused.
4. Guarantee of Transparency
The lack of transparency andaccountability may facilitate corruption,
thus legislation allowing the public toaccess governmental information should be
introduced to guarantee transparency inthe management of public funds and in thedecision-making process, to ensureaccountability. Since corruption produces
distortions in the world of business, theestablishment of transparent andcompetitive procedures, such as unfair
competition prevention and anti-trust laws,
are deemed necessary.
5. E s t a b l i s h m e n t o f A n t i - M o n e yLaundering Laws
Corrupt public officials benefit frommoney or properties obtained throughillegal means. To avoid detection, in somecases, proceeds from corrupt activities arebeing laundered by corrupt public officials
in legitimate transactions. Existing laws,
such as penal codes, anti-corruption Acts,
and the like, are often not adequate tosuppress either money laundering or illegal
use of crime-related money and property.
Thus, in order to cut off this vicious circle
of crime, measures to effectively control
money laundering should be established.
In addition, to combat corruption more
effectively, all kinds of corrupt activities
should be included in the predicate offencesof the legislation against money
laundering.
6. Enhancing the Financial Institutions’
Role
Countries should consider introducing
measures or legislation to clarify the roleof financial institutions. Such legislation
might require the financial institutions to:(a) Identify, on the basis of official orother reliable identifying documents
and records, the identity of theirclients.
(b) Take reasonable measures to obtain
information about the true identityof the person on whose behalf an
account is opened or a transaction isconducted, if there is any doubt as towhether these clients or customers
are not acting on their own behalf.
(c) Maintain, for a certain period of time,
all necessary records on transactions,both domestic and international, toenable them to comply swiftly with537

RESOURCE MATERIAL SERIES No. 56
information requests from competentauthorities.
(d) Report any suspicious transactions
to competent authorities.
In addition, to encourage the cooperationof financial institutions and theiremployees, there should be legal provisions
to protect them from criminal or civil
liability for breach of any restriction on
disclosure of such information, if theyreport to competent authorities in goodfaith.
7. Illegal Enrichment
Laws to apply criminal penalties topublic officials who appear to have in theirpossession valuable assets, goods andmeans that are clearly beyond theirfinancial remuneration, and who fail toexplain how they got the properties, should
be considered. See the OAS document
entitled “Model Legislation on Illicit
Enrichment and Transnational Bribery’’.
8. Limitations on the Activities of Former
Public Officials
In order to prevent conflicts of interest,
laws must be enacted, where they do notalready exist, that prohibit public officials
from taking positions that involve them
representing private or personal interests
before their former governmental agency
or department, within specified periods oftime.
9. Prohibition of Tax Deductions
Countries should consider legislationthat would prohibit tax deductions forbribes or other expenses related tocorruption, whether within the country
itself or internationally, as recommended
by United Nations Resolution A/RES/51/59,
dated 28 January 1997.
10. Criminalization of Bribery of Foreign
Public Officials

538

All countries should consider enacting
legislation consistent with theOrganization of American States (OAS),
Organization for Economic Cooperation
and Development (OECD) and Council ofEurope (COE) recommendations relatingto criminal penalties against citizens who
bribe or attempt to bribe foreign public
officials.
B. Domestic Procedural Law
We recommend the following:(a) Provisions which promote banking
secrecy should be relaxed to facilitate
the investigating authorities
pursuing and gathering material
evidence to expose corruption. Manytimes, the effectiveness ofinvestigation is hindered because oft h e v e i l o f b a n k i n g s e c r e c y.
Investigating authorities should be
empowered by legislation to conduct
inspections and confiscate any
document, movable or immovable
property, in the custody of financial
institutions, which is suspected to be
the subject matter of corruption
offences.
(b) Investigating authorities should begiven the power of directing public
officials, who are suspected andarrested in connection withcorruption charges, to surrender all
travel documents in order to prevent
them absconding from the country.
(c) Every country should consider
reviewing and adopting provisions,
without infringing upon thefundamental rights of accused
persons, for the reversal of the burdenof proof in cases where the accused
appears to have in their possessionor have available, directly or
indirectly, goods or assets and meansthat are clearly beyond their normal

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
financial standards.
(d) Introducing a Witness Protection
Law. Bearing in mind that witnesses
are frequently essential to law
enforcement authorities in collecting
evidence to prove allegations, andthat those witnesses may bethreatened by others involved, every
country should consider new
legislation, or review existinglegislation, in order to encourage andfacilitate the cooperation of
witnesses, including the introductionof witness protection schemes.
C. International Legislative
Measures
1. Mutual Legal Assistance Law or Treaty
Since corruption and money laundering
are global problems, the international
community should recognize that thesekinds of crimes have no nationalboundaries. Action by individual statesalone is inadequate to combat those
activities effectively. It requires a global
response. Failure to participate in aninternational effort is not neutral but
rather facilitates victimization of otherstates, including those which believe
wrongly that they can stay on the sidelines.
Thus, close cooperation between the law
enforcement authorities of each country,
through bi-lateral and multi-lateralarrangements, is urgently suggested.
International authorities should be given
responsibility for gathering anddisseminating information to competentauthorities about the latest measures being
used in corrupt activities by perpetrators.
Each country should review and expand,w h e r e n e c e s s a r y, p r a c t i c a lcountermeasures against corruption, inorder to coordinate with other countries
and relevant international organizations in
anti-corruption efforts. It is also
recommended that every country should

keep the issue of action against corruption
under regular review. All forms of corrupt
activities, including bribery of foreign
public officials, should be included in thetreaties for mutual assistance. The
requested country should not decline torender legal assistance based only on
financial secrecy laws. In another words,
treaties for mutual legal assistance must
prevail over the domestic financial secrecy
laws of the requested country.
2. Extradition Law or Treaty
Corrupt offences, money laundering,bribery of foreign public officials andrelated illicit activities, should be deemedby every country as an extraditable offence.
In case the requested country declines toextradite its own national who is soughtfor committing corruption offences, or who
is involved in money laundering activities
in the requesting country, the requested
country should submit the case, as requiredby its domestic legislation, to its competentauthority for prosecution.
V. CONCLUSION
The phenomenon of corruption has
become increasingly complex andsophisticated. In addition, corruption of
public officials is frequently used by theperpetrator as a primary tool to conduct
other criminal activities. Corruption
causes uncountable damage to our society.
It destroys every person, institution, andsystem wherever it can emerge.
Corruption is not the problem of any
individual country anymore, but rather aglobal problem which requires strong
cooperation among the various countries
to combat. Every country should recognize
its danger and urgently cooperate witheach other to suppress and eliminate thiskind of evil activity from our society. In
fighting corruption, the continuing processof reviewing, strengthening and enacting
legislative measures which are deemed

539

RESOURCE MATERIAL SERIES No. 56
effective to prevent and control corruption
and related activities should be seriously
exercised. Harmonizing and modernizing
existing legislation, rules and regulations
to facilitate enforcement and enhancecooperation among the law enforcement
agencies, at both the national andinternational level, should be done
simultaneously. Every country must
devote its energy and resources to enhanceand expand international cooperation in
the fight against the evils of corruption.

540

State functionary

State-owned unit

Any functionary of a stateorgan

CL 395

CL 396

CL 397malpractice for personal gain

State secrets
Power or duty
Power or duty

heavy losses to publicfunds)

Property

3,4: property

Confiscation
3,4: property

Appendix I

1M to 10Y

1M to 10Y

1M to 10Y

3Y to 10Y

1M to 3Y

property

more than 5Y (for individual)
1M to 5YPart of exeeding

Fine (only unit) and not

Bribes1: Up to 2Y detention
1: Up to 5,000
2: 1Y to 10Y
2: 5,000 to 50,000RMB
3: 5Y to life
3: 50,000 to 100,000RMB 4: 10Y to death
4: more than 100,000RMB
Money or advantages
1M to life imprisonment
Bribes
Not more than 3Y

Punishment
Public money or
1: Up to 2Y detention
property and gift
2: 1Y to 10Y
1: Up to 5,000RMB
3: 5Y to life
2: 5,000 to 50,000RMB
4: 10Y to death
3: 50,000 to 100,000RMB
4: more than 100,000RMB
Public funds
1M to life imprisonment

Object / Funds

Other bribes for the purpose of Bribes
securing illegitimate benefits
Property exceeds lawful income Property
undeclared large bank savings
outside China
Divides up in secretState-owned assets(in the name of unit)
Abuses or neglects or engages in Power or duty (causing

Introduces a bribe to a statefunctionary

Bribes or introduces

CL 398
Any person
Divulges
CL 399 to 401 Any judicial officer
Abuses or neglect
CL 402 to 419 Any functionary of a state organAbuses or neglect

Any unit

CL 393

CL 389 to 391 Any person or unit
CL 392
Any person

Taking advantage of andmisappropriation
Accepts

Embezzles

Public servant

State functionary

Behavior

Subject

CL 385 to 388 State functionary

CL 384

Law 383,394

Country Section
China Criminal

Criminal Provisons against Corruption in Participating Countries

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

541

542

Public servant abetted
other person
Public servant

Public servant

Public servant

Public servant

Public servant
Public servant

PC 164

PC 165A

PC 166

PC 167

PC 168PC 169Any person

Public servant

Public servant
Any person

Public servant
Public servant

Any person

PCA 9

PCA 10

PCA 11
PCA 12

PCA 13
PCA 14

PCA 15

The PreventionPublic servantof Corruption Act
1988 Section 7
PCA 8
Any person

PC 165

Any person

PC 163

Country Section
Subject
India
Penal CodePublic servant
1860 Section 161
PC 162
Any person

Valuable things without
consideration

Taking gratification to influence a
public servant by corrupt means
Takes gratification to exercise
personal influence with public
servants
Abets an offence under
sections 8 and 9
Obtain without consideration
Valuable thing
Abets the offence under
sections 7 and 11
Criminal misconduct
Habitually commits offences
under sections 7 and 12
Attempts to commit offences
under the Act

Abets offences under
sections 161 to 165
Disobeys a direction of the law(to cause injury to any person)
Frames an incorrect documentwith intent to cause injury
Unlawfully engages in trade
Unlawfully buys or bids forproperty
Takes gratification
Gratification

Takes or obtains

Up to 3Y or fine or bothTakes gratification to influence a Illegal gratification
public servant by corrupt orillegal means
Takes gratification to influence a Illegal gratification
public servant by corrupt means
Abets taking
Illegal gratification

3Y and fine

1Y to 7Y and fine
2Y to 7Y and fine

6M to 5Y and fine
6M to 5Y and fine

6M to 5Y and fine

6M to 5Y and fine

6M to 5Y and fine

6M to 5Y and fine

Up to 1Y or fine or both
Up to 2Y or fine or both

Up to 3Y or fine or both

Up tp 1Y or fine or both

Up to 1Y or fine or both

Up to 2Y or fine

Up to 3Y or fine or both

Up to 3Y or fine or bothPunishment
Up to 3Y or fine or both

Object / Funds
Illegal gratification

Behavior
Takes

Property

Confiscation

RESOURCE MATERIAL SERIES No. 56

Ex-public officer or
ex-arbitrator
Public officer

Public officer
Judicial, prosecutor or police
Judicial, prosecutor or police
guarding or escorting person
Judicial, prosecutor or police
guarding or escorting person
Gurding or escorting person
Customs official

Public official
Any person

PC 193
PC 194
PC 195.1,2

PC 156
PC 253

PC 246
Any person
PC 235
Any person
National Public National public officer andService Law 100.1 ex-officer
NPSL 103
National public officer andex-officer
Local Public Local public officer
Service Law 34.1 and ex-officers
UnfairAny person
Competition
Prevention Law 13

PC 101
PC 138PC 196

PC 197-4

Bribe

Accept with entreaty

Bribe

Let prisoner escapeStatusAggravation by reason of
Statusofficial duty
Drafts false official document
Authority
Embezzles in the conductof business
Fraud
Larceny
Disclose secrets obtained from Secretofficial work
Assumes position as director or advisors inprivate company or runs such a business
Disclose secrets obtained from Secretofficial work
Give, offer or promises bribe to Any pecuniary or othera foreign public official
advantage

Abuse authority
Authority
Abuses authority (special Public officer) Authority
Violence and cruelty
Status(Special Public Officer)
Aggravation by result
Authority/Status

Bribe (for exertion of influence) Bribe

Accept with dishonest act

Bribe

Bribe

Bribe

Object / Funds
Bribe

Behavior
AcceptA person to be a public officer Accept with entreaty
or arbitrator
Public officer or arbitrator
Causes to be offered to third
persons
Public officer or arbitrator
Accept with dishonest act

PC 197-3.3

PC 197-3.1,2

PC 197-2

PC 197.2

Country Section
Subject
Japan Penal CodePublic officer or arbitrator
197.1.1st
PC 197.1.2nd Public officer or arbitrator

1M to 10Y
1M to 10Y
1M to 1Y
Fine up to 30,000 yen
1M to 1Y
Fine up to 30,000 yen
1M to 1Y
Fine up to 30,000 yen
Up to 3Y or fine up to
3,000,000 yen
in the lcase of juridical person:
300 million yen

1Y to 10Y
1M to 10Y

1Y to 10Y
1Y to 10Y

2Y to 15Y

1M to 2Y
6M to 10Y
1M to 7Y

1M to 5Y

1M to 5Y

1Y to 15Y

1M to 5Y

1M to 5Y

1M to 7Y

Punishment
1M to 5Y

EquivalantConfiscation
Bribe or Monetary
EquivalantBribe or Monetary
EquivalantBribe or Monetary
EquivalantBribe or Monetary
EquivalantBribe or Monetary
EquivalantBribe or Monetary
EquivalantBribe or Monetary
Equivalant113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

543

Object / Funds
Punishment
Confiscation
Illegal gratification
3Y or fine or both
Illegal gratification
3Y or fine or both
Valuable thing without
2Y or fineconsideration
PC 213
Any person including public Accepts, agrees or attempts to Gratification to screening a 3Y to 10Y
servants
obtainperson from legal punishment
Customs Act Officer of customs or otherAccepts, agrees or attempts to Bribes, gratuity,
3Y or fine not more
137 (1)(a)(b)(c) persons employed for theobtainrecompense, reward for10 thousand ringgit
prevention of smuggling
neglecting duty
Anti Corruption Any person including public Corruptly solicits, receives or
Gratification to do or not Not less than 14 days and not more
Act 1997 10
servants
agrees to receive
to do any matter or
20Y, and fine not less than 5 times
transaction
the sum or value or 10 thousand
ringgit, whichever the higher
ACA 11(a)Any agent including public
Corruptly accepts, obtains or
Any gratification as
Not less than 14 days and not morethanofficers
agrees to accepts or attempts to inducement to do or not
20Y, and fine not less than 5 times
obtainto do any act in relation to the sum or value or 10 thousand
their principal’s affairs
ringgit, whichever the higher
ACA 11(c)Any agent including public
Knowingly gives or uses a false, Fraud
Not less than 14 days and not morethanofficers
erroneous or defective document
20Y, and fine not less than 5 times
the sum or value or 10 thousand
ringgit, whichever the higher
ACA 14
Any public body officer
Solicits or accepts
Any gratification for not
Not less than 14 days and not morethanvoting, preventing the
20Y, and fine not less than 5 times
passing of any vote in their the sum or value or 10 thousand
capacity as such an officer
ringgit, whichever the higher
ACA 15
Any public body officer
Uses office or position
Any gratification
Not less than 14 days and not more
than
20Y, and fine not less than 5 times
the sum or value or 10 thousand
ringgit, whichever the higher
ACA 20Any public officer or any person Attempt to commit offences
Not less than 14 days and not morethanunder the Act
20Y, and fine not less than 5 times
the sum or value or 10 thousand
ringgit, whichever the higher
Ordinance
Public officer or members of Uses position or office for
14Y or fine 20 thousand
No.22
administration
pecuniary or other advantage
ringgit or bothCountry Section
Subject
Behavior
Malaysia Penal Code 161Public servants
Takes
PC 164
Public servant abetted other persons Abets taking
PC 165
Public servants
Takes or obtains

RESOURCE MATERIAL SERIES No. 56544

Misuses power

Public officers

Public officers / politician

Public officers

Public officers

Public officers

Public officers

PC 148PC 149PC 150PC 152, 153

PC 154 to156

PC 157

Note: Y= years, M= Months

Public officers /(in judicial office)Public officers /PC 202(in judicial office)Penal Code 199 Public officer
Anybody
PC 200Public officers
PC 204
Public officers
PC 207
Public officers
PC 196
Organic Law of Public officers
Safeguarding Public
Administration 58
Public officers
OLSA 59

PC 201

Public officers /(in judicial office)Property or any otherbenefit
Bribe

Misappropriates

Public officers

Venezuela PC 200

Tyrany/Entering
without court order
Anything

Abuses authority

Public officials

Bribe

Demand,accepts(before being appointed)
Accepts
Gives
Does
Does notRequests
Misappropriate
Gives opportunity toanother person

Misappropriate

Bribe
Bribe
Power abuse
Power abuse
Extortion
Misappropriate

Bribe

Any kind of benefit

Demand,accepts

Misuses power

Misuses power

Evades taxes

Demand, accepts(before being appointed)
Embezzles

Bribe

Embezzlement

Embezzles

Public officials

Demand, accepts

Object / Funds
Bribe

Behavior
AcceptSubject
Public officials

Country Section
Palestine Penal CodeNo.41 (1944)
106,107, 108,109
PC No.57 (1946)
110,111PC No.57 (1946)
112
Thailand Penal Code 147
Confiscation

5Y to life
2,000 to 40,000 baht
Property acquired
5Y to death
2,000 to 40,000 baht
5Y to death
Property acquired
2,000 to 40,000 baht
Property acquired
5Y to life
2,000 to 40,000 baht
Property acquired
1Y to 10Y
2,000 to 40,000 baht
5Y to life
2,000 to 40,000 baht
1Y to 10Y or death
2,000 to 40,000 baht
1)6M to7Y
1,000 to 14,000 baht2)life or 1Y to 20 and
2,000 to 40,000 baht
Property acquired
5Y to death
2,000 to 40,000 baht
Property acquired
5Y to death
2,000 to 40,000 baht
3Y to 5Y
1/2 preceding article
15 days to 1Y
Fine, 50 to 1,500 bolivar
18M to 5Y
3Y to 10Y and fine
20% to 60 % ofmisappropriate money
3M to 1Y

2Y

Punishment
1Y to 3Y or fineor 200 pounds to 500
pounds or both
1Y

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

545

REPORTS
OF THECOURSERESOURCE MATERIALSERIES
No. 56
GROUP 2CURRENT PROBLEMS IN RESPONDING TO THE CORRUPTACTIVITIES OF PUBLIC OFFICIALS AT THE INVESTIGATION
AND TRIAL STAGES, AND SOLUTIONS FOR THEM
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Sardar Muhammad Raza
Mr. Tamotsu Hasegawa
Mr. Emmanuel Onuoha
Mr. Yasushi Hatayama
Mr. Luis Artigas Jr.
Mr. Ruben Maitland
Mr. Yuji Suzuki
Mr. Yasuhiro Muraki
Mr. Omur Nogoyev
Mr. Nihal Sunil Rajapaksa
Professor Keiichi Aizawa
Professor Hiroshi Iitsuka

I. INTRODUCTION
The group discussion on current
problems and solutions in responding to thecorrupt activities of public officials at theinvestigative and trial stages was executed
under three sub-topics. The first part dealt
with the problems and solutions forsecuring independence and neutrality of
the investigative agencies and the courts.
The target of this sub-topic was to obtainan overview of the current structure,function, and control of investigative
agencies and the courts in the participants’countries, and to find appropriate orrecommendable measures to achieve
independence and neutrality.
Secondly, the problems and solutions for
detection and investigation of corruption
by public officials was the subject of
discussion in sub-topic two. Here, issues
regarding the problem of gathering
information, securing the cooperation ofpeople involved in the case, investigative
tools, investigators’ skill, and coordination
among different investigative agencies in

546(Pakistan)(Japan)(Nigeria)(Japan)(Brazil)(Grenada)(Japan)(Japan)(Kyrgyzstan)(Sri Lanka)(Japan)(Japan)the various countries, were discussed
exhaustively. The group also identified
appropriate solutions for the detection andinvestigation of corruption in the public
sector, and recommended these for
implementation by relevant agencies indifferent countries.
Thirdly, the group examined the
problems of and solutions for speedy andefficient administration of trial. The focus
of discussion was on the necessity for the
introduction of witness protection
programs, the reversal of burden of proof,
resources at the disposal of trial courts,
witness cooperation, dilatory tactics of the
defence, court monitoring systems andsentencing patterns.
Finally, the mass media’s role in
exposing corruption, as an instrument ofpublic mobilization against corruption, as
well as its influence on the investigative
agencies and trial courts in theparticipants’ countries, was discussed.

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
II. PROBLEMS AND SOLUTIONSFOR SECURING THE
INDEPENDENCE AND
NEUTRALITY OF INVESTIGATIVE
AGENCIES AND THE COURTS
A. Problems
The police force is widely accepted as theconventional organization responsible forcriminal investigations in many countries.
However, because it is also the duty of thepolice to maintain law and order (an issue
for which society also holds the executive
directly accountable), the tendency in somecountries is to avoid making the police
completely independent of executive
control. The executive can apply controls
through appointment or discipline of police
chiefs, budget, and different forms ofregulation. Where this is the situation, theindependence and neutrality of the policein handling cases in which public officials
charged with this duty of control are
involved, may be seriously jeopardized.
Since in several countries public officials
are the main target of legislation against
corruption, the suitability of the police as
the sole criminal investigative organ has
come under wide review. In somecountries, the police and the publicprosecutor share this function, while inothers special agencies are set up to
investigate corruption offences.
The above situation is also true of trial
courts. The conventional courts may prove
inadequate to address the level ofcorruption in some countries, necessitating
the designation of special courts for thispurpose. However, whichever agency or
court a country may use, the important
issue is the guarantee of its independence
and neutrality in the execution of theassigned function. The major elementswith which the independence andneutrality of such an agency or court may
be evaluated are:(i) Designation of Conventional or Special
Organs for Investigation and Trial
The important issue to consider here
is whether the agency is part of aministry as a government bureau or isa special organ directly under the
Parliament, Prime Minister/President
or some other independent committee.
(ii) Procedure for the Appointment andMaintenance of Supervisory Control
over the Investigative Agency and Trial
Court
The points of concern are the system of
appointment of personnel, terms of
employment, measures against
unwarranted dismissal, and fairdisciplinary procedures to secure theirimpartiality in the course of duty.
Moreover, which agency shouldsupervise the operation of thedesignated agency?
(iii)B u d g e t a r y C o n t r o l o v e r t h e
Investigative Agency and the Courts
It is important to determine if theagency would be better off sourcing its
funding directly from the legislature,or to depend on some othergovernmental organization.
B. Analysis of the Current Situationin Participating Countries
1. Brazil
The police service is responsible for theinvestigation of all criminal matters
including corruption cases. This duty is
spelt out in the Federal Constitution. The
criminal legislation is contained in afederal criminal code and is enforced by thefederal police in the federal domain and by
the state civil police services in the statedomain. The police do not require external
permission to begin or prosecute a case.
The Governor appoints the State
Secretary of Public Safety, the Police Chief
General and the Chief Justice. Decisions

547

RESOURCE MATERIAL SERIES No. 56
about promotions and dismissal of suchofficers are also made by the Governor. The
Governor can veto the decision on an officer
considered guilty after an administrative
process, and the decision of the
Administrative Court is not binding on
him/her. Furthermore, the assignment ofpolice officers, prosecutors and judges torespective state units/branches is also theprerogative of the Chief General of each
institution, and may be politically
influenced.
The executive arm of government
proposes the police annual budget andsubmits it to the legislature for approval.
Thereafter, disbursement of the fund is
carried out by the executive. From thisarrangement, it is obvious that theexecutive has extensive control over theappointment and promotion of police
leadership, as well as budgetary control oft h e a g e n c y, w h i c h c a n a f f e c t i t s
independence and neutrality in handlingissues involving high-level public officials.
An agency whose independence isguaranteed is preferred. The independenceof the judiciary is guranteed under theConstitution. There are no special courts
for the trial of corruption cases.
2. Grenada
The Royal Grenadian Police is the only
organ responsible for the investigation of
all criminal offences, including corruption.
It is not under the statutory control of any
other organ of government when
conducting an investigation.
The appointment of the head of the Royal
Grenadian Police is made by the GovernorGeneral, on the advice of the Prime
Minister. The Prime Minister almost
always assumes control of the Ministry of
National Security under which the police
fall. The Police Commissioner may be
appointed from outside the police service.

548

Annually, the Ministry of Financerequests and disburses budgetary support
for the police under a separate vote. In allserious criminal investigations, theDirector of Public Prosecutions must be
notified and s/he provides advice. The
independence of the judiciary is guranteed
under the country’s constitution. Grenada
has no special courts for corruption
offences.
3. Japan
The police (prefectural police) and publicprosecutors are responsible for theinvestigation of corruption offences. Thereis no specialized anti-corruption agency inJapan. However, the three major District
Public Prosecutor’s Offices (Tokyo, Osakaand Nagoya) have Special Investigation
Departments, which have successfully
investigated a number of corruption cases
involving high-ranking government
officials and politicians. This systemappears to be working efficiently becauseof mutual cooperation between the police
and the public prosecutors, as well as their
independence from political influence being
sufficiently maintained.
The public prosecutors are appointed by
the Minister of Justice and are under his
control generally in regard to theirfunctions. However, each public prosecutor
is authorized to conduct their duties
independently from political influences,and they enjoy almost the same guaranteeof status as judges. In addition, theMinister of Justice is authorized to control
only the Prosecutor-General in regard to
the investigation and disposition ofindividual cases. In this way, theindependence of prosecutors is secured.
On the other hand, prefectural police
are established as one of the organizationsof each local government. In order to secure
the political neutrality of the police, it issubject to the control of the Public Safety

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Commission, which is not under thecommand nor order of the prefectural
governor. In Japan, independence of thetrial courts is guranteed. There are no
special courts for corruption cases.
4. Kyrgyzstan
The Ministry of National Security,
Ministry of Interior Affairs and the Public
Prosecutor’s Office are responsible for theinvestigation of corruption offences in
Kyrgyzstan.
The head of the Ministry of National
Security, Ministry of Interior Affairs andthe Prosecutor-General are appointed by
the President, on the recommendation of
the Prime Minister. The office of the publicprosecutor is an independent entity. The
parliament controls the budget of the above
investigative organs. The salary of public
servants, including the police, isinadequate.
There is no obvious political oradministrative interference in the duty ofthese agencies, and although Krygyzstan
is still a young republic, so far the agencies
are effective in controlling corruption. The
courts are independent. Corruption cases
are tried in conventional courts.
5. Nigeria
The Nigerian police force is charged withthe duty of investigating all criminal casesin the country, including corruption by
public officials. There are special units
within the police service responsible for theinvestigation of cases of corruption.
The Inspector-General of Police isappointed by the President. He can also
fire him; and this prerogative has been
exploited especially by military regimes,
without explanation. The Ministry of
Police Affairs exercises control over thepromotion and discipline of senior membersof the police service. The Ministry of Police

Affairs also disburses the police budget.
The perception is that if the independence
and neutrality of the police is not directly
influenced by the Head of State, it could
also be checked through other Stateapparatus. This situation is amply
expressed in the low budgetary provisions
made for the police in the past which,combined with other factors, tend to erode
public confidence in the ability of the police
to fight corruption. The President has
already sent a Bill to the National
Assembly for the establishment of an
independent agency to investigate
corruption offences.
The independence of the judiciary isprotected by the Constitution. However,there were cases of the forceful retirementof judges in the past. Moreover, thejudiciary would like to have their budget
allocated directly by the National
Assembly. No special courts are designatedto try corruption offences.
6. Pakistan
In Pakistan, two agencies are
responsible for the investigation ofcorruption offences. They are the AntiCorruption Establishment which was set
up in 1947, and the Ehtesab(Accountability) Commission which wasadded in 1998 to complement the activitiesof the Anti-Corruption Establishment. The
Anti-Corruption Establishment is headed
by a director who is subject to appointment
or removal by the government. S/he iscompletely controlled by the government,
and operatives are often seconded from thepolice service (to where they can also
return). On the other hand, the Chief
Ehtesab Commissioner is appointed by thegovernment in consultation with the leaderof the opposition in the National Assembly
and the Chief Justice of Pakistan. The
Chief Ehtesab Commissioner cannot be
removed from office, except by a decisionof the Supreme Judicial Council on charges

549

RESOURCE MATERIAL SERIES No. 56
of misconduct. The budget of the AntiCorruption Establishment is controlled by
the Finance Ministry. The EhtesabCommission gets its budget from theparliament.
In the wake of the prevailingcircumstances, the independence of theAnti-Corruption Establishment is yet to bea s s u r e d . H o w e v e r, t h e E h t e s a b
Commission enjoys a reasonable degree of
independence although, there is public
apprehension that the agency might beused against groups opposing thegovernment in power.
In Pakistan, the Constitution
guarantees the independence of the
judiciary. There are specific judges
assigned to try corruption cases. However,the financial resources of the judiciary arevery lean. Moreover, judges are sometimes
appointed from outside the bench.
Because, therefore, of the financial
insecurity of the judges, and the lack ofconfidence and overt political inclinationof those judges appointed from outside thebench, they sometimes cannot exercise
their independence.
7. Sri Lanka
Sri Lanka has established a separate
agency known as the Allegations of Bribery
and Corruption Investigation Commission,
to deal with corruption cases. The
Commission is statutorily independent.
The members cannot be removed fromoffice except by a two-third majority
decision of the Parliament. Members of theCommission consist of two retired judgesof the Supreme Court or Court of Appeal
and one senior officer of a law enforcement
branch.
The President appoints members of thiscommission in consultation with the Prime
Minister. The salary of members of theCommission is paid from a consolidated

550

fund created in the Constitution. Theirsalaries cannot be diminished during theperiod of service with the Commission.
Investigators are usually seconded fromthe police. Only two courts located in thenational capital try corruption cases. The
independence of the Commission and the
judiciary is guaranteed by the Constitution.
8. Hong Kong
In Hong Kong, the Independent
Commission Against Corruption (ICAC) is
responsible for the investigation ofcorruption offences. This agency has threefunctional departments: namely
Operations, Corruption Prevention andCommunity Relations. Respectively, thesedepartments are responsible for theinvestigation of corruption offences,plugging of corruption loopholes ininstitutional practices and procedures, andthe education and enlistment of public
support.
The head of the ICAC, theCommissioner, is appointed by theGovernor. The Commission is independent
in its operation, however its activity ismonitored by the legislature. It also has
four advisory committees chaired by nonmembers. A Complaints Committee acts
as check on the agency. The ICAC budget
is guaranteed by law and is provided
directly by the legislative arm ofgovernment. The agency receives sufficient
resources for its day-to-day operations andto hire professionally competent staff.
C. Recommendations for Achieving
Independence and Neutrality ofInvestigative Agencies and the
CourtsDepending on the situation in eachcountry, the choice in features of aparticular agency will differ considerably.
H o w e v e r, s u s t a i n a b i l i t y o f t h e
independence and neutrality of any agency
saddled with the responsibility of113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
investigating corruption cases hinges on
the following factors:(i)

The strengthening of thecommitment to duty, professionalismand economic base of the operatorsof the system through adequate
remuneration and training. This is
judged necessary to increase theirconfidence and self esteem, and to
avoid external influence.

(ii) E x c l u s i o n o f p o l i t i c a l a n dbureaucratic control by applying
constitutional as well as legislative
checks against any interference with
the independence of the investigation
agency and trial courts. Legislationis required to curtail excessive
discretionary powers of the executive
arm of government and bureaucrats,
and to infuse transparency into
governance, as well as the guaranteeof basic freedom.
(iii) Democratization of procedures forappointment of judges/magistrates
and the leadership of theinvestigating agency.
(iv) Establishment of an independentagency to investigate corruption
cases in those countries in which thecurrent system is not effective.
However, countries that prefer theuse of a distinct agency to combat
corruption are advised to refer to the
Global Program Against Corruption1
for the guidelines necessary for
1

This document was jointly prepared in February
1999 by the Centre for International Crime
Prevention, Office for Drug Control and Crime
Prevention, and the United Nations Interregional
Crime and Justice Research Institute. It outlines
the general principles guiding the establishmentof a national anti-corruption investigative unit, its
functioning, resources and operational methods.

securing the independence andneutrality of such an institution.
(v)

The budget of the judiciary and theinvestigative agency should not be
subject to undue bureaucratic control.
If a special agency is responsible forinvestigation, ideally the parliamentshould allocate funds directly to thisinstitution.

III. PROBLEMS AND SOLUTIONSFOR DETECTION ANDINVESTIGATION
A. Problems and Solutions for
Gathering Necessary Informationand for Securing the Cooperationof People involved in the Case
The issues involved in the detection andinvestigation of any criminal case will
include: cognizance of the crime,
determination of time of its occurrence, themodus operandi of the perpetrators,
persons involved in the act (including theirvarious degrees of involvement) andpossibly, reasons for the crime. To resolvethese issues, the investigator mainly
engages in the collection, analysis andcommunication of data related to theoffence.
In corruption cases, the task of theinvestigator is often exacerbated by theuniquely limited sources of information.
Discussion on this sub-topic sought toidentify the sources of information open to
the investigator, and the provision of an
enabling environment for the detection andinvestigation of corruption offences.
1. Sources of Information(i) Investigation of Other Cases
An investigator may come acrossinformation on corruption committed
by a public official while in pursuit ofa different case. This happens more
frequently during investigations of551

RESOURCE MATERIAL SERIES No. 56
money laundering and tax evasion
cases. The experience in Japan andother participant countries has
confirmed that this is an importantmeans to reveal corruption cases
which might otherwise remain
unnoticed.
(ii) Accusation/Complaint
An individual or non-governmentalorganization might also file acomplaint with the investigating
agency regarding the corrupt activityof a public official. In this case, thecomplainant is usually willing tocooperate with investigators,
although in many countries people
seldom use this approach.
(iii) Information Media
Through investigative reporting, thenews media sometimes reveals
corruption cases. This is the case in
all participant countries.
(iv) Observation of Parliamentary
Question and Answer Sessions
The corrupt activity of public officials
may be revealed by investigators
through their private observations orinformation obtained during
parliamentary question and answer
sessions. Investigators in Japanutilize this source.
(v)

552

Anonymous Reports
Sometimes people who do not want
to disclose their identity pass
information to the investigating
agency to reveal the corrupt activitiesof public officials. These people may
also take the cover of fictious names.
In some cases, they may have insider
information or they might come fromoutside the organization. Anonymous
reports are more frequent in regions
where special post office box numbers
are provided to encourage the passingof information like in Indonesia,
Hong Kong, Nigeria etc.
(vi) Other Departments/Agencies
Corruption of public officials may berevealed through information
supplied by other government
agencies, such as the audit/inspection
departments, tax agency or Securities
Exchange Surveillance Commission.
In Japan, this is a useful source.
2. Associated Problems
Although the sources mentioned above
are available to the investigator to obtain
information regarding the corruption of
public officials, there are nonethelessproblems associated with the collection ofsuch information and for securing thecooperation of people involved in the case.
These problems include:(i)

Unwillingness to Make Complaints/
Accusations
People are often unwilling to reveal
corruption cases because of fear of
reprisals that may endanger their life
or career prospects, rejection fromcolleagues or peer groups, official
secrecy laws and red tape, or lack ofconfidence in the investigative organ.
It may also be that those who know
about the crime are also involved in
it. Whatever reason is responsible forthe people to adopt this position, theeffect is felt in most participating
countries.

(ii) Late Revelation of Incidents
In several countries, as is the case in
Nigeria and Pakistan, the tendency
is for people to make a complaint
about the demand of a bribe by apublic official when the official fails
to deliver the promise. In such cases,
the official may have noticed thestrained relationship with the victim
and taken necessary action to cover

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the trail. This is also true of cases
revealed through the mass media.
(iii) False Complaints
When complaints of corruption arereceived, it is the responsibility of theinvestigator to verify suchcomplaints. In many cases,
complaints may be made to gain
advantage over rivals or for several
other malicious purposes, in whichcase they may be fabricated. This is
typical of complaints received fromanonymous sources or accusations
made by political opponents in theparticipating countries.
(iv) Refusal to Testify
In many cases in the participating
countries, there are people who may
be willing to reveal corruption cases
but are not inclined to being used as
witnesses in court. This attitude may
be developed due to perceived lengthy
periods of investigation and trial,absence of effective witness
protection schemes, or fears ofcultural sanctions.
3. Recommended Solutions(i) Improving Tools for the Collection ofInformation
Agencies are encouraged to set up
information collection centers(information boxes, hot-lines, etc).
The P.O Box 1000 of Hong Kong, P.O
Box 5000 of Indonesia and A22 of
Nigeria are applicable examples.
(ii) Public Education
The investigating agencies should
create a section within theirorganization whose duty will include
public education on the evils ofcorruption and the need to expose it
wherever it is found. This is alreadybeing implemented by the ICAC in
Hong Kong.

(iii) Witness Protection
Each agency should promote strong
witness-protection schemes tosafeguard witnesses fromvictimization arising fromcooperation with the organization.
B. Problems and Solutions for
Improving Investigative Tools
1. Problems Posed by Insufficient
Investigative Tools
In some of the participant countries,
investigation of corruption offences is
actually hampered by the inadequacy or
total lack of necessary tools. The group
discussion considered some of the problems
that confront investigators, caused by thelack of necessary tools for efficientinvestigation, under the following subheadings:(i)Resources(a) Infrastructure
In developing countries like
Grenada, Nigeria and Pakistan,
the movement of investigators isoften hampered by inadequatemeans of transportation. There
are also situations when the onlymeans of communication is bytelephone systems which may not
be reliable. Moreover, theseagencies lack basic casemanagement tools like computersand necessary office equipment.
(b) Finance
Efficient investigation requires
the availability of funds for
information, to offset
investigators’ travel expenses, andto meet other incidental needs.
Adequate funds are also required
to provide the training necessary
for improved investigatorperformance and the acquisitionof relevant equipment. However
in some countries, sufficient funds

553

RESOURCE MATERIAL SERIES No. 56
are not provided to meet theseneeds, either because of the
weakness of the economy orsimply that the needs of theinvestigating agency are not given
adequate priority.
(ii) Covert Operations
The activities categorized under thissub-heading include decoy
operations, communicationinterference and electronic
surveillance. Decoy operations arecarried out in several forms. One
form is the trap procedure, applied
where a person approaches theinvestigative agency to file an official
complaint that a public officer isdemanding a bribe. The use ofundercover agents is another form of
decoy operation. Furthermore, covert
operations may be implemented
through interference with the meansof communication or other forms ofelectronic surveillance.
Whereas in some of the participants’countries like Brazil, Nigeria,
Pakistan and Sri Lanka, the trap
procedure is used to obtaincorroborative evidentiary facts inbribery cases, it is judged a breach of
the basic rights of the accused inother countries. Moreover, Brazil iscurrently the only country in thegroup where communicationinterference is legally permissible,
with judicial approval, as a means of
securing evidence in corruption cases.
In view of the covert and consensual
nature of the environment in which
corruption is executed, theunavailability of these covert tools toinvestigators in the countries where
their use is not permitted might
constitute some obstacle to successful
investigation.

554(iii) Secrecy of Financial Transactions
In most of the participant countries,
financial institutions are accorded
some degree of secrecy fromdisclosing clients’ particulars to any
investigating agency, unless awarrant is obtained from a court ofcompetent jurisdiction. Moreover,where there is the need to check theaccount record within a limited time,even the need to obtain a warrant is
considered a hindrance to timely
investigation.
2. Solution for Improving Investigative
Tools(i) Agencies should endeavor to installand use computerized criminal
information management systems forfaster storage and retrieval of
information. Adequate security
controls should be built into thesystem to safeguard it against misuse.
An integrated criminal justiceinformation system, is a model that
may be adopted by all the countries.
(ii) Investigative agencies should be
adequately equipped with
operational vehicles, and necessarycommunication equipment. They
should also be provided withadequate operational funds by thegovernment, especially where thereis the political will to combat
corruption.
(iii) It may be necessary to review theexisting laws in some countries tosecure evidence through covert
operations and also to guarantee thejudicial admissibility of such evidence.
This will depend on the situation ofcorruption in each country and thepeople’s reception of such a measure.
It is recommended, however, that its
application be subject to judicial
control, to avoid abuse.

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(iv) The investigating agencies should
work in concert with the financial
institutions for the examination of asuspect’s financial records without
the hindrance of secrecy regulations,
as is the case in Japan. In addition,
legislation should be made in eachcountry to make it mandatory for
financial institutions to reporttransactions exceeding an amount tobe determined by the circumstancesof the relevant country.
C. Problems and Solutions for
Improving Investigator’s Skills
1. P r o b l e m s A s s o c i a t e d w i t hInvestigator’s Skill(i) A s s i g n m e n t o f I n e x p e r i e n c e d
Personnel to Investigate Corruption
Cases
The covert and consensual
environment in which corrupt
activities are executed often entails
the application of a wide range ofexperience in the area ofinvestigation to successfully solve acase. However, in some of theparticipating countries, rookies may
be assigned to the investigation ofthese cases. The consequence of thisis obvious.
(ii) Lack of Relevant Skill
Investigation of corruption cases
often involves the examination ofcomplicated financial and computerr e c o r d s . H o w e v e r, n o t m a n yinvestigators possess the expertise toperform such examination. Under
these circumstances, it would appear
that criminals are operationallyahead of the law enforcement, which
is not desirable.
(iii) Heavy Workload
In view of the limited number ofinvestigators with relevant
experience and skill, theseinvestigators are often overworked.
Not only does this affect the amountof time they can devote to a given
case, it may sometimes result in theembarrassment of the agency,
especially if there is pressure fromgovernment, the press or the public.
Heavy workloads also do not leave
the investigator, and invariably theagency, adequate time to analyze theunderlying issues involved incorruption cases, in order to devise astrategy to combat it in the long run.
(iv) Integrity Issues
Unfortunately, in some agencies thelevel of corruption is high and thisgravely impinges on the performanceof the individual investigator.
2. Solutions for Improving Investigator
Skill(i) Develop Professionally Competent
Investigative Teams
In each agency, the leader of aninvestigation team should possess
adequate legal knowledge andoperational experience. In addition,s/he should have maintained an
impeccable integrity record.
(ii) Specialized Training
The agency should endeavor to avail
investigators of the opportunity forspecialized training, especially inaccounting and information systems,
at the local and international level(when appropriate).
(iii) Re-training
Agencies are enjoined to update theskills of investigators, whennecessary, through re-training
programs.
(iv) A d e q u a t e n u m b e r o f s k i l l e dpersonnel should be deployed to theinvestigation of corruption cases.

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RESOURCE MATERIAL SERIES No. 56
Ideally, the agency would need to set
up an analysis unit.
(v)

Investigation by public prosecutors,
as long as it complies with the basic
legal system of the country, might bean effective tool to tackle corruption
by politicians and high-ranking
officials. Among the participating
countries, public prosecutors inJapan effectively carry out theirauthority to investigate corruption
cases on the basis of their knowledge
and expertise in law, as well as theirpolitical neutrality.

D. Problems and Solutions for
Coordination amongst Different
Investigative Organizations
1. Problem of Coordination(i) Absence of Multi-Agency Forums
In the different countries, there areno common forums for exchange of
information or ideas for the agencies
involved in the fight against
corruption. Inter-agency cooperationis on a case-by-case basis, and is notinstitutionalized. Worse still,
unhealthy rivalry may develop
among the different agencies,
especially when their duties overlap.
This state of affairs cannot provide asuitable environment for effective
control of corruption.

corruption are transferred outside
the country of the perpetrator, legal
differences usually make it very
difficult for vital information
regarding the transaction to beobtained, and for the repatriation ofsuch funds.
2. Solutions for Better Coordination(i) Multi-Agency Committees
It is not helpful for inter-agency
cooperation on criminal
investigations to be on an ad hoc
basis. Multi-agency cooperation
within the same country is importantsince it will provide the forum fordifferent agencies to share vital
information and to discuss various
issues of common interest. In thisregard, each country should consider
the establishment of a Multi-Agency
Committee Against Corruption. This
committee is to be comprised ofrepresentative(s) of the agency
responsible for investigation ofcorruption, as well as other members
from various government
departments. Their mission will be
the exchange of information andideas on how to tackle thephenomenon of corruption.

(ii) Audit Query
In some countries, audit queries are
not made available to anti-corruption
investigation agencies for scrutiny.
This results in the loss of opportunity
for detecting corruption in theorganizations concerned.

(ii) Notification of Audit Query
Internal and external audit reports
should be given high priority andattention. Moreover, there should becooperation between the different
audit units. Copies of any adverse
audit reports should be madeavailable to anti-corruption
investigation agencies for
information and perusal.

(iii) Differences in Legislation
Differences in the laws of eachcountry often pose a serious threat
to international cooperation against
corruption. Where the proceeds of(iii) Bi-lateral Agreements
Although each country’s laws are
made to suit the culture of the people,
one cannot lose sight of the effects ofglobalization resulting from556

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
advancement in information
technology. The proceeds from
corruption are usually transferredoffshore to safe havens by theperpetrators. It is important to find
new ways of cooperation amongst thedifferent countries to combat
corruption. At the international level
therefore, each country should strive
to increase bi-lateral or even multilateral agreements with different
countries on criminal matters. Suchagreements are especially relevant tocombat money laundering.
IV. PROBLEMS AND SOLUTIONSFOR SPEEDY AND EFFICIENTADMINISTRATION OF TRIAL
A. Problems Affecting Speedy Trial
While discussing the topic, the groupconsidered the factors involved in criminal
trial with a view to identifying associatedproblems. For corruption cases, thefollowing issues were examined:(i) Resources available to the Courts(ii) Role of the Prosecution(iii) Witnesses Cooperation(iv) Defense Tactics(v) Related Legal Issues(vi) Sentencing Patterns(vii) Control Measures
B. Analysis of Current Problems
The common problems identified at thetrial stage in corruption cases include:
1. Resources Available to Trial Courts(i) Manpower Resources(a) Excessive Caseload
Most of the participants reported
that although the cases the courts
have to handle are on the increase,
there is no commensurateincrease in the number of judges/
magistrates to deal with thesecases. In countries like Brazil,

Grenada, Japan, Kyrgyzstan and
Nigeria, there are no special
courts to try corruption cases.
Even in Pakistan and Sri Lanka,
where specific courts aredesignated to try corruption cases,
the number of cases they have totry by far outweighs their efficient
operational ability. The result isthat many cases are fixed forhearing on any given date, which
subsequently lead to frequent
adjournments. Moreover, judges
are left with little time to write
judgements or even to prepare
adequately for court hearings.
(b) Inexperience of Trial Judges/
Magistrates
Incompetence and ignorance ofthe law and lack of experience ofsome judges/magistrates is judged
as a contributory factor for delay
in trial. This class of judges/
magistrates often fail to takeproper control of proceedings
during court sittings to such an
extent that valuable time is loston unnecessary cross-examination
and arguments.
(c) Unskilled Court Assistants
Another major source of trial
delay in several countries is thelack of competent and skilled court
administrative personnel. These
courts rely on unqualified court
registrars, secretaries and bailiffs
to assist the judge/magistrate.
(ii) Material Resources(a) Equipment
In some of the participating
countries, court proceedings aremanually recorded by the judge/
magistrate. This is especially thecase in Grenada, Kyrgyzstan and
Nigeria. In these countries also,

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RESOURCE MATERIAL SERIES No. 56
the office equipment necessary forfast reproduction of court
proceedings, such as word
processors or photocopiers, arealso lacking.
(b) Finance
Perhaps the biggest problem
facing the judiciary in theparticipating countries is to deal
with lean budgetary provisions.
In Brazil, Grenada, Kyrgyzstan,
Nigeria, Pakistan and Sri Lanka,salary and conditions of service ofjudges/magistrates and ancillarystaff leaves much to be desired.
This has tended to imbue low
morale in the system. Financial
inadequacy sometimes also
hinders, or even stalls, thesmooth-running of the courts,
thereby delaying trial.
2. Prosecution Problems(i) Burden of Proof
One of the tasks encountered incriminal trials is for the prosecution
to prove the guilt of the accused. Thistask may pose a problem incorruption cases where theprosecution is required to prove thereceipt of the bribe, despite thepeculiar circumstances of the crime.
In Pakistan, there is a law whichshifts the onus of proof of innocenceto the accused, when the prosecution
has otherwise proved that such an
accused is in possession of assets wellbeyond visible earnings. This is not
the case in all other participant
countries, hence the prosecution
bears the entire burden of provingthat the assets in excess of official
remuneration were obtained throughbribery. Prosecutors in thesecountries feel that this is anenormous task and contributes todelay in trials.

558(ii) Report of Experts
In Brazil, Grenada, Nigeria, Pakistan
and Sri Lanka, expert reports take along time to be obtained because
there are few recognized experts.
These reports may be laboratory
reports needed for cases in which acovert operation is used to obtainevidence, or the report of an expert
handwriting analyst for disputed
documents. Thus, trials are
sometimes adjourned awaiting thereceipt of an expert opinion.
(iii) Lack of Preparation
In several countries, the prosecutors
are few compared to the number ofcases they have to deal with. These
prosecutors do not have enough timeto prepare their cases, and coupledwith inexperience, they are often
inclined to seek adjournments toenable them to prepare to handle theissues raised by the defence.
3. Witnesses(i) Non-Attendance
Another contributing factor to delay
in trial of corruption offences is thefailure of witnesses to attend court
sessions when required. Thissituation arises especially in cases
where the prosecution may betransferred to a different location andmay not be summoned in time.
However, the situation is worse incountries where there is no adequate
compensation for witnesses’
expenses.
(ii) Witness Protection
In most countries in the group, there
is no protection scheme for trial
witnesses in corruption cases.
Moreover, it is difficult to secure
direct witnesses in corruption cases,
except those who may haveparticipated in the crime. However,113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
in a country like Kyrgystan, there is
no legal provision to allow any of theaccused persons as a witness for theprosecution.
4. Defence
Defence attorneys are in the habit ofprolonging trial time throughunnecessarily lengthy cross-examination,
disputation of exhibits being tendered by
the prosecution, requests for adjournments
and absence from trial on flimsy excuses.
This perhaps is the chief cause of delay,
especially when the accused person had
been granted bail.

(ii) M o d e r n i z a t i o n o f J u d i c i a l
Information Systems
It is necessary that trial courts keep
abreast of developments in
information technology and acquire
the necessary equipment to improve
the speed and accuracy of the
documentation of trials.

5. Control Measures
It was also noted that in certain
countries, the judge/magistrates are notworking as hard as they should.
Sometimes, the situation degenerates totruancy, especially as there appears to be
no authority designated to effectively
monitor their output. In these cases, thetrial judges/magistrates contribute to trial
delay by their bad work habits.

(iii) Training
Initial training is recommended forjudges/magistrates on first
appointment, as is the case in Japan.
Furthermore, periodic group training
courses may be required to update
their knowledge and to shareexperience on trends in corruption
amongst public officials, and thenecessary legal and procedural
adjustments for efficient and speedy
trial of these cases. Such training
courses will also enable each judge/
magistrate involved to identify whenand how to intervene, to minimize
delays that could arise due to defence
dilatory tactics.

6. Sentencing Patterns
The participants remarked that thepattern of sentencing for the same offence
often varies in different courts in the same
country. This practice may be caused by
the differing disposition of judges/
magistrates and is considered inefficient,
if not unjust. The variance in sentencing
is even more pronounced among different
countries as a result of legal differences.

(iv) Increased Budget
The budget of the judiciary should beenough to provide adequate salaryand conditions of service for judges/
magistrates, public prosecutors andcourt assistants. Improved budget
will also enable the payment ofadequate compensation to witnesses
and the purchase of necessary
supplies for use in the trial courts.

C. Recommended Solutions(i) Reduced workloads
To reduce the workload on trial
judges/magistrates, we recommendthat the relevant authority in eachcountry should appoint an adequate
number of experienced trial judges.
More court assistants would also be
required to speed up the processingof court proceedings.

(v)

Self Monitoring of Trial Duration
It may be necessary to establish
effective procedures for selfmonitoring of the operation andproductivity of judges/magistrates.
This will improve accountability inthe system and enhance speedy trial.
Furthermore, it is recommended thattrial judges/magistrates should
endeavor to conclude all trials of

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RESOURCE MATERIAL SERIES No. 56
corruption cases within a reasonable
period, such as six months from thedate of indictment. However, in viewof inherent variations in thecomplexity of cases and the different
situation of each country, thepresiding judge/magistrate should
submit a report to the supervisory
authority within the judicial branch
for cases exceeding the relevant
period, to explain the underlying
circumstances of the case and reasonsfor the delay.
(vi) Pre-Trial Meetings
Pre-trial meetings involving
prosecutors, defence attorney(s) andthe judge to discuss/determine issues
involved in the particular case andagree on lines of argument to be
pursued, may speed up the trial
process. For this procedure to beeffectively applied, it is necessary for
all the parties to understand theissues involved and also to take steps
to avoid its abuse.
(vii) Witnesses Protection
An adequate witness protection
scheme is recommended to be put inplace in all countries to secure
witnesses from the danger posed byreprisals that may be contemplatedby the accused or their associates.
This is a necessary condition to obtainfull witness cooperation in the trialof corruption cases.
(viii) Designation of Special Courts for
Corruption Offences
As stated earlier in this report,
Pakistan and Sri Lanka have specificcourts to deal with corruption cases,
hence there was a proposal for the
adoption of this practice in othercountries. The advantage in this isthat the presiding judge will devote
more time to corruption cases, and560

through consistent practice, gain theexperience necessary to speed up
trials, as well as conduct efficientp r o c e e d i n g s . H o w e v e r, t h eparticipants did not reach aconsensus on this issue, as it was also
argued that the designation of special
courts will raise new issues of
independence. Moreover, it wasnoted that the existing courts havemore fundamental issues likemanpower and resource problems tograpple with before the considerationof special courts.
(ix) Reversal of the Burden of Proof
It may be necessary to enact laws ineach country requiring the accusedin a corruption case to prove that
assets considered disproportionate totheir income were not obtained
through corrupt practices. That sucha law may be perceived in somecountries as an infringement on theright of the accused to be presumed
innocent until the contrary is proved
cannot be overlooked. However,considering that human rights are
involved here, different countries
may have to deal with this issue
depending on their peculiar
circumstances regarding corruption,and the peoples perception of what
measures may be taken to combat it.
In Hong Kong and countries like
India and Pakistan, such legislation
was necessitated by the generaloutrage against corruption at thetime of introduction.
(x)

Equitable Sentencing
Trial courts in corruption cases
should make an effort to adopt aneven sentencing pattern within theircountry.

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
V. EFFECT OF THE MASS MEDIAAs already noted in section III, thecorrupt activities of a public official may
be revealed through publication by themass media. The role of the mass media
as a useful vehicle in the dissemination of
information on the activities of aninvestigative agency, and for the educationof the people on the evils of corruption,cannot be over-emphasized. Moreover, themass media is perhaps most suitably
located to generate the magnitude of public
support and backing required for successful
investigation of highly placed public
officials under corruption charges.
Furthermore, we cannot lose sight of theimportance of a free press in any
democratic society. However, that theactivities of the mass media sometimes
interferes with investigations, and even thetrial, of corruption cases has become athorny issue.
Most of the participants in the group feltthat media interference in corruption casesin their countries is commonplace. In
Brazil, Grenada, Nigeria and Pakistan, themass media is so powerful that theysometimes influence investigations and thedecisions of the court on several issues.
This development is considered unhealthy
since the media stance on a case may bebased on several issues which may not benecessarily connected to the realization ofjustice or equity in the particular case.
Without the application of proper
measures to avoid media interference,
public confidence in the investigative
agency and trial court may be eroded
through irresponsible media practice. The
solutions recommended for this problem
include:(i)

Implementation of a strict code of
conduct for media practitioners;(ii) Pursuit of programs of mutual

cooperation by investigative agencies
with the mass media;(iii) Application of existing laws oncontempt of court by judges; and(iv) Development of training programs forjudges and investigators to enable
them to resist the influence of themass media in the course of their
duty.
VI. CONCLUSION
The group discussed issues concerning
the investigation and trial of corruption by
public officials from the perspective ofinvestigators and judges. Regarding the
sub-topic on securing the independence andneutrality of investigative agencies and thecourt, the issue of whether or not a special
independent agency like the ICAC in Hong
Kong should be established in order toeliminate bureaucratic and politicalinfluences on the investigation was
examined.
To tackle the problem of investigation,
the group focused attention on seeking
efficient methods to source initial
information on corruption, as well as on the
personnel and budgetary situation, theexpansion of the witness protection
program and immunity for securing thecooperation of the people concerned. The
propriety of introducing new investigative
tools, such as decoy operations and how tosecure immediate access to bank accounts
in order to strengthen the ability to collectevidence, was also given attention.
To enhance speedy trial, the necessityof improving the material and personnel
resources of the court, as well as thepossibility of introducing the shifting of theburden of proof or establishing special
courts on corruption, were discussed. In
addition, based on the consensus among
the group members that excessive press
coverage interferes with the efficient

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administration of both the investigationand trial, the role of the media was given
special attention.
The group reached the conclusion thateach country should be entrusted with theselection and implementation of therecommended solutions in many aspects,
since the problems differ for each country
and the effectiveness of each solution
depends largely on the legal system,
culture and the seriousness of corruptionin each country. However, the mostimportant solution, which is common
through all these issues, is thatinvestigators and judges must keep making
an effort to improve their skills and ability
through training and self-discipline. We
believe that those who are engaged in theadministration of criminal justice must
recognize their accountability in theirduties and must, therefore, play an activerole in realizing speedy and proper
investigation and trial, which is thefundamental action against corruption.

562

113TH INTERNATIONAL TRAINING COURSEREPORTSTHE
COURSEREPORTSOF
OF THECOURSEGROUP 3
GENERAL PREVENTIVE MEASURES AGAINST THE
CORRUPT ACTIVITIES OF PUBLIC OFFICIALS
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Nelson Nogot Moratalla
Mr. Md. Kamal Uddin Bhuiyan
Mr. Roderick Kamburi
Ms. Kyoko Fujino
Mr. Yudi Handono
Mr. Errol Ozil Hinson
Mr. Nguyen Thanh Hai
Ms. Yoko Nihei
Mr. Masaki Kitahara
Mr. Tetsuya Yamaji
Deputy Director Masahiro Tauchi
Professor Akihiro Nosaka
Professor Shinya Watanabe

I. INTRODUCTION
A public official is a position of trust withthe duty to always act for the public
interest. Therefore, the ultimate loyalty
of public officials shall be for the public
interest of their country, as expressed
through the democratic institutions ofgovernment. Public officials should behonest, fair and impartial in theperformance of their functions and indealing with the public. They should, at
no instance, demonstrate undue
preferential treatment to any particulargroup or individual, or improperly
discriminate against any group orindividual, or otherwise abuse and misuse
the power and authority vested in them.
In so doing, public officials can avoid
being publicly criticized. Corrupt activities
by public officials, however, have persisted
in many countries for years. Furthermore,
the magnitude and complexity ofcorruption has been observed to be
increasing recently. Sophisticated methods
have been used to avoid detection and(Philippines)(Bangladesh)(Papua New Guinea)(Japan)(Indonesia)(Saint Vincent)(Vietnam)(Japan)(Japan)(Japan)(UNAFEI)(UNAFEI)(UNAFEI)

enhance this illegal activity. To makematters worse, corruption has been
expanded into a transnational crime,
respecting no borders.
Corrupt activities by public officials
undoubtedly distorts their integrity andneutrality in performing their official
duties. It also breeds a feeling of distrustand discontent by the public towards theirgovernment. As a consequence, these
activities by public officials may ultimately
weaken or collapse the administration of
government and the economic structure ofa country. It undermines good governanceand causes a great damaging effect to thecountry.
As corruption becomes a global concern,
effective preventative measures must be
taken both at the domestic andinternational level. Critical use of suchmeasures is deemed effective to deter
further corrupt activities. Since mostpreventive measures used to address
corruption in government are reactive, thisreport will attempt to focus on proactive

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measures and to hit the problem right at
the determined inception point.
II. ESTABLISHING A
MANAGEMENT SYSTEM OFPERSONNEL AND ETHICALSTANDARDS FOR PUBLIC
OFFICIALS
The measures for deterring corrupt
activities among public officials will be
discussed here from the viewpoint of amanagement system of personnel;
recruitment, training, rotation of personnel
and staff; improving working
environments; promotion systems; anddiscretionary power. In addition, a
discussion on the importance of a code of
ethics will be taken up.
A. Recruitment
At the very stage of recruiting
government officials, two situations are
identified that have bearing on thepossibility of corruption. The first one iscorrupt activities at the selection stage ofgovernment applicants. Presumably, some
new government entrants are recruited
through the practice of nepotism and bribe
giving. The act of nepotism is itself taboo
in government service, and bribe-giving is
unlawful, hence, at the initial stage, italready constitutes corruption and a
violation of law. To leave this practiceunnoticed is both dangerous and costly togovernment. To preempt this problem, afair and impartial process of recruitment
should be established. The following
measures are therefore suggested:(i) T h e s c r e e n i n g b o d y o r
recommendation panel to be separate
and distinct from the recruiting bodyor panel. This rationale is to ensurethat each body or panel performs
their task or obligation professionally,
with utmost diligence, and to further
ensure checks and balances.

564

Furthermore, a system or procedureof screening applicants should beproperly in place for strict adherenceby the members. Likewise, it is
proposed that recruitment policies
and standards be established.
(ii) It is also recommended that interview
procedures be determined. Insteadof a single interviewer, a panel or aninterview board may be organized by
officers with a wide range ofexpertise. Hence, this could be one
way of avoiding prejudice and bias
from among the members of theboard or panel.
The second situation is when the new
government entrant succumbs to corrupt
activities once they are in government
service. Under the presumption that the
new government entrants lawfully passed
all the stages in the processing, without
resorting to the first situation as statedabove, this event may happen in the future.
Those who may be blinded with fame andpower are likely to be corrupt. Though his/her situation seems complicated,considering the time period or elements
involved when that official starts to become
dishonest or inept, and considering also themagnitude of factors such as environment,
peer pressure, family problems, lifestyles,etc, this group favorably endorses thefollowing points for consideration:(i) Aside from qualifications andexperience, it is also necessary thatall government applicants arethoroughly screened, including
extensive background or characterchecks in all areas of his/her public
and private life. Vertification of
personal records such as records fromthe police, organizations where he/she belongs, former employers or coemployees, teachers, community
leaders and others should be113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
conducted, preferably before his/ herprobation period expires.
(ii) Psychiatric and/or psychologicaltesting may be conducted to further
help in detecting those who have thetendency to change their attitude andcharacter once in the service, withready access to government resources
and information.
B. Training
Provision of regular training to public
officials is also encouraged. While training
serves many purposes, such as improving
skills and knowledge, it is also useful inredirecting attitudes and changing values,
thus in a way deterring public officials fromengaging in corrupt activities. To ensure
the provision of effective training, thefollowing are suggested:(i)Morals and ethics are recommended
to be the main subjects in the training
program.
(ii) Initial training and in-service
training should be made mandatory
for all public officials.
(iii) Refresher training is likewise neededfor obvious reasons, such as to reemphasize the sense ofaccountability, responsibility andtransparency in the performance of
his/her duties.
(iv) Institutional training should be
supplemented with on-the-job
training to hasten professionalism,
develop discipline, improve skills andenhance community interactions andrelations.
C. Rotation of Personnel and Staff
Corrupt activities tend to occur when apublic official remains in a particular unit
or section in the organization for a long
period of time. The longer he/she remains
in the unit/section, the more he/she
becomes a target of manipulators or the

more intense the tendency to commit awrong becomes. Then, the chances ofcompromising his/her position with
undesirable elements within and outsideof the organization become imminent.
What should be done to those who haveover-lived in a particular unit or section?
The answer is simple. The government isrecommended to have a program of
personnel and staff rotation within thefunctional positions in the organization orwithin the geographical location of theoffices. With this measure, public officials
would find it hard to establish strong
connections with outside groups such that
potential bribers may think otherwise
before arrangements are made with
officials. Similarly, rotation also deters thedevelopment of close attachments with all
people and hence, special favors or
preferential treatment with close
associates may be avoided.
However, it may be difficult to find analternative appropriate position for somepersonnel and/or staff. The number of
positions which use his/her special skills
and knowledge, may be restricted.
Considering family members, some may
hesitate to be transferred to organizations
located at a different place. In the above
case, at least, it is recommended that those
who are responsible for the subordinate’s
behavior supervise his/her behavior moreclosely, considering the above risk.
D. Improving Work Environments
Public officials must be provided withproper and adequate work conditions inorder to ensure a decent living for them andtheir families. Mostly lower and middle
level public officials in some developing
countries are low paid, compared withthose employed in private business. In asituation like this, public officials may havethe tendency to succumb to the temptationof committing dishonest acts in return for

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a favor that has to do with the discharge
or performance of his/her official duties. In
consonance with this presumption, theprovision of adequate salaries and facilities
is recommended as long as the limit ofgovernment budget permits. By so doing,
there is a possibility that need-based
corruption at the lower and middle level
will be minimized, if not totally reduced.
Additionally, the installation of agrievance system within the organizationis also one way of ensuring effective
communication among officials. It is
helpful in improving working relationships
and inducing a healthy work environment.
Through this system senior officials will
also be more careful in all their official
dealings, for fear of being charged bysubordinates or exposed unnecessarily.
Furthermore, work simplification(including streamlining of the bureaucracy)
is important. This not only reduces costson the part of the government, but also
contributes to easing the workload of eachpublic official who has a backlog of work.
E. Promotion System
Since promotion encompasses anincrease in salary and higher status in theorganization, it is understandable thatevery person in an organization looks
forward to his/her promotion. Promotion
motivates public officials to work hard andcontinue to struggle to maintain theirstatus or be promoted again. However, if apublic official feels deprived of thisprivileged in the organization where he/shebelongs, not because of his/her own ability
but due to a lack of vacancies, he/she may
seek alternative means of earnings. Thosemeans could be illegal. The intensity of
dissatisfaction with the higher-ups may
tend to accelerate further if special favors
or preferential treatment have been
detected or are known to have been appliedby the promoting authorities. To resolve
this dilemma, adherence to existing

566

standard procedures and criteria forpromotion is most highly recommended.
Some of the important factors to consider
for promotion are:(i) Seniority (the length of service in theorganization)(ii) Merit (the activities worthy of praiseor reward; achievement)(iii) Competence (the ability, skill or
knowledge to do what is needed atwork)
However, if promotion is strictly seniority
based, officials promoted may not have thecapability or competence required for the
position. Therefore, seniority criteria
should not be given much emphasis.
At the stage of conducting an evaluationof potential promotees, applicant officials
may resort to utilizing undue influence or
perhaps apply grease money to be favorably
considered. This dirty tactic will again ruin
or distort the established standard
procedure, resulting in decisions withpartiality and bias. To exclude bias inpromotion, the following suggestions areforwarded:(i) The criteria used to award promotion
be spelt out clearly.
(ii) That selection of promotees shall bedone objectively and in consonancewith the established standard.
(iii) The system to ensure fairness shallbe observed at all times.
(iv) An appropriate internal body shall beestablished to address and attend tocomplaints pertaining to unfairness
and bias in promotion.
F. Discretionary Power
Wide discretionary powers granted to
public officials always have the tendency
to corrupt the said public official. So, inorder to exercise due prudence in theperformance of their official duties, public

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
officials are suggested to have only limited
discretionary power, subject to such
limitation as may be authorized by law.
The more power an official has, thestronger the tendency to corrupt thatpower. In other words, people may exert
influence on public officials who have wide
discretionary authority, in order to gain
preferential favors as in the awarding ofcontracts of works/projects or of delivery
contracts of materials and supplies, andothers.
For countermeasures, it is proposed thatthe scope of administrative discretion isclarified by legislation and enabling laws.
In addition, fairness and transparency inthe administrative procedure have to be
pursued. Necessity for restrictions and therationale of subsidies has to be reviewed
periodically. Moreover, information
disclosure and transparency inpolicymaking processes have to beadvanced.
G. Code of Ethical Standards
An international Code of Conduct for
Public Officials has been formulated andapproved by the participating countries
during the 1996 United Nations General
Assembly. More so, some countries havetheir own Codes of Conduct for Public
Officials fully institutionalized andimplemented. Generally, these codes
prescribe the conduct guidelines forofficials holding public office.
A Code of Ethics is considered to be one
effective tool in instilling discipline andharmonizing the job performance of public
officials, and strict compliance oradherence to its provisions is a sure way ofguaranteeing efficient and honest public
service. When a country makes a code, thefollowing are highly recommended to beconsidered:

1. Declaration of Income and Assets
A statement of income and assets is adocument that would help to detect thedisproportionate income of a government
official. However, arguments were raised
as to the extent of disclosure of income andassets, and whether a family member’s
income and assets should also be included.
In some countries, all public officials are
required to file their income and assets
annually, while others file it every two
years. Similarly in other countries, only
high level government officials are requiredor mandated to file their income and assets
to the government. From the standpointof cost effectiveness, we need to determine
the level/position of officials in thehierarchy who should be required to file.
Disclosure of income and assets of all
family members, in some instances, may
show or indicate an unusual accumulationof wealth not proportionate to the official’s
legal income. In this regard, each country
may consider such an act as an
infringement of privacy, which may violate
their constitutional rights.
2. Obligation to Official Duties
In principle, public officials are expected
to devote their time only to official duties
and functions. If a public official engages
in income generating jobs directly or
indirectly related to his/her official
function, their official function might beplaced in jeopardy or be compromised. In
this regard, public officials have to refrainfrom engaging in other vested interest
activities outside of their government
function, to preserve their integrity andavoid conflicts of interest. Checking therisk of a potential conflicts of interest
situation, or of compromising their official
position, the unit head should make thedecision of permission.
The following are some provisions that
may be incorporated in formulating a Codeof Ethics in each country:

567

RESOURCE MATERIAL SERIES No. 56(i) Public officials shall not be engaged
in other paid employment unless thehead of the organization approves it,
considering the risk of a potential
conflict of interest or compromise of
their official function.
(ii) Public officials shall not ask for or
accept any benefit in the course of orby reason of their official position.
(iii) Public officials, upon taking an oathof office, shall declare to thegovernment all personal assets andliabilities, to include (possibly) thatof their spouse and children.
(iv) P u b l i c o f f i c i a l s s h a l l n o t
misappropriate public funds.
(v) Public officials shall not use theirposition for the benefit of themselves
and /or their family.
(vi) Public officials shall take an oath of
secrecy and loyalty.
(vii) Public officials shall not hold any
personal interest in any businessenterprise that conducts business forprofit with the government. We term
this ‘divestment of interest’.
(viii) Public officials (except certain posts
such as assumed by politicians) shallnot be engaged in politics.
(ix) Public officials shall not allow theirofficial integrity or personal integrity
to be compromised.
III. INTERNAL INSPECTION AND
DISCIPLINARY ACTIONS
Running a big organization may be arather difficult task for management. If
public officials eagerly seek means for theirown convenience, this attitude may lead toengaging in corrupt activities to satisfy
such own personal interests while in the
public service. However, if other people
have a way of monitoring such behavior,
their selfish intent may be deterred. For
this purpose, inspection and disciplinary
action takes on important role. So, in thefollowing discussion, we will deal more with568

the mechanism or system of installinginternal inspection procedures anddisciplinary actions.
A. Internal Inspection
Every organization should take theresponsibility of regulating the behavior ofeach member. If unworthy behavior has
been noticed, immediate and appropriate
measures are suggested to be taken. In
order to address this situation, internal
inspection measures or systems aresuggested to regulate and monitor thefunctioning of the organization. The otherpurpose of this is to check administrative
problems in the organization, including
determination of work efficiency andpossible irregularities in their duties andfunctions. The following areas of concern
are hereby discussed in this report.
1. Procedure of Internal Inspection
The procedure of internal inspection
should be clearly established andformulated. Likewise, a standard should
be determined and adhered to strictly, andbe made known to all members of theorganization. Keeping the members awareof the existing procedures will eventually
guide them to behave in the manner
expected of them by the regulations.
2. Internal Inspection Units
Establishment of an internal inspection
unit is also necessary to carry out thesefunctions. The unit should be an
independent body, not controlled by anyone
in the organization except the head.
Interference from other sub-heads of theorganization may make the unit ineffective
and inefficient. In this regard, such units
should be attached to the office of the headof the organization.
3. Internal Inspectors
Internal inspectors are expected to be
professionally knowledgeable in all aspectsof the trade, such as knowledge of the basic

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
law, research strategies, effective reportwriting, investigation techniques andprocedures, record keeping, and othersimilarly required skills. They are also
expected to possess the necessary attitudeand character to perform the job withdiligence and utmost honesty or
impartiality. Furthermore, training for
inspectors is also important. Preliminary
training or orientation is necessary forthem to initially acquire the qualities
required of inspectors. In addition, it isalso equally important to emphasize theinspectors’ accountability andresponsibility for their job in the course of
the orientation or training.
4. Powers and Authority
Since this is an internal system, thepowers and authority of internal inspectors
should be as provided for in theorganizations’ internal administrative
regulations, or as may be prescribed by ahigher authority such as the head of thegovernment agency or ministry, or by anational law.
5. Duties
The following may be some of the duties
of an internal inspector:(i)

Audit the expenditure of theorganization.
(ii) Ensure propriety in procurement
procedures or systems.
(iii) Ensure observance of public tenderor bidding procedures.
(iv) Ensure internal security policy onclassified materials.
(v) Check on abuse or misuse of powerby officials or employees.
(vi) Check on misuse or misapplication of
the organization’s resources.
(vii) Point out problems encounteredduring inspection work.
(viii) Other matters of interest.

6. Reporting
After the conduct of inspection,
inspectors are required by regulations tosubmit results of the inspection to the headof the agency concerned or to where theinspection was conducted. The reportneeds to indicate all the important areas
or aspects of the inspection as prescribedby the regulations, such as the answers to“Who? What? When? Where? and How?”.
More specifically, a pre-determined
standard format should be proposed.
Findings of grave concern involving serious
violations of law should be known
immediately by the head of theorganization for his/her immediate andappropriate action.
7. Sources of Information
The conduct of internal inspections could
be determined in many ways and could beinitiated under the following circumstancesor sources:(i) Suggestion boxes.
(ii) Hotlines (telephone, computer etc).
(iii) Persons responsible for keeping
sensitive records.
(iv) Informers or informants that provide
information for free and for a fee.
The key is how to motivate people to offer
information. At least, we must guarantee
the confidentiality of the informer orinformant. In addition, it is recommended
to find easy and/or handy methods which
let people offer information.
8. Conduct of Inspection
Inspections can be conducted either byschedule or randomly. Depending on the
purpose and timing, such types ofinspection can be adopted by any
government agency or organization.
Regular or scheduled inspections may havethe important purpose of determining theefficiency of the performance of officials interms of resource utilization or regular569

RESOURCE MATERIAL SERIES No. 56
administrative functions. On the other
hand, the conduct of unscheduledinspections may detect misbehavior
amongst officials, or react to reports orcomplaints of irregularities.
Areas for inspection must also be
considered. Offices that are highly
vulnerable or prone to corruption, e.g,finance or logistic sections, should beconsidered for frequent inspection, toensure the efficient and effective use oforganizational resources.
9. Manuals
The publication of a manual for internal
inspection would greatly help in the smooth
conduct of inspections, and guide users
accordingly.
B. Disciplinary Action
1. Regulations
Internal administrative disciplinary
action is an important deterrent measurein curbing corruption in the public service.
However, disciplinary actions may inflictdamage to the reputation of public officials
if discriminately administered. In thiscontext, regulations for disciplinary action
should be established. The recommended
disciplinary process is shown in theschematic diagram annexed to this report.
In this process, opportunity for the accused
to appeal is guaranteed if he/she feels
deprived of his/her rights. It also provides
an avenue or a system of compensation fordamages to those who are victims ofwrongful accusation.
2. Sanctions
The head of the organization should beheld responsible for whatever his/her
subordinate officials do. This is the essenceof responsibility endowed upon all headsof agencies or organizations in government.
In consonance with this authority, he/she
also has the inherent power to impose
disciplinary sanctions or punishment to570

his/her subordinates who have been foundto have acted irregularly in theperformance of his/her official duties andfunctions. The extent of that authority may
be determined by internal regulations orby law. Penalty should be based on thegravity of the offence. Examples of thetypes of administrative disciplinary
sanctions are as follows:(i) Reprimand(ii) Admonition(iii) Censure(iv) Reduction of pay(v) Reduction in salary rank or grade(vi) Forced retirement(vii) Demotion(viii) Dismissal
3. Devices for Effective Application ofDisciplinary Action
Firstly, if the offence or misconduct
committed is so grave that the internal
disciplinary machinery or administrative
sanctions are deemed inappropriate,
collaboration with other appropriate
government agencies must be sought. In
the case of criminal offences noted, the law
enforcement agency must immediately beprovided with the necessary information on
the nature of the offence. In this regard,an appropriate system or procedure shouldbe established to facilitate the referral ofcases of this nature.
Secondly, it is important to consider thatsanctions imposed on any erring public
officials, the nature of any cases and what
the organization has done must be given
according space in newsletters or news
bulletins, to serve as a deterrent to wouldbe violators. To be clarified, naming theofficial will bring him/her disadvantages,
but it will prevent vague rumors which maylead other officials to unrest.

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
IV. INTRODUCING AUDITING ANDOMBUDSMAN SYSTEMSDISCOURAGE CORRUPTION;ACCESS TO INFORMATION; AND
ACTIVITIES TO INCREASE PUBLIC
AWARENESS
In this portion of the report, we shall look
into three topics. First, we will discuss theaudit system and ombudsman system as ameans to reduce or discourage corruption
in the public service. Secondly, we will
discuss the means for the public to haveaccess to government information. Finally,
we will look into some measures in order
to increase awareness regarding the ills ofcorruption, and how to prevent it.
A. Auditing System
We acknowledge that the purpose of anaudit inspection is to ensure that there istransparency and accountability within theorganization. In order to attain this, a bodyshall conduct an audit of accounts, revenue
and expenditure of an organization. This
is to ensure that expenditures have beenrecorded properly and within the scope,
procedures and limitations established by
l a w. T h r o u g h a n a u d i t s y s t e m ,organizational funds are safeguarded
against abuse and misuse. It also
discourages would-be offenders in theorganization from abusing their positions.
So auditors here act as whistle-blowers. As
we acknowledge the importance and thesensitivity of the work involved, we believethat the auditor must be given thenecessary powers and independence tocarry out their duties without fear or favor.
Along this explanation, suggestions toimprove the work of an auditor must be
looked into. We, therefore, look at twomodels in this paper, the Bangladesh andJapan audit systems, as an example.
1. Bangladesh
Bangladesh has a Controller/Auditor
General. Their independence isguaranteed by the Constitution (Art.127 ofConstitution). The President appoints thehead of the organization. He/she holds
office up to the age of 60 years. Their main
duty is to audit state organizations’accounts of expenditure and revenue, andto submit findings to the President, whothen releases the report to parliament. The
auditor has the power to access to allproperty that the government possesses.
The main role is to audit the financial
accounts of government agencies andsubmit a report to Parliament. There may
be some variation in the methods used incarrying out the audit work. However, thework is to serve one purpose, that is, toaudit the financial accounts of thegovernment agency.
2. JapanJapan has its Board of Audit. The bodywas established based on the provisions ofArticle 90 of the Japanese Constitution.
This provides that the final accounts on the
expenditure and revenue of the State shallbe audited by a Board of Audit andsubmitted by Cabinet to the Diet, together
with the statement of audit during the
fiscal year.
The Board is comprised of the Audit
Commission, which is the decision-making
body, and the General Executive Bureau,
which is the executive responsible for theoperation. The Audit Commission consistsof three (3) commissioners appointed by
Cabinet with the consent of both houses of
the Diet (upper and lower houses). The
Emperor attests the appointment, which
is for a period of seven years.
The General Executive Bureau iscomprised of a secretariat and five bureaus.
They are responsible for carrying out audit
work under the direction and supervisionof the Audit Commission. The jurisdictionof the Board of Audit extends to all stateaccounts and public corporations.

571

RESOURCE MATERIAL SERIES No. 56
3. Recommendations
Participants from Indonesia, Papua New
Guinea, Philippines, St. Vincent andVietnam agreed that the nature of theauditors work in their countries is similar
to that of the two countries mentioned
above. This observation tends to confirm
that the role and function of the auditor
are similar in most ways in most countries,
especially countries represented in this
discussion. The current trend caused by
the massive increase of corruption cases
involving public officials, suggests thenecessity to strengthen the workings ofauditors.
In making theserecommendations, we are mindful of thelaws and legislation varying from country
to country concerning the auditors’ role,
their powers, and independence:(a) Appointment
The President of the country, thePrime Minister or equivalent highranking official/organ may appoint
the auditor. The national auditor
shall appoint field auditors.
(b) Composition
There shall be at least one auditor,
who should be the head of thenational audit bureau and assisted bydeputies and audit inspectors. The
appointment of these officers may be
within the scope of responsibility of
the auditor.
(c) Independence
The auditors’ independence should beguaranteed by the constitution. That
is to say, the office of the auditor
should be prescribed by provision of
the constitution so that it is not
subject to direction or control byanyone.
(d) Powers
The auditor shall also be given
powers to exercise in the performance572

of its functions. Thus, he/she isexpected to conduct inspections of allrecords of the organization
specifically on the use of government
funds and resources. If anomalies are
discovered during the course of audit
work, the auditor shall refer thematter to the head of the organizationand to other appropriate government
agencies. The auditor shall summon
anyone within and outside of theorganizational to appear and produce
evidence relating to the matters being
looked into. He/she has the power todirect individuals and organizations
to cease, withdraw or terminate anytransaction considereddisadvantageous to the government.
He/she can also recommend
disciplinary actions against public
officials for breach of organizationalrules and regulations, misuse of
power and abuse of discretion.
(e) Functions
The primary function of the auditor
is to carry out audit inspection of all
government organizations, including
its subsidiaries and statutory bodies.
Findings with recommendations
shall be reported to the government
at the appropriate time.
B. Ombudsman System
The term “ombudsman” is a Swedish
word for “attorney” or “ representative”,
indicating their official role as a public
protector. The institution was set up in the
17th century by the Swedish King, Charles
XII with the official title of Hogsta
Ombudsman (Supreme Royal
Ombudsman). The job was to “Keep an eye
on royal officials” and supervise theexecution of the laws. Sometimes, the King
would allow the Ombudsman to represent
him/her in some official functions. To thisday, a number of countries have adopted
the Swedish ombudsman system and have

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
developed the institution. In somecountries, the ombudsman has their
independence guaranteed by theconstitution. In this report, we introduce
the current ombudsman system in Papua
New Guinea and the Philippines. In
addition, we likewise consider the system
adopted in Vietnam, as that with a function
similar to the ombudsman.
1. Papua New Guinea
The ombudsman in PNG has two main
divisions: the Complaints Division, thatreceives normal complaints from thecitizens; and the Leadership Division, that
deals mainly with the high-ranking
government officials. It does not cover the
lower bracket of public service machinery.
This is left for the police to handle.
The ombudsman has investigative
powers but does not have prosecution
powers such as in the Philippines. Rather
it refers its investigation files to the publicprosecutor who initiates prosecution before
what we call a ‘Leadership Tribunal’. The
Tribunal is made up of a judge of the
National Court who is the chairman, andtwo members from the Magisterial Service,
all appointed by the Chief Justice. The
ombudsman does not adjudicate on otherorganization’s disciplinary matters. These
are internal matters for the respective
organizations to handle.
The functions of the ombudsman, among
other things, include ensuring leaders do
not place themselves in a position in which
they could have a conflict of interest or
might compromise their position when
discharging their duties; to ensure they do
not use their office for personal gain or
favor for themselves or for other persons;and to examine the annual declaration ofassets and liabilities, income, businessconnections, positions etc.

2. Philippines
The ombudsman is a constitutional body.
Its independence is guaranteed in thePhilippine Constitution and has the powerof investigation and prosecution. It has
broad and comprehensive powers to
institute reforms in the bureaucracy andprosecute erring government officials. It
has a Special Prosecutor’s Office, which
prosecutes cases brought before a special
court known as the “Sandiganbayan”
which is coined from the Filipino words“sandigan” meaning “something to lean” onand “bayan” meaning “country”.
The President, on the recommendationof the Judicial Bar Council, appoints theombudsman and the members of theSandiganbayan. It is a fixed term of officeof seven years without reappointment;
removable from office only by
impeachment. As the dispenser of justice,
the ombudsman administratively sanctions
erring government officials. It also
criminally charges and prosecutes them,including private persons found to haveconspired with them.
3. Vietnam
Vietnam operates on a system that issimilar to that of an ombudsman. However,it comes under a ministry and is controlled
by a cabinet minister. It has offices set up
in the districts and receives complaints
from the citizenry. Vietnam has a Civil
Ordinance on Civil Complaints and
Denunciation, which was endorsed by the
President in May 1991. The purpose of theOrdinance is to “ensure the civil right tocomplain, to strengthen the law, promotesocialist democracy, defend the interest of
the state, the lawful rights a group/
community and the interests of the citizen.”
4. Recommendations
One of the major functions of an
ombudsman is corruption prevention. It
prevents the commission of an act by

573

RESOURCE MATERIAL SERIES No. 56
ordering or stopping the implementationof government contracts that are found to
be disadvantageous to the government. It
likewise files charges and prosecutes casesin court against public officials or private
persons found to have connived with him/
her. It also holds disciplinary authority
over all government functionaries, except
the President of the Republic or the Prime
Minister and other elective officials, or
those officials removable only from officeby impeachment. These broad powers are
inherently provided for in the Philippine
ombudsman. So, it is for these reasons thatthe creation of an ombudsman is favorably
considered as an effective means ofpreventing corruption in government. The
Papua New Guinean and the Philippine
ombudsmen could be cited here as
operating effectively in their respective
countries.
C. Access to Government
Information
People in many countries contend only
accessing part of the government’s
information through publications such as
annual reports. These publications arehelpful for people to understandgovernment activities. However, thesepublications only include limited
information on the government. Whatcitizens want to know may be excluded inthese official reports.
Since the mission of government officials
is for public service, disclosing information
possessed by the government should bepromoted for the public as a matter ofobligation of the government and as of rightto the citizen. In other words, citizen’s
rights to access government information
should be guaranteed as a basic right.
Without information as to the governments’
activities, a person cannot make ameaningful contribution on matters ofgovernment, especially on government
policies and programs. Therefore, the574

degree to which citizens are allowed accessto the information of the government, is amanifestation of a truly democratic systemof governance. However, in some countriesof the world, this right is basically
restricted, sanitized and regulated.
In most cases, the right to have accessto government information may influence
government officials to attend to theirduties honestly and fairly. Conscious ofpeople watching or monitoring government
officials through this right, people ingovernment become cautious, thus thisindirectly contributes to avoiding thecommission of irregularities or abuse of
p o w e r. S i m i l a r l y, t h e s e n s e o faccountability and responsibility of
government officials is enhanced andimproved.
Of course, not all government
information can be made available to thepeople. The law must protect some
information that is considered sensitive innature. Examples of the type of
information that a country may wish toconsider non-disclosable are;(i) Matters relating to national security,
defence and internation al relations
with the government of any othercountry or with an internationalorganization.
(ii) Trade secrets and privileged orconfidential commercial or financial
information obtained from a person
or body.
(iii) Matters to protect law enforcement
interests, such as the ongoinginvestigation and prosecution ofcrimes.
(iv) Matters to maintain personal privacy
and security of a person.
However, the wider the range of nondisclosable information becomes, the lessthe civilian’s right to have access to113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
government information is guaranteed. It
is interesting that law concerning theaccess to information held byadministrative organs in Japan prescribesthat even non-disclosable information
stipulated under this law may be disclosed
when it is deemed of public interest.
In addition, non-disclosable information
should be prescribed and clarified in detailby the laws or regulations of the country.
If we leave the range to someone’s
discretion, he/she may be pressured not todisclose the information by those who feel
it is inconvenient to publicize that
information. Furthermore, it is also
important to establish an organization,such as an information disclosure review
board, who would determine what otherinformation could be disclosed to the public.
D. Measures to Increase Public
Awareness
As government officials are consideredpublic servants of the people, the publicshould monitor whether government
officials perform their duties in pursuit of
the public interest or not. Irresponsible
activities by public officials may be
unavoidable if the public has no interestin government activities, and leave public
officials without the public’s monitoring. In
this instance, knowledge of how corruption
works, the methods used in corruption, andareas where corruption tends to occur, may
be useful for the public so as to detectcorrupt activities amongst public officials.
It is said that Hong Kong has
successfully recovered from the serious
disease of corruption amongst public
officials. The Independent Commission
Against Corruption (ICAC), established tofight corruption, has contributed
significantly to reducing corrupt activities
by public officials in Hong Kong. It has
regarded education on combating
corruption as one of the secrets of theirsuccess. The ICAC is composed of three
departments: the Operations Department,
Corruption Prevention Department, andCommunity Relations Department. The
Community Relations Department is incharge of public education efforts. The
successful experience of Hong Kong may
encourage us to educate people as acountermeasure for the corrupt activitiesof public officials.
While government needs to takeresponsibility to encourage publicawareness, the body or unit in charge ofthis responsibility is not restricted only tothe anti-corruption section of theo r g a n i z a t i o n . To p r o m o t e p u b l i cawareness, it is imperative thatgovernment take the initiative toencourage people to actively involve
themselves in government affairs of public
interest. The following means andactivities are suggested in order to increase
public awareness.
1. Educational Program in Schools
This program envisions stirring theconsciousness of the youth and imbuing inthem the profound sense of responsibility
as dynamic participants of the society byencouraging them to undertake researchand studies on prevention and control. The
Ministry or Department of Education may
develop instructional materials that will
make the students aware of andunderstand the ills of corruption, and themeans of deterring the same. Lectures anddiscussions inside classrooms may besupplemented with study-tours togovernment agencies, anti-corruption
bodies, NGOs and other organizations, tofurther broaden the youths’ knowledge of
their functions and responsibilities.
2. MediaMedia is a powerful tool for bringing
news and information to the people. It
takes the form of both written and audio-

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RESOURCE MATERIAL SERIES No. 56
visual media such as television,
newspapers, radio, computer internet, andmagazines of local, national, andinternational publications. As a tool or
instrument for information dissemination,
and as the source for such information,press freedom should not be abridged nor
curtailed by government when used to
expose anomalous activities or the
ineptitude of government officials. As such,
all media services available in the country
may be fully utilized to bring a clear
message to the public on the evils ofcorruption and its impact on good
governance.
3. Posters
The use of posters can also be very
effective in sending messages to the people.
Illustrations in the posters can convey
many messages. When posters are all over,the message will surely register in theminds of the people fast and easily. In
addition, such posters reach out even toilliterates, so they can understand what themessage is all about. Intricately designed
posters with anti-corruption slogans are
surely eye-catchers, and thus attract theinterest and attention of the public. With
this method, the people are made aware ofwhatever agenda the poster intends toconvey. The public will either start to reactor may remain unperturbed or passive.
4. Workshops, Seminars, and Public
Forums/Dialogues
People can acquire knowledge anddeepen their understanding on government
activities by attending workshops,
seminars, and public forums/dialogues. In
this regard, the public are encouraged toattend. To do that, topics of interest
affecting them and their government
should be widely published or broadcast
beforehand. Some prominent speakers ofknown probity from the public and private
sectors, NGO’s, labor unions, religious
sects, the academe and other organizations,576

such as the ICAC, community leaders orbusiness sector leaders, may be invited tobe the resource persons. Active
involvement of all sectors of the community
in government affairs, especially in
exposing or criticizing abuses ingovernment by public officials, or
discussing publicly contemplated
government projects or programs they
foresee to be disadvantageous, manifest
awareness of the public in government
operations.
5. Invitation to Join Prize Contests
This means that the public are enticed
to join prize contests such as slogan making
contests, essay contests, or poster-making
contests, all with the central topic of theevils of corruption or preventive measures
to stamp out corruption or any otherrelated subjects. This is done to arouseinterest, motivate, and encourage people
to participate actively on the subject of
corruption. This method may elicit
suggestions, new ideas, concepts andopinions from the people. Thus, it could
possibly aid legislators in making
improvements to the existing laws or tocreation of new laws or regulations thatwould improve efficiency in government
service.
6. People’s Day
This new approach called “People’s Day”
is actually practiced in the Philippines. It
was purposely installed as a system forencouraging the public to be involved ingovernment, and to consider public officials
as public servants always ready to assist
and provide efficient public service. This
practice provides the general public withthe opportunity of getting immediate
assistance and action, directly from thehead of the government agency orfunctionaries, on matters which were often
not acted on by subordinates, or oncomplaints of wrongdoing against his/her
own staff or personnel. Through this

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
system, government records, exclusive of
those categorized as top-secret or strictly
confidential and non-disclosable under thelaws of the land, are made public andpeople can ask for information or records
right there and then. In this way, thegovernment can practice transparency.
Not only the government itself but also
civilian organizations such as NGOs planthese activities. In this regard, thegovernment should provide encouragement
and extend utmost support to these
activities. People in government should
arrange for media interviews to allow free
discussion of topics of public concern, andto let the people know what theirgovernment is doing.
V. CONCLUSION
Corruption is indeed endemic in mostsocieties of the world. It knows no borders
and spreads like a virus or illness. If its
impact is so deep, a country is placed in a
no-win situation and loses structurally,
institutionally and economically. Alongthis line, this group endeavored to pinpointand determine possible preventive
measures that a country can adapt or
implement to eventually eradicate the evilsof corruption.
Management systems for personnel andestablishing ethical standards for public
officials has been given emphasis, alongwith the concepts involving activities at therecruitment stage of public officials,
training, rotation of personnel and staff,
promotion systems, improvement of work
environments, limiting the discretionry
power of officials, and the formulation of a
Code of Ethics for each country. The
existence of ethical standards for public
officials is also a meaningful way ofembodying better performance from public
officials and regulating behavior in the
public service. We opined that corruption

in government should be addressed at thestage of inception, rather than simply apply
reactive measures to prevent it.
Countermeasures to prevent corrupt
activities can also be addressed through theconduct of internal inspections ingovernment agencies and functionaries. As
such, any instance of ensuing illegal
activities or irregularities among public
officials can easily be detected andprevented. Inspections could be done either
on a scheduled basis or by random, as theneed arises. These measures are sure waysof deterring the commission ofirregularities. Officials found guilty of
misbehavior can be immediately subject todisciplinary action by the respective headsof their organization. In addition, thesanctions to be imposed may range frommere reprimand to dismissal fromgovernment service.
Introducing an ombudsman system ineach country is perhaps an act that needs
political will if such a system is to havebroad powers of investigating andprosecuting all government officials
accused of misdemeanors in public service,
such as the acts of corruption and bribery.
In some countries like Papua New Guinea
and the Philippines, their ombudsman
system is so powerful that a number ofpublic officials have been charged andpunished accordingly, as provided for bylaw. Similarly, an auditing system can bea supplemental system to further checkand correct inefficiencies by government
officials.
Finally, the freedom of the press and thepeople’s right to have access to government
information should not be abridged orcurtailed by the government. Creating
public awareness regarding corruption andirregularities in government is also one
way of preventing the incidence ofcorruption. In this regard, the group

577

RESOURCE MATERIAL SERIES No. 56
considers some measures to enhance public
involvement in creating public awareness,such as educational programs in schools,
use of the media and posters, conduct ofworkshops, dialogues or forums, theconcept of a People’s Day and others.
While we suggest countermeasures toprevent corrupt activities among public
officials in this paper, how we canguarantee implementation of thesecountermeasures is important. The device
to manage personnel and internal
inspections may contribute to detering
corrupt activities among middle and/or
lower officials. However, to monitor corrupt
activities among high-ranking officials
within the government itself may be arather difficult task.
Here, we suggest two methods to combat
corrupt activities among high-ranking
officials. One of them is to mobilize civilianpressure. Civilians need not be afraid ofrevenge for the result of their criticism of
a high-ranking official’s behavior. In thiscontext, increased awareness of monitoring
government activities among civilians isessential to deter corrupt activities. The
other method is to utilize international
conferences and international training on
the topic of combating corruption. Withrising global concern over the issue of thecorrupt activities of public officials, there
are various on-going efforts for preventing
such activities through internationalorganizations like the United Nations,OECD, Council of Europe etc. Attending
these opportunities, high-ranking officials
in each country would share ideas on theevil effects of corruption amongst public
officials. Various recommendations andsuggestions would help to facilitate thecombat of corrupt activities. Somecountries which have no or insufficientregulations and statutes on this subject
may adopt these recommendations. The
experiences of others would contribute very578

effectively to reform of their attitude
towards corrupt activities.

Fact-finding body
recommends
dismissal of report/
complaint (dropped[3B] and closed)

No probable cause or
insubstantial evidence[5B] Impose discipline
Reprimand
Admonition
CensureSuspension
Reduction of pay
Reduction of rank or position
Combination of the above[7A]

Found with mitigating/extenuating
circumstances.
Refer back to step 4B(proceed with charges for the
lower offence)[6B]

Refer to appropriate bodyfor serious offences of acriminal nature (lawenforcement/prosecutor
body)

[6C]

File appeal or motion forreconsideration:
1. Summary dismissal authority
2. High appellate body.

Respondent

Found guilty of
dismissable act.
Issue dismissal
order

[6A]

Dismissing authority(high body) conducts
dismissal proceedings,
evaluates evidence andwitnesses

[7B]

[5A]

Formal administrative
charge starts:
Respondent:
1. Furnish copy ofcomplaints
2. 72 hrs required tosubmit counter affidavits
and witnesses
3. Inform of the right tocounsel of their own choice[4B]

Non-dismissable act orminor cases

Summary dismissal
proeedings
recommended by thefact-finding body**

Dismissable act[4A]*

Preliminary inquiry - a proceeding whereby the complainant and the respondent are given the opportunity to be heard and submit their affidavits
and counter-affidavits. Purpose is to establish a prima facie case.
** Summary dismissal proceedings - an administrative process of determining whether a factual or legal basis exists to dismiss the respondent.

[2]
Head of the Agency
Initiate action
Direct fact-finding body(preliminary inquiry*)[1] Information
Suggestion box
Hotline (telephone,computer, etc.)
Officer responsible forsensitive records
Informer or informant

Substantial evidence/probable cause[3A] Fact-finding
body commences
investigation(Internal Affairs Office)

ANNEXURE ISCHEMATIC DIAGRAMADMINISTRATIVE DISCIPLINARY PROCEEDINGS

113TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

579

APPENDIXCOMMEMORATIVE PHOTOGRAPHS• 112th International Training Course• 113th International Training Course

UNAFEI

THE 112th International Training Course

Left to Right:
Above:
Siegismund (Germany), Cartwright (U.S.A), Zvekic (UNICRI)
4th Row:
Takeda (Staff), Yoshida (Staff), Imai (Staff), Tezuka (Staff), Takagi (Chef), Satou (Staff),
Gouda (Staff), Kai (Staff), Jinbo (Staff), Souma (Staff)
3rd Row:
Matsushita (Staff), Hirata (Staff), Kubo (Staff), Ono (JICA), Komori (Japan), Genidy(Egypt), Yamada (Japan), Khosla (India), Alvaro (Colombia), Jallow (Gambia), Tirant(Seychelles), Himsa (P.N.G), Igeta (Japan)
2nd Row:
Nakamura (Japan), Aswar (Indonesia), Sugawara (Japan), Uruga (Japan), Ghazali(Malaysia), Young-Hoon (R.O.K), Odongo (Kenya), Nadeem (Pakistan), Nora
(Thailand), Caparas (Philippines), Wang (China), Yoshida (Japan), Nakajima (Japan),Ram (Fiji), Tai (Hong Kong), Mukaigawa (Japan)
1st Row:
Chishima (Staff), Watanabe (Professor), Tsutomi (Professor), Aizawa (Professor),
Iitsuka (Professor), Singh (Singapore), Griffin (Australia), Kitada (Director), Fattah(Canada), Tauchi (Dep. Director), Imafuku (Professor), Satou (Professor), Nosaka(Professor), Itou (Staff), Findlay-Debeck (L.A)

THE 113th International Training Course

Left to Right:
Above:
Matsui (Japan), Abdul Aziz (Malaysia), Chan (Hong Kong), Giovacchini (France),
Piragoff (Canada)
5th Row:
Takagi (Chef), Kubo (Staff), Matsushita (Staff), Tezuka (Staff), Hirata (Staff), Satou(Staff), Kaneko (Staff), Jimbo (Staff), Okeya (Staff)
4rd Row:
Souma (Staff), Yoshida (Staff), Imai (Staff), Takeda (Staff), Chandra (India), Nihei(Japan), Li (China), Hai (Viet Nam), Kuramochi (JICA), Gouda (Staff)
3nd Row:
Yudi (Indonesia), Moratella (Philippines), Luis (Brazil), Hector (Venezuela), Hasegawa(Japan), Hinson (St. Vincent), Hatayama (Japan), Kamburi (P.N.G), Kitahara (Japan),Fujino (Japan), Pravit (Thailand), Okamura (Japan)
2th Row:
Maitland (Grenada), Bhuiyan (Bangladesh), Tanaka (Japan), Yamaji (Japan), Muraki(Japan), Onuoha (Nigeria), Asmadi (Malaysia), Sardar Raza (Pakistan), Zidan(Palestine), Nogoyev (Kyrgyz), Ujita (Japan), Suzuki (Japan), Rajapaksa (Sri Lanka)
1st Row:
Chishima (Staff), Watanabe (Professor), Nosaka (Professor), Satou (Professor), Iitsuka(Professor), Castberg (U.S.A), Kitada (Director), DeFeo (U.S.A), Tauchi (Dep. Director),
Aizawa (Professor), Tsutomi (Professor), Imafuku (Professor), Itou (Staff), FindlayDebeck (L.A)