REPORTS OF THE SEMINARGROUP 1THE USE OF COMMUNITY-BASED ALTERNATIVES AT THE PRE-TRIAL
AND TRIAL STAGES TO REDUCE OVERCROWDING IN PRISONS
Chairperson
Co-Chariperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Jagath Abeysirigunawardana
Ms. Fay Ingrid Clarke
Mr. Asghar Ali
Mr. Viet Quoc Nguyen
Mr. Joydeb Kumar Bhadra
Ms. Renny Ariyanny
Ms. Sylvia Reu
Mr. Futoshi Ichikawa
Mr. Katsuo Higuchi
Mr. Hiroshi Nakashima
Mr. Atsushi Ogata
Mr. Toru Suzuki(Sri Lanka)(Guyana)(Pakistan)(Vietnam)(Bangladesh)(Indonesia)(Papua New Guinea)(Japan)(Japan)(Japan)(Japan)(Japan)Deputy Director Takeshi Seto
Prof. Junichiro Otani
Prof. Tae Sugiyama
Prof. Ryuji Tatsuya(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
On 26 January, Group One held a meeting in the Conference Hall. Ms. Clarke nominated Mr. Jagath for thepost of Chairperson and as the participants expressed consensus, he was so elected. Similary, Ms. Clarke waselected Co-chairperson. Next, Messers. Ali and Nguyen were elected Rapporteur and Co-rapporteur, respectively.
Group One was tasked to discuss and recommend effective measures to improve the treatment ofoffenders and reduce overcrowding in prisons, through the enhancement of community-based alternatives toimprisonment at the pre-trial and trial stages.
On the first day, the main discussion of the group centered on the subject of bail. The participants who
acknowledged that the granting of bail is present in the criminal justice systems of their respective countries, also
opined that the number of benificiaries of the bail sytem is not very high. It was revealed that in some countries,
the conditions for bail are stringent and in other countries the procedure is lengthy. Moreover, in their cases,
jugdes hold very conservative mindsets and are generally reluctant to grant bail to offenders/defendants. Almost
all the participants agreed that the granting of bail on a larger scale can avoid over-crowding in prisons.
Following an animated discussion, different types of bail were then discussed. To begin with, the grantingof pre-arrest or anticipatory bail was hotly debated. It was argued that pre-arrest bail is of great value to adefendant who may need time to establish his or her innocence. It was expressed that in many developing
countries, innocent persons are sometimes falsely implicated in criminal cases. In such cases, being granted
pre-arrest bail is welcomed.
Later the discussion was focussed mainly on the power of the police to grant bail. Participants from
Bangladesh, Paksitan, Sri Lanka, Guyana and Papua New Guinea said that the police in their countries play
an extremly important role in the criminal justice system and they also have the authority to grant bail incases of minor gravity. However, another participant stated that in Indonesia, the police have the power
to release some suspects on the basis of a personal guarantee. In the case of Guyana, this is referred to as
being placed on ‘Self Bail’. Moreover, the particpant from Indonesia further stated that although the Police inthat country have the power to grant bail to suspects, they rarely exercise this discretion. Participants fromJapan stated that while their police have no power to grant bail, they do have power to release a suspect
within 48 hours, and that they freqently exercise that power. Meanwhile, the participant from Vietnam held
the firm view that only the Prosecution Office should have the final role in granting bail.

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II. POLICE DISCRETION
Discretionary powers and practices of the police were discussed to examine the present status in termsof alternatives to incarceration at the pre-trial stage. Discussions focused on the power of the police tomake an arrest, release/bail, close the case and also their role in restorative justice measures, mediation,
settlement or alternate dispute resolution.
It was learned that in all the countries representing Group I, excluding Japan, the police can make anarrest in a significant number of cases without a warrant. Usually the police can arrest a person on thegrounds of prevention and suspicion, for detention within a stipulated timeframe (which varies from 24-48
hours in most jurisdictions). However in Indonesia after an initial detention period of 20 days, a request
must be sent to the prosecutor’s office for an extension of further detention. If such extension is granted,
the suspect’s cumulative detention period cannot exceed 50 days. After an arrest, the police are required toproduce the arrestee before either the court or the prosecutor. In Vietnam, it is mandatory that all cases bereferred to the prosecutor’s office for approval.
In terms of the power of the police to release or bail a person arrested, the police have this authority inall participating countries with the exception of Japan and Vietnam. This means if it is revealed that there
is insufficient evidence to detain an arrested person the police can release the person without obtaining
permission from the court or prosecutor’s office. Furthermore, in Bangladesh, Guyana, Pakistan, Sri Lanka,Indonesia and PNG, the police can release the arrestee on bail with some conditions (such as reporting daily tothe police), if the offence committed is minor in nature and there is no substantial evidence against the accused.
During the discussions, it became clear that the police played roles at the pre-trial stage in areas which could
be considered facets of restorative justice, mediation, settlement and alternative dispute resolution. This wasspecifically so in Guyana, Sri Lanka and Papua New Guinea. In some countries, the use of these measures are
not in the legal framework but is done unofficially, as in the case of Bangladesh. In Japan where it is also doneoccasionally by Koban or Community Policing officers, the use of restorative justice, mediation and settlement(among others), will be formalized with the implementation of the Saiban-in court system. However, in somecountries, there still remains the need for legislative approval for police involvement in such initiatives.

A. Recommendations• That the police should exercise their powers of arrest with due care and any discretion used should
be within clear, legal guidelines;•

That the police should play a facilitating role in mediating settlements and or dispute resolutions,for minor offences, as they are the first point of contact for both parties involved after a crime iscommitted. Settlements should however however be subjected to proper legal supervision;•

That the police should complete investigations without delay, to minimize the detention period at thepre-trial stage.

B. NoteWith regard to the use of police discretion at pre-trial stages, the details of the content and procedure of
any agreement between two or more disputing parties should be clearly enunciated, and the community andoversight body must be informed accordingly. This measure is to provide a basis for further redress in theevent that one or more parties break the agreement.
III. SUMMARY OF DISCUSSION OF PROSECUTORIAL DISCRETION
In Bangladesh, Pakistan, Guyana and Papua New Guinea the prosecution office prosecutes cases inthe Judge, High and Supreme Courts. At the Magistrate’s Court, the police perform the function of theprosecutor. In the nations of Bangladesh, Guyana and Pakistan, the prosecutor’s office starts functioning
after receiving a complete investigative report from the police, but they can request the Police to collect
more evidence if they still feel there is scope to acquire more evidence. The prosecutor can not close any
case nor release any person on bail or guarantee.

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The participant from Papua New Guinea stated that the Police Prosecutor prosecutes all Summary cases
at the Magistrate’s Court. The public prosecutor assists the police during the prosecution of serious crimes
at the national court and with cases concerning constitutional office holders who are cited for breaches,
either by the Ombudsman’s Commission or other relevant authorities. The police, before making an arrest,or the prosecutor, during the trial process, may make a discretionary disposition because of lack of evidence.
Serious cases of corruption and fraud are also referred directly to the prosecutors by relevant authorities
such as the Fraud and Anti-Corruption Unit. There is a close relationship between the police prosecutor,
investigator and public prosecutor.
Participants from Sri Lanka, Vietnam and Indonesia stated that public prosecutors in their countries
have discretionary powers to prosecute cases and to supervise the police in the investigative process.
Public prosecutors in some countries have power to suspend prosecution because of lack of evidence andcan instruct the police to arrest or release people if they feel that the police did not complete a thoroughinvestigation. The participant from Indonesia claimed that formerly in her country, only the public prosecutor
could prosecute all cases at all court levels, but since the activation of the Anti Corruption Commission in2000, prosecutors can also prosecute corruption cases in their own court. Some government departments
also have legal authority to investigate cases related to their functions. For example, tax crimes by theTax Directorate General, illegal fishing by the Department of Fisheries and Seas, Customs, etc. However,after completing their initial investigations, the files must go to the public prosecutor who can conduct any
investigation of corruption and human rights violations. They can seize or confiscate assets or bank accounts
of a suspect and have discretionary power to prosecute or to withdraw a case and to execute the judges’decisions. There is a close relationship between the police, prosecutor, judge, and other related agencies.
Some participants from Japan stated that the police can arrest and detain a suspect for up to 48 hours,
following which the prosecutor will decide whether he or she will apply for a Detention Order from a judge.
If there is a reasonable ground to believe that the suspect will leave the jurisdiction or destroy evidence, thejudge would issue a detention order. In Japan, after ten days the prosecutor may apply for an extension ofthe detention order. The prosecutor analyses the case and makes the decision whether or not to prosecutethe suspect; even if he or she finds that the suspect is likely guilty, he or she can suspend the prosecution,
considering the character, age, environment of the suspect, and gravity, circumstances or situation of theoffence. In Japan, there is no mediation or settlement system at the pre-trial stage but if the prosecutor
thinks that the case could be dropped on condition that an agreement between the suspect and the victim
is reached, he or she suggests to the civil attorney at law, that efforts should be made to reach such anagreement. If an greement is reached, the prosecutor suspends the prosecution. It was also stated that inseveral countries, the police and prosecutor have regular meetings.

IV. SUMMARY OF INTERVENTIONS AT THE ADJUDICATION STAGE
Community-based alternatives to incarcerations which some countries apply at the adjudication stage
include verbal sanctions, suspension of sentences (suspended sentence), suspension of execution ofsentences (conditionally suspended sentences), fines, probation, and community service orders. Appendix
One illustrates the results of a “Survey of Participating Countries” and their use of various strategies
which contrubute to reduced levels of custodial sentencing. Appendix Two describes the various means bywhich the police may exercise discretionary power at the pre-trial stage. The table in Appendix One showsthat fines are used in all the participating countries, while many countries apply the method of suspendedsentences. Meanwhile, there are some countries which apply both suspended sentence and suspension of
the execution of sentence (conditional sentence). Probation is used in several countries but community
service orders are not used frequently, mainly because the society rejects such decisions and their judges
therefore rarely use this intervention.
Each country should promote community-based alternatives to incarceration as much as possible underitsown legal system, so as to decrease overcrowding in prisons. In addition, we considerd that since thepre-trial stage offers the best opportuinity to provide a greater impact on possible interventions to reduce
overcrowding, increased focus should be directed to that area. One suggestion was that mediation be more
extensively considered at the police and community policing levels. While this generated some animated andslightly heated discourse, the consensus was that the guidelines for such use must be clearly outlined in law.

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V. RECOMMENDATIONS
1. That stringent efforts be made to use alternative dispute resolution, diversion, settlement andrestorative justice practices at pre, mid and adjudication stages;
2. That alternative ‘court systems’ such as Traffic Courts, Family Courts, Minor Damage Courts, etc.
be implemented where applicable, which could free the judiciary to address indictable matters in a speedy
manner;3. That all phases of the process in respect of the investigation, prosecution and trial be executed more
efficiently;
4. That the discretionary power for the closing and/or suspension of criminal cases exercised by thepolice and prosecution should be clearly given oversight by appropriate bodies to ensure accountability andtransparency to prevent corruption;
5. That creative public awareness campaigns be undertaken to sensitize the public about the benefitsof community-based alternatives to custodial sentencing;
6. That strategies (training, increased sensitization, societal awareness, etc.) be developed toencourage every sphere of the judiciary to make greater use of the legally provided mechanisms permitting
the use of community-based alternatives to custodial sentencing in their sentencing practices;
7. That international co-operation for the provision of technical assistance and capacity building to bepursued.

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ANNEX I
Survey of Countries’ use of Various Strategies to reduce Custodial Sentencing
SUSPENSION
OF SENTENCE(SUSPENDEDSENTENCE)SUSPENSION
OF EXECUTION
OF SENTENCE(CONDITIONALSENTENCE)

FINE

PROBATION

COMMUNITYSERVICE ORDERJURY SYSTEM

Bangladesh×○○

Only for Juveniles

××Guyana○○○

After 1/3 sentenceserved×○Community service
provided onlyfor juveniles andwomen×Indonesia○○○

Before and after
trial Police andProsecutor
discretion

Pakistan○×Fine and sentence○×××○

After sometime
spent in jail○○In effect andsupervised byElders of villages
and issued by village
courtsSri Lanka○President cansuspend a deathsentence but
death sentence
is rarely used!

Minor offences○

Although in law, notpreferable choice ofjudges○Vietnam○

In effect, but
minimal usage○

××

×Japan

×○

○

○

××

P.N.G

The meaning of the symbols used in the Table are as follows:
×

○

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Not applicable to that country
Applicable to that country

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ANNEX IIBANGLADESH√√√√CHECK &BALLANCE

CLOSE A CASE

INITATEINVESTIGATIONCOUNTRYRELEASE/BAIL

ARRESTSTATUS OF POLICE DISCRETIONCOMMENT√In some cases, the police can arrest, conduct a searchwithout a warrant and initiate investigations. To closecases, they send all documents to the Magistrate to takethe final decision.

GUYANA√√√√√In some cases, the police can arrest and conduct searches
without warrants. To close some cases, they send all
documents to the public prosecutor for advice before
making a final decision.

INDONESIA√√√√√

For some cases, the police can arrest, conduct searches
without warrants and also close cases of less gravity. Forcases of higher gravity, the public posecutor has authority.

√The police need a warrant to arrest a person or to conduct
search; they can initiate investigations and release asuspect, but decisions for detention and closing a case aretaken by the prosecutor.

JAPAN×√√×

PAKISTAN√√√√√For some cases the police can arrest and conduct searches
without warrants. To close a case, they send all documents
to the magistrate and prosecutor for a final decision. If anyarrest is made in connection with a specific case, only theprosecutor can close the case.

PAPUA NEWGUIENA√√√√√For most of cases, the police can arrest but cannot conduct
a search without a warrant. To close a case, the police must
send all documents to the magistrate for a final decision.

√For some cases police can arrest or conduct searches
without a warrant; they can initiate investigations andclose some cases as mentioned in law and for other cases,
the police send all documents to the magistrate for a finaldecision.

√For some cases the police can arrest, conduct searches
without warrants but the prosecutor’s office can ratify suchdecisions later on. The public prosecutor takes the decision
to close a case.

SRI LANKA√√√√

VIETNAM√√√×

The meaning of the symbols used in the table above are as follows:×√

Not applicable in that country
Applicable in that country

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